SCOTUS Rules that ADEA Applies to Small State Offices

On November 6, 2018, the U.S. Supreme Court ruled that the Age Discrimination in Employment Act (ADEA) extends to small state and local government employers, rejecting an Arizona fire district’s contention that the statute should apply only to public entities with at least 20 employees.

In a unanimous 8-0 decision, the court upheld the Ninth Circuit’s decision to reopen a lawsuit by two firefighter captains who claim they were illegally terminated by the Mount Lemmon Fire District near Tucson, Arizona, because of their age. John Guido and Dennis Rankin were working as full-time firefighter captains and were the two oldest full-time employees at the district when they were fired. Guido and Rankin were ages 46 and 54, respectively, when they were let go in 2009.

Age Discrimination in Employment Act (ADEA)

The Age Discrimination in Employment Act of 1967 is the federal statute at hand in this case. The ADEA defines “employer” as “a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year … The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States.”

This definition is the result of a 1974 amendment; before then, the ADEA applied to private employers of 25 employees or more, and expressly excluded public employers. The act defines “person” as “one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized groups of persons.”

Circuit Court Split 

ADEA

The Equal Employment Opportunity Commission (EEOC) has long maintained that the ADEA covers state and local employers of any size and thus found reasonable cause to believe the fire district had discriminated against Guido and Rankin. But the district court, following the U.S. Courts of Appeals for the 6th, 7th, 8th and 10th Circuits, held that the ADEA’s 20-employee threshold applies to state and local employers. On appeal, the Ninth Circuit created a circuit split last year by ruling that a political subdivision of a state need not have 20 or more employees to qualify as an employer subject to the ADEA.

During oral arguments on October 1, SCOTUS attempted to determine if the statutory language “also means” makes political subdivisions a wholly separate category of employer subject to the ADEA’s requirements, or whether it merely clarifies that state and local employers should be treated in the same fashion as private companies under the ADEA. The Court ruled 8-0 Tuesday that employers like the Mount Lemmon Fire District – state or local government entities with fewer than 20 workers – can be sued under the ADEA.

Justice Ruth Bader Ginsburg delivered the Court’s opinion affirming the Ninth Circuit. Ginsburg wrote that the statute’s text leaves “scant room for doubt that state and local gov­ernments are ‘employer[s]’ covered by the ADEA regard­less of their size…§630(b)’s two-sentence delineation, and the expression ‘also means’ at the start of the second sentence, combine to establish separate categories: persons engaged in an industry affecting com­merce with 20 or more employees; and states or political subdivisions with no attendant numerosity limitation,” Ginsburg said.

Kingsley & Kingsley – Experienced California Employment Lawyers

It is important to remember that not all illegal age bias is blatant. Even something meant to be harmless, such as a question about future retirement plans or a comment about professional longevity, could be used against you. If you are a victim of age discrimination, the California employment lawyers at Kingsley & Kingsley can help. Should you have questions about discrimination or retaliation in the workplace, call and speak to an experienced California lawyer toll-free at (888) 500-8469 or click here to contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

 

independent contractor uber

Class Certification Reversed in Cases Against Uber

Class Certification Reversed in Consolidated Appeals Against Uber

On September 25, 2018, a Ninth Circuit panel 1) reversed the district court’s denial of Uber Technologies, Inc.’s motions to compel arbitration, 2) reversed the district court’s class certification orders, and 3) reversed as moot and without foundation the district court’s Fed. R. Civ. P. 23(d) orders in several putative class actions. The class actions were brought by current and former Uber drivers alleging violations of various federal and state statutes arising from Uber’s classification of drivers as independent contractors rather than employees.

The four consolidated appeals included O’Connor v. Uber Technologies, Inc.; Yucesoy v. Uber Technologies, Inc.; Mohamed v. Uber Technologies, Inc.; and Del Rio v. Uber Technologies, Inc. Litigation involving Uber’s business model and worker classification has garnered much attention over the past five years with numerous decisions from district and Ninth Circuit courts.

Background   class certification

The cases above began when two Uber drivers filed a class action against the company in August 2013 (the O’Connor action) alleging claims for failure to give the entire gratuity paid by customers to drivers in violation of the California Labor Code (tip claim) and for misclassifying the drivers as independent contractors and not paying their business expenses (for vehicles, gas and maintenance), also in violation of the California Labor Code (expense reimbursement claim). Shortly after the filing, the O’Connor plaintiffs sought to foreclose or limit Uber’s use of its arbitration agreement. The district court granted the plaintiffs’ request in part, enjoining Uber from enforcing its arbitration agreement and requiring enhanced notice of opt-out provisions and extension of the opt-out periods.

