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The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal laws prohibiting sexual harassment and retaliation.
The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal laws prohibiting sexual harassment and retaliation.
On September 24, 2021, the EEOC announced suit against general construction company Focus Companies Group of Nevada (Focus) for sexual harassment, retaliation, and "constructive discharge" (i.e., forced resignation).
The complaint alleges Focus violated federal law by subjecting female workers to forcible kissing, coercive touching of male genitalia, unwanted grabbing and groping of body parts, sexually offensive and vulgar language, and lewd facial expressions.
The EEOC also contends Focus management threatened the women with acts of violence if they did not acquiesce.
The lawsuit seeks monetary damages for the victims and injunctive relief to prevent and correct discriminatory practices.
EEOC regional director Michael Mendoza commented, "It is imperative that employers, especially those whose workforce has been historically male, understand their responsibility to implement strong anti-harassment and retaliation policies. The responsibility falls on the employer to create a harassment-free working environment for all its employees."
Take-Aways:
Employers must effectively respond to employee sexual harassment complaints. In conjunction with skilled sexual harassment prevention training and properly-crafted anti-harassment policies, management should ensure workers correctly report and managers properly investigate, document and resolve various forms of unlawful harassment, discrimination and retaliation.
We provide live webinar prevention training for all California employees for a flat fee. We also provide anti-harassment policies within our employee handbook. Contact officemgr@tbowleslaw.com for more information and to schedule your webinar.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
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Cindy Bamforth
September 30, 2021
California lawrequires employers with five or more on payroll to provide sexual harassment prevention and resolution training to all managers and employees every other year. We offer an interactive live webinar as a superior alternative to impersonal point-and-click online training.
California law requires employers with five or more on payroll to provide sexual harassment prevention and resolution training to all managers and employees every other year. We offer an interactive live webinar as a superior alternative to impersonal point-and-click online training.
We have developed our presentation from over 15 years of delivery, with experienced, practical instruction on identification, prevention and internal resolution of workplace harassment, discrimination, and retaliation.
The compelling reasons to offer a live, interactive webinar to your workforce include:
See also:
Contact us TODAY for more information, pricing or to schedule your workforce's webinars at (626) 583-6600 or officemgr@tbowleslaw.com
Employment arbitration, preserved and promoted by theFederal Arbitration Act (FAA), is often used as a contractual alternative to court actions.
Employment arbitration, preserved and promoted by the Federal Arbitration Act (FAA), is often used as a contractual alternative to court actions.
California has a long history of unsuccessful attempts to limit mandatory employment arbitration agreements despite the Supreme Court's strong confirmations that the FAA permits such "take it or leave it" conditions on hiring.
AB 51, enacting Labor Code 432.6 (effective January 1, 2020), was the latest effort, prohibiting mandatory employment arbitration agreements for discrimination, harassment or retaliation claims under the California Fair Employment and Housing Act (FEHA) or claims under the California Labor Code.
Business organizations responded quickly, on January 31, 2020, winning a federal court injunction against AB 51 enforcement.
A 9th Circuit three-judge appellate panel has now invalidated that injunction, restoring AB 51's requirement that employees must consent to workplace arbitration agreements.
That appeals court ruling contains a twist, concluding that while the FAA protects an employer from criminal and civil penalties for entering a mandatory agreement with employees, that law does not shield that employer from such penalties for requesting a worker to enter that agreement.
This decision may not be the final word. In dissent, Judge Sandra Ikuta, foreseeing further review as high as the Supreme Court, observed: "Like a classic clown bop bag, no matter how many times California is smacked down for violating the . . . FAA, the state bounces back with even more creative methods to sidestep the FAA."
Take Aways: Employers should:
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
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Helena Kobrin
September 24, 2021
Little can rank above an individual's pride in her or his livelihood. No matter how much a failing, insubordinate worker might deserve it, it is thus imperative that management handle a termination free of any urge to finger-point or otherwise antagonize. A humiliating, yet justified firing can and often does fuel an ex-employee's determination to "get even" through court action.
Little can rank above an individual's pride in her or his livelihood. No matter how much a failing, insubordinate worker might deserve it, it is thus imperative that management handle a termination free of any urge to finger-point or otherwise antagonize. A humiliating, yet justified firing can and often does fuel an ex-employee's determination to "get even" through court action.
