New DFEH E-Filing System Launched

New DFEH E-Filing System

California’s Department of Fair Employment and Housing is rolling out a new DFEH e-filing system on Tuesday November 21, 2017. The new online case filing and case management system is called the Cal Civil Rights System (CCRS). It replaces the Houdini case filing system, which goes away as of 6 p.m. tomorrow. Users must create an account in the new system.

The DFEH promises the system is “designed to guide users through the filing process.” People can use If you would like to become familiar with the system before it launches, use this link to access the CCRS portal user guide.

CCRS allows filers to schedule an intake interview at the time of filing. Complainants, respondents, and representatives who create accounts in the system can:

  • View the status of cases they are involved in,
  • Send notes to DFEH staff, and
  • Upload documents directly into the case file.

The new DFEH e-filing system conforms to existing confidentiality protections. It does not permit parties to view documents or notes submitted by others.

Existing cases transfer automatically into the new system. Next week parties can contact their investigator to link an existing case to a newly created CCRS account.

DFEH will continue modifying CCRS “to respond to changes in the law, advances in accessibility technology, and the needs of the public.”

Discrimination, Retaliation or Harassment Claims

If you have difficulty filing a case in CCRS and need to meet a statutory deadline, send paper inquiry form and email it to contact.center@dfeh.ca.gov. DFEH still accept complaints and inquiries filed by mail, by email (contact.center@dfeh.ca.gov), in person, or by phone at 844-541-2877 (voice), 800-700-2320 (TTY) or California’s Relay Service at 711. The DFEH also offers free and on-demand interpretation of more than 240 languages for callers who need language assistance.

Having used Houdini several times in the past, hopefully the new DFEH e-filing system will improve some of the bugs. Houdini always seemed a bit antiquated, particularly when compared to the EEOC online filing system.

If you need help filing or responding to a discrimination, retaliation or harassment claim with the DFEH, contact a knowledgeable attorney.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Ban the Box Goes Statewide

Over the last few years, we’ve seen an increase in “ban the box” legislation. Ban the box refers to employers forcing applicants to divulge information about criminal convictions before the employer even considers the applicant. Governor Brown recently signed legislation prohibiting employers from asking about criminal convictions before the employer makes an employment offer.

Why is Ban the Box Important?

According to AB 1008, “Roughly seven million Californians, or nearly one in three adults, have an arrest or conviction record that can significantly undermine their efforts to obtain gainful employment.” AB 1008 emphasizes the importance of employment in reducing recidivism, and the impact a job can have on formerly incarcerated persons and their families. The bill also cites experts who claim “that people with conviction records have lower rates of turnover and higher rates of promotion on the job.”

The EEOC previously determined that a blanket rule against hiring persons with criminal convictions has an adverse impact on persons of color.

Other Ban the Box Legislation

In 2013, the State of California passed a Ban the Box law passed that only applied to certain public employers. That same year five states have adopted fair chance hiring laws covering private employers. In 2015, President Obama directed all federal agencies to Ban the Box and refrain from asking applicants about their convictions on the initial job application.

Since then, 29 states and over 150 cities and counties have adopted a Ban the Box law. Over 300 companies have signed the White House Fair Chance hiring pledge. Nine states and 15 major cities, including Los Angeles and San Francisco, adopted fair chance hiring laws that cover both public and private sector employers. Over 20 percent of the United States population now lives in a state or locality that prohibits private employers from inquiring into an applicant’s record at the start of the hiring process.

California’s Ban the Box Law

Effective January 1, 2018, it is an unlawful employment practice for private employers with 5 or more employees “To include on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that seeks the disclosure of an applicant’s conviction history.”

Employers may not “inquire into or consider the conviction history of the applicant” until after the employer makes a conditional offer of employment.

Employers cannot “consider, distribute, or disseminate information” about arrests that did not result in a conviction, referral or participation in a diversion program, or “convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.”

What can an employer do? After making a conditional offer of employment, employers can conduct background checks. If the background check reveals a conviction, the employer can “make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” In making the assessment, the employer must consider all of the following:

  1. The nature and gravity of the offense or conduct.
  2. The time that has passed since the offense or conduct and completion of the sentence.
  3. The nature of the job held or sought.

