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The California Court of Appeal has decided that the state’s workplace anti-discrimination lawdid notprotect a former Los Angeles Police Department volunteer police reserve officer.Estrada v. City of Los Angeles,published July 24, 2013. However, the result would likely be the opposite for a private business in similar circumstances.
The California Court of Appeal has decided that the state’s workplace anti-discrimination law did not protect a former Los Angeles Police Department volunteer police reserve officer. Estrada v. City of Los Angeles, published July 24, 2013. However, the result would likely be the opposite for a private business in similar circumstances.
Mr. Estrada, although termed under city rules a “volunteer” for his work with LAPD and although he specifically served without compensation, asserted that he should be considered an “employee” under the California Fair Employment and Housing Act (FEHA) since the City of Los Angeles paid to cover him for workers’ compensation insurance. Mr. Estrada alleged the City of Los Angeles discriminated against him in violation of FEHA due to his physical disability.
If a California business has five or more employees, FEHA protects against any such worker’s termination due to race, national origin, gender, religion, physical or mental disability or any other classification protected from discrimination by that law.
The FEHA statute specifies that “employees” are entitled to such protections but does not actually define what that word means. Mr. Estrada, although termed under city rules a “volunteer” for his work with LAPD, asserted that he should be considered a FEHA “employee” since the City of Los Angeles paid to cover him for workers’ compensation insurance.
Mr. Estrada had a seemingly strong legal position from prior published California appeals court decisions. Those cases observed that where an employer chooses to cover a volunteer under workers’ compensation, FEHA protections should extend to that person as well.
However, the court concluded that the City of Los Angeles had a countervailing special right, granted by the California Constitution, to regulate and control its internal affairs, including its role as an employer. The city’s rules designated persons appointed to the police reserve as “volunteer workers only and … not deemed … employees of the City …” except for workers’ compensation benefits. The court concluded it could not interfere with the city’s power to define “employee” and “volunteer” in any manner it chose.
Thus, Mr. Estrada only lost his case due to special constitutional rights of “charter cities,” including Los Angeles, as governmental bodies. On the other hand, the decision indicates that a private business with five or more persons on payroll and which chooses to cover its “volunteers” for workers compensation will also be obligated to comply with FEHA for those persons as well.
This Estrada decision is also a reminder to private businesses to ensure they are only classifying those individuals as volunteers who are truly providing some service or assistance without contemplation or receipt of remuneration. A court or agency may well conclude that a person labeled “volunteer” is actually an employee if he/she is actually obtaining or expecting to obtain material benefits from the work. The Estrada Court observed: “Even substantial indirect compensation can satisfy the threshold requirement of remuneration for purposes of employee status under [the anti-discrimination law]. If not direct salary, substantial benefits which are not merely incidental to the activity performed, such as health insurance, vacation or sick pay, are indicia of employment status.” (Emphasis in original.)
For more perspective and help on the distinction between employees and volunteers or on FEHA’s application to California employers, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.
Super-Sized Supervisor Definition
Super-Sized Supervisor Definition
Under federal and California law, employer liability for workplace harassment can depend entirely on the legal definition of a “supervisor.” The U.S. Supreme Court has recently clarified that definition under Title VII of the Civil Rights Act of 1964 in Vance v. Ball State University (June 24, 2013).
Narrow Definition for “Supervisor” under Federal Law: Indiana’s BSU employed catering assistant Maetta Vance, an African-American female. She sued employer BSU alleging her white female supervisor Saundra Davis created a racially hostile work environment in violation of Title VII. That federal law makes it an unlawful employment practice for an employer to discriminate – and by extension, to harass – a worker because of his/her race, color, religion, sex, or national origin. Vance alleged Davis would glare at her, slam pots and pans in her vicinity and “intimidate” her. She claimed Davis would often give her “weird” looks and would stand there with her catering cart “smiling.”
