California employers with 50 or more employees or independent contractors have been required to provide mandatory sexual harassment prevention and investigation training to their supervisors every two years commencing January 1, 2006.  

It is unlawful for any California employer “to fail to take all reasonable steps necessary to prevent discrimination and harassment for occurring.” Government Code section 12940(j), (k).    Thus, an employer who has neglected to comply with these sexual harassment training deadlines is exposed to potentially greater liability in the event of any future workplace harassment claim, since that training is by definition a reasonable preventative step against discrimination and harassment.   It behooves every covered employer to provide this required training every two years without fail.

Our harassment prevention seminar includes a live lecture, printed materials, PowerPoint presentation, harassment training video demonstrations of unlawful conduct and a session-ending investigatory scenario in which all participants can apply and demonstrate their knowledge of the fundamentals in this critical field. 

The seminar topics include:
• what constitutes unlawful harassment under current federal and California law;
• the major types of sexual harassment, such as hostile work environment harassment, and including the circumstances that will render supervisors personally liable for their actions;
• the steps all supervisors should take to prevent sexual harassment and company liability, including possible punitive damages; and
• the major do’s and don’ts in fielding a sexual harassment complaint.

Our future sexual harassment seminar dates are:

Wednesday, September 9, 2009 – 1:00 to 3:30
Thursday, November 12, 2009 – 1:00 to 3:30

Seminar Location:   Western Justice Center Foundation, 55 South Grand Avenue, Pasadena, California  91105

Please click here for details on scheduling seminars at your location within the local Los Angeles and surrounding areas: http://www.tbowleslaw.com/knowledge/harassment-seminar-onsite-form.php

Oddly enough, an employee may walk off the job and then sue his/her employer for wrongful termination.  Even though the employer did not technically fire the employee, the issue is whether employee rights permit that resignation to be treated under California law as a “constructive discharge.” 

Per the key California Supreme Court case defining and analyzing constructive discharge, Turner v. Anheuser-Busch, an employee must prove, by the “more likely than not” (preponderance of the evidence) standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable person in employee’s position would be compelled to resign.

Employees are required to notify someone in a position of authority of their plight so that employers unaware of any wrongdoing may correct a potentially destructive situation that may be affecting workplace rights. Mere existence of illegal workplace conduct does not, without more, make employment conditions intolerable to a reasonable employee.

Also, the adverse working conditions must be unusually aggravated or amount to a continuous pattern before the situation will be deemed “intolerable,” such as a repeat pattern of discriminatory acts.  Conditions, such as employment discrimination or workplace harassment must be sufficiently extraordinary and wrongful to overcome the normal motivation of a reasonable employee to remain gainfully employed.

An employee cannot simply “quit and sue” claiming his or her reasons to quit were automatically tantamount to being constructively discharged.  The proper focus is on whether the employer coerced the employee’s resignation, not whether it was simply one out of a number of viable options for the employee.

Under California law, whenever the employment relationship ends, for any reason whatsoever, and the employee has not used all of the employee’s earned and accrued vacation hours, the employer must pay the employee these hours.  As paid vacation benefits are considered wages, such pay must be included in the employee’s final paycheck with the appropriate deductions.  The employer must pay out accrued but unused vacation at the employee’s final rate of pay, regardless of the rate of pay at which it was earned.  For example, if the employee earned ten hours of vacation while making $15 per hour and who later is terminated or quits while making $20 per hour must receive $200 in vacation wages with the employee’s final paycheck.  See California Labor Code Section 227.3.

No “Use it or Lose It”:  In California, vacation pay is another form of wages which vests as the employee earns it.  Vests means the employee has lawfully earned the wages.  Accordingly, it is illegal to deny an employee earned vacation pay not used by a specified date (“use it or lose it”) under California law.

California’s Division of Labor Standards Enforcement (DLSE) has repeatedly found policies requiring all vacation taken in the year it is earned (or in a very limited period following the accrual period) are unfair and unenforceable.

However, the DLSE does recognize vacation accrual policies which cap how much vacation time may continue to accrue.  Thus, a sample vacation policy in an employee handbook might state, “The maximum vacation benefit for which an employee is eligible at any point is one and one-half year’s vacation pay at the employee’s current yearly accrual rate.  Once that maximum has accrued, no further vacation time or benefit will accrue until the employee has used some of the time, reducing the total time available below the current maximum.  At such time, the employee resumes accrual of vacation time up to a point where the maximum is again reached.”

Employers may also refuse to pay employees with money in lieu of vacation time, except upon termination of employment.

Under California law, if an employer requires an hourly California employee to attend an out-of-town business meeting, training session, or any other event, the employer is obligated to pay for the employee’s time getting to and from the location of that event. Time spent driving, or as a passenger on an airplane, train, bus, taxi cab or car, or other mode of transport, in traveling to and from the out-of-town event, and time spent waiting to purchase a ticket, check baggage, or get on board, is, under such circumstances, time spent carrying out the employer’s directives, and thus, is characterized as time in which the employee is subject to the employer’s control. Such compelled travel time therefore constitutes compensable “hours worked.”

On the other hand, time spent taking a break from travel in order to eat a meal, sleep, or engage in purely personal pursuits not connected with the traveling or making necessary travel connections, is not compensable.

For local work assignments, when an employee is intermittently required to report directly from home to a work site other than the company’s office, the employer must pay the employee travel time for any time in excess of the employee’s normal commute time to and from the regular site.  If an employee is routinely directed to report to one outside work site or a succession of them (or to return straight from such site(s) to home at the end of the work period), then that employee’s normal commute time is the duration of each such trip [regardless if the time varies to/from home and various sites] and no such time is considered compensable work time.

The employer may establish a different pay scale for travel time (not less than minimum wage) as opposed to the regular work time rate. The employee must be informed of the different pay rate for travel before the travel begins.  

With the exception of specific vehicle operating expenses (including gas, maintenance, insurance) if the company’s travel expense policy authorizes an adequate “per mile” rate for such operations (as set by the IRS), the company’s travel policy must also reimburse for all out-of-pocket business-related travel expenses incurred in the course of an employee’s work time.

Most employment agreements typically contain an arbitration clause.  This requires that any employment-related dispute that cannot be resolved by direct communication or other informal means is to be arbitrated instead of going to court.  Arbitration is a form of private dispute resolution that takes the place of a lawsuit and court trial.

Arbitration has many business-related advantages, including a process much more efficient than the often-prolonged procedures of the courts.  Thus, employers naturally favor this alternative.  The key is ensuring the terms of the arbitration are enforceable.

Many employers make the mistake of providing an “arbitration clause” in employment applications or contracts without attention to the very specific requirements of California and/or other applicable law.  If a court finds that the arbitration agreement is so one-sided in favor of the employer as to be “unconscionable” (i.e., there is no equal bargaining power, no meaningful choice and the terms are grossly unfair to the employee), the court can refuse to enforce the arbitration clause.

Moreover, the applicable California law on unconscionable arbitration agreements continues to change, with major Supreme Court decisions on the subject over the last several years.