The employer can, but does not have to, “commit the results of this individualized assessment to writing.” It will be easy enough to create a criminal conviction consideration form for employers to use in their assessment.

What if the Employer Decides Not to Hire?

If the employer decides not to hire the applicant based on the criminal history, the employer must “notify the applicant of this preliminary decision in writing.” The notification must contain all of the following:

  1. Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.
  2. A copy of the conviction history report, if any.
  3. An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond.

The explanation must also advise the applicant that the applicant’s response can include evidence challenging the accuracy of the conviction history report. The applicant then has 5 days to respond to the notice. If the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history report, then applicant gets an additional 5 business days to respond to the notice.

The employer has to consider the information submitted by the applicant before making a final decision. If the employer ultimately denies employment because of the applicant’s conviction history (even if that is only part of the reason), the employer must notify the applicant in writing of all the following:

  1. The final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification.
  2. Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.
  3. The right to file a complaint with the Department of Fair Employment and Housing.

Exceptions to California’s Ban the Box Law

California’s Ban the Box law does not apply in any of the following positions:

  1. When a state or local agency is otherwise required by law to conduct a conviction history background check.
  2. Criminal justice agency positions under Penal Code Section 13101.
  3. Farm Labor Contractors under Labor Code Section 1685.
  4. Where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.

The latter category could include:

  • Home Care Organizations hiring home care aides;
  • Childcare and Education services such as daycare workers, school staff
  • Healthcare such as  nurses, doctors
  • Financial Services such as financial advisors, credit experts
  • Government Workers such as police officers, mayors
  • Some Information and Technology such as systems managers, computer analysts, that have access to private information.

Employers will need to rethink and modify their hiring practices and employment applications. The new law impacts every employer with more than 5 employees.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

 

 

Retaliation Claims Get Stronger

Governor Brown just signed SB-306, which significantly strengthens retaliation claims. Employers cannot discharge, discriminate, retaliate, or take adverse action against employees because they engaged in specified protected conduct. Aggrieved employees can seek reinstatement and reimbursement for lost wages and work benefits. Employees can file claims with the Labor Commissioner or pursue a case in court.

Retaliation Claims by Labor Commissioner

Under amdned Labor Code 98.7, the Labor Commissioner can pursue retaliation claims even if no one complains.

The division may, with or without receiving a complaint, commence investigating an employer, in accordance with this section, that it suspects to have discharged or otherwise discriminated against an individual in violation of any law under the jurisdiction of the Labor Commissioner.

The Labor Commissioner can petition the court for injunctive relief, including reinstatement. The court must order injunctive relief if “reasonable cause exists to believe that an employee has been discharged or subjected to adverse action for raising a claim of retaliation or asserting rights under any law under the jurisdiction of the Labor Commissioner.” The court must consider the “chilling effect” on other employees when determining the appropriate injunctive relief.

An employer that refuses to comply with the injunctive relief can be fined “one hundred dollars ($100) per day for each day the employer continues to be in noncompliance with the court order, up to a maximum of twenty thousand dollars ($20,000)

Retaliation Claim Process

New Labor Code section 98.74 describes specific timelines and processes for retaliations claims by the Labor Commissioner. The Labor Commissioner issues a citation in writing, describing the nature of the violation and the amount of wages and penalties due. The citation must also include any and all appropriate relief, such as cease and desist orders, rehiring or reinstatement, reimbursement of lost wages and interest thereon, and posting notices to employees.

Employers have 30 days to request  hearing, or the citation becomes final. The hearing must proceed within 90 days. There is no mechanism for conducting discovery before the hearing, and no limit on how short or how long a hearing can last. The decision must be issued within 90 days of the conclusion of the hearing. The decision must contain a statement of findings, conclusions of law, and an order.

Employers dissatisfied with the results can file a writ of mandate with the superior court within 45 days. Employers must also obtain a bond “equal to the total amount of any minimum wages, liquidated damages, and overtime compensation” owed.  The bond does not have to include penalties. The order becomes final when no writ is filed.

Employers refusing to comply with a final order are subject to penalties of $100 per day per employee, up to $20,000. The affected employees receive the penalties.