The case focused whether BSU could be held automatically (vicariously) liable even if BSU had had no notice of Davis’s actions and thus no opportunity to investigate and halt any unlawful conduct. If Davis had been Vance’s supervisor for purposes of Title VII, then BSU could be vicariously liable for such harassment. If, however, Davis was Vance’s co-worker, then BSU would only be liable if it negligently controlled working conditions (e.g., if the university had some notice of the alleged hostile environment and yet had done nothing effective to stop it).
As the lower court held BSU had responded reasonably to the incidents of which it was aware, BSU’s liability in this case depended solely on whether Davis was a supervisor or merely a co-worker.
Before this Vance decision, the federal courts defined whether an alleged harasser was a “supervisor” under Title VII in either of two ways. Some courts held an employee is not a supervisor unless he or she has the power to hire, fire, demote, promote, transfer, or discipline the alleged victim. Other courts adhered to the Equal Employment Opportunity Commission’s (EEOC) more open-ended approach which ties supervisor status to the ability to exercise “significant discretion” over the alleged victim’s daily work.
BSU argued it could not be held vicariously liable for the alleged harassment because Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. Vance argued Davis was a supervisor because Davis had the authority to control Vance’s daily activities and evaluate her performance, thus falling within the EEOC’s open-ended definition of a supervisor.
The U.S. Supreme Court agreed with BSU in holding an employee is a “supervisor” under Title VII only if the employer empowers that person to take “tangible employment actions” against the other, e.g., authority to hire, fire, demote, promote, transfer, or discipline. Thus, BSU was not liable with respect to Davis’ alleged conduct.
California’s Broader Definition of Supervisor is Likely Unaffected: Although this is an important decision affecting workplace harassment cases brought under Title VII, it will likely have little to no impact on employment discrimination cases brought under California’s Fair Employment and Housing Act (FEHA).
FEHA specifically defines “supervisor” more broadly as any person having the authority to hire, transfer, discharge other employees, or the responsibility to direct them, adjust their grievances, or effective to effectively recommend tangible employment actions. Thus, under FEHA, a person such as Davis tasked with the responsibility to direct an employee’s daily duties (i.e. a team leader) is a “supervisor” even if lacking direct authority to hire, fire, promote or transfer the employee.
Minimally, all American employers no matter where located should train their supervisors to recognize and prevent harassing conduct and closely monitor co-worker interactions to ensure a safe, harassment-free working environment.
For help to employers on how to structure, administer or enforce proper policies and handbooks to avoid expensive lawsuits, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.
Super-Sized Supervisor Definition
Super-Sized Supervisor Definition
Under federal and California law, employer liability for workplace harassment can depend entirely on the legal definition of a “supervisor.” The U.S. Supreme Court has recently clarified that definition under Title VII of the Civil Rights Act of 1964 in Vance v. Ball State University (June 24, 2013).
Narrow Definition for “Supervisor” under Federal Law: Indiana’s BSU employed catering assistant Maetta Vance, an African-American female. She sued employer BSU alleging her white female supervisor Saundra Davis created a racially hostile work environment in violation of Title VII. That federal law makes it an unlawful employment practice for an employer to discriminate – and by extension, to harass – a worker because of his/her race, color, religion, sex, or national origin. Vance alleged Davis would glare at her, slam pots and pans in her vicinity and “intimidate” her. She claimed Davis would often give her “weird” looks and would stand there with her catering cart “smiling.”
The case focused whether BSU could be held automatically (vicariously) liable even if BSU had had no notice of Davis’s actions and thus no opportunity to investigate and halt any unlawful conduct. If Davis had been Vance’s supervisor for purposes of Title VII, then BSU could be vicariously liable for such harassment. If, however, Davis was Vance’s co-worker, then BSU would only be liable if it negligently controlled working conditions (e.g., if the university had some notice of the alleged hostile environment and yet had done nothing effective to stop it).
As the lower court held BSU had responded reasonably to the incidents of which it was aware, BSU’s liability in this case depended solely on whether Davis was a supervisor or merely a co-worker.
