$4 Million to California Disability Discrimination Plaintiff

McKesson Corporation is a large organization, ranking at the top of the Fortune 500. A jury in Yolo County (near Sacramento) decided the company's treatment of Charlene Roby, an employee with panic attacks, amounted to disability discrimination. So, the jury awarded $15 million in punitive damages against McKesson, on top of a multi-million dollar damages verdict.

The California Court of Appeal Roby v. McKesson HBOC reduced the verdict to about $4 million. An attorneys' fees award of $728,000 was not even challenged. The opinion primarily deals with the adjustment to the punitive damages verdict in light of recent case law setting constitutional boundaries. But if we're arguing about whether $2 million or $15 million is an appropriate punitive damages award, something went wrong from an employment law / HR management standpoint.

The plaintiff's psychological disability resulted in some unpleasant side effects, like body odor resulting from medication. In addition, her absences resulted in discipline and, ultimately, termination under a no-fault attendance policy. The evidence demonstrated that the line supervision was unsympathetic to the employee's issues. In fact, there was evidence of some outright hostility by the employee's direct supervisor. But when the employee complained after her termination, not much was done to assess the situation and ensure consistent and fair treatment. Thus, some employees received much more lenient treatment under the no-fault attendance policy. Additionally, the Company did not exempt from the attendance policy leave that fairly obviously would have qualified as FMLA/CFRA leave. A more detailed review of the application of the "rolling" no-fault attendance policy to this employee might have saved McKesson a few million. Under the disability discrimination laws, mechanical application of attendance policies may be hazardous to the balance sheet.

Silver lining - the court held that there was insufficient evidence of a hostile work environment, resulting in vacatur of about $1.1 million of the award. There was indeed evidence of "hostility" and some mistreatment. However, it was not sufficiently "severe or pervasive" to sustain the jury's verdict. Additionally, the court distinguished between conduct that will support a "harassment" claim, and personnel actions, which do not constitute "harassment" in the legal sense. As a result of the court's findings, Roby's supervisor escaped about $500,000 in personal liability for her mistreatment of Roby.

Arbitration Agreements in California Set to Make a Comeback

In California, agreements to arbitrate employment claims (at least with respect to non-union employees) are not particularly in demand. California courts have removed many of the advantages employers (e.g., simpler discovery, cost-sharing, limitations on damages). Arbitration agreements that contain such provisions are struck down by courts as "unconscionable." So, the primary benefit of arbitration agreements in California is the transfer of a claim from a potentially hostile pool of employee-jurors to an arbitrator, hopefully a fair one with expertise in employment law.

Until now. Of late, courts have wrestled with the issue of whether an arbitration agreement can include a provision (1) requiring arbitration but (2) prohibiting the plaintiff from bringing a "class action." In the Discover Bank v. Superior Court(2005) 36 Cal.4th 148 case, decided last year, the California Supreme Court held that consumer class actions could not be barred by arbitration clauses. However, the High Court left the door open a crack for class action waivers in claims for larger damages - such as employment claims. The Court of Appeal in Gentry v. Superior Court(2006) 135 Cal.App.4th 944, review granted April 26, 2006, S141502 held that Discover Bank did not bar class action waivers in employment claims, but as you can see, the Supremes accepted review of that case in April 2006, rendering it not citable as authority.

Well, in Konig v. U-Haul Company of California, the California Court of Appeal again held that Discover Bank does not bar class action waivers in employment claims. Konig brought a class action against U-Haul for a varieity of alleged wage and hour violations on behalf of himself and a class of U-Haul employees. U-Haul moved the court to compel Konig to arbitrate his claims based on an arbitration agreement he signed, which included the following language: "I understand that final and binding arbitration will be the sole and exclusive remedy for any such claim or dispute against [defendant]... and that, by agreeing to use arbitration to resolve my dispute, both [defendant] and I agree to forego any right we each may have had to a jury trial on issues covered by the [U-Haul Arbitration Policy], and forego any right to bring claims on a representative, class member basis, or as a private attorney general."

The Court of Appeal once again upheld this class action waiver under Discover Bank. Now before you run to your employment lawyer, a couple of caveats. First, the California Supreme Court has taken up this issue in Gentry, mentioned above. So the Supreme Court may well take this case up, too. Second, there was a dissent in this case, which makes it even more likely that the Supreme Court will accept review. So, the Supreme Court may answer the question of class action waivers once and for all within the next year or two.

