Tis the season: Giving thanks for new employment protections

Tis the season: Giving thanks for new employment protections

By Lisa Mak

In the spirit of the holidays, here’s a round-up of five legal developments that California workers and their advocates can be thankful for this year.

Fair Pay Act

In October 2015, Governor Brown signed the California Fair Pay Act to give our state the strongest equal pay protections in the nation.  In 2014, a woman working full-time in California still earned an average of only 84 cents to every dollar a man earned – a wage gap that has remained unchanged for nearly a decade. The new law mandates equal pay for “substantially similar work,” instead of the old outdated language requiring equal pay only for “equal work on jobs” at the “same establishment.” Thus, male and female employees are now entitled to equal pay if they perform comparable work, even if they have different job titles or work in different offices at a company. The new law also requires that any legitimate, non-gender based factors that employers rely on to explain gender wage differences must be “applied reasonably” and “account for the entire wage differential.” The Fair Pay Act also prohibits retaliation against workers who seek to enforce the Act or who inquire about the wages of other employees. This new law empowers women to challenge unfair pay practices and gives advocates new tools to combat the gender wage gap that has persisted in this state for far too long.

Protecting Reasonable Accommodation Requests

AB 987 was passed in July 2015 to explicitly affirm that workers who request reasonable accommodation based on religion or disability are protected from retaliation under the Fair Employment and Housing Act (FEHA). The legislation was passed in response to a misguided California appellate court’s decision in Rope v. Auto-Chlor System of Washington, Inc. In that case, the employee was fired after requesting a work accommodation so that he could donate his kidney to his ailing sister. The court held that accommodation requests did not constitute a protected activity sufficient to support a FEHA retaliation claim. This decision threatened to overturn years of legal interpretation that protected workers’ rights to request accommodations. With the passage of AB 987, we can now be sure that workers have legal protection if they request an accommodation from their employer due to disability or religion.

Increased Wage Theft Protections

To help combat pervasive wage theft in this state, SB 588 was passed to authorize the California Labor Commissioner to file a lien or levy on an employer’s property to assist employees in collecting judgments for unpaid wages. According to a 2013 report by the National Employment Law Project and the UCLA Labor Center, only 17% of workers who prevailed in their wage claim at the Labor Commissioner’s office were able to receive any payment between 2008 and 2011. Workers who did receive payment were able to collect only 15% of what was owed. The new law also provides that any employer or any person acting on behalf of an employer who “violates, or causes to be violated,” regulations regarding minimum wages or hours and days of work, may be on the hook for wage theft. Workers and their advocates now have significantly stronger tools to go after employers who try to evade liability by shifting responsibility to other companies or by refusing to pay their judgments.

Scrutiny Of Misclassification In Shared Economy Companies

In June 2015, the California Labor Commissioner ruled that a driver for Uber was an employee, not an independent contractor, and ordered the company to pay her back for work-related expenses. In August, the California Employment Development Department determined that a former Uber driver was an employee and was entitled to receive unemployment benefits. Then in September, a federal judge in San Francisco ruled that Uber drivers could proceed as a class action in a lawsuit over whether the drivers should be classified as employees or independent contractors. The class action alleges that Uber failed to pass on tips left for drivers. Although the classification issue for Uber drivers and other similar workers is not yet settled in California, it reflects the willingness of the state’s legal authorities to scrutinize misclassification issues and enforce labor rights in the evolving world of shared economy businesses.

Cost-Shifting To Employees Only If FEHA Lawsuit Frivolous

Previously, employees who lost on their Fair Employment and Housing Act claims could be required to pay the employer’s legal costs. Since these costs could be substantial, workers could be discouraged from trying to vindicate their workplace civil rights out of fear of having to pay if they lost their lawsuit. However, now after the California Supreme Court’s decision in May 2015 in Williams v. Chino Valley Independent Fire District, an employee who loses his or her FEHA claims in a lawsuit will not have to pay the employer’s legal costs on those claims unless the employer shows the claims were frivolous. This new standard can help reduce some of the financial risk for employees seeking to enforce their rights.

