Revised California Sexual Harassment Training Regulations

AB 1825, passed in September 2004, is the law requiring California employers to train "supervisors" for two hours every two years regarding sexual harassment. The California Fair Employment and Housing Commission has promised regulations to help employers implement some of the vague aspects of the law. The FEHC issued revised AB 1825 regulations today. The first draft was issued in December 2005. The new version shows the changes to the December draft via redline and strikeout.

Some of the highlights of the revised regulations -
- e-learning (web-based) training now must include the ability to contact a live trainer with questions
- a "webinar" or seminar broadcast over the internet must include the ability to track remote supervisors' participation in the interactive training, ensure they attended the full training, and permit quetions to be asked and answered.
- the "two year" training frequency is measured each supervisor's training obligation is measured separately for each supervisor based on the last date the supervisor completed the trainning. So, each supervisor's training period is measured separately.
- new supervisors who were trained by former employers need only read and acknowledge the new epmloyer's anti-harassment policy within six months of becoming a supervisor for the new epmloyer.
- the obligation to train on discrimination and retaliation issues in addition to harassment is clarified.
- training on most topics is expressly limited to "sexual" harassment, rather than harassment generally, discrimination or retaliatoin. However, the practical examples and interactive teaching must include anti-discrimination and retaliation.
- The regulations list specific requirements for instructors, but removes some of the earlier requirements and no longer expressly says that lawyers and psychologists may qualify as trainers.

Have a great 4th of July weekend!

- DGV

Bad releases make bad case law

The court of appeal held that a release between employer and employee did not necessarily apply to discrimination claims even though contained a waiver of California Civil code section 1542. Butler v. The Vons Companies involved an employee who provided a release of claims in connection with an altercation. He later sued Vons for discrimination. Vons set up the release as a defense, but the Court of Appeal reversed summary judgment in Vons's favor.

Many employers like to re-use or adapt releases used in other matters, rather than submit each one for legal review. The problem is that word processing, editing errors, and specific facts that may require customized language can create issues with the release. I have seen releases that do not cite section 1542 properly, that omit key language, that do not contain proper general release language, etc.

A poorly drafted release may be ineffective, as it was in the Vons case, which is bad news for employers who pay severance or other consideration in exchange for the expectation of peace.

Supreme Court Expands Retaliation Claims

In Burlington Northern Santa Fe Railway v. White, the U.S. Supreme Court expanded the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964. Here is the Court's definition of what constitutes an "adverse employment action" necessary to make out a retaliation claim:

We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.

Sheila White was a railroad employee. She complained about sexist comments a manager allegedly made and filed a charge with the EEOC. Shortly thereafter, she was suspended without pay, allegedly for incidents of "insubordination." When White grieved the suspension internally, the company determined she was not insubordinate, and reinstated her with back pay. The employer also allegedly assigned White undesirable job duties, moving her from forklift duty to other duties within her track laborer job description.

The Supreme Court was asked to resolve a dispute among the courts of appeals regarding the standards applied in retaliation cases. Some courts held that actionable retaliation should involve an "ultimate" employment action, such as firing, demotion, etc. Others held that nearly any negative experience motivated by retaliation for engaging in protected activity would be actionable.

The Supremes took a middle ground, but one which will result in an increase in retaliation claims, which already have been on the rise. Here are the main points -

a. Whether an employee experienced a material adverse action must be measured "objectively" - from the standpoint of a "reasonable" employee subjected to retaliation;
b. The types of conduct amounting to retaliation must be measured in context. Seemingly trivial slights (ostracism) can become retaliatory when there is harm to the employee's career (e.g., a retaliatory failure to invite an employee to a weekly staff lunch meeting.);
c. Not every kind of retaliatory act is actionable; only ones that cause actual harm; and
d. Employers may be liable for non-work related retaliation if proven that the employer committed some action or omission away from the workplace that was related to the employee's exercise of protected activity.

The case applies only to federal claims, not to those brought under California's FEHA. The California Supreme Court's decision in Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028 addressed the same issue in the context of the Fair Employment and Housing Act. The California Supreme Court's holding is similar to the SCOTUS decision in White:

we conclude that the proper standard for defining an adverse employment action is the "materiality" test, a standard that requires an employer's adverse action to materially affect the terms and conditions of employment . . . .rather than the arguably broader "deterrence" test adopted by the Court of Appeal in the present case. We further conclude that in determining whether an employee has been subjected to treatment that materially affects the terms and conditions of employment, it is appropriate to consider the totality of the circumstances and to apply the "continuing violation" doctrine that we recently adopted in Richards v. CH2M Hill, Inc. 26 Cal.4th 798.

So, California's Supreme Court's definition of adverse action arguably is more narrow than the U.S. Supreme Court's decision in White. For example, the adverse action in Yanowitz must be work-related; under federal law, it does not.

Perhaps the California Supreme Court will take up the issue anew to address White.

Happy Birthday to Shaw Valenza LLP!

Shaw Valenza LLP begins its second week of operation today. The Firm's birthday is 6/19/06. For those of you who cannot resist showering the Firm with gifts, it is a demure size 3, it likes dark blue, Guz v. Bechtel and walks on the beach.

Have you seen our new website? The URL is www.shawvalenza.com. If you ever forget, there is a handy link on the right side of the page that will pester you until you click it. Go over there to sign up for one of our public seminars. Jennifer is planning on selling out Arco Arena this year for our annual legal update. OK, coincidentally, the Kings will be playing the Lakers at the same time, but that's just a coincidence. Lucky Kings riding Jennifer's coattails.

So far, we have a beautiful office in Sacramento (520 Capitol Mall, Ste. 630), a phone system, Lexis, books, a digital copier, servers, website, etc. I still need a stapler, but all in good time.
Part of the reason we left Jackson Lewis is to have more contact with our own clients. This blog is one of the ways we intend to do that. If you think there's something interesting we should cover, email us! If you disagree with our interpretation of a new development, please leave comments here. To those of you who just want to make fun of me, please be civil if possible. You know who you are.

Anyway, you've been a lovely audience, but now we must go to work. We will post here employment law items we think are interesting, scary, etc. (Most of the scary ones concern California employment law issues.) Stay tuned, and please leave comments.

- DGV