United Parcel Service, Inc. (UPS) essentially “won” an age discrimination case when a California jury awarded an ex-employee only $27,280 in damages. That relative victory was short-lived, erased by the trial judge awarding the worker $700,000 for her attorney fees. The appeals court recently upheld this decision. Muniz v. United Parcel Service, Inc. (9th Cir. 2013) 738 F.3d 214

Kim Muniz sued employer UPS alleging, in part, that supervisor Ron Meyer demoted her based on gender and age discrimination and retaliation in violation of California’s Fair Employment and Housing Act (FEHA), California Government Code 12900 and following sections. UPS argued it had promoted Muniz beyond her level of competence and Meyer was simply the first to recognize Muniz’s failings.

The jury found Muniz’s gender wrongfully motivated UPS to demote her and was a substantial factor in causing her harm. However, while Muniz requested damages totaling over $700,000, the jury only awarded her $27,280 -- $9,990 for lost earnings, $7,300 for past medical expenses and $9,990 for past non-economic losses.

Both sides claimed victory and sought payment from the other for attorney fees under FEHA, Government Code section 12965(b). The court found Muniz the prevailing party, at which point she requested $2,000,000 in attorneys’ fees (some 73 times the damages award). The district court judge then awarded her some $700,000, or 26 times the jury’s damage award.

UPS appealed the $700,000 assessment, claiming Muniz didn’t deserve that much after her very limited success at trial. However, the appeals court was unsympathetic, ruling that “a trial court does not under California law abuse its discretion simply by awarding fees in an amount higher, even very much higher, than the damage awarded, where successful litigation causes conduct which the FEHA was enacted to deter [to be] exposed and corrected.’”

This case underscores that employers must consider the possibility of attorney fee awards to prevailing employees in FEHA discrimination cases even if the worker’s claims appear to be relatively weak. Of course, to reduce the potential for employee claims as much as possible, employers should take effective measures to prevent unlawful workplace conduct. Employers should also always promptly and thoroughly investigate all complaints of discrimination, harassment or retaliation and take effective remedial action as necessary. Company managers must always act as part of the solution to any such claim and, whether out of neglect or other ill-advised reaction, never place themselves in a position where they can be perceived as part of the problem.

For more information or assistance, please contact the Law Offices of Timothy Bowles, 626-583-6600 or visit our .

Law Offices of Timothy Bowles
April 21, 2014

Effective April 18, 2014, the Equal Employment Opportunity Commission (EEOC) doubled the penalty for an employer’s failure to post that agency’s “Equal Employment Opportunity is the Law” notice, from $110 to $210 per violation. See, 29 Code of Federal Regulations (CFR) section 1601.30(b).

The required notice includes the basics for:

• The 1964 Civil Rights Act (Title VII) (prohibits employment discrimination based on a protected class including race, color, religion, sex [including pregnancy] and national origin);
• The Americans with Disabilities Act (ADA) (prohibits workplace disability discrimination); and
• The Genetic Information Non-Discrimination Act (GINA) (prohibits workplace discrimination based on genetic information).

Covered employers include all private companies employing at least 15 individuals and all federal contractors and subcontractors. The notice must be posted prominently for viewing by employees and job applicants, e.g., personnel office, lunchroom or company bulletin board.

For more information concerning required workplace notices, contact one of our attorneys, Timothy Bowles, Cindy Bamforth or Helena Kobrin.

Law Offices of Timothy Bowles
April 18, 2014

Effective April 18, 2014, the Equal Employment Opportunity Commission (EEOC) doubled the penalty for an employer’s failure to post that agency’s “Equal Employment Opportunity is the Law” notice, from $110 to $210 per violation.See, 29 Code of Federal Regulations (CFR) section 1601.30(b).

The required notice includes the basics for:

The 1964 Civil Rights Act (Title VII) (prohibits employment discrimination based on a protected class including race, color, religion, sex [including pregnancy] and national origin);

The Americans with Disabilities Act (ADA) (prohibits workplace disability discrimination); and

The Genetic Information Non-Discrimination Act (GINA) (prohibits workplace discrimination based on genetic information).

Covered employers include all private companies employing at least 15 individuals and all federal contractors and subcontractors. The notice must be posted prominently for viewing by employees and job applicants, e.g., personnel office, lunchroom or company bulletin board.

For more information concerning required workplace notices, contact one of our attorneys, Timothy Bowles, Cindy Bamforth or Helena Kobrin.