These developments reflect our state’s continuing trend of protecting working people, low-wage workers in particular, from exploitation and unfair treatment. Although there’s always more advocacy to be done, we have these positive steps to celebrate for this year.

Lisa Mak

About Lisa Mak

Lisa Mak is an associate attorney in the Consumer & Employee Rights Group at Minami Tamaki LLP in San Francisco. She is passionate about representing employees and consumers on an individual and class basis to protect their rights. Her practice includes cases involving employment discrimination, harassment, retaliation, wrongful termination, labor violations, and severance negotiations. Ms. Mak is the Co-Chair of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, and an active volunteer at the Asian Law Caucus Workers’ Rights Clinic. Ms. Mak is a graduate of UC Hastings School of Law and UC San Diego. She is fluent in Cantonese and conversant in French.

Sweat, blood, tears and stock options: the labor laws that protect all of us, even startup entrepreneurs

Sweat, blood, tears and stock options: the labor laws that protect all of us, even startup entrepreneurs

By Daniel Velton

If you live in Silicon Valley, it’s hard to miss news about deals like the recent $19 billion acquisition of WhatsApp, a young instant messaging company with a mere 55 employees. Or the $1 billion purchase of Instagram, a photo-sharing startup employing only about a dozen folks. Or the blockbuster deal for Waze, a small smartphone navigation company.

The lore of startup culture is by now well known. These often casual workplaces boast features like ping pong tables, 3D printer vending machines, skeeball, rock climbing walls, motorcycles, video games, draught beer taps, yoga mats and arcades. (Now television viewers can tune in to the startup world through a new HBO series.)

As hard as startuppers play, they work even harder. In their blur of 60-80 hour workweeks and caffeinated coding, dreams of being part of The Next Big Deal feed their dedication. They give up a lot of themselves and their personal lives in exchange for the elusive prospect of an early retirement. Many, though, often lose sight of the fact that there’s at least one thing they don’t give up — their rights.

California’s labor laws protect all of us, whether we work in shorts and flip-flops (or bunny slippers) in a fast and loose startup culture, or in slacks and dress shirts in a more traditional corporate environment.   More than one startup has learned this lesson the hard way.  The free-wheeling culture at Square Inc. has been cited by some as leading to a sexual harassment claim against the company’s chief operating officer.  Then there were claims of intimidation, violence and gunplay at the heart of a retaliation lawsuit against Color Labs’ co-founder.  And then there is the seminal Silicon Valley age discrimination case – Reid v. Google, Inc. – involving a 52-year-old manager allegedly referred to by managers as a “fuddy-duddy” with ideas “too old to matter.”   Eventually, his termination lawsuit went all the way to the California Supreme Court, which ruled that comments like those could establish age discrimination.   Finally, though well past its start-up phase, even tech giant Oracle Corporation was recently hit with a claim for retaliation by a sales manager who objected to what he says was national origin discrimination against Indian employees.

Silicon Valley interests may have successfully pushed through an 11th hour budget trailer in 2008 to end overtime pay for many computer professionals, but even in the wild world of startups, there are still laws protecting workers.  The bottom line is that laws that prohibit discrimination, retaliation and harassment, statutes that require employers to accommodate disabled employees, rules that mandate overtime pay for most hourly workers — these and many other protections cover all of us, regardless of where we work.

Startup employees may sell their souls, but they should be mindful that their legal rights don’t go away as part of the bargain.

 

Daniel Velton

About Daniel Velton

Daniel Velton began his career with the largest labor and employment law firm in the world. Using that experience, he brings valuable knowledge and perspective to his current practice, in which he exclusively represents employees in individual and class action discrimination, wrongful termination, harassment, wage and hour, and other employment cases.

Tackling political speech in the workplace: What we can learn from Chris Kluwe 1

Tackling political speech in the workplace: What we can learn from Chris Kluwe

dreamstime_xs_16219951

 

By Nicolas Orihuela

Chris Kluwe was back in the headlines this week for his public support of Michael Sam, a top NFL draft prospect, who announced on Sunday that he is gay.  Chris Kluwe, a former punter with the Minnesota Vikings, claimed earlier this year that he was released from the team for his public support of gay marriage.