Before this Vance decision, the federal courts defined whether an alleged harasser was a “supervisor” under Title VII in either of two ways. Some courts held an employee is not a supervisor unless he or she has the power to hire, fire, demote, promote, transfer, or discipline the alleged victim. Other courts adhered to the Equal Employment Opportunity Commission’s (EEOC) more open-ended approach which ties supervisor status to the ability to exercise “significant discretion” over the alleged victim’s daily work.
BSU argued it could not be held vicariously liable for the alleged harassment because Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. Vance argued Davis was a supervisor because Davis had the authority to control Vance’s daily activities and evaluate her performance, thus falling within the EEOC’s open-ended definition of a supervisor.
The U.S. Supreme Court agreed with BSU in holding an employee is a “supervisor” under Title VII only if the employer empowers that person to take “tangible employment actions” against the other, e.g., authority to hire, fire, demote, promote, transfer, or discipline. Thus, BSU was not liable with respect to Davis’ alleged conduct.
California’s Broader Definition of Supervisor is Likely Unaffected: Although this is an important decision affecting workplace harassment cases brought under Title VII, it will likely have little to no impact on employment discrimination cases brought under California’s Fair Employment and Housing Act (FEHA).
FEHA specifically defines “supervisor” more broadly as any person having the authority to hire, transfer, discharge other employees, or the responsibility to direct them, adjust their grievances, or effective to effectively recommend tangible employment actions. Thus, under FEHA, a person such as Davis tasked with the responsibility to direct an employee’s daily duties (i.e. a team leader) is a “supervisor” even if lacking direct authority to hire, fire, promote or transfer the employee.
Minimally, all American employers no matter where located should train their supervisors to recognize and prevent harassing conduct and closely monitor co-worker interactions to ensure a safe, harassment-free working environment.
For help to employers on how to structure, administer or enforce proper policies and handbooks to avoid expensive lawsuits, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.
San Diego Mayor Bob Filner resigns todayin the wake of sexual harassment allegations from some 18 women over recent weeks. These include aformer communications director, his former deputy campaign manager, a retired admiral, the president of the San Diego Port Tenants Association, a dean at San Diego State University, the director of government and military education at San Diego City College, a school psychologist, and a vocational nurse.The allegations includegroping, headlocks, choke holds, b
San Diego Mayor Bob Filner resigns today in the wake of sexual harassment allegations from some 18 women over recent weeks. These include a former communications director, his former deputy campaign manager, a retired admiral, the president of the San Diego Port Tenants Association, a dean at San Diego State University, the director of government and military education at San Diego City College, a school psychologist, and a vocational nurse. The allegations include groping, headlocks, choke holds, blocking women from leaving his office, using visits from lobbyists to bargain for sexual favors, and preying on women at an event for sexually abused military personnel.
Michelle Taylor, the licensed vocational nurse, has been one of the most vocal accusers. At an August 6, 2013 news conference, flanked by her attorney Gloria Allred, Ms. Tyler claimed she met with the mayor on June 11, 2013 for his help with the Veterans Administration for a disabled former Marine injured while serving in Iraq. According to Ms. Tyler, Mayor Filner agreed to help so long as she agreed to have sex with him in return. She recalled the mayor began rubbing her arm while stating, “Relax, you are incredible. I will help your veteran. I want you to go out to dinner with me and spend time with me.” He allegedly asked if she was married and announced he would really like to be seen in public with her. Ms. Tyler asserted Mayor Filner also asked if he could call her and stated, “If we were not here in my office I would like to kiss you.”
At that conference, Ms. Allred stated, “Many people ask for help from their elected officials. To use his power as the Mayor of the City of San Diego to satisfy his sexual needs is clearly improper and should not be tolerated. This case is extremely serious as it involves conduct by Mayor Filner in the performance of his duties that clearly shows his abuse of power and his penchant to use his office to satisfy his sexual needs.”
It is illegal in California for a workplace supervisor to request sexual favors in exchange for job security, benefits or advancement (“quid pro quo,” Latin for “this for that” or “something for something”) Examples are a supervisor giving an employee benefits conditioned on sexual favors, offering to promote a subordinate if he/she will date the supervisor, or promising a pay raise in exchange for sex, threatening to fire or demote an individual if she or he refuses to sleep with the boss.
