2014 ← CELA VOICE ← Page 5

International Women’s Day now means progress without equity

Mar

8

2014

International Women’s Day, celebrated worldwide this past weekend, started out as “International Working Women’s Day” in 1911. One week later, the notorious Triangle Shirtwaist Factory Fire of 1911 broke out, killing over 140 workers – mostly women – who were trapped inside the factory. The horror of that fire and the working conditions imposed on the women locked inside the factory galvanized the labor movement and the women’s rights movement. Even though the name may have changed, this annual day honoring women is the perfect time to take account of the barriers working women still face today.

Working women in the United States confront challenges ranging from workplace discrimination and harassment to unequal pay and inadequate leaves of absences. The 2014 Shriver Report: A Woman’s Nation Pushes Back from the Brink collects essays that detail how these barriers impact not only working women, but their families, the economy and society as a whole.

Discrimination and harassment – Women continue to face unlawful discrimination and harassment on the job based on sex, pregnancy, gender identity, sexual orientation, race, national origin, disability, and many other characteristics. The U.S. Equal Employment Opportunity Commission, the agency that enforces our federal civil rights laws published its statistics for charges filed in Fiscal Year 2013. Charges of sex discrimination constituted approximately 30% of the charges filed with the EEOC. The California Department of Fair Employment and Housing, the state agency that enforces our state civil rights laws published its statistics for 2012. This data showed that sexual harassment charges were approximately 60% of the charges filed regarding sex discrimination and harassment. These statistics demonstrate that employment discrimination and harassment continue as serious problems for working women.

On the legislative front of women’s rights issues at the federal level, the Pregnant Workers Fairness Act would strengthen the protections for working pregnant women. We also need the protections of the Employment Non-Discrimination Act, which would prohibit discrimination on the basis of sexual orientation and gender identity across the country. But these laws must also be enforced, which means vigilant leadership and restoration of the funding cuts that have undermined the California and federal agencies charged with civil rights enforcement.

Gender-Based Wage Gap – Despite the fact that gender-based pay discrimination has been against the law for over 50 years, women in the United States still face a significant wage gap. Recently, there has been little progress in closing the gap in wages between women and men. As of 2012, women’s median earnings were 81% of men’s. And the wage gap is worse for women of color. Because women are breadwinners for their families, the impact of wage discrimination is felt across the board. The Paycheck Fairness Act, pending in Congress, would help fight gender-based pay discrimination

Leaves of Absence – Women are still the primary caregivers in the U.S. and they also often must take time off work for pregnancy and childbirth. Yet the U.S. lags behind nearly every other country in the industrialized world in terms of how much leave it provides for caregiving, pregnancy and childbirth. The federal Family and Medical Leave Act provides for job-protected leaves of absence for caregiving as well as for pregnancy and bonding leave. However, the FMLA is unpaid leave and many workers cannot afford to take unpaid leave. The FMLA also provides no protection for those workers at companies with fewer than 50 employees at or near their worksite, those who have worked for the employer for less than a year, and many who work part-time. Additionally FMLA takes a narrow view of what it means to be a family member, drawing a tight boundary around the nuclear family– parent, child, and spouse. Grandparents, siblings and other extended family are not included.

The California Paid Family Leave Law, the first of its kind in the country, provides partial wage replacement to workers who take time off to care for family members or bond with a new child. As of July 2014, California workers will be able to take paid family leave for a broader group of family members that will include grandparents and grandchildren, siblings, and parents-in-law.

Some federal legislators are already taking the cue from California with a pending bill in Congress to provide paid leave nationally. They should keep up the momentum and improve the FMLA to extend coverage to more workers and to widen the circle of who is considered “family.”

The United Nations’ theme for this year’s International Women’s Day is “Equality for Women is Progress for All.” The global gender gap index shows a strong correlation between a country’s gender gap and its economic competitiveness. Given the fact that women are at least half of the potential workforce, a nation’s economic competitiveness depends on how it treats women. Improving the lives of working women will enhance progress for all working families and our national economy. When that happens, we will all be able to proclaim “Happy International Women’s Day”!

About Elizabeth Kristen

Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid at Work. Ms. Kristen began her public interest career as a Skadden Fellow at Legal Aid. Ms. Kristen graduated from University of California at Berkeley School of Law in 2001 and served as a law clerk to the Honorable James R. Browning on the Ninth Circuit Court of Appeals in San Francisco. In 2012-13, she served as a Harvard law School Wasserstein Public Interest Fellow. She has been a lecturer at Berkeley Law School since 2008. Legal Aid at Work together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.