Plaintiff Abdul Mohamed filed a putative class action against Uber and an independent background check company on Nov. 24, 2014, raising a variety of federal and California state claims, including under the Fair Credit Reporting Act. The district court denied Uber’s motion to compel arbitration based on its 2013 and 2014 arbitration agreements, finding in part that the arbitration provisions were unconscionable.

Ninth Circuit Opinion

Writing for the majority, Judge Richard R. Clifton began the opinion by acknowledging that in Mohamed v. Uber, 848 F.3d 1201, 1206 (9th Cir. 2016), the same panel (judges Richard Tallman, Clifton and Sandra Ikuta) reversed the district court’s orders denying Uber’s motion to compel arbitration. The panel rejected plaintiffs’ additional arguments in this current appeal alleging that the arbitration agreements were unenforceable.

First, the plaintiffs argued that the lead plaintiffs in the O’Connor case constructively opted out of arbitration on behalf of the entire class. The panel held this was unpersuasive because nothing gave the O’Connor lead plaintiffs the authority to take that action on behalf of and binding other drivers, and the decision in Bickerstaff v. Suntrust Bank, 788 S.E.2d 787 (Ga. 2016), was not instructive where it relied exclusively on state law grounds and did not discuss the Federal Arbitration Act.

Second, the plaintiffs argued that the arbitration agreements were unenforceable because they contained class action waivers that violated the National Labor Relations Act of 1935. The panel held that this argument was rejected by the Supreme Court in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018). The panel held that it had jurisdiction to review both the original class certification order and the December 9, 2015 certification order. The panel held that in the wake of the decision in Mohamed, the class certification orders must be reversed because they were premised upon the district court’s conclusion that the arbitration agreements were not enforceable. The question whether those agreements were enforceable was not properly for the district court to answer because the question of arbitrability was designated to the arbitrator.

The panel held that remand for further proceedings was appropriate, and leaving the existing class certification orders in place in the meantime was not appropriate. The panel held that the district court’s Fed. R. Civ. P. 23(d) orders must be reversed as moot and without foundation in light of the panel’s reversal of the district court’s orders denying the motions to compel arbitration and certifying the class.

California Employment Laws and Class Certification

California employers and employees alike should understand the nuances of class certification and individual arbitration agreements.  As Uber cases around the country reach resolution, don’t hesitate to contact leading employment lawyers at Kingsley & Kingsley with any questions you might have. Call toll-free at (888) 500-8469 or click here to contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

California Law Firm Los Angeles

Target Sued by EEOC For Disability Discrimination

EEOC Report – Antioch Store Illegally Refused to Interview Candidate Because He Is Deaf

According to the U.S. Equal Employment Opportunity Commission (EEOC), national retailer Target Corporation violated federal law when it failed to interview a qualified job applicant because he is deaf. The EEOC’s investigation revealed that John Hayes applied online for an entry-level front clerk position at Target’s Antioch, California store in September 2014. Hayes was qualified for the job and when Target’s HR representatives called Hayes’s number, they reached a Video Relay Service (VRS), which enables him to communicate with hearing people using a sign language interpreter. His phone records show that Target called twice and hung up both times without leaving a message, a deviation from their usual practices. Each time Hayes returned the call, he spoke to an HR representative who informed him that Target would call back to schedule an interview. However, Target never scheduled the interview but instead hired seven non-disabled applicants to fill vacancies in its Antioch store between October 23 and October 31.

Americans with Disabilities Act (ADA)   

ADA disability discrimination

Americans with Disabilities Act  – The ADA prohibits discrimination against people with disabilities in several areas, including employment, transportation, public accommodations, communications and access to state and local government’ programs and services. As it relates to employment, Title I of the ADA protects the rights of both employees and job seekers. The ADA makes it unlawful to discriminate against people with a disability, a record of a disability, or who are regarded as having a disability. Further, the ADA requires employers to provide reasonable accommodations to employees absent an undue hardship.