Retaliation Claims by Employees

SB-306 allows employees bringing retaliation claims to include requests for injunctive relief. Courts are directed to issue injunctive relief (i.e., reinstatement) when “reasonable cause exists to believe a violation has occurred.”

The court is must consider the “chilling effect” on other employees.

The new law will go into effect January 1, 2018. You can read the full text of the bill here.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties

$90,000 Lesson Regarding Rejecting Offers

Aleksei Sviridov learned a harsh lesson after rejecting offers from the defendant in his lawsuit. Aleksei sued his former employer, the City of San Diego and the San Diego Police Department, for discrimination and other claims. Defendants made several CCP Section 998 offers, which Aleksei rejected. When Aleksei lost his claims on summary judgment, the defendants asked the court to award their costs. The trial and appellate courts award defendants over $90,000.00 in costs.

Normally, in a discrimination case, the employee is only responsible for the employer’s costs and fees if the claims are frivolous. The same rule applies to claims under the Public Safety Officers Procedural Bill of Rights Act. There was no finding that Aleksei’s claims were frivolous. So how come the court awarded defendants $90,000? Here’s the lesson regarding rejecting offers.

Lesson Regarding Rejecting Offers

CCP Section 998 is a cost-shifting statute. Used wisely, it can require the plaintiff to pay the defendant’s costs if the plaintiff fails to obtain a more favorable judgment. Section 998 encourages settlement by forcing parties to seriously consider reasonable offers.

A plaintiff who refuses a reasonable pretrial settlement offer and subsequently fails to obtain a “more favorable judgment” is penalized by a loss of prevailing party costs and an award of costs in the defendant’s favor.’ ” (Guerrero v. Rodan Termite Control, Inc. (2008) 163 Cal.App.4th 1435, 1440.)

Rejecting offers after a 998 offer can be quite costly. Just ask Aleksei.

When California’s discrimination laws adopted the “frivolous” standard for awarding the employer’s costs, many assumed employees would not have to worry about excessive fees or costs. Under Sviridov v. City of San Diego, section 998 offers trump the FEHA statute. This is definitely a situation where bad cases make bad law. Apparently Aleksei did not respond substantively to the City’s argument that FEHA does not trump section 998.

Rather, he asserted, with no analysis or citation to legal authority, “just as [Williams, supra, 61 Cal.4th 97], precludes a prevailing defendant from recovering costs under section 1032, subd[ivision] (b),” then “so does Williams preclude a … successful defendant from recovering as a prevailing party under … section 998.” We deem the failure to support this statement with reasoned argument a forfeiture.

In other words, Aleksei provided no authority or substantive analysis upon which the court could rule in Aleksei’s favor. This not only hurt Aleksei’s case, it also made it more difficult for future employees.

I expect we’ll see more 998 offers in discrimination cases, and plaintiffs will once again need to carefully consider whether they can do better than the offer before rejecting offers out of hand.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Expensive Disability Accommodation Lesson

Caltrans in Nevada County learned the hard way that you cannot ignore an employee disability accommodation requests. More importantly, you can’t retaliate against an employee for requesting an accommodation. An article in the Sacramento Bee provides many of the details. I’ve written several articles regarding the importance of proper accommodation policies and procedures in the workplace.

Employee Awarded $3million in Disability Accommodation Lawsuit

John Barrie claimed his supervisors harassed him and ignored his requests for accommodations related to his allergies. Mr. Barrie has severe reactions to certain smells, such as chemical cleaners and perfumes. Although Nevada County Caltrans accommodated Mr. Barrie for years, Barrie alleged supervisors started harassing him and denying the disability accommodations in 2010. Barrie allegedly sought help internally through various channels, but the harassment continued. The jury believed Mr. Barrie, and awarded him $3million for the retaliation and harassment related to his allergies.

Allergies Can Constitute a Disability

State and federal laws broadly define “disability.” In short, a disability is any medical condition–psychological or physiological–that impairs one or more major life functions. Severe allergies can impair major life functions such as breathing. Some people experience severe skin rashes, headaches, nausea and vertigo from allergic reactions.

Disability discrimination laws require employers to provide reasonable accommodations for persons with disabilities. Failing to provide reasonable accommodations, and in some instances failing to engage in the interactive process of determining what disability accommodations are appropriate, is a violation of the law.

