As relayed in our August 30, 2013 blog, San Diego Mayor Bob Filner left office in disgrace last summer on the heels of multiple allegations of sexual harassment.

In damning defense, Mr. Filner claimed the City never provided him sexual harassment training. This prompted the California Department of Fair Employment and Housing (DFEH) to charge the City with violations of the Fair Employment and Housing Act (FEHA) requirement to provide such training to its supervisory employees, including elected and appointed officials.

Without admitting liability, the City settled the DFEH claim for a reported $250,000 and on its pledge to provide at least two hours of sexual harassment prevention training to all supervisory employees within six months of hire, election or appointment date, and every two years thereafter. The City also agreed to report compliance to DFEH every six months for the next five years.

DFEH Director Phyllis Cheng announced, “This agreement serves as a model for other local government agencies to fully comply with the sexual harassment training required of all supervisors, including elected and appointed officials under the Fair Employment and Housing Act.”

Private employers should also take heed. California Government Code section 12940(k) requires employers, no matter how many they employ, to take “all reasonable steps necessary to prevent discrimination and harassment from occurring.” FEHA also requires California companies with 50 or more employees to provide the same harassment training to its supervisors and executives that the City of San Diego was cited for ignoring.

Failure of a covered employer to comply with those harassment training mandates could be used as evidence of that employer’s failure to take all reasonable prevention steps.

August 30, 2013

As relayed in our August 30, 2013 blog, San Diego Mayor Bob Filner left office in disgrace last summer on the heels of multiple allegations of sexual harassment.

In damning defense, Mr. Filner claimed the City never provided him sexual harassment training. This prompted the California Department of Fair Employment and Housing (DFEH) to charge the City with violations of the Fair Employment and Housing Act (FEHA) requirement to provide such training to its supervisory employees, including elected and appointed officials.

Without admitting liability, the City settled the DFEH claim for a reported $250,000 and on its pledge to provide at least two hours of sexual harassment prevention training to all supervisory employees within six months of hire, election or appointment date, and every two years thereafter. The City also agreed to report compliance to DFEH every six months for the next five years.

DFEH Director Phyllis Cheng announced, “This agreement serves as a model for other local government agencies to fully comply with the sexual harassment training required of all supervisors, including elected and appointed officials under the Fair Employment and Housing Act.”

Private employers should also take heed. California Government Code section 12940(k) requires employers, no matter how many they employ, to take “all reasonable steps necessary to prevent discrimination and harassment from occurring.” FEHA also requires California companies with 50 or more employees to provide the same harassment training to its supervisors and executives that the City of San Diego was cited for ignoring.

Failure of a covered employer to comply with those harassment training mandates could be used as evidence of that employer’s failure to take all reasonable prevention steps.

August 30, 2013

A California worker recently asked how his employer should pay him for job-related travel time expended before and then after a full eight hours of labor at a remote location. He wrote: “If I drove 5-1/2 hours, then worked 8, then drove 5 more hours, wouldn’t my time and a half start on my 8^th hour and then double time after my 12th hour? They can’t just pay me double time on my travel pay rate of 8.00 dollars an hour can they?”

The answers, both favoring the worker in this instance, are “yes, daily overtime starts in California after the first eight compensable hours, including travel time” and “no, the employer cannot just calculate overtime from the lower travel-time rate of pay.”

Calculating Overtime When Work-Related Travel Paid at a Lower Rate: Our blog article “Travel Pay in California” observes: “Hourly employees must be paid for all ‘hours worked.’ Depending on the circumstances, an employee can be considered experiencing a ‘working hour’ even when in deep unconsciousness or obnoxious intoxication in seat 36C, Flight 363 Los Angeles to New York. Where an employee is required to travel for work, near or far, the employer must compensate the worker for that time. Exceptions are normal commute time or road trip downtime, e.g., meals or entertainment. Thus, an hourly worker who boards that New York flight for business is earning pay for his or her hours on the plane except the time spent taking a meal.”

That article also points out that businesses can establish a lower hourly rate of pay for unproductive but compensable travel time. Thus, the hourly worker’s employer on the above New York flight could pay him/her minimum wage (currently $8.00/hour in California) for the transit time and that worker’s higher, normal rate (say, $20.00/hour) for time spent working at the destination that day. If that worker flew for five hours ($8.00/hour x 5 hours = $40.00) and then attended a conference for another three ($20.00/hr x 3 hours = $60.00), his total pay that day would be $100.00.

California is one of the few states that require premium pay for either weekly (“time-and-a-half” after 40 in a week) or daily overtime hours (“time-and-a-half” after eight hours in a day and “double time” after 12 daily hours).