Since rejecting a qualified applicant because of disability violates the Americans with Disabilities Act (ADA), the EEOC filed suit in U.S. District Court for the Northern District of California. The EEOC’s lawsuit seeks lost wages, front pay, compensatory and punitive damages and injunctive relief designed to prevent such discrimination in the future. The EEOC filed the suit after first attempting to reach a pre-litigation settlement through its conciliation process.

William Tamayo, the EEOC’s San Francisco District Office director remarked, “Mr. Hayes had a successful 17-year career with a major medical provider before he retired…He was stunned to discover that Target wouldn’t even interview him for an entry-level clerk position after learning he was deaf. Congress enacted the ADA to prevent just this sort of thing — employers refusing to consider qualified individuals because of their disability.”

EEOC Trial Attorney Debra Smith added, “This is the second lawsuit we’ve filed this month on behalf of a qualified deaf applicant denied the opportunity to interview, and we just announced a settlement obtaining $88,000 and a job position for another qualified deaf job seeker. These are candidates with valuable skills and experience, and it is wrong to shut them out of the workplace based on fears and stereotypes about being deaf.”

According to company information, Target Corporation operates 1,839 stores and 39 distribution centers in the United States, with headquarters in Minneapolis, and employs 350,000 workers worldwide. The Antioch Slatten Ranch Store, Target Store No. 1819, employs approximately 300 workers in the Antioch area.

Questions about Disability and Discrimination

Should you have questions about ADA or disability discrimination don’t hesitate to contact leading California employment lawyers at Kingsley & Kingsley. Call and speak to an experienced California lawyer toll-free at (888) 500-8469 or contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

employment background check

California Supreme Court Rules on Background Check Standards

ICRAA vs. CCRAA – California Employers To Comply With Strictest Background Check Standard

In a recent case, Connor v. First Student, Inc., the California Supreme Court ruled that an employer obtaining an investigative background check must comply with the stricter of two related general consumer and credit reporting state laws—the Investigative Consumer Reporting Agencies Act (ICRAA) over the Consumer Credit Reporting Agencies Act (CCRAA). The ICRAA requires employers, lenders, and landlords who frequently conduct background checks to obtain the individual’s prior written authorization before conducting the check. The August 20th unanimous decision will impact those under these two laws when making any number of hiring, employment, credit, and housing decisions.

The case that led to a definitive decision involved 1,200 bus drivers who filed suit against First Student, Inc., claiming that the company violated the state background check law. The employees pointed to the company’s actions with respect to the 2007 acquisition of LaidLaw International, Inc., where First Student retained third-party HireRight Solutions to run background checks on the thousands of acquired employees. The background reports elicited information about the employees, including criminal records, sex offender registries, address history, driving records, and employment history.

The two credit reporting laws at hand in this case are the ICRAA and CCRAA. The ICRAA covers background checks in employment background checkwhich information on a consumer’s “character, general reputation, personal characteristics, or mode of living” is obtained through any means. Among other things, ICRAA requires the person procuring the report to certify that they made certain required disclosures, and that the consumer gave written authorization for the report’s procurement. The CCRAA, on the other hand, covers information “bearing on a consumer’s credit worthiness, credit standing, or credit capacity,” and does not have a written authorization requirement.

California Supreme Court

At issue, in this case, were the employment background checks that called on both credit reporting laws because they obtained information relating both to character and creditworthiness of the applicants. The employer, relying on prior case law, argued that the overlap between these two laws renders the ICRAA unconstitutionally vague whenever the CCRAA also might apply. The California Supreme Court rejected that argument and the prior case law, stating:
“In interpreting ICRAA and CCRAA, we agree with the Court of Appeal and find that potential employers can comply with both statutes without undermining the purpose of either. If an employer seeks a consumer’s credit records exclusively, then the employer need only comply with CCRAA. An employer seeking other information that is obtained by any means must comply with ICRAA. In the event that any other information revealed in an ICRAA background check contains a subject’s credit information and the two statutes thus overlap, a regulated party is expected to know and follow the requirements of both statutes, even if that requires greater formality in obtaining a consumer’s credit records (e.g., seeking a subject’s written authorization to conduct a credit check if it appears possible that the information ultimately received may be covered by ICRAA).”