Law Offices of Timothy Bowles
April 18, 2014

Despite staffing cuts, hiring freezes and sequestration woes, the U.S. Equal Employment Opportunity Commission (EEOC) recovered a record $372.1 million for its private sector workplace discrimination charges -- $6.7 million more than it recovered the year prior.

The EEOC enforces federal anti-discrimination in employment laws.  According to the EEOC’s Fiscal Year 2013 Performance and Accountability Report (PAR), the EEOC received a 93,727 private sector discrimination charges.  Although some 6,000 less than the prior three years, it still ranks among the agency’s top five.

The EEOC has continued to focus on systemic enforcement, targeting unlawful patterns, practices or policies which broadly impact an industry, profession, company or geographic area.  Systemic practices include discriminatory barriers in recruitment and hiring; discriminatory restricted access to management training programs and to high level jobs; exclusion of qualified women from traditionally male dominated fields of work;  unlawful pre-employment inquiries aimed at detecting disabilities; and age discrimination by reductions in a workforce.

The EEOC reports 300 systemic investigations in fiscal 2013 resulting in 63 settlements or conciliation agreements totaling some $40 million.   Agency lawsuits filed for systemic enforcement represented over 20 percent of all active suits in that 2013, the largest proportion since tracking started in 2006.  The EEOC also obtained more than $160.9 million in monetary benefits for complaining employees through mediation resolutions, the second highest level in the agency’s history.

If you as employer don’t wish to contribute to any further groundbreaking statistics, we can help.  For more information concerning California or federal employment laws, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Law Offices of Timothy Bowles

27 Feb, 2014

A recent California Court of Appeal case – Sanchez v. Swissport, Inc. (February 21, 2014), 213 California Appellate Reporter, fourth series (Cal.App.4^th) 1331 – confirms that employers must comply with both the Pregnancy Disability Leave Law (PDLL) law and the wider protections for women disabled due to pregnancy under in the Fair Employment and Housing Act (FEHA).

The PDLL requires any employer with four or more persons on payroll to provide a worker up to four months of unpaid leave for her pregnancy, delivery and newborn care. Pregnant employees have those rights even if they must go out on such leave within days of taking on new employment. These protections extend to full time and part-time workers alike.

The FEHA also requires any employer with four or more employees to provide disabled individuals equal employment opportunity if such persons are able to perform the essential functions of the job position in question with reasonable accommodation as necessary. However, an employer is not required to accommodate such a worker if such action would create undue hardship on that company’s operations. For example, a business may decline to hire a blind person for a truck driving position (since accommodation would be too burdensome on the company) but likely may not decline to hire a qualified computer programmer because he or she cannot walk (since accommodation for sitting at a terminal is probably a simple, inexpensive matter).

In the above case, Ana Sanchez alleged Swissport employed her for some two years (mid-2007 to mid-2009). In early 2009, she requested and received a temporary leave for medically required time away on her high-risk pregnancy. While she then had to be away from the job until that October to give birth and attend to newborn care – obviously more than four months later -- Ms. Sanchez alleged that “very soon after she was scheduled to give birth, she would have returned to work, with the need for only minimal accommodations, if any, in order to perform the essential function[s] of her job.” 213 Cal.App.4^th at 1334-1335.

Ms. Sanchez claimed that Swissport nevertheless terminated her in July on the company’s contention it had no further obligation to accommodate her once she had been absent for the four months under the PDLL. Ms. Sanchez also asserted that prior to her termination, Swissport never contacted her “to engage her in a timely, good faith interactive process in order to identify available accommodations, such as the extended leave of absence she had requested, so that she could remain employed.” Finally, she alleged that “the reasonable accommodations necessitated by her pregnancy and pregnancy-related disabilities would not have created an undue hardship upon [Swissport], nor would said accommodations have adversely impacted, in any way, the operation of [its] business.” 213 Cal.App.4^th at 1335.

Swissport convinced the trial judge to dismiss the case, on its claim that its obligations to accommodate Ms. Sanchez’s pregnancy ended after it provided the four month leave. The California Court of Appeal disagreed and allowed Ms. Sanchez to continue her suit. An employer’s compliance with PDLL does not fulfill its obligations to comply with the wider disability protections under the FEHA. “We conclude that … the plain language of the PDLL … makes clear that its remedies augment, rather than supplant, those set forth elsewhere in the FEHA. By its terms, the PDLL provides that its remedies are ‘in addition to’ those governing pregnancy, childbirth, and pregnancy-related medical conditions set forth in the FEHA.” 213 Cal.App.4^th at 1338.