As high profile athletes, Kluwe and Sam command the attention of the media and the electorate when they speak up on important societal issues. Michael Sam has indicated that he will not engage in activism in support of gay rights and will choose instead to focus on his fledgling NFL career.

While I do not know him nor pretend to know his motives, I can’t help but think: is the fear of losing out on a high draft pick or not being signed by an NFL team driving his decision not to engage in political activity outside the locker room?  Losing a job should not be a concern that employees have when considering whether to engage in political activities outside the workplace.   Which brings us back to Kluwe’s situation and the question of whether the Vikings had the right to terminate him, assuming his allegations are true, for voicing his political views on gay rights?

With politics a part of daily life, it is only natural that the world of work and politics will collide.   Unfortunately, it is not uncommon for employees to be terminated when the political opinions within these worlds also collide.  Recently, Dick Metcalf, a well known gun journalist, was fired from his job writing for Guns & Ammo magazine after he wrote a column calling into question the absolute right to bear arms.

And take the recent case of Maria Conchita Alonso, a Latin-American actress, who was to participate in a Spanish language version production of “The Vagina Monologues.”  After voicing her support for a Republican California gubernatorial candidate, Tim Donnelly, she was met with fierce protest and basically forced to resign from the production.

The difficulty lies in how to draw the boundaries around protected speech so that the political beliefs and activities of both the employee and the employer are respected.  Employers will argue their own right to political expression and that they should be able to regulate disruptive political activity in the workplace.  However, employers should not have the power to make employment decisions solely based on the political activities outside the workplace.  An employee should simply be able to take a personal stand on political issues (rightly or wrongly) without fear of retribution.

Like Chris Kluwe, most workers who engage in political activity do so on their own time and outside of the workplace.  But without any statutory protection, employers are able to misuse their economic power to influence the political activities of their employees no matter where those activities take place.

Now, if Chris Kluwe played for the Raiders, 49ers or Chargers — all based in California — his right to political speech would be protected.  Two statutes (sections 1101 and 1102 of the California Labor Code) make it unlawful for private employers to retaliate against employees because of their political affiliations or political activities.  California seems to be one of the very few states that protects employees from retaliation for engaging in political discourse outside of work or while at work.

So where does our punter, Mr. Kluwe, stand?  As a result of his allegations, the Vikings are now investigating his claims and have interviewed Mr. Kluwe about his allegations.  However, there is no guarantee that the team will corroborate what he alleges.  And because he does not live in California, there is also no guarantee that the Vikings will remedy any wrongdoing.  While I hope that the Vikings will do the right thing, the natural tendency is for large employers and institutions to close ranks and do nothing to change.  We’ll see soon enough whether the Vikings decide to punt the issue or tackle the issue head on.

Nicolas Orihuela

About Nicolas Orihuela

Nicolas Orihuela is a founding partner of the employment law firm of Hurwitz, Orihuela & Hayes, LLP and has been practicing since 2002. He represents employees in race discrimination, sex harassment, wrongful termination and disability discrimination related cases. He also handles wage and hour cases.

5 New Year’s resolutions for California employers

5 New Year’s resolutions for California employers

2014

By Joan Herrington

It’s the time of year when we think about making a fresh start for the new year.  Since I spend my days witnessing the consequences of workplace problems, I thought I would offer a few New Year’s resolutions I would like to see California employers make.

1.  Communicate with your employees.  Make sure they know what is expected of them and how they can succeed at their jobs.  Uncertainty creates anxiety and anxiety creates inefficiency. Whenever practicable, consult with employees about the things that will affect them.  Few things are more demoralizing than feeling ignored and unable to control your future.

