California Labor Commissioner to Hold Public Forum on Meal and Rest Periods

The DLSE has scheduled a "public forum" on August 2, 2007 in Sacramento. The details are here.

The purpose of the meeting is to allow members of the public "to inform the newly appointed California State Labor Commissioner, Angela Bradstreet, of their concerns regarding how recent changes to the meal and rest period enforcement practices required by legislation and recent court decisions has impacted their daily work-lives."

Alternatively, the Labor Commissioner will accept written comments by August 31, 2007.

DGV

Final California AB1825 Sexual Harassment Training Regulations (Really)

The Fair Employment and Housing Commission reports here that the California Office of Administrative Law has approved the final AB 1825 sexual harassment training regulations.
Here are the regulations.

They will become effective on or about August 17. Employers have until then to ensure that their training programs are in compliance with the specifics. There are provisions that may require employers' attention. Here are a few:

1. Electronic learning -

An employer utilizing a webinar for its supervisors must document and demonstrate that each supervisor who was not physically present in the same room as the trainer nonetheless attended the entire training and actively participated with the training’s interactive content, discussion questions, hypothetical scenarios, quizzes or tests, and activities. The webinar must provide the supervisors an opportunity to ask questions, to have them answered and otherwise to seek guidance and assistance.

2. Who are qualified trainers -

(A) A trainer shall be one or more of the following:
1. "Attorneys" admitted for two or more years to the bar of any state in the United States and whose practice includes employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964, or
2. "Human resource professionals" or "harassment prevention consultants" working as employees or independent contractors with a minimum of two or more years of
practical experience in one or more of the following: a. designing or conducting
discrimination, retaliation and sexual harassment prevention training; b. responding to sexual harassment complaints or other discrimination complaints; c. conducting investigations of sexual harassment complaints; or d. advising employers or employees regarding discrimination, retaliation and sexual harassment prevention, or
3. "Professors or instructors" in law schools, colleges or universities who have a post-graduate degree or California teaching credential and either 20 instruction hours or two or more years of experience in a law school, college or university teaching about employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964.

(B) Individuals who do not meet the qualifications of a trainer as an attorney, human resource professional, harassment prevention consultant, professor or instructor because they lack the requisite years of experience may team teach with a trainer in classroom or webinar trainings provided that the trainer supervises these individuals and the trainer is available throughout the training to answer questions from training attendees.

Documentation -

(2) Documentation of Training. An employer shall keep documentation of the training provided its employees under this section to track compliance, including the name supervisory employee trained, the date of training, the type of training, and the name the training provider and shall retain the records for a minimum of two years.

Small employers crossing the 50 employee threshold - six months to do the training

Content - review your training programs carefully to ensure all the elements care covered.

Too much trouble? Well, I have a suggestion [shameless plug alert!]:

http://shawvalenza.com/about_training.php

DGV

9th Circuit Sets Low Bar on Employer Liability for Employees' Conduct

Poland was with the Customs Service in Denver. Hillberry was his supervisor. Hillberry demonstrated some anti-age animus towards Poland. Poland at some point filed a charge of discrimination. Later, Hillberry requested an administrative review of Poland's management of subordinates. The reviewers found that Poland engaged in unprofessional conduct as a manager. As a result, Poland was demoted to a non-supervisory job and transferred to Vienna Virginia.
Poland accepted the transfer, but retired 3 years before the mandatory retirement age.

Poland sued for, among other things, retaliation and constructive discharge. He said that the administrative review was retaliation for his age discrimination claim. The trial court awarded damages for constructive discharge and retaliation.

The Ninth Circuit reversed on the constructive discharge claim. 2/3 of the judges said that Poland did not establish his working conditions were intolerable merely because he was demoted and transferred. Among other things, the court noted that Poland worked 5 months in Virginia, contradicting his argument the transfer created intolerable conditions.

The really significant part of the case, though, is the Ninth Circuit's stance on liability for actions taken by innocent superiors on the basis of lower level employees' complaints. Hillberry did instigate the investigation into Poland's conduct, true. But the court did not rely on that alone and said that Hillberry's referral alone would not have been enough. Rather, the court focused on the fact that the investigators had access to Hillberry's notes, that Hillberry gave the list of witnesses to the investigators, and that the panel relied on performance reviews that had increased in frequency after Poland filed his first discrimination complaint.

In upholding Poland's claim, the court announced the rule for holding employers liable for negative, non-discriminatory actions taken on the basis of an employee's complaint that is tainted by bias:

We hold that if a subordinate, in response to a plaintiff’s protected activity, sets in motion a proceeding by an independent decisionmaker that leads to an adverse employment action, the subordinate’s bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decisionmaking process.

The court added that if the investigation is "entirely independent" of the subordinate's influence, the animus of the retaliating employee is not imputed to the employer.

So, if an employee engages in protected activity by complaining against a manager, that manager cannot be the impetus for negative treatment against the complaining employee, unless an "entirely independent" investigation finds the negative treatment is justified. Otherwise, the odds of a retaliation finding are very high.

The case is Poland v. Chertoff. Opinion is here.

EEOC Revises Age Discrimination Regulations

The Equal Employment Opportunity Commission has revised its regulations regarding enforcement of the Age Discrimination in Employment Act. The text of the affected regulations as revised is here. The purpose of the revisions is to conform them with the U.S. Supreme Court's decision in General Dynamics Land System, Inc. v. Cline, 540 U.S. 581 (2004). There, the Supreme Court held that the ADEA prohibits only age discrimination against employees that are older than there comparators. That means that an employee over 40 cannot complain that an older employee was favored over him or her, even though the over-40 employee is covered by ADEA.
The new text of the regulation makes clear:

Favoring an older individual over a younger individual because of age is not unlawful discrimination under the ADEA, even if the younger individual is at least 40 years old. However, the ADEA does not require employers to prefer older individuals and does not affect applicable state, municipal, or local laws that prohibit such preferences.