California Employment Law

California employers should review recruitment policies, procedures and forms to ensure they adhere to both credit and background reporting laws above, especially the ICRAA which requires prior authorization. Should you have questions about employment background checks, ICRAA or CCRAA, don’t hesitate to contact leading employment lawyers at Kingsley & Kingsley. Feel free to call us toll-free at (888) 500-8469 or click here to contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

harassment arbitration agreement

Notable Workplace Harassment Bills Passed by the Legislature

Sexual Harassment Bill – AB 1867

On August 24, 2018 AB 1867 was passed by the California General Assembly and is awaiting signature by Governor Jerry Brown. If signed by Governor Brown, AB 1867 will add Government Code section 12950.5 to the Fair Employment and Housing Act (FEHA) and would require employers of 50 or more employees to maintain internal records of complaints alleging sexual harassment for five years after the date the complainant or any alleged harasser leaves the company—whichever date is later.

Existing law requires California employers to maintain anti-harassment policies that inform employees of the complaint process available to them. The new law would permit the state Department of Labor to seek an order compelling any employer to comply with the record-keeping requirement and mandate that records of the complaints alleging sexual harassment must be maintained for the employment-plus-five-year period. AB 1867 defines an “employee complaint” as one filed through the employer’s “internal complaint process.”

Unenforceable Contracts That Waive a Right to Testify – AB 3109  harassment arbitration agreement

Also awaiting Governor Brown’s review and signature is AB 3109, which would void any contractual provision that waives a party’s right to testify about criminal conduct or sexual harassment by the other contracting. As it relates to workplace harassment and similar situations, this bill declares that any settlement provision that would prevent a person from testifying about criminal conduct or sexual harassment in a judicial, administrative, or legislative proceeding is void and unenforceable, so long as the person was required or requested to appear at the proceeding. This provision requires that the person appears and testifies pursuant to a subpoena or court order in the case of a judicial proceeding, or in response to a written request in the case of an administrative or legislative hearing. In other words, a person who signed a settlement agreement to refrain from speaking about certain matters would not be free to breach that confidentiality by voluntarily showing up and speaking at a public hearing. While this bill will not outlaw non-disclosure agreements, it will limit their scope so that victims and witnesses could never be prevented from testifying in legal or legislative proceedings when asked to do so.

Prohibition of Mandatory Arbitration Agreements – AB 3080

The Legislature passed AB 3080 on August 27, 2018. This bill would outlaw mandatory arbitration agreements between businesses and employees or independent contractors, and thus ensure that harassment complaints get aired in public lawsuits instead of private arbitrations. Per the Senate’s analysis of AB 3080, This bill addresses two legal tactics, commonly used in relation to employment contracts, that can be and have been exploited to silence victims and witnesses of workplace sexual harassment: (1) the inclusion of non-disparagement clauses; and (2) forcing workers to sign mandatory arbitration agreements. As to the first tactic, this bill tries to limit abuse of non-disparagement agreements by making it unlawful for employers to prohibit workers from disclosing an instance of sexual harassment, opposing an unlawful practice, or participating in any investigation relating to harassment or discrimination. As to the second tactic, since current federal case law strongly favors enforcement of mandatory arbitration agreements, even when used to keep allegations of sexual harassment from becoming public, California cannot outlaw or discriminate against such agreements. Instead, this bill ensures that California workers who sign agreements to waive their rights to any particular forum or procedure for dispute resolution do so voluntarily and that those who elect not to sign such agreements are not subjected to retaliation as a result.

California Employment Law

Leading California employment lawyers at Kingsley & Kingsley will continue to monitor these bills until Governor Brown takes action. In the meantime, if you have any questions about California’s wage and hour laws, contact Kingsley & Kingsley to speak with one of our experienced labor lawyers.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

sexual harassment

Sexual Harassment in California

The Primary Laws that Define Sexual Harassment in California

California law prohibits sexual harassment of all types in the workplace and goes as far as requiring employers to train supervisors on how to prevent and deal with sexual harassment. At the state level, the California Department of Fair Employment and Housing (DFEH) sets forth and enforces sexual harassment laws. California regulations define sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser. Prohibited actions include but are not limited to the following behavior:

  • Visual conduct: leering, making sexual gestures, displaying of sexually suggestive objects or pictures, cartoons or posters.
  • Verbal conduct: making or using derogatory comments, epithets, slurs and jokes. Verbal abuse of a sexual nature, graphic verbal commentaries about an individual’s body, sexually degrading words used to describe an individual.
  • Physical conduct: touching, assault, impeding or blocking movements.
  • Offering employment benefits in exchange for sexual favors.
  • Making or threatening retaliatory action after receiving a negative response to sexual advances.