2.  Pay them a living wage.  Your employees will be better able to focus on their work and productivity if they aren’t worrying about paying their bills.  So how about increasing the wages your lowest-level employees earn to something livable?  Some cities are demanding that employers do just that through their living wage ordinances.  And, at the state level, California is raising the minimum wage this year.  Although California’s minimum wage is not due to increase until July 1, 2014, some cities will increase their minimum wage rates as of January 1, 2014.  For example, San Francisco’s minimum wage is increasing from $10.55 to $10.74 an hour and in San Jose the rate will go up from $10 to $10.15 an hour.  Check your city’s ordinances to see if it will also increase the minimum wage rate in 2014.  By bridging the wage gap, we can get the economy back on track for working people.  In fact, studies by renowned economists show that such minimum wage increases can “serve to stimulate the economy as low-wage workers spend their additional earnings potentially raising demand and job growth.”

3.  Don’t underestimate the contributions of older workers.  Older workers are an experienced, dedicated, under-utilized resource.  Studies show that older workers are skillful, reliable, focused, and loyal employees.

4.  Welcome veterans into your workforce.  Our armed forces have had a hard enough time fighting for us in foreign lands.  Don’t make our workplaces another battlefield for them.  Be sure to update your discrimination policies to prohibit discrimination and harassment based on military or veteran status.  Assembly Bill 556 amended the Fair Employment and Housing Act to add military or veteran status as a protected characteristic.  Train hiring officers so that they may inquire into an applicant’s military or veteran status in order to provide a preference in hiring, but make sure they know to keep this information confidential.  And train managers to assist veterans with re-entry into the civilian workforce.

5.  Don’t let a discrimination or harassment complaint become a trigger for retaliation.  Every employee complaint of unfairness deserves a prompt, thorough investigation.  The EEOC provides guidelines on conducting investigations.  If you find that someone engaged in harassment or discrimination, don’t make excuses for them.  Take action to stop the wrong-doing and punish the wrong-doer.  Even if your investigation exonerates an accused supervisor, take affirmative steps to prevent retaliation.  It’s hard for someone accused not to bear a grudge.  Remember that how you handle complaints and prevent retaliation speaks volumes to all of your employees about your quality as an employer.

May 2014 be a productive and fulfilling year for you and the people who work so hard to make your business a success!

 

Joan Herrington

About Joan Herrington

As a former Administrative Law Judge with the California Fair Employment and Housing Commission, Joan focuses on protecting employment rights. Joan helps the Department of Fair Employment and Housing enforce the Fair Employment and Housing Act by representing employees in lawsuits, such as discrimination and harassment based on race, national origin, color, pregnancy, sex, sexual orientation, disability, medical condition, age, and religion. Joan also focuses on protecting employees and whistleblowers from unlawful retaliation. As a qualified and experienced mediator, Joan also helps resolve employment disputes.

Supreme Court makes proving retaliation harder for employees

Supreme Court makes proving retaliation harder for employees

By Sharon Vinick

The United States Supreme Court turned its back on decades of law when it decided on Monday that an employee cannot win a claim for retaliation unless he could prove that the employer’s decision to take action was driven by the employer’s intent to retaliate.  With this move, the Supreme Court made it more difficult for an employee to win a retaliation claim than to win a claim of discrimination or harassment, where an employee need only prove that a discriminatory motive was one of the reasons for the employer’s action.  The Court’s decision also ignores the realities of workplace decision-making, where decisions are rarely driven by single motives and where managers are trained to develop neutral explanations for their employment actions.

This heightened standard for proving a claim for retaliation was announced by the Court in the case of University of Texas Southwestern Medical Center v. NassarDr. Naiel Nassar, who brought the case, is a physician of Middle Eastern descent, who is a specialist in the treatment of HIV/AIDS.  While employed at the University Medical Center, Dr. Nassar complained that Dr. Levine, one of the physicians supervising him, was discriminating against him on account of his religion and national origin.  In an effort to continue his work, but to avoid being subjected to further acts of discrimination, Dr. Nassar sought and was verbally offered a position at an affiliated hospital.    However, a high-level hospital official voiced his opposition to the hiring, making it clear that he was shocked that Dr. Nassar had made allegations against Dr. Levine.  Subsequently, the hospital withdrew its offer to bring Dr. Nassar on board.