Severance agreements can play an important, even deciding role in achieving the desired smooth transition. In the course of a termination, the manager offers some amount of additional "severance" pay or other benefits (e.g., forgiveness of an employee's debt) above all earned wages and accrued vacation pay. In exchange, the worker signs a thorough release and waiver of all claims, real or imagined, known or unknown. "All claims" can and should include any accusation for wrongful termination, discrimination, harassment, retaliation, breach of contract, and disputed wage payments.
There are special rules under the federal Age Discrimination in Employment Act (ADEA) and the Older Workers Protection Act (OWPA) for such an agreement between a company with 20 or more employees and a worker aged 40 or older. In order to protect the employer against ADEA/OWPA discrimination claims, (1) the employee must have up to 21 days to consider and sign the waiver, and if desired, to have it reviewed by an attorney; and (2) even after accepting, that employee must have another seven days to change his or her mind and rescind the agreement.
Even where those special terms are not required, best practice is to provide the employee a reasonable time to weigh the offer, for example three calendar or business days.
Where presented forthrightly and with respect, most departing workers will accept the offer, often without taking the allotted 21 days or other specified interval to think it over.
Employers can approach the seven-day rescission requirement under the ADEA and OWPA in different ways. An agreement can provide the severance amount immediately on the employee's signing the agreement. Others specify payment on the passage of the seven days.
Take Aways:
See also,
For more information, please contact one of our attorneys, Tim Bowles, Cindy Bamforth, or Helena Kobrin.
Tim Bowles
September 24, 2021
California's Private Attorney General Act (PAGA) continues as a weapon of choice against employers, permitting a single worker to seek Labor Code penalties on behalf of a company's entire payroll. Facing potentially crushing liabilities or without the resources to fight bogus accusations, many employers seek to promptly settle such claims, further encouraging PAGA lawyers to find other targets.
California's Private Attorney General Act (PAGA) continues as a weapon of choice against employers, permitting a single worker to seek Labor Code penalties on behalf of a company's entire payroll. Facing potentially crushing liabilities or without the resources to fight bogus accusations, many employers seek to promptly settle such claims, further encouraging PAGA lawyers to find other targets.
There is however some good PAGA-related news for employers. In Wesson v. Staples the Office Superstore, LLC, the Court of Appeal has recognized a new defense that allowed Staples to defeat a store general manager's (GM) attempt to impose PAGA penalties for allegedly misclassifying 346 GMs as exempt-from-overtime employees.
In Wesson, the trial court dismissed the PAGA claims as unmanageable after plaintiff acknowledged that establishing liability would require six days of evidence for each of the 346 instances - including examination of individual store "size, sales volume, staffing levels, labor budgets, store hours, customer-traffic levels, products and services offered for sale, and many other variables" - resulting in an eight-year trial. Plaintiff had also declined to provide a plan to show how the trial could otherwise be managed and simplified.
The Court of Appeal affirmed the dismissal, finding that such a lengthy trial would wreak havoc on the trial court, making it impossible to attend to its other assigned cases.
Take Away: Not every PAGA case is complex. Some involve only a few employees or issues that may be common to all, for example an across-the-boards defect in paystubs or failure to pay overtime to hourly workers. However, a PAGA complaint that requires worker-to-worker analysis to determine liability may now be dismissed as unmanageable, leaving only the plaintiff's individual claims to be decided.
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Helena Kobrin
Tim Bowles
September 17, 2021
Employee termination is usually a delicate task. Mishandled firings can lead to a nightmare of costly and time-consuming accusations. Yet keeping failing employees out of fear of lawsuits can destroy workplace production and morale.
Employee termination is usually a delicate task. Mishandled firings can lead to a nightmare of costly and time-consuming accusations. Yet keeping failing employees out of fear of lawsuits can destroy workplace production and morale.
To reduce the likelihood of post-employment litigation, employers should:
Properly drafted severance agreements can effectively eliminate wrongful termination lawsuits. In exchange for a fair amount of severance pay (in addition to earned wages and accrued vacation benefits) the departing employee agrees to release all claims, real or imagined, known or unknown, including wrongful termination, discrimination, harassment, retaliation, breach of contract and disputed wages.
When offering severance, employers must fulfill all requirements to ensure courts and government agencies will fully honor the agreement. For example, an employer with 20 or more on payroll must provide a departing employee who is 40 or older: (i) up to 21 days to consider and sign the waiver, and if desired, to have it reviewed by an attorney; and (ii) even after accepting, another seven days to change his/her mind and rescind the agreement. Although an employer must wait the 21 days to withdraw the offer, the employee can choose to sign the agreement on the spot or at any time before the deadline is up.