From the pleadings, it appears Caltrans HR department tried to accommodate Mr. Barrie. A regional administrator affirmed his allergies in 2011, and wrote an order compelling workplace accommodations. Barrie alleged his supervisors ignored the order, and retaliated against Barrie by giving him job duties outside his normal scope and moving him to less convenient job sites.

Every Disability Accommodation Request is Serious

Supervisors oftentimes fail to recognize they must treat every disability accommodation request seriously. While HR may know the requirements, ensuring supervisors comply with the law can be difficult. In Barrie’s case, an HR note revealed that Barrie’s supervisors wanted to discipline Barrie for going to HR because he went outside the “chain of command.” I suspect this factored heavily in the juries $3million award. Employers cannot retaliate against employees for requesting accommodations or raising complaints in the workplace.

If you require a workplace accommodation, or if your employee requests an accommodation, talk with an attorney familiar with disability accommodation and discrimination issues.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

EEOC Sues Over Employee Post on Glassdoor.com

EEOC Sues IXL Learning Inc. for Retaliating Against Employee Who Posted Negative Comments on Glassdoor.com

The EEOC announced that it filed a lawsuit against IXL Learning Inc. for allegedly violating federal law. According to the EEOC, IXL retaliated against an employee for accusing the company of discriminatory practices on Glassdoor.com.  The employer allegedly fired an employee within minutes of confronting the employee about a negative review he posted on Glassdoor.com.

According to the EEOC’s press release, “the 32-year-old transgender man, fueled by a belief that IXL was discriminating against him, had written, “If you’re not a family-oriented white or Asian straight or mainstream gay person with 1.7 kids who really likes softball – then you’re likely to find yourself on the outside … Most management do not know what the word ‘discrimination’ means, nor do they seem to think it matters.”’  The employee also felt IXL treated his request to telecommute (due to post-operative recovery after gender confirmation surgery) differently from similar requests by two coworkers (due to situations related to their opposite-sex spouses). “Given these experiences, Duane posted on Glassdoor.com in opposition to what he regarded as discrimination, and was fired for doing so.”

Retaliation for Posting on Glassdoor.com

Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA), prohibit firing an employee for opposing discrimination. This includes posting criticisms online. The EEOC’s lawsuit seeks lost wages, compensatory and punitive damages and injunctive relief designed to prevent discrimination in the future. There is no mention whether the company will seek damages against the employee for potentially defamatory statements.

William Tamay, the EEOC’s San Francisco District Office director, reports “Retaliation is the No. 1 basis for charges filed with the EEOC, comprising over 45% filings nation­wide … Under the EEOC’s Strategic Enforcement Plan, it is a priority to defend employees’ rights to speak out and challenge practices that they believe to be illegal discrimination.”

EEOC Trial Attorney Ami Sanghvi added, “While the platforms for employees to speak out against discrimination are evolving with technology, the laws against retaliation remain constant. If an employee reasonably believes that illegal discrimination occurred, the EEOC will vigorously defend that worker’s right to raise the issue, whether they do so by filing a charge with our agency, notifying company management or posting in a public arena such as Glassdoor.com.”

 

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice about wage and hour or other employment law issues, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

New Anti-Harassment Regulations

New Anti-Harassment Regulations In Effect

Effective April 2016, the Fair Employment and Housing Commission adopted new regulations regarding sexual harassment in the workplace. Employers have an affirmative duty to create a workplace environment that is free from sexual harassment and other employment practices prohibited by the Fair Employment and Housing Act. The new anti-harassment regulations provide clarity, but also create some ambiguity. Employers who have not modified their handbooks to comply with the new regulations could find themselves in trouble.

What Must Be Included in Policies Under the New Anti-Harassment Regulations?

In addition to distributing the Department’s DFEH-185 brochure on sexual harassment, all employers must develop a written harassment, discrimination, and retaliation prevention policy that lists all current protected categories covered under the Act. The list is ever-growing, so it is important to list all protected categories.