This decision underscores the importance of employer’s open and constructive communication with any worker seeking time away from the job due to pregnancy, child birth or newborn care. It is a business’s obligation to ensure it seeks to understand and reasonably accommodate such conditions short of undue hardship to its operations. This is particularly critical in instances where an employee is requesting such accommodations after she has expended her maximum four month time away under the PDLL.

Please contact attorneys Tim Bowles, Cindy Bamforth, or Helena Kobrin for assistance in this highly sensitive area of employee relations.

Law Offices of Timothy Bowles
February 21, 2014

A recent California Court of Appeal case – Sanchez v. Swissport, Inc. (February 21, 2014), 213 California Appellate Reporter, fourth series (Cal.App.4th) 1331 – confirms that employers must comply with both the Pregnancy Disability Leave Law (PDLL) law and the wider protections for women disabled due to pregnancy under in the Fair Employment and Housing Act (FEHA).

The PDLL requires any employer with four or more persons on payroll to provide a worker up to four months of unpaid leave for her pregnancy, delivery and newborn care. Pregnant employees have those rights even if they must go out on such leave within days of taking on new employment. These protections extend to full time and part-time workers alike.

The FEHA also requires any employer with four or more employees to provide disabled individuals equal employment opportunity if such persons are able to perform the essential functions of the job position in question with reasonable accommodation as necessary. However, an employer is not required to accommodate such a worker if such action would create undue hardship on that company’s operations. For example, a business may decline to hire a blind person for a truck driving position (since accommodation would be too burdensome on the company) but likely may not decline to hire a qualified computer programmer because he or she cannot walk (since accommodation for sitting at a terminal is probably a simple, inexpensive matter).

In the above case, Ana Sanchez alleged Swissport employed her for some two years (mid-2007 to mid-2009). In early 2009, she requested and received a temporary leave for medically required time away on her high-risk pregnancy. While she then had to be away from the job until that October to give birth and attend to newborn care – obviously more than four months later — Ms. Sanchez alleged that “very soon after she was scheduled to give birth, she would have returned to work, with the need for only minimal accommodations, if any, in order to perform the essential function[s] of her job.” 213 Cal.App.4th at 1334-1335.

Ms. Sanchez claimed that Swissport nevertheless terminated her in July on the company’s contention it had no further obligation to accommodate her once she had been absent for the four months under the PDLL. Ms. Sanchez also asserted that prior to her termination, Swissport never contacted her “to engage her in a timely, good faith interactive process in order to identify available accommodations, such as the extended leave of absence she had requested, so that she could remain employed.” Finally, she alleged that “the reasonable accommodations necessitated by her pregnancy and pregnancy-related disabilities would not have created an undue hardship upon [Swissport], nor would said accommodations have adversely impacted, in any way, the operation of [its] business.” 213 Cal.App.4th at 1335.

Swissport convinced the trial judge to dismiss the case, on its claim that its obligations to accommodate Ms. Sanchez’s pregnancy ended after it provided the four month leave. The California Court of Appeal disagreed and allowed Ms. Sanchez to continue her suit. An employer’s compliance with PDLL does not fulfill its obligations to comply with the wider disability protections under the FEHA. “We conclude that … the plain language of the PDLL … makes clear that its remedies augment, rather than supplant, those set forth elsewhere in the FEHA. By its terms, the PDLL provides that its remedies are ‘in addition to’ those governing pregnancy, childbirth, and pregnancy-related medical conditions set forth in the FEHA.” 213 Cal.App.4th at 1338.

This decision underscores the importance of employer’s open and constructive communication with any worker seeking time away from the job due to pregnancy, child birth or newborn care. It is a business’s obligation to ensure it seeks to understand and reasonably accommodate such conditions short of undue hardship to its operations. This is particularly critical in instances where an employee is requesting such accommodations after she has expended her maximum four month time away under the PDLL.

Please contact attorneys Tim Bowles, Cindy Bamforth, or Helena Kobrin for assistance in this highly sensitive area of employee relations.