Quid Pro Quo vs. Hostile Work Environment

Under the California Fair Employment and Housing Act, sexual harassment in employment takes two forms: quid pro quo (literally, “something for something”) harassment and hostile work environment harassment.

Quid Pro Quo Harassment

Quid pro quo harassment occurs when a supervisor requires a subordinate to submit to sexual advances by threatening the subordinate with an adverse employment action, such as a bad review, demotion, or termination. These kinds of situations can be expressly communicated or implied, and usually take one of two forms:

  • An offer – The employer or supervisor offers a job benefit—like a raise or a promotion—in exchange for some kind of sexual conduct on the part of the employee.
  • A threat – The employer or supervisor makes a threat of a work-related punishment—like a demotion, pay reduction, or termination—unless the employee gives in to the employer or supervisor’s sexual demands.
    The threat or offer can be either express or implied, meaning the mere discussion of sexual acts or behavior that could lead to sexual acts can suggest an offer or threat.

Quid pro quo harassment can only be committed by a supervisor, manager, or another employee who is in a position to take some tangible employment action against the victim. Coworkers who are on equal footing and who demand sexual favors are not engaging in quid pro quo harassment. However, they may be responsible for creating a hostile work environment as described below.

sexual harassment california

Hostile Work Environment

Hostile work environment sexual harassment occurs when the victim’s work environment is made hostile, offensive, oppressive, intimidating, or abusive due to repeated “pervasive” sexual harassment. Unlike quid pro quo harassment, any employee can create a hostile work environment. Because conduct must be “pervasive,” there usually must be more than one instance of unlawful conduct to create a hostile work environment. To make a case under this theory, victims must show a concerted pattern of harassment of a repeated, routine, or a generalized nature. Also, the harassing conduct doesn’t have to be specifically targeted at an individual. In other words, one employee who observes another employee engaging in sexually harassing conduct may have his own claim of hostile environment sexual harassment.

California courts have laid out several factors to determine the degree of pervasiveness of the sexual harassment, including:

  • Nature of the conduct – California courts look at the degree of offensiveness of the behavior. Generally, acts like physical touching are more offensive than unwelcome verbal or written abuse. The more offensive the conduct, the less often it needs to occur to be considered “pervasive.”
  • Frequency – California courts consider how often the offending conduct occurred. A daily occurrence of sexual harassment is more likely to constitute “pervasive” behavior than acts that happen once a month or less.
  • Number of days – California courts count or approximate the total number of days over which all of the offensive conduct occurs.
  • Context – California courts look at the context in which the sexually harassing conduct occurred. Some situations may mitigate the degree of pervasiveness or offensiveness of the sexual conduct.

Suing for Damagers

Employers, supervisors, and coworkers can be liable to the victim for several types of damages. In actions under the Fair Employment and Housing Act, victims may seek:

  • Compensatory damages
  • Emotional distress damages
  • Punitive damages
  • Attorney fees and costs
  • Injunctive relief

What to do if you are a victim of sexual harassment

There are numerous steps to take if you are the victim of sexual harassment. First, make sure you document the actions taken against you and report it to the both your supervisor and appropriate human resources staff member.  If no action is taken, you should consider seeking out an employment lawyer who can guide you through the regulatory process and associated timelines. For example, under the Fair Employment and Housing Act, a claim of unlawful sexual harassment must be filed with DFEH within one year of the unlawful conduct. If a right-to-sue letter is issued by the DFEH, employees then have one year to bring a civil lawsuit. To assert a sexual harassment claim under Title VII, employees have 300 days from the date of the unlawful act to bring a claim with the Equal Employment Opportunity Commission (often called the “EEOC”). If the EEOC issues a right-to-sue letter, the employee must file their civil lawsuit within 90 days, or they could lose their right to sue the harasser.

California Employment Lawyers

An attorney can advise you on your alternatives including whether the conduct you experienced in the workplace amounts to sexual harassment. The lawyers with Kingsley & Kingsley located in Los Angeles, California have a wealth of experience fighting for victims of sexual discrimination and harassment. Call and speak to an experienced California lawyer toll-free at (888) 500-8469 or contact us via email here.

Kingsley & Kingsley
16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)