The anti-harassment policy must indicate that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the Act. The new anti-harassment regulations also require employers to create a complaint process to ensure that complaints receive:

(A) An employer’s designation of confidentiality, to the extent possible;
(B) A timely response;
(C) Impartial and timely investigations by qualified personnel;
(D) Documentation and tracking for reasonable progress;
(E) Appropriate options for remedial actions and resolutions; and
(F) Timely closures.

The regulations don’t define “qualified personnel,” but it likely refers to the same persons that can conduct sexual harassment prevention training, or other persons trained to conduct investigations. The new regulations beg the question of whether an existing employee can ever truly be “impartial.”

Anti-Harassment Complaint Process

The complaint mechanism cannot require an employee to complain only to his or her immediate supervisor. Other individuals, such as the following, must be available to receive complaints:

(A) Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or
(B) A complaint hotline; and/or
(C) Access to an ombudsperson; and/or
(D) Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.

The new anti-harassment regulations require supervisors to report any complaints of “misconduct” to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training. The regulations do not define “misconduct,” but the term is arguably broader than complaints about sexual harassment.

Not surprisingly, when an employer receives allegations of misconduct, it must conduct a “fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.” The regulations do not, however, define what constitutes “due process.” Additionally, I guarantee there will be litigation over whether the conclusions reached are “reasonable,” and “based on the evidence collected.”

The policies must state that “confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.” The policy must also state “that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.”

Finally, the policy must make it clear that “employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.” Again, note that the anti-harassment regulation is not limited to complaints about harassment. Arguably, employers cannot retaliate against an employee because the employee participates in any “workplace investigation.”

Disseminating Policies Under the New Anti-Harassment Regulations

The new anti-harassment regulations also dictate how the policy must be provided to employees:

(1) Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return;
(2) Sending the policy via e-mail with an acknowledgment return form;
(3) Posting current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies;
(4) Discussing policies upon hire and/or during a new hire orientation session; and/or
(5) Any other way that ensures employees receive and understand the policies.

Any employer whose workforce at any facility or establishment contains 10 percent or more of persons who speak a language other than English as their spoken language shall translate the policy into every language that is spoken by at least 10 percent of the workforce.

The new regulations can be found at Cal. Code Regs., tit. 2, § 11023

If you haven’t updated your handbook recently, now is a good time to review the policies to ensure your handbook complies with the new regulations.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties

IMDb Halts Age Discrimination Law

New Age Discrimination Law in the Entertainment Industry

In 2016, the California legislatures passed AB 1687, “to ensure that information obtained on an Internet Web site regarding an individual’s age will not be used in furtherance of employment or age discrimination.”  The statute prevents IMDb from publishing factual information (information about the ages of people in the entertainment industry) on its website for public consumption. Although Governor Brown signed the new age discrimination law, IMDb sued the government, arguing the statute violated its first amendment rights.

Injunction Prohibiting Enforcement of Age Discrimination Law

On February 22, 2017, U.S. District Court Judge Vince Chhabria issued an injunction prohibiting the government from enforcing the statute. According to Judge Chhabria’s order, “it’s difficult to imagine how AB 1687 could not violate the First Amendment.” Although the government established a valid “goal” of limiting age discrimination, the government failed to show that the restriction is “actually necessary” to serve a compelling government interest. The government “presented nothing to suggest that AB 1687 would actually combat age discrimination (much less that it’s necessary to combat age discrimination).” The court held “there is an exceedingly strong likelihood that IMDb will prevail in this lawsuit.”

So, for the time being, IMDb can continue to publish the ages of actors. I guess Hollywood will have to find another way to combat age discrimination in the entertainment industry. The judge’s order, although not the conclusion of the litigation, is a definite preview of how the court views this new age discrimination law.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

 

Marlon Wayans Accused of Discrimination

Discrimination in the Movies

In a recent case before the 9th Circuit Court of Appeals, an actor working as an extra in a Marlon Wayans movie (A Haunted House 2) claims he was the victim of racial discrimination and harassment. According to Pierre Daniel, the alleged victim, during his one day of work on the movie he was compared to a Black cartoon character and called “ ‘[n]igga.’ ” Wayans filed an anti-SLAPP motion claiming Daniel’s claims arose from Wayans’s constitutional right of free speech. Wayans argued the comments were protected. He claimed the “core injury-producing conduct” arose out of the creation of the movie and its promotion over the Internet.  The trial court agreed with Wayans finding Daniel failed to establish the probability of prevailing on any of his claims.  The trial court entered judgment for Wayans, awarding him attorney fees.