More Employment Law Articles

Wondering what to read at the beach this summer? Well, we've been busy writing articles.
Here are links to some of the recent ones. Wear sunscreen in case you fall asleep.

WORKPLACE BULLYING AND THE FUTURE OF THE “EQUAL OPPORTUNITY HARASSER” By Jennifer Brown Shaw and Becki Graham

ENFORCING NON-COMPETE AGREEMENTS IN CALIFORNIA AFTER ADVANCED BIONICS V. MEDTRONIC
By D. Gregory Valenza

INDEPENDENT CONTRACTORS: A DYING BREED?
By D. Gregory Valenza

FREE SPEECH AND ENGLISH-ONLY POLICIES IN THE WORKPLACE
By Jennifer Brown Shaw and Matthew J. Norfleet

DGV

U.S. Supreme Court Roundup 2006-2007

Here is our article summarizing the Supreme Court's labor and employment law decisions during the 2006 Term. We also note the three pending cases that will be addressed next Term, beginning in October 2007.

Greg

California Supreme Court: CEO's Malicious Prosecution Action OK

Sometimes plaintiffs and their lawyers like to sue the CEO or another high level executive for what they call "in terrorem" effect. You know, it's an attention getter. Other times individual defendants are added to defeat the possibility of federal court jurisdiction.

They say, though, if you go for the king, make sure you kill him. Because if you don't, he has the resources to sue you all the way to the Supreme Court.

Thomas Siebel is one such CEO. Debra Christoffers sued him and Siebel Systems for a variety of claims, many of which may not be asserted against individual managers as a matter of settled law. After Mr. Siebel won on the claims asserted against him as an individual, he sued Christoffers' attorneys, E. Rick Buell II and Carol L. Mittlesteadt for malicious prosecution. The trial court threw the case out. The court of appeal reinstated Siebel's case.

The complication here was that all parties settled Christoffers' underlying lawsuit and the cross-actions while that suit was on appeal. Mittlesteadt therefore argued that Mr. Siebel could not sue for malicious prosecution because he did not receive a "favorable" judgment in the underlying case.

The Supreme Court, 7-0, decided Mr. Siebel was free to proceed on his malicious prosecution claim even though the parties settled the underlying lawsuit. The opinion is here. The case is Siebel v. Mittlesteadt.

Those plaintiff attorneys who sue individual defendants based on frivolous legal theories may take away something from this decision. To be honest, in my experience, most plaintiffs' lawyers are more professional than that.

Greg

New (Federal) Minimum Wage Poster

New federal minimum wage? New federal minimum wage poster! And it's a beauty. Here.
Your current FLSA minimum wage poster is good through July 24, 2007.

DGV

Court of Appeal Protects Investigator During Litigation

Bessie Gallanis-Politis sued her employer, LA County, for discrimination. During the litigation, a couple of supervisors investigated certain issues, purportedly to help prepare the discovery responses. They also took a number of other, incidental, actions, including requiring Gallanis-Politis to change her attendance records to "unapproved absence" when she attended depositions. She amended her complaint, suing the individual supervisors for retaliation. The Court of Appeal held that the supervisors' conduct arose from the litigation and were protected by California's anti-SLAPP law. In other words, the court said that Gallanis-Politis retaliated against the supervisors in violation of the statute. This case protects employees from employee-plaintiffs who attempt to sue managers involved in the defense of the case, and employee-plaintiffs who attempt to shield themselves from neutral policies during litigation. The case is Gallanis-Politis v. Medina, and the opinion is here.

Court of Appeal Upholds Termination for Personal Work on Company Time

Loggins v. Kaiser Permanente upholds summary judgment against an employee's claim of race discrimination and retaliation. Loggins was fired because over 80% of her hard drive contained personal documents. She was accused of devoting too much work time to personal business. (Bloggers and Internet junkies, beware). The case is important because it holds (1) timing of adverse action alone is not sufficient to prove pretext when alleging retaliation (2) the standard for retaliation claims under the Fair Employment and Housing Act is the same as under common law (wrongful termination) and (3) the employer's legitimate business reason simply must be "legitimate" -- non-discriminatory -- and is not held to any additional scrutiny for "fairness" or accuracy.

Damages in California Employment Law Cases

The court of appeal in Davis v. Los Angeles Unified School District Personnel Commission explains a number of principles applicable to damages awards in employment law cases. The case involves an employee who successfully claimed he was wrongfully demoted. The appeal concerns the measure of damages. The court held :the plaintiff does not recover back pay during the period when he or she is unable to work due to a non-industrial disability. The court also said that the employee is not entitled to reinstatement until he can perform the functions of the job. The court also explains how back pay is calculated with respect to mitigation. The opinion covers the "mixed motive" defense's effect on damages. This is a key case for settlement discussions, mediations, and if those fail - jury instructions on damages.

DGV

IRS May Tax Emotional Distress Damages

Last year, the D.C. Circuit held that emotional distress damages were not taxable and that to do so was unconstitutional. The case, Murphy v. IRS, arose in the context of an employment law matter. Well, the same panel just reversed itself. The court held that emotional distress damages not arising from physical injury were properly taxed under the Internal Revenue Code. Here is the opinion. Don't read it unless you enjoy the tax code, constitutional law, or want to turn to stone. Just saying.

DGV