Law Offices of Timothy Bowles
February 21, 2014

While employers are barred by federal law from knowingly employing unauthorized immigrants, companies are also barred from treating any immigrant unfairly, whether or not authorized to work in the U.S.  New California laws for 2014 provide the strongest anti-retaliation protections for immigrant workers in the country.  This legislation penalizes employers who threaten to report the immigration status of an employee in retaliation for his/her exercising rights to complain over workplace conditions:

• Labor Code 98.6 confirms an employee’s right to make a written or oral complaint over unpaid wages without employer retaliation.  That statute now directs that an employer can be liable for a civil penalty, up to $10,000 per violation.
• New Labor Code 1019 prohibits an employer from engaging in “unfair immigration-related practices” in retaliation for the exercising of any right protected under the Labor Code or local ordinances.  These rights include filing good faith complaints over the employer’s labor practices, seeking information on whether the employer is in compliance with workplace laws, and informing another person of his/her employment rights.  “Unfair practices” under this new law include: (a) requesting more or different documents than required by the federal I-9 form; (b) refusing to honor any I-9 listed documents that reasonably appear to be genuine; (c) misusing the federal E-Verify system to check employment status in a manner not required by law; (d) threatening to file or filing a false police report; and (d) threatening to contact or contacting immigration authorities except if and as required by federal authorities.
• Labor Code 1019 authorizes an employee subjected to such unfair immigration-related practice to file suit against the employer for damages, penalties, attorney fees and costs.
• This new law also establishes a three-tier license suspension scheme. An employer who commits “unfair immigration-related practices” can have its business or professional license(s) suspended for periods of up to 14 days for a first violation, 30 days for a repeat violation, or 90 days for any violation thereafter.
• Similarly, new Labor Code 244 prohibits an employer from reporting or threatening to report an employee’s (or former or prospective employee’s) suspected citizenship or immigration status (or the status of the person’s family member) because that person exercised his/her rights to complain about workplace conditions, including claimed illegal discrimination or harassment.

Employers should of course ensure their required I-9 procedures are in place.  These new laws establish that businesses are prohibited from attempting to “leverage” any immigration or citizenship status to thwart a worker from complaining about wages or other workplace practices or conditions or to punish an employee for having done so. Worker complaints over such practices or conditions should be fielded and resolved thoroughly and professionally.  Employers should ensure supervisors refrain from making any threats to use a worker’s immigration status against him or her.

For more information concerning an employer’s obligations under California or federal employment laws, contact one of our attorneys Tim Bowles or Cindy Bamforth.

Law Offices of Timothy Bowles

6 Feb 2014

On January 1, 2014, San Francisco enacted a “right to request” ordinance which gives certain employees working in the City the right to seek flexible work arrangements to address family needs. The City has since amended the law to apply to employers with 20 or more employees anywhere.

The ordinance permits workers employed within the city limits for at least six months and eight hours per week to request scheduling accommodation to assist with caregiving responsibilities for: (i) children under the age of 18; (ii) family members with a serious health condition; or (iii) parents age 65 or older.

The employer must meet with the requesting employee within 21 days and respond within 21 days of that meeting. If the employer denies the request, it must explain to the worker in writing the business reasons for the decision as well as specify that employee’s rights to request reconsideration. Legitimate reasons for a denial include the cost of the proposed change, the detrimental effect on customer/client demands, inability to organize work among other employees, or lack of available work during the proposed work time.

The ordinance also makes it unlawful for an employer to “discharge, threaten to discharge, demote, suspend, or otherwise take adverse employment action against any person on the basis of caregiver status, in retaliation for exercising rights protected under the Ordinance, or for cooperating with the City in enforcement.”

Employers with work sites in San Francisco need to post the ordinance’s official notice and should consider modifying their applicable employment policies.

Law Offices of Timothy Bowles
February 6, 2014

We are extremely pleased to announce that Helena Kobrin is now “of counsel” to our firm. Helena was admitted to The Florida Bar in 1978, first specializing in transactional and commercial matters, as well as governmental regulation and real estate and probate work.

Helena was then in-house attorney for several years for a large non-profit organization in Florida. Moving to the Los Angeles area, joining the State Bar of California in 1991, and as partner in the Bowles & Moxon and then Moxon & Kobrin firms, Helena has since worked extensively on copyright, trademark and trade secret issues, contract review and drafting, bankruptcy, litigation, dispute resolutions, and much more.

Starting in the 1990s, Helena was instrumental in establishing protections for copyrights and trademarks from Internet abuse. This included representation of plaintiffs in the first-ever copyright infringement suit over unauthorized online postings. That case led to the passage of federal law that requires service providers to help copyright owners remove infringements from websites . The law in turn protects service providers proactive in removing such unauthorized uses of copyrighted material online.

Helena’s 35 years of experience is now available to assist us and our clients in all of her various areas of practice. We are of course very happy with this significant expansion of services now available to our clients.

For more information or to consult with Helena, contact Ray Loomis at 818-583-6600.

January 16, 2014