Happy holidays to our readers and their families.

DGV

Employer Not Liable to Third Party for Employee's Internet Postings

Not news: employees use the Internet at work for personal reasons. News: an employer is not liable when an employee uses the company internet connection to make threats to a third party.
Agilent employed Cameron Moore in Silicon Valley. Moore became upset with a couple of former Varian employees. He signed into an internet bulletin board regarding Varian, where he made some threatening posts against the former Varian employees. He used the handle... "crack_smoking_jesus." (I know. I just had to).

The threats came to the attention of the FBI, who traced them to Agilent. After an investigation, Agilent and the FBI confronted Moore.

The ex-Varian employees sued Moore and Agilent for, among other things, intentional infliction of emotional distress, negligence, and other torts associated with the threatening posts. The plaintiffs claimed Agilent was aware of the postings and did not stop them.

In court, Agilent claimed it was immune from liability under a provision of the Communications Decency Act of 1996. Section 230(c)(1) of that law provides: "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The statute goes on to preempt inconsistent state laws: "Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." The purpose of this section is to protect those who facilitate internet communication from liability when users abuse their communication privileges.

The trial court held Agilent was immune from suit and the Varian ex-employees appealed. The Court of Appeal in Delfino v. Agilent affirmed. This is the first known opinion applying the CDA's immunity to employers. In essence, the court agreed with Agilent that it was a mere passive provider of access to the internet, that the plaintiffs attempted to hold Agilent responsible as if it had published the offending statements itself, and another person actually published them (Moore).

The plaintiffs tried to bring in Agilent under state-law principles of respondeat superior and ratification, but the appellate court was unmoved. While the plaintiffs could seek damages against Moore himself, Agilent could not be held vicariously liable because the acts were performed outside the course and scope of employment. Ratification would not fly given Agilent fired Moore after learning what he did.

To ensure your internet connection does not expose your business to liability it is important to have an internet usage policy that prohibits engaging in misconduct on the internet, and provides for monitoring. The CDA apparently will provide strong protections as well. However, it bears noting that this case involves a lawsuit by third-parties, not current employees of the same company. It is too early to tell what effect the CDA will have on employment claims such as hostile environment harassment alleged to be caused by internet activity.

DGV

Federal DOL Seeks Comments on FMLA Regulations

A regulatory agency usually seeks public comment about draft regulations before they are finalized. However, the U.S. Department of Labor has decided to handle things in reverse. The agency seeks public comment regarding the current FMLA regulations. That's right, you can weigh in on the rather broad "serious health condition" definition, the "ease" of administering "intermittent leave," the medical certification, and other topics covered by the current regulations you have come to love over the past dozen years. Here is a webpage the DOL has created for providing comments. Presumably, the DOL will review the comments to decide whether and to what extent revisions to the regulations are appropriate. (Dare to dream).

DGV

IRS Announces 2007 Mileage Reimbursement Rate

The new IRS mileage reimbursement rate for 2007 will be $0.485 per mile for business, $0.20 for moving or medical purposes, and $0.14 for charitable purposes. The IRS bulletin announcing these changes is here.

California employers must reimburse employees for expenses they incur. The state Division of Labor Standards Enforcement accepts the IRS rate as adequate compensation for employees' use of personal automobiles. Therefore, employers should adjust the reimbursement rate effective January 1, 2007.

DGV

Final AB 1825 Sexual Harassment Training Regulations

The California Fair Employment and Housing Commission issued its final AB 1825 regulations. They can be accessed here. They will now be reviewed by the Office of Administrative Law. If they are approved, the will be submitted to the Secretary of State and become effective 30 days later. The FEHC estimates they will be effective around February 1, 2007. The final regulations are essentially the same as the last version submitted for comments in October.
Most employers that completed their initial training in 2005 will be training supervisors again in 2007. So, employers should ensure their training programs comply with the new regulations.

DGV

Get ready for more posts in 2007....

We haven't been posting a lot lately. We're saving our strength.

After years of no major federal employment laws (save last year's Pension Protection Act), Congress is changing hands. And here come the unions, trial lawyers, and politicians with some fresh ideas for employers. Here is an AP article on the subject.

Of course, having carefully studied civics as a child, I know it will take a lot of work to pass even one employee-friendly bill. (I also know that conjunctions' function is to hook up words and phrases and clauses.)