On appeal, Daniel argued that the conduct at issue was not part of the “ ‘creative process’ ” inherent in making the movie because it occurred when the cameras were not rolling. Daniel claimed the comments did not involve the right of free speech or an issue of public interest.  Daniel also argued that even if the statements implicated Wayans’s right to free speech, Daniels established a probability of prevailing.  The 9th Circuit rejected Daniels argument and  affirmed judgment for Wayans.

Marlon Wayans (Wayans) co-wrote, produced, and starred in the movie, which came out in 2014.

Discrimination and Harassment in the Entertainment Industry

This is not the first time the entertainment industry avoided discrimination and harassment claims based on the “creative process.” In 2006, the California Supreme Court threw out a sexual harassment lawsuit against the makers of the hit comedy “Friends”, ruling that vulgar and coarse comments by the show’s writers reflected the “creative workplace” for a comedy with sexual themes.

Employers should not see these decisions as free license to allow racists or sexually inappropriate comments in the workplace. Employers have an obligation to provide a workplace free of sexually or racially inappropriate comments. These “entertainment” cases are outliers resulting from the unique circumstances in the studios. If the same comments were made on a factory floor or a typical office environment, I suspect the court would have gone the other way.

I will use this case in the sexual harassment prevention trainings to emphasize the importance of maintaining an appropriate work environment. The alleged comments occurred in 2013. Four years later Wayans and the other defendants were still defending the case. You can expect they spent hundreds of thousands of dollars to achieve a favorable result. Although the court ordered Daniels to pay Wayans’s attorneys fees, what are the chances that the movie extra has the ability to pay those fees?

If you have a question about inappropriate workplace conduct, contact the Nuddleman Law Firm, P.C. We help employers and employees in a wide range of employment disputes, including race and gender discrimination claims.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Fair Pay Act Investigations

California recently enacted new standards to combat discriminatory pay practices. California’s Fair Pay Act prohibits paying any employee less than the amount paid to employees of the opposite sex, race or ethnicity for doing “substantially similar work.” Employers have the burden of demonstrating that pay differential are based entirely and reasonably upon:

  • Seniority system, merit system, or system that measures earning by quantity or quality of production; or
  • Bona fide factor that is not based on or derived from sex-based differential compensation and that is job-related and consistent with business necessity.

Fair Pay Act Presentation

I recently attended a great presentation sponsored by the Alameda County Bar Association where Hillary Benham-Baker, Jamie Rudman and Carolyn Rashby did an excellent job describing the interplay between the various state and federal statutes, regulations and orders regarding equal pay. Jamie described a speaking engagement where Julie Su, California’s Labor Commissioner, discussed enforcing California’s Fair Pay Act. The Labor Commissioner discussed what questions Deputy Labor Commissioners would typically ask during Fair Pay Act investigations to determine what constitutes “substantially similar work.” I asked Jamie’s permission to share the information, as they represent excellent questions employers should ask themselves when evaluating whether they are complying with the law.

Fair Pay Act Questions To Determine What Constitutes “Substantially Similar Work”

·         What are the actual tasks performed for each job?  What percentage of time is spent on each?

·         What experience, training and education are required for each job?

·         What knowledge is required to perform each job?

·         What kinds and amounts of physical and/or mental effort are required for each job?  Is one job more physical difficult or stressful?

·          What programs, equipment, tools or products are required for each job? What training is needed to use the programs, equipment, tools or products?

·         What is the working environment?  Does one job involve an exposure to hazards or damages?

·         Does one job require supervision of other employees?

·         What is the difference in terms of the job obligations, levels of authority and/or degrees of accountability?

·         What are the programs, equipment, tools or products used for each job?

·         What kinds and amounts of physical and/or mental effort required for each job?

Employers need to understand what constitutes substantially similar work so they can properly evaluate whether or why employees should be paid the same. Pay disparities must be justified by legitimate business reasons.

If you have questions about equal pay, fair pay or any other employment-related issues, contact me at your convenience.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.