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

Mar

7

2014

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 11^th 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.

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.

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PayPal, Dog Food and California’s Anti-Forced Patronage Law: Did PayPal Chief David Marcus cross a line by threatening the jobs of employees who don’t use PayPal products?

Feb

28

2014

In what passes for celebrity gossip in Silicon Valley, the technology press is abuzz and atwitter over a leaked e-mail from PayPal President David Marcus to the company’s San Jose employees. In the memo, Marcus bemoans the San Jose staff’s allegedly tepid personal enthusiasm for PayPal products. At other offices, Marcus noted, the staff is willing to “hack into Coke machines to make them accept PayPal because they feel passionately about using PayPal everywhere.” Marcus also expressed irritation with employees who can’t “even remember their PayPal password.”

As if password amnesia and a preference for using coins in Coke machines weren’t bad enough, Marcus was especially incensed by those San Jose employees who did not personally use PayPal products. “Some of you,” Marcus lamented, “refused to install the PayPal app,” a point he underscored in the memo with flamboyant punctuation (“!!?!?!!”).

After urging the “San Jose PayPals” to use the company’s products, he closed with a vague threat, recommending that employees who refuse to install the PayPal app can go find another job.

In the tech word, the internal use of a company’s own software to demonstrate the quality and capabilities of the product is known informally as “eating your own dog food” or “dog-fooding.” For example, Hewlett-Packard staff once referred to a project using only HP’s own products as “Project Alpo.” But did Marcus take the “dog food” concept too far by threatening the jobs of employees who refuse to patronize PayPal?

The answer lies in California’s Depression-era Forced Patronage Law. What is forced patronage, you may ask? Let me illustrate the concept with a tale from my youth.

Long ago, in a downscale mall in a mid-sized Midwestern city, I got my first and only retail job at a now-defunct rural-themed clothing chain called the “County Seat.”

It is difficult for young people today to appreciate the sartorial horror that was the County Seat. The clothing seemed targeted at rodeo clowns or the more fashion-forward Amish. Nevertheless, County Seat staff were forced to buy County Seat clothing at a small discount and wear it on the job – in public!! – as a condition of employment. The delusional thinking was that turning the sales clerks into human mannequins would stimulate sales. This was classic “forced patronage.”

But that was the Midwest. Here in California, Labor Code section 450 prohibits an employer from compelling or coercing an employee to purchase goods or services from his or her employer or any other person. The law was originally aimed at the proverbial “company store” of the coal mine of the remote farm labor camp. But in modern times, it has been used in class action litigation against employers such as Abercrombie & Fitch (the County Seat of our time) and other clothing chains which require employees to purchase and wear the company’s fashions on the job.

So back to David Marcus and the PayPal e-mail. Was there a violation of Labor Code section 450? No one at PayPal, as far as I know, has been fired for refusing to use PayPal products. And, because the statute prohibits the “purchase of anything of value,” Pay Pal could argue that requiring the download of a free PayPal app is not a violation of section 450. On the other hand, if PayPal employees are terminated for refusing to purchase PayPal products, that would be a different bowl of dog food.

The evolution of the application of Labor Code section 450 from the coal mine to Silicon Valley shows how old statues are reinterpreted and updated for the cyber age. There is, alas, no specific statute that protects an employee from termination for forgetting a password. Therefore, we are all very, very vulnerable.

About Curt Surls

Curt Surls has been practicing in Los Angeles, specializing in employment law, for almost 25 years. Mr. Surls is a Fellow of the American Bar Foundation, a non-profit professional association honoring lawyers whose careers have demonstrated dedication to the welfare of the community and the traditions of the profession. Prior to opening the Law Office of Curt Surls in July 2012, he was a partner with Bornn & Surls for over 15 years. Mr. Surls was also an attorney with the Oakland civil rights firm then known as Saperstein, Seligman & Mayeda, specializing in employment and civil rights class actions. Mr. Surls also worked for the Department of Industrial Relations and the Legal Aid Foundation of Los Angeles.

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Let’s drink to the hard working people 3

Feb

21

2014

I fell under the influence of the Rolling Stones as an early teenager and never left. The other day I was listening to Keith Richards grinding out his raspy lyrics to the song “Salt of the Earth,” which begins with the guiding line, “Let’s drink to the hard working people.” The Stones understood back in 1968 (and probably earlier) that workers should be appreciated and recognized, and it’s time the rest of us follow suit.

Workers, especially low wage workers, are much worse off today than they were 46 years ago when “Salt of the Earth” was released. According to a recent study from the Center for Economic and Policy Research, 40% of Americans now make less than the 1968 minimum wage. Had the federal minimum wage kept pace with gains in the country’s productivity since 1968, it would be $16.54 per hour as opposed to its current abysmal rate of $7.25 per hour. Put another way, the current federal minimum wage is 32% less in 2013 dollars than it was in 1968.

Corporate America’s concerted attack on unions coupled with anti-union legislation has also hurt workers. On average, unionized employees earn roughly $200 more per week than non-union employees. Today, unions represent a meager 7% of employees in corporate America, which is one-quarter the level in the 1960s. In 2013, the union membership rate was 11.3% compared to 20.1% in 1983. A 2011 study argues that the decline of organized labor accounts for about one-third of the rise in income inequality for men and one-fifth for women — even for people who never belonged to unions.

Our country’s historically high poverty rate, which currently exceeds 15% of the U.S. population, is due at least in part to the failure to recognize and support labor. Four out of every five Americans will experience near-poverty, unemployment or reliance on welfare programs at some point in their lives. In 2013, the poverty wage level for a single full-time worker with one child was $8.11, which is almost a dollar more than the current federal minimum wage.

I call on all of us to raise our glass to hard working people and take action to reverse these devastating trends. An increase of the federal minimum wage to $10.10 per hour would raise the incomes for 17 million Americans. Federal law should follow California’s lead by imposing significant penalties against employers who fail to pay the requisite minimum wage or who fail to pay wages at all. Finally, unions should be lauded instead of vilified, especially in the burgeoning high tech industry which has always been hostile to unions.

Workers ARE the salt of the earth, and it’s time for the country to show them the respect and appreciation they deserve.

About Scott Ames

Scott Ames has been litigating wrongful termination, discrimination, harassment, family and medical leave, breach of contract, wage and hour violations, unfair competition and trade secret matters, and other employee rights cases for over two decades. Mr. Ames’ demonstrated record of success has resulted in him being named among the Top 100 Attorneys in Southern California in 2012 and 2013, a “Southern California Super Lawyer” by Los Angeles Magazine from 2007 through 2014, and a “Best Lawyer in America” from 2006 through 2014. Mr. Ames is also active in his community, and has served on a number of committees and boards of non-profit organizations which seek to improve the lives of the disenfranchised or working poor.

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

Feb

13

2014

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.

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.

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A Nation at Waste: The long-term unemployed and job discrimination

Feb

7

2014

By Hina Shah

President Obama in his State of the Union speech was upbeat as he pronounced that we had the lowest unemployment rate in over five years. But this optimistic forecast glosses over the epidemic of the long-term unemployed. There are 3.9 million Americans who have been unemployed 27 weeks or longer and 2.6 million who have been unemployed for 52 weeks or longer, according to the National Employment Law Project’s report.

Stigmatization and discrimination against the long-term unemployed creates a major barrier to ending this epidemic. Rand Ghayad, a doctoral student of economics, conducted an experiment where 4800 computer-generated resumes of fictitious workers were sent out with identical credentials with varying unemployment lengths and industry experience. Workers who reported being unemployed for six months or more were almost never contacted. “It isn’t that firms aren’t finding the right workers,” Ghayad said, “but that employers are screening out the long-term unemployed.” This discrimination disproportionately impacts workers who are non-white, unmarried, disabled, impoverished and less educated – the groups who are over-represented among the long-term unemployed.

The President is on the right track when he asked business CEOs to take the pledge to not discriminate against the long-term unemployed and issued a directive to federal agencies not to screen out long-term unemployed workers from consideration for openings. But even with these measures, we face a real crisis of creating a permanent class of jobless Americans, as Congress gridlocks over extending benefits to the long-term unemployed. In a recent survey, 25 percent of the long-term unemployed reported that they did not have money for food and 10 percent have lost their home or apartment because they could not pay their rent or mortgage. Economists all agree that long-term unemployment slows overall economic growth and hurts the nation as a whole. Harder to quantify, but still real, is the toll that chronic unemployment takes on a person’s confidence and sense of dignity as well as their skill level.

We must do more to insure that the long-term unemployed are not abandoned on the road to economic recovery. The National Employment Law Project recently issued nine recommendations to address long-term unemployment. These are bold recommendations that call on the President, Congress and the business community to act to create new jobs and end the practice of discriminating against long-term unemployed individuals.

It is time to look again at the Roosevelt New Deal programs, like the Works Progress Administration that put 8.5 million Americans back to work building bridges, roads, public parks and strengthening America’s infrastructure. If we want to avoid a permanent subclass of citizens living in the shadow of our economy, the President must embrace a bolder path.

About Hina Shah

Hina B. Shah is an Associate Professor of Law and Co-Director at the Women’s Employment Rights Clinic (WERC) of Golden Gate University School of Law, addressing employment and labor issues faced by low wage and immigrant workers.

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Let’s make 2014 the year in which all American workers are guaranteed access to paid sick leave

Jan

31

2014

By Sharon Vinick

Unlike other industrialized nations, the United States does not have a national paid sick leave policy. According to a 2011 study by the Economic Policy Institute, 40% million Americans working in the private sector are employed in jobs that do not provide paid sick time. And, the real cost of having employees go to work when they are sick is enormous. The Centers for Disease Prevention and Control estimates that the annual flu season, alone, costs companies $10.5 billion in lost productivity and direct medical costs. But, momentum seems to be building in favor of passing legislation that will provide paid sick leave to all employees.

In 2007, San Francisco became the first city in the country to require that all private companies – big and small – offer paid sick days to their employees. At the time, business groups warned that providing paid sick leave would negatively impact local business. As it turns out, these dire predictions were entirely wrong. According to a 2011 study by the Institute for Women’s Policy Research, paid sick leave has benefitted employees without reducing employer profitability.

While it took a few years for other municipalities to follow San Francisco’s leave, by November 2013, six cities and one state had paid sick leave laws: Connecticut, San Francisco, Washington, D.C., New York City, Jersey City (New Jersey) and Portland (Oregon). Then, last summer, Senator Tom Harkin and Representation Rosa DeLauro introduced the “Healthy Families Act,” which would allow workers to accrue up to seven days of paid sick leave over the course of the year. While the Act has not yet passed, each month, more states and municipalities seem to be jumping on the band wagon. Earlier this month, the Newark City Council passed a paid sick leave ordinance, and similar legislation is under consideration in California and Washington.

The national discussion regarding paid sick leave is not limited to legislative bodies. Earlier this month, Michael Miller of the Atlantic City Press, published an article regarding the move within New Jersey to provide paid sick leave. And, on Monday, the New York Times published a story by Rachel Swarns which explained that cities that have adopted paid sick leave ordinances have not experienced an exodus of businesses.

But the biggest push towards providing paid sick leave to all Americans came just this week. On Monday, during his State of the Union Address, President Obama said that “[a] mother deserves a day off to care for a sick child or sick parent without running into hardship – and you know what, a father does, too.” This remark was widely considered to be support for national legislation requiring that private employers provide paid sick leave. Then, two days later, actress Cynthia Nixon joined House minority leader Nancy Pelosi and a coalition of progressive groups in a “telephone town hall” in which they pushed for the passage of new legislation of paid sick leave.

Given that 74% of Americans believe that employers should be required to offer paid sick leave, it is high time that we pass legislation that guarantees all Americans access to paid sick leave.

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.

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U.S. Supreme Court defines the meaning of the phrase “changing clothes”

Jan

30

2014

By Sharon Vinick

Earlier this week, U.S. Steel and employers across the nation rejoiced as the United States Supreme Court issued a decision regarding the meaning of the phrase “changing clothes” within the context of the Fair Labor Standards Act. To understand why this ordinary phrase received such extraordinary attention requires some understanding of the Act itself, and the right of labor unions to negotiate over what type of work is compensable.

In 1938, when Congress enacted the Fair Labor Standards Act, which governs the minimum wages and maximum hours for individuals working in non-exempt positions, it failed to include definitions of key terms, such as “work” and “workweek.” The Supreme Court addressed the meaning of these terms in the 1946 case of Anderson v. Mt. Clemens Pottery Co., concluding that the term “workweek” includes all time during which an employee is required to be on the employer’s premises and includes time spent engaged in “preliminary activities . . such as putting on aprons and overalls [and] removing shirts.” The Court held that these activities – which came to be referred to as “donning and doffing” — are “work” for which employees should be compensated.

Just three years later, in 1949, Congress amended the FLSA in order to provide that the compensability of time spent donning and doffing clothing, as well as washing, was an appropriate subject for collective bargaining. Thereafter, unions were free to negotiate with employers with respect to whether employees would be paid for “time spent in changing clothes or washing at the beginning and end of each workday.” And, not too surprisingly, in the rough and tumble of union negotiations, many employees ended up working under contracts which provided that they did not get paid for changing clothes, even if the clothing was required and took significant time to get in and out of.