As the above writer pointed out, the plot thickens considerably when a California worker works either daily or weekly overtime while earning separate hourly rates during a pay period. It is not true that the employer need only pay 1.5x or 2x of a $8.00/hour travel rate for overtime hours ($12.00/hr and $16.00/hr, respectively) just because those were “extra” or “in addition” to the productive working hours that day.

Instead, California employers must calculate those 1.5x and 2x premium rates from the so-called “regular rate of pay.” “Regular [hourly] rate” is reached by adding up all compensation for a week and dividing it by the total number of hours worked.

Thus, if the above worker flying to New York also returned to California that same week, working a total of 50 hours, with ten of those hours at the $8.00/hour travel rate ($8.00/hr x 10 hrs. = $80.00) and the other 40 hours at the $20.00 rate ($20.00/hour x 40 hrs. = $800), his total earned compensation would of course be $880.00 for those 50 hours. Thus, the regular rate would be $17.60/hr ($880.00 ÷ 50 hrs = $17.60), making the 1.5x rate for each of the ten overtime hours $26.40.

The matter can be further complicated if, say, the worker had two very long work days that week, each exceeding 12 hours. As above, the employee would earn 1.5x the regular rate for the each of the 9^th – 12^th hours worked each day and then 2x the regular rate for each daily hour worked over 12.

For help to employers on how to structure, administer or enforce a travel policy, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.

A policy that provides employees an option of responding to a call probably does not require the company to pay the employees for choosing to be available. For example, a business that puts out the word of a hot prospect to several salespeople, with the referral going to the first employee to call-in is likely an unpaid standby situation.

On the other hand, a policy that requires a designated worker to stay within specific geographic limits, to maintain open telephone or text message contact during specific hours and to arrive at the worksite (or otherwise begin working) within a limited amount of time after receiving employer’s request is almost certainly a paid on-call arrangement.

The above worker asked whether his employer must pay when it was his “belief” that he had to be within a certain area and had to answer his phone if called.

From the employee’s perspective, he should promptly and responsibly request written clarification of the company’s policy, thus either confirming or dispelling his impression that he is subject to mandatory response.

Similarly, from the employer’s perspective, it is important to have clear written policy, one way or the other. An employer who doesn’t pay for stand-by but, as in the above worker’s case, vaguely announces “negative consequences” for failing to respond to a call, risks a later government or court finding that it has failed to pay for required stand-by time.

The above worker also asked if he could be “punished” for failing to respond. As he describes an unpaid on-call arrangement, then in theory the company could not – and should not – reprimand or otherwise discipline an employee who does not answer a call to come to work.

On the other hand, a business with a clear paid, mandatory on-call policy can legitimately take adverse action against the individual who fails to comply. Certainly, the policy should spell out the range of consequences possible. On the degree of discipline a company should exercise in the case of a violation, the answer ultimately lies in the experience and (hopefully good) judgment of management.

August 12, 2013

As you are almost certainly aware, California employers with 50 or more employees or independent contractors must provide mandatory sexual harassment prevention and investigation training to its supervisors every two years.

Current regulations tighten trainer qualifications and impose heightened interactivity requirements, including questions that assess learning, skill-building activities and numerous hypothetical scenarios about harassment with follow-up discussion questions.

We are offering an updated in-house, two-plus hour seminar, at your location, that will fulfill these legal requirements. With your supervisors better trained on harassment basics, this session will help you safeguard your company against lawsuits while assisting you to create better employee relations.

Conducted by one of our experienced attorneys, our seminar includes a live lecture, printed materials, PowerPoint presentation, video scenarios, quizzes and a new session-ending investigatory scenario in which all participants can apply and demonstrate their knowledge of the fundamentals in this critical field. We will also provide certificates of attendance as documentation for your records.

The seminar topics include:

• Types of harassment and what makes supervisors personally liable
• Steps owners and supervisors should take to prevent company liability
• What constitutes harassment under current state and federal laws
• Policies employers can impose to limit employee relationships
• Printed materials, a lecture and audio-visual presentation
• Role playing scenarios to demonstrate skills and knowledge

By scheduled appointment, we can provide the required interactive seminar at your place of business. The fee is $1,500 per seminar for groups of up to 30 supervisors, with reasonable additional charges for larger groups. The required seminar is easy to set up.

Or if you have just a few employees who need this training, our Public Seminar is also available.

August 1, 2013

It has been said that death and taxes are the only two sure things in life but man, those people ought to cheer up. After all, you don’t even get to all that “death is inevitable” drivel without love (hopefully), sex (rock & roll optional), pregnancy and childhood. California supports the pregnancy part with some of the most protective workplace leave laws in the nation.

California’s Pregnancy Disability Leave (PDL) law 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.

Among other features:

July 29, 2013

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.

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

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.