A California employer is strictly liable for its supervisor’s or agent’s quid pro quo damages an employee incurs as a result of a supervisor or agent’s quid pro quo sexual harassment. California employers are also required to take all reasonable steps to prevent any kind of harassment from occurring, including a written policies and supervisor and worker instruction. California Government Code 12950.1 requires any employer with 50 or more total employees and/or associated independent contractors to formally train its supervisors within six months of hiring or promotion and then every other year on sexual harassment prevention, investigation and resolution.
For employer assistance on harassment prevention and handling issues, including provision of the supervisor training required under Government Code 12950.1, contact our firm’s attorneys Tim Bowles or Cindy Bamforth.
Related Articles:
“Embarrassing, Disruptive and Expensive to Resolve, Harassment in the Workplace is Illegal”
“Employer Liability for Workplace Harassment”
“Promoting Workplace Productivity with a Sound Policy Handbook and Forms”
“Fair and Balanced – Harassment and Discrimination Workplace Investigations”
“When It’s Time to Contact an Employment Lawyer”
San Diego Mayor Bob Filner resigns todayin the wake of sexual harassment allegations from some 18 women over recent weeks. These include aformer communications director, his former deputy campaign manager, a retired admiral, the president of the San Diego Port Tenants Association, a dean at San Diego State University, the director of government and military education at San Diego City College, a school psychologist, and a vocational nurse.The allegations includegroping, headlocks, choke holds, b
San Diego Mayor Bob Filner resigns today in the wake of sexual harassment allegations from some 18 women over recent weeks. These include a former communications director, his former deputy campaign manager, a retired admiral, the president of the San Diego Port Tenants Association, a dean at San Diego State University, the director of government and military education at San Diego City College, a school psychologist, and a vocational nurse. The allegations include groping, headlocks, choke holds, blocking women from leaving his office, using visits from lobbyists to bargain for sexual favors, and preying on women at an event for sexually abused military personnel.
Michelle Taylor, the licensed vocational nurse, has been one of the most vocal accusers. At an August 6, 2013 news conference, flanked by her attorney Gloria Allred, Ms. Tyler claimed she met with the mayor on June 11, 2013 for his help with the Veterans Administration for a disabled former Marine injured while serving in Iraq. According to Ms. Tyler, Mayor Filner agreed to help so long as she agreed to have sex with him in return. She recalled the mayor began rubbing her arm while stating, “Relax, you are incredible. I will help your veteran. I want you to go out to dinner with me and spend time with me.” He allegedly asked if she was married and announced he would really like to be seen in public with her. Ms. Tyler asserted Mayor Filner also asked if he could call her and stated, “If we were not here in my office I would like to kiss you.”
At that conference, Ms. Allred stated, “Many people ask for help from their elected officials. To use his power as the Mayor of the City of San Diego to satisfy his sexual needs is clearly improper and should not be tolerated. This case is extremely serious as it involves conduct by Mayor Filner in the performance of his duties that clearly shows his abuse of power and his penchant to use his office to satisfy his sexual needs.”
It is illegal in California for a workplace supervisor to request sexual favors in exchange for job security, benefits or advancement (“quid pro quo,” Latin for “this for that” or “something for something”) Examples are a supervisor giving an employee benefits conditioned on sexual favors, offering to promote a subordinate if he/she will date the supervisor, or promising a pay raise in exchange for sex, threatening to fire or demote an individual if she or he refuses to sleep with the boss.
A California employer is strictly liable for its supervisor’s or agent’s quid pro quo damages an employee incurs as a result of a supervisor or agent’s quid pro quo sexual harassment. California employers are also required to take all reasonable steps to prevent any kind of harassment from occurring, including a written policies and supervisor and worker instruction. California Government Code 12950.1 requires any employer with 50 or more total employees and/or associated independent contractors to formally train its supervisors within six months of hiring or promotion and then every other year on sexual harassment prevention, investigation and resolution.