Ignoring a long line of cases holding that claims for discrimination and retaliation are often intertwined and that retaliation “is a type of discrimination,” the Supreme Court ruled that employees bringing a claim of retaliation should be held to a higher standard of proof that those bringing claims of discrimination. Thus, the Court held that to win a claim for retaliation, the employee must prove that an “adverse employment action” – in this case, the withdrawal of an offer of employment – was taken because of an intent to discriminate.  Justice Kennedy, author of the majority opinion, defended the Court’s decision by explaining that “claims of retaliation are being made with ever-increasing frequency” and that a higher standard of causation was necessary to eliminate the filing of “frivolous claims.”

In a sharply worded dissent, Justice Ginsburg, who spent her legal career defending civil rights and was a key player in the development of employment discrimination law, criticized the majority for failing to follow precedent, as well as failing to take into account the aims of the legislators who drafted and amended Title VII, the federal law prohibiting discrimination and retaliation.  As Justice Ginsburg correctly noted, the “Court appears to be driven by a zeal to reduce the number of retaliation claims filed against employers.”  While this goal may be lauded by the business community, it simply has no place in Supreme Court precedent, which is undoubtedly the reason that Justice Ginsburg concludes by urging Congress to overturn the Court’s ruling.

Sharon Vinick

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

In two 5-4 decisions, Supreme Court narrows Title VII protection against harassment and retaliation

By Charlotte Fishman

What Senator Warren has labeled “the Corporate Capture of the Federal Courts”  was on full display at the United  States Supreme Court today.  The Court issued Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar, two 5-4 pro-employer decisions authored by Justice Samuel Alito and Justice Anthony Kennedy, respectively.  Justice Ginsburg authored two impassioned dissents that she read from the bench.

To attorneys who represent victims of discrimination of harassment  and retaliation, these decisions illustrate a depressingly familiar scenario of judicial bias:    the majority is far more concerned with protecting employers from lawsuits than vindicating employees’ statutory right to be free from discrimination and retaliation.

In Nassar, Justice Kennedy’s words convey solicitude for the welfare of employers that is in sharp contrast to his disdainful view of employees:  “The fair and responsible allocation of resources in the judicial and litigation system” requires raising the standard for retaliation claims because “[i]t would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent.”

The majority’s lack of comparable concern for the “financial and reputational” cost of retaliatory harrassment to the employee is noteworthy, as is its unquestioning acceptance of the hypothetical danger rarely, if ever, encountered by employee-side practitioners:  “Consider…the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location.  To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination: then when the unrelated employment action comes, the employee could allege that this is retaliation.”

In Ball, Justice Alito’s opinion reveals the majority’s staggering ignorance of (or indifference to) the power of low level supervisors to use their employer-delegated authority to harass employees under their control.  The opinion limits employer’s vicarious liability for workplace harassment to the actions of supervisors who have the power to “hire, fire, demote, promote, transfer or discipline.”   In so ruling, the Court threw out EEOC Enforcement Guides in effect since 1999, and made it harder for employees to obtain redress for harassment by defining individuals who control day-to-day schedules and assignments as mere “co-workers.”

The tendency of the federal courts to favor corporate interests over that of individuals has become the subject of increasing public concern, and today’s decisions provide additional fuel for the argument that  we need greater experiential diversity on the federal bench.  Hopefully, Congress will accept Justice Ginsburg’s invitation to “correct this Court’s wayward interpretations of Title VII” and  restore the Title VII protections that are weakened by today’s cases.  But in the long run, what is needed to restore balance to our judicial system is the appointment of federal judges who are better attuned to the rights of individuals.

Charlotte Fishman

About Charlotte Fishman

Charlotte Fishman is a San Francisco attorney with over 30 years of experience handling employment discrimination cases on the plaintiff side. In 2005 she launched Pick Up the Pace, dedicated to overcoming barriers to women’s advancement in the workplace through legal advocacy and public education. She has authored amicus curiae briefs in major cases before the United States and California Supreme Court and writes and speaks to a wide audience on cutting edge employment issues affecting women.

%d bloggers like this: