Political Speech and the Workplace

California employers must not discriminate against workers based on political activities, affiliations or speech. Particularly during an election season, employers should re-familiarize themselves with these laws:

• California Labor Code section 1101 bans employers from making, adopting or enforcing any rules or policies that: (i) forbid or prevent employees from engaging or participating in the political realm, including running for public office; or (ii) control or direct the political activities or affiliations of their employees.

• California Labor Code section 1102 prohibits employers from coercing, influencing or attempting to coerce or influence their employees into any particular course or line of political action or activity. For example, an employer may not threaten to fire a worker for announcing his or her support for a candidate running for public office.

• California’s Ralph Civil Rights Act prohibits acts or threats of violence because of an individual’s political affiliation.

• The federal National Labor Relations Act (NLRA) allows union and nonunion employees to discuss labor issues without repercussion, such as how to improve minimum wage thresholds, ensure a safer work environment, obtain more sick pay benefits and permits them to endorse political candidates who support favorable labor conditions.

Employers can and should carry clear policy that respects such employee political activity as long as it does not interfere with productive work activities. However, the policy should be careful to distinguish workplace conversations over wages, benefits or other employment as outside any such limitations.

Needless-to-say, management should also take close care in dealing with such situations, documenting thoroughly when and how employee political speech has or has not unreasonably interfered with company operations.

As long as employers abide by the above laws, they may communicate their own political beliefs to their workers. See, California Chamber of Commerce’s Political Communications to Employees for additional guidance on making such employer-originated communications.

For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

October 16, 2018

Preventing Political Backlash In the Workplace

California employers must not discriminate or retaliate against workers based on political activities, affiliations or speech.

• California Labor Code section 1101 bans employers from making, adopting or enforcing any rule, regulation or policy that: (i) forbids or prevents employees from engaging or participating in politics, including running for public office; or (ii) controls or directs employee political activities or affiliations.

• California Labor Code section 1102 prohibits employers from coercing, influencing or attempting to coerce or influence their employees politically by terminating or threatening to terminate any worker.

• California’s Ralph Civil Rights Act prohibits acts or threats of hate violence, including against an individual for actual or perceived political affiliation. The Department of Fair Employment and Housing (DFEH) provides a “fact sheet” poster on the scope of this law.

• The federal National Labor Relations Act (NLRA) protects union and nonunion employees against repercussion for discussing labor issues, such as how to raise minimum wage or ensure a safer work environment, as well as for endorsement or support of political candidates advocating improved labor conditions.

The California Supreme Court’s definition of protected “political activities or affiliations” broadly includes any action related to or connected with the orderly conduct and peaceful organization, regulation, and administration of government.

Violation of Labor Code 1101 or 1102 is a misdemeanor punishable for an individual by imprisonment for up to one year or fine up to $1,000 and for a corporation a fine of up to $5,000. Labor Code section 1103. An injured employee may also bring a civil suit for damages caused by the violation, including wrongful termination. Labor Code section 1105.

Violators of the Ralph Civil Rights Act are subject to civil suit for compensating money damages, punitive damages, injunction, attorney fees and civil penalty of up to $25,000.

On the other hand, as long as management abides by these restrictions, an employer may communicate with its workers, stockholders and their families about the company’s support of or opposition to state legislation, regulations or ballot measures. See, California Chamber of Commerce guideline pamphlet.

See also:

• Can’t We All Just Get Along?; Political Speech and the Workplace (October 16, 2018)
• Unlawful Retaliation Defined; Federal Government Publishes Final Enforcement Guidance on Retaliation Claims(September 21, 2016)

For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles

October 23, 2020

Preventing Political Backlash In the Workplace

EEOC Sues California Grocery Store

for Disability Discrimination

On September 28, 2018 the Equal Employment Opportunity Commission (EEOC) announced it has filed a law suit against Central California grocery store, PAQ, Inc. dba Rancho San Miguel Market for alleged violations of the federal Americans with Disabilities Act (ADA).