For employer assistance on harassment prevention and handling issues, including provision of the supervisor training required under Government Code 12950.1, contact our firm’s attorneys Tim Bowles or Cindy Bamforth.
Related Articles:
“Embarrassing, Disruptive and Expensive to Resolve, Harassment in the Workplace is Illegal”
“Employer Liability for Workplace Harassment”
“Promoting Workplace Productivity with a Sound Policy Handbook and Forms”
“Fair and Balanced – Harassment and Discrimination Workplace Investigations”
“When It’s Time to Contact an Employment Lawyer”
2013 brings more changes on the notices that must be posted and the pamphlets that must be distributed in California workplaces. These include:
2013 brings more changes on the notices that must be posted and the pamphlets that must be distributed in California workplaces. These include:
– Pregnancy Leave and Family Leave Notices: Any California employer with five or more persons on payroll is subject to the pregnancy disability leave (PDL) law . Any California employer with 50 or more on payroll must comply with the California Family Rights Act (CFRA). Effective December 30, 2012, employers must post updated notices on employee rights and responsibilities under the PDL (Notice A) and the CFRA (Notice B).
– Non-Discrimination and Non-Harassment Notices, Pamphlets: California’s Fair Employment and Housing Act (FEHA) prohibits workplace discrimination on the basis of “sex,” previously defined to include gender, pregnancy, childbirth, and medical conditions related to pregnancy or childbirth. The Legislature expanded the definition in 2012 to include breastfeeding and related medical conditions. As a result, employers must post new a version of the workplace non-discrimination notice.
– Anti-Human Trafficking Postings: As mentioned in “New Labor Laws for 2013: Slavery and Human Trafficking Notice Required for Some Businesses,” certain types of businesses will need to post a notice with specific information about slavery and human trafficking. This law was effective January 1, 2013. The California Department of Justice is developing a model notice, due by April 1, 2013.
These are just the highlights. California and the federal government require employers to post and otherwise provide their workers with a range of printed statements and information on workplace laws and required procedures, available online from such agencies as the California Department of Fair Employment and Housing (DFEH), California’s Employment Development Department (EDD), the California Department of Industrial Relations (worker’s compensation), the California Industrial Welfare Commission (IWC) (wage orders), and the U.S. Department of Labor.
Businesses may purchase a wide-ranging California and federal employment notices poster for 2013 through the California Chamber of Commerce website.
Our firm’s attorneys Tim Bowles or Cindy Bamforth can assist you in implementing or revising workplace policies as appropriate to ensure compliance with these requirements.
Effective January 1, 2013, a new California law,Civil Code section 52.6, requires specified businesses and other establishments to conspicuously post a notice guiding the public to report suspected slavery and human trafficking. The places affected include:
Effective January 1, 2013, a new California law, Civil Code section 52.6, requires specified businesses and other establishments to conspicuously post a notice guiding the public to report suspected slavery and human trafficking. The places affected include:
– Restaurants
– Urgent care and emergency room facilities
– Privately operated job recruitment centers
– Commercial airports, rail stations, bus stations and truck stops
– “Adult or sexually oriented businesses” (as defined by Penal Code section 318.5)
– Businesses offering “massage or bodywork services” from uncertified message therapists
– Farm labor contractors
The notice must be at least 8.5” x 11” with 16-point font and state:
“If you or someone you know is being forced to engage in any activity and cannot leave—whether it is commercial sex, housework, farm work, construction, factory, retail, or restaurant work, or any other activity—call the National Human Trafficking Resource Center at 1-888-373-7888 or the California Coalition to Abolish Slavery and Trafficking (CAST) at 1-888-KEY-2-FRE(EDOM) or 1-888-539-2373 to access help and services.
Victims of slavery and human trafficking are protected under United States and California law.
The hotlines are:
·Available 24 hours a day, 7 days a week.
·Toll-free.
·Operated by nonprofit, nongovernmental organizations.
·Anonymous and confidential.
·Accessible in more than 160 languages.
·Able to provide help, referral to services, training, and general information.”
The notice must be in English, Spanish and at least one other language that is “the most widely spoken” in the county where the establishment is located.