For businesses with less than 20 employees and/or when the departing worker is under age 40, the waiting and rescission periods are not required. The best practice here would be to permit a few business days to allow the employee to consider the terms, with or without legal counsel.
Take Away: Implementing proper written workplace policies, procedures and forms can go a long way to prevent questionable lawsuits from departing employees intent on retribution. Our employment forms package includes an overview memo on administering a severance offer, a sample severance agreement and a sample termination letter. We also assist with specific terminations upon request.
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
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Cindy Bamforth
September 15, 2021
With the reported surge and perseverance of Delta variant cases, theBiden administration has directedtheDepartment of Laborand its Occupational Health and Safety Administration (OSHA) to develop emergency regulations for larger private employers (more than 100 on payroll) to require vaccination or weekly testing for every worker. The proposal includes mandatory paid time off for employees to obtain vaccination. Once issued, the expanded rules will affect an estimated 80 million individuals.
With the reported surge and perseverance of Delta variant cases, the Biden administration has directed the Department of Labor and its Occupational Health and Safety Administration (OSHA) to develop emergency regulations for larger private employers (more than 100 on payroll) to require vaccination or weekly testing for every worker. The proposal includes mandatory paid time off for employees to obtain vaccination. Once issued, the expanded rules will affect an estimated 80 million individuals.
While the initiative is sure to have its detractors, Supreme Court precedent has long supported such mandatory directives. In Jacobson v. Massachusetts (1905), a Court majority ruled against an individual who had been fined $5 for refusing a mandatory smallpox vaccine for himself and his son. Justice Harlan wrote:
"The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.
"But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good."
Today's Supreme Court is likely to uphold that precedent for mandatory COVID vaccination initiatives. For example, last month Associate Justice Amy Coney Barrett declined to invalidate an Indiana University vaccination mandate following a lower court ruling against the challengers that had cited Jacobson.
Take away: With COVID's continuing persistence, employers of any size should monitor closely the expansion of "mandatory mandatory" vaccination directives at all governmental levels. See, e.g., https://www.osha.gov/coronavirus for the coming federal rules as above. With the vaccines now widely available and gaining greater certification, the prevailing issue is not whether businesses should reopen as it was a year ago. Focus now is upon balancing public health and safety measures with managers and workers understandably tired of precautions as they return to pre-pandemic life.
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
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Tim Bowles
September 10, 2021
Job candidates and human resources professionals have the unenviable challenge of conducting productive online job interviews throughout the pandemic.
Job candidates and human resources professionals have the unenviable challenge of conducting productive online job interviews throughout the pandemic.
According to a 2021 Zenefits survey of over 1,000 hiring managers, some common mistakes job seekers are making include:
California hiring managers must also avoid making mistakes of their own, such as:
Employers should use a standard set of questions for each candidate and periodically re-train interviewers on acceptable and unacceptable employment inquiries.
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
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Cindy Bamforth
September 9, 2021
By the production disruptions and safety risks posed by a worker intoxicated or stoned on the job, employers can and should maintain comprehensive written drug and alcohol policy covering testing, prevention, and the handling of suspected on-the-job drug- or alcohol-abuse.
By the production disruptions and safety risks posed by a worker intoxicated or stoned on the job, employers can and should maintain comprehensive written drug and alcohol policy covering testing, prevention, and the handling of suspected on-the-job drug- or alcohol-abuse.
While California's 2018 "Adult Use of Marijuana Act" (AUMA) permits adults 21 years of age or older to possess and use marijuana for recreational purposes, the law does not alter an employer's rights to refuse to permit or accommodate the use of marijuana in the workplace. Health and Safety Code [HSC] section 11362.45(f). Similarly, the Supreme Court of California has ruled that management may deny employment to a job applicant who tests positive for marijuana, even if the use prescribed for a medical condition. See, Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 927.
Drug and alcohol policies should cover:
Policy should thus explain the grounds on which a company supervisor can require such testing, including a "reasonable suspicion to conclude that an employee is in possession, control or is under the influence of alcohol, drugs, marijuana or drug paraphernalia on the job or on Company/customer premises" and that the condition may negatively affect that employee's ability to perform his or her job or threaten the safety of that employee, other workers, or the public;
Reasonable suspicion will be based on observable behavior and appearance of the subject employee, including his or her speech, motor skills, reaction time, orientation, and other factors; and
See also:
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Tim Bowles
September 3, 2021