The agency contends that in 2016, a deli clerk requested six weeks of medical leave for corrective surgery and recovery, supported by a note from her doctor. Allegedly, PAQ, Inc. denied the clerk’s request and instead fired her. The EEOC is now suing PAQ, Inc. for back pay, compensatory and punitive damages, as well as an injunction prohibiting the company’s discriminatory practices.

Melissa Barrios, the EEOC San Francisco Office director noted, “The act of firing an employee who requests accommodation not only negatively affects that employee, but can create a chilling effect across the workforce. Other employees may not request an accommodation, as is their right by law, for fear of losing their jobs.”

Employers must engage in an interactive process in an attempt to reasonably accommodate a disabled worker’s ability to perform her job. However, EEOC Regional Attorney Anna Park stated, “We continue to see employers struggling with complying with the ADA and failing to engage in the interactive process as required under federal law.”

The EEOC is clearly going after employers who discriminate. See, e.g., What’s That Again? Hearing Disabled Applicants Deserve Equal Consideration (September, 2018). As PAQ, Inc. supposedly was, employers faced with accommodation requests are well advised to seek assistance from an employment attorney to conduct an appropriate interactive process, thus minimizing the prospect of government actions and lawsuits.

See also:

• Don’t Flunk the Reasonable Accommodation Test (May, 2018)
• Preventing Workplace Discrimination (August, 2017)
• Employers Duties to Reasonably Accommodate Worker Disabilities (May, 2015)
• Say “ADAAAAHHH” (May, 2011)

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

October 12, 2018

Electronic Surveillance in the Workplace

Many California businesses install on-premises video surveillance equipment to improve operations through the security of premises. Electronic surveillance can deter, prevent or help resolve theft, physically threatening incidents or other dangerous conditions or situations.

Under California’s state constitution, all persons are entitled to a reasonable expectation of privacy from government as well as commercial intrusion. Thus, businesses may not use overly invasive electronic surveillance systems which unduly interfere with one’s privacy rights.

California law provides helpful guidance on how to balance these competing interests (right to privacy vs. right to monitor business activities):

• Record video only; never record any audio without consulting with experienced legal counsel. (See, Penal Code section 632).
• Ensure all cameras are clearly visible.
• Do not install video cameras in any location in which an employee has a reasonable expectation of privacy, such as a bathroom, changing room, or private office. (See, Labor Code section 435).
• Do not place video cameras in any areas where union meetings or activities may take place.
• Obtain employees’ advance written consent to be monitored.
• Inform employees that video feeds may be recorded both during and outside of business hours and that the company reserves the option of retaining or securely discarding/overwriting such recordings in its discretion.

Employers should publish and distribute written policies covering the above points.

See also:

• Private or Social? (September, 2018)
• If It Isn’t Written, Workplace Policy Is Anyone’s Guess (March, 2018)

For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

October 10, 2018

Don’t Skimp on Workplace Safety Measures

Once again, Cal/OSHA has cited an employer for the death of an employee resulting from ignored safety measures.

In March 2018, a GreenWaste Recovery, Inc. garbage collection worker was driving on the right side of a waste collection truck in San Jose. While making a turn, he fell out of the truck, which then ran him over. Cal/OSHA determined that the necessary safety chain was inoperable because of a missing part.

Cal/OSHA Chief Juliann Sum reminds employers: “To prevent serious and fatal injuries, employers must maintain occupant restraints in working order and ensure the restraints are used by workers.” Specifically related to the trash collection industry, “Collection vehicles with the option to operate the truck from the right-hand side must be equipped with an occupant restraint system such as a door, locking or latching bar, safety chain or strap.”

The agency ruled the employee’s death an avoidable tragedy. GreenWaste Recovery has to pay $46,270 in citations for its safety laxity and will likely face a wrongful death claim. The Cal/OSHA imposed citations include two serious accident-related citations for not ensuring working safety equipment and failing to identify workers’ unsafe practice of not using restraints, and two general ones for failure to maintain required safety equipment.

Cal/OSHA has done at least 186 inspections of waste hauling companies in the last three years, and sadly, they include the death of another trash collection worker killed when he was pinned by his truck against a wall in La Jolla in 2017.