The California Department of Justice will develop and make a model notice available online by April 1, 2013.
The state is authorized to fine any business or other establishment that remains in non-compliance 30 days after a written warning ($500 first offense, $1,000 each subsequent offense).
Effective January 1, 2013, a new California law,Civil Code section 52.6, requires specified businesses and other establishments to conspicuously post a notice guiding the public to report suspected slavery and human trafficking. The places affected include:
Effective January 1, 2013, a new California law, Civil Code section 52.6, requires specified businesses and other establishments to conspicuously post a notice guiding the public to report suspected slavery and human trafficking. The places affected include:
– Restaurants
– Urgent care and emergency room facilities
– Privately operated job recruitment centers
– Commercial airports, rail stations, bus stations and truck stops
– “Adult or sexually oriented businesses” (as defined by Penal Code section 318.5)
– Businesses offering “massage or bodywork services” from uncertified message therapists
– Farm labor contractors
The notice must be at least 8.5” x 11” with 16-point font and state:
“If you or someone you know is being forced to engage in any activity and cannot leave—whether it is commercial sex, housework, farm work, construction, factory, retail, or restaurant work, or any other activity—call the National Human Trafficking Resource Center at 1-888-373-7888 or the California Coalition to Abolish Slavery and Trafficking (CAST) at 1-888-KEY-2-FRE(EDOM) or 1-888-539-2373 to access help and services.
Victims of slavery and human trafficking are protected under United States and California law.
The hotlines are:
·Available 24 hours a day, 7 days a week.
·Toll-free.
·Operated by nonprofit, nongovernmental organizations.
·Anonymous and confidential.
·Accessible in more than 160 languages.
·Able to provide help, referral to services, training, and general information.”
The notice must be in English, Spanish and at least one other language that is “the most widely spoken” in the county where the establishment is located.
The California Department of Justice will develop and make a model notice available online by April 1, 2013.
The state is authorized to fine any business or other establishment that remains in non-compliance 30 days after a written warning ($500 first offense, $1,000 each subsequent offense).
2013 brings more changes on the notices that must be posted and the pamphlets that must be distributed in California workplaces. These include:
2013 brings more changes on the notices that must be posted and the pamphlets that must be distributed in California workplaces. These include:
– Pregnancy Leave and Family Leave Notices: Any California employer with five or more persons on payroll is subject to the pregnancy disability leave (PDL) law . Any California employer with 50 or more on payroll must comply with the California Family Rights Act (CFRA). Effective December 30, 2012, employers must post updated notices on employee rights and responsibilities under the PDL (Notice A) and the CFRA (Notice B).
– Non-Discrimination and Non-Harassment Notices, Pamphlets: California’s Fair Employment and Housing Act (FEHA) prohibits workplace discrimination on the basis of “sex,” previously defined to include gender, pregnancy, childbirth, and medical conditions related to pregnancy or childbirth. The Legislature expanded the definition in 2012 to include breastfeeding and related medical conditions. As a result, employers must post new a version of the workplace non-discrimination notice.
– Anti-Human Trafficking Postings: As mentioned in “New Labor Laws for 2013: Slavery and Human Trafficking Notice Required for Some Businesses,” certain types of businesses will need to post a notice with specific information about slavery and human trafficking. This law was effective January 1, 2013. The California Department of Justice is developing a model notice, due by April 1, 2013.
These are just the highlights. California and the federal government require employers to post and otherwise provide their workers with a range of printed statements and information on workplace laws and required procedures, available online from such agencies as the California Department of Fair Employment and Housing (DFEH), California’s Employment Development Department (EDD), the California Department of Industrial Relations (worker’s compensation), the California Industrial Welfare Commission (IWC) (wage orders), and the U.S. Department of Labor.
Businesses may purchase a wide-ranging California and federal employment notices poster for 2013 through the California Chamber of Commerce website.
Our firm’s attorneys Tim Bowles or Cindy Bamforth can assist you in implementing or revising workplace policies as appropriate to ensure compliance with these requirements.