In Sandifer v. United States Steel Corporation, decided earlier this week, steelworkers asked to be paid for time that they spent putting on and taking off fifteen items of “personal protective gear,” including flame-retardant outerwear, gloves, steel tipped boots, hard hats, and snoods. (For the uninitiated, a “snood” is basically a hood that covers the neck and shoulder area, rather like a balaclava.) Attorneys for the steelworkers argued that these items were “protective gear” and not “clothes” within the meaning of the FLSA. In contrast, the employer, US Steel, argued that these items were encompassed within the meaning of the phrase “changing clothes” and were appropriately covered under the union contract.

The Supreme Court relied on 1940s dictionary definitions of the words “changing” and “clothes” to decide the case, holding that “changing clothes” encompassed both changing from street clothes to work clothes and layering protective gear over work clothes. Thus, the court concluded, if a collective bargaining agreement provided that employees would not be paid for “changing clothes,” they would not be entitled to pay for time spent donning and doffing protective gear.

The opinion has been widely hailed as a victory for employers, but its “gotcha” effect is likely to be short lived. The next time the parties sit down at the bargaining table it’s unlikely that the putting on and taking off of protective gear will fly under the radar.

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.

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U.S. lags behind western democracies in enacting anti-workplace bullying laws despite growing problem 2

Jan

14

2014

By Supreeta Sampath

According to the National Bullying Institute, one-third of Americans are bullied at work, and workplace bullying is on the rise. Recently the issue of bullying made national headlines when Miami Dolphins offensive tackle Jonathan Martin, accused lineman Richie Incognito of physical and verbal abusive behavior. The absence of state or federal legislation to address this troubling trend sends bullies the message that they can get away with such behavior as yelling, screaming, humiliating, and sabotaging an employee’s career. The legal void also signals to employers that they can turn a blind eye to bullying without fear of legal repercussions.

Compared to other western democracies, including Britain, Canada, France and Australia (which have all enacted anti-bullying legislation) the United States is in the dark ages on this important mental health issue. But at the state level, there are signs that this may be changing.

Suffolk University Law Professor David Yamada has drafted model anti-bullying legislation, known as The Healthy Workplace Bill. The Healthy Workplace Campaign defines workplace bullying as “repeated, health-harming mistreatment” that involves verbal abuse, offensive conduct that is threatening, humiliating, intimidating or work sabotage.

Since 2003, anti-bullying legislation has been introduced in 25 states (including California). While none has been enacted into law, there are currently 11 states that have bills under active consideration.

This kind of legislation will undoubtedly ignite the business lobby with their well-worn opposition arguments. Employer groups will continue to argue that anti-bullying legislation will open up the floodgates of litigation and clog our already overburdened courts because “overly sensitive” employees will run to file a lawsuit every time they have a bad day at work.

But this focus on the frivolous is a straw argument that trivializes the real cost of bullying to workers and businesses alike. The concern about legislating workplace civility can be addressed by careful drafting. Rather than fighting workplace bullying laws, employer lobby groups should put their energies into crafting a law that will prohibit abusive or humiliating treatment that no decent employer would sanction, while leaving supervisors free to constructively manage and discipline employees.

It would be nice if internal policies and company grievance procedures had put an end to the harm of workplace bullying. But that has not happened. What we know from past experience is that sometimes it takes a change in law to change behavior.

Before the passage of laws like Title VII and California’s Fair Employment and Housing Act, it was legally permissible to harass and discriminate against employees on the basis of their race, color, gender, sexual orientation, disability, age, and other now protected categories. Once these laws were in place, U.S. companies began holding their managers and employees accountable to eliminate discrimination and sexual harassment in the workplace.

The good news is that, according to a survey by one human resources professional organization, 56% of U.S. companies already have some sort of anti-bullying policy. Drawing on models from employers themselves, we should be able to frame a law that would eliminate frivolous claims by definition by requiring claimants to show not only of out-of-bounds conduct, but also documented harm. While there may be some who still try to file unworthy suits, careful crafting of legislation will ensure that their suits are tossed out. But throwing the baby away with the bath water is not the solution to a growing national problem. It’s time for California and other states in the union to get serious about enacting anti-workplace bullying legislation.

About Supreeta Sampath

Supreeta Sampath is the founder of The Sampath Law Firm located in San Francisco, California. For over a decade, her legal career has been dedicated to serving the needs of those who have been denied justice. Ms. Sampath has extensive experience representing workers in employment discrimination cases on account of race, national origin, religion, gender, disability, age, sexual harassment, retaliation as well as cases involving labor code violations. From 2011-2014 she has been named a Rising Star in the field of Labor and Employment by Super Lawyers Magazine.

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5 New Year’s resolutions for California employers

Jan

1

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!

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.

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