The concern for human life and avoidance of injuries should of course compel companies to do everything necessary to keep their workers safe. Avoiding costly citations is another incentive to do so. Having a proper Illness and Injury Prevention Program, doing necessary training, and ensuring that equipment is working and employees are using it are key measures to have in place.

See also:

• Workplace Illness and Injury Prevention Programs are Mandatory in California (July, 2018)

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

October 4, 2018

How Not to Make a First Impression

Human resources professionals have limited time and attention to review job resumes. According to an August 24, 2018 nationwide CareerBuilder survey of more than 1,100 industry-wide hiring managers and HR professionals, the majority spend less than a minute looking over the typical offering.

According to the survey, job-seekers thus eager to stand out from the crowd have ill-advisedly submitted resumes:

• With every sentence typed in a different font type;
• Comprised of a single sentence;
• Claiming to have had the same number of marriages as prior jobs;
• Listing 40 different jobs in one year;
• Consisting of a credit application; and
• Asserting the same employment dates for every job listed

The surveyed professionals identified three common resume errors/deal breakers: (i) spelling mistakes or bad grammar (77 percent); (ii) inappropriate email address (35 percent); and (iii) no mention of quantifiable results (34 percent).

All joking aside, hiring managers must avoid making mistakes during the job application process such as:

• Photographing the job applicant;
• Requesting a social security number by mail;
• Obtaining information concerning sex, gender, gender identity or gender expression;
• Asking for salary or criminal history; or
• Requesting social media account access (i.e. username or password).

See also:

• California’s Ban Clarified on Applicant Salary History (August, 2018)
• Private or Social? (September, 2018)
• California Adopts Ban the Box Law (October, 2017)
• Asking for Job Applicants Age is a NO-NO (August,2017)

For more information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

October 3, 2018

Hearing Disabled Applicants Deserve Equal Consideration

The federal Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) prohibit discrimination against persons with disabilities. An employer may not refuse to hire an otherwise qualified person because of a disability unless it is an insurmountable impediment to performing the job in question.

On September 24, 2018 the Equal Employment Opportunity Commission (EEOC) announced that it has filed disability discrimination claims against nationwide superstore Target for alleged failure to hire a hearing impaired person in its Antioch, California store.

John Hayes applied for an entry-level clerk position in September 2014. Finding his qualifications sufficient on paper but unaware of any hearing problem, Target representatives called Mr. Hayes twice.

Target policy is to leave a message for prospective applicants whom they do not reach. The EEOC asserts that upon reaching a Video Relay Service (VRS) that enabled Mr. Hayes to communicate with callers, the Target representatives left no message for him either time. The EEOC further contends that even though company HR told him when he called that Target would contact him for an interview, this never happened. The government alleges that Target did hire seven non-disabled persons to fill clerk positions shortly afterwards.

The EEOC is suing Target for front pay, lost wages, and other damages. The agency also seeks an injunction for Target not to engage in such purported discrimination in the future.

EEOC Regional Attorney Roberta Steele stated, “Target had already determined that Mr. Hayes was qualified and available to start a new job when it learned from a VRS operator he was deaf. Target’s deviation from its standard operating procedures is strong evidence of discrimination.”

The EEOC San Francisco Office director noted that, “Mr. Hayes had a successful 17-year career with a major medical provider before he retired. He was stunned to discover that Target wouldn’t even interview him for an entry-level clerk position after learning he was deaf. Congress enacted the ADA to prevent just this sort of thing — employers refusing to consider qualified individuals because of their disability.”

Through engagement in an interactive process, employers must seek to reasonably accommodate disabilities unless doing so would cause undue hardship. For example, an employer may be able to accommodate a person with back problems by providing a better chair or permitting more frequent breaks, but is not expected to accommodate a blind person to drive a truck. An employment attorney can guide an employer through an interactive process that complies with the law.

See also:

• Don’t Flunk the Reasonable Accommodation Test (May, 2018)
• Job Interview Errors to Avoid (April, 2018)
• Preventing Workplace Discrimination (August, 2017)
• Employers Duties to Reasonably Accommodate Worker Disabilities (May, 2015)

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

September 28, 2018

HERE GOES NOTHING

How to Pass the Unpaid Intern Test

In today’s tight labor market, employers may be tempted to offer unpaid internships to high school or college students. Before doing so, employers should carefully evaluate whether such interns legitimately qualify as unpaid.

The U.S. Department of Labor (DOL) and the California Division of Labor Standards Enforcement (DLSE) have traditionally used a long-standing six-part test to determine if the internship should be paid or unpaid.

Recently, however, the DOL and federal courts replaced that test with a seven-factor test to determine which party is the “primary beneficiary” of the relationship. If the employer is deemed the “primary beneficiary,” the internship must be paid.

Although the DSLE continues to refer to the six-part test, there is at least one federal case indicating that California will follow DOL’s new criteria.

These seven factors examine the internship’s “economic reality” to determine which party is the primary beneficiary:

1. Does the intern clearly understand there is no expectation of compensation?
2. Does the internship provide training similar to that provided in an educational environment, including clinical training?
3. Is the internship tied to the intern’s formal education program via integrated coursework or academic credit?
4. To what extent does the internship accommodate the intern’s academic commitments by adhering to the academic calendar?
5. Does the internship provide the intern with beneficial learning?
6. To what extent does the intern’s work complement, rather than displace, paid employees’ work while also allowing the intern to obtain significant education benefits?
7. Do the parties understand the intern is not entitled to a paid job at the end of the internship?

The above “primary beneficiary” test is flexible, meaning no one factor determines the outcome. Thus, each situation must be viewed on a case-by-case basis. If the specific circumstances indicate the intern fits the definition of an employee, then he or she must receive at least minimum wage and any overtime, as well as other employee benefits and rights.

Whether interns are paid or unpaid, California employers must protect them against unlawful harassment and discrimination and provide religious belief and religious accommodation rights. It’s also good idea to add all interns to the employer’s workers’ compensation coverage and, if not, to confirm other insurance coverage for injuries that occur on premises or while engaged in internship tasks/projects.

For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

September 26, 2018

Employers and Background Check Companies Must Distribute New Model “Summary of Rights” Form

Employers are already tightly regulated on obtaining an applicant’s or employee’s credit information. Companies may only seek consumer credit reporting agency disclosure on credit-worthiness, credit standing or credit capacity in connection with ● specified job positions including managerial executives, ● jobs involving regular access to financial records, and ● positions for which credit background checks are required by law.

Whenever running such credit checks, the employer or its agent must strictly comply with applicable federal and state laws, including the federal Fair Credit Reporting Act (FCRA).

For example, the applicant or employee must receive a copy of the FCRA’s “Summary of Your Rights” form at various points in the credit check process, including when disclosing the intent to run the report, prior to taking adverse action based on the results of the report, and after taking adverse action upon the individual’s timely request.

This “Summary of Your Rights” form describes the individual’s prerogatives to obtain and dispute information in consumer reports as well as how to obtain credit scores.

On September 12, 2018, the Federal Bureau of Consumer Financial Protection (Bureau) issued an interim final rule updating the “Summary of Your Rights” form to comport with recent legislative changes to the FCRA which require all nationwide consumer reporting agencies to provide security freezes (locking down release of all credit information without express authorization) for no charge to consumers to deter identity thieves from fraudulently opening accounts in the consumer’s name.

The recent legislation also mandates that effective September 21, 2018, individuals undergoing credit background checks must receive notice of the new security freeze right with receipt of the “Summary of Your Rights” form. For sake of convenience, the Bureau updated its “Summary of Your Rights” form to include the new notification language. The new form is located in Appendix K of the interim final rule.

Employers who conduct background checks should ensure they or their background check companies comply with the interim final rule no later than the September 21, 2018 deadline.

See also:

• Pre- Employment Background Checks (August, 2011)
• Background Check for Employment (June, 2010)

For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

September 20, 2018