But I think even a divided Congress can pass some new employment mandates, assuming the President is willing to horse-trade a judicial appointment or a military appropriation or two.

DGV

SF Passes Paid Sick Leave Requirement

The SF electorate passed an initiative requiring employers to provide paid sick leave to employees. Although many employers provide paid time off, the measure applies to all employers (no matter how few employees), and it includes some provisions that could affect even large employers' sick time policies. Here are some highlights:

- "Small employers" of under 10 employees (counted as any 10 employees who perform any work in a week, must provide at least 40 hours of paid sick leave; larger employers must provide at least 72 hours. Employers are invited but not required to be more generous.

- Sick leave begins accruing after 90 days of employment. An employee accrues one hour for each 30 hours' worked. The sick leave accrues until it reaches a cap of 40 hours for small businesses or 72 hours for large businesses.

- Employers that provide more PTO or sick leave than stated above under existing policies are deemed in compliance. However, employers will have to adjust policies to comply with the uses of sick leave, attendance policies, and the like.

- Sick leave may be used either for the employee's own illness, OR for the illness of a covered person: "child; parent; legal guardian or ward; sibling; grandparent; grandchild; and spouse, registered domestic partner under any state or local law, or designated person." Employees without covered relations may designate one "designated person" for whom the employee may take paid sick leave to care for.

- The sick leave appears to be available for use for absences of less than one day, including medical appointments.


- Sick leave accrues and "carries over" year to year if not used, but need not be paid out at termination. The accrual stops at the caps above (40 hours for smaller and 72 hours for larger employers).

- Employees must provide "reasonable advance notice" of the need for leave, presumably on occasions when it is used to care for others or for medical treatment. Employers may take "reasonable measures" to verify or document time off.

- Employers must maintain records for four years and make them available to the city for inspection.

- Time taken under this provision may not be counted as an attendance violation under company policy.

- Any adverse action taken within 90 days of an employee's engaging in any of a number of "protected activities" relating to this leave benefit (including filing a complaint or even telling other employees about the availability of paid sick leave) creates a rebuttable presumption of retaliation.

- There is a provision for private civil enforcement, including penalties of up to 3 times the sick pay denied for violations or $250, whichever is greater, liquidated damages of $50, interest, costs and attorneys fees. Class actions are authorized only for equitable relief, costs, and attorneys' fees. And....

- Yes, there will be a new poster required to be posted.

Employers that do business in San Francisco must address the many administrative and payroll issues attendant to this law asap. It goes into effect 90 days from November 7, or about February 5.

California Court of Appeal: Class Action Should Have Been Certified

After the California Supreme Court's decision in Sav-On Drug Stores v. Superior Court, a trial court's decision on class certification should not be disturbed if (1) the trial court applies the correct legal standard and (2) substantial evidence supports the trial court's findings regarding the factors supporting class certification. In Aguiar v. Cintas Corp. No. 2, the Court of Appeal recited this "abuse of discretion" standard of review, and then proceeded to hold the trial court did not decide the certification question correctly.

The plaintiffs accused Cintas of violating Los Angeles County's Living Wage Ordinance by failing to provide the class with the legally mandated pay and benefits. Cintas argued that the case was not amenable to class certification because the plaintiffs were inadequate representatives, common issues did not predominate over individual ones, and class procedures would not be superior to other means of recovering. These are all proper factors for a trial court to consider under the legal framework for deciding class certification issues.

So, was it that substantial evidence did not support the trial court's finding? Hard to say. It appears the Court simply disagreed with the class certification order and decided it the other way. This is precisely what the Court of Appeal did in Sav-On, which is why the Supreme Court imposed the deferential standard of review.

The appellate court in Cintas decided that the trial court should have divided up the putative class into sub-classes, which would have ameliorated the commonality concerns. The court also held that class actions would be superior to individual actions for this type of case.

This case involves an allegation of a failure to apply a relatively simple law properly to a large group. Therefore, the common facts may well be more prevalent than in a more fact-intensive case such as involving exemptions from overtime.

DGV

Statute of Limitations for Vacation Claims

In California, by statute, all accrued, unused, vacation must be paid at the time of termination of employment. Long-term employees may have been accruing vacation for years. What happens when an employer fails to pay out vacation that accrued long ago? Does the statute of limitations bar recovery? The state Division of Labor Standards Enforcement and a court opinion previously answered that question, "yes." But in Church v. Jamison, a different Court of Appeal decided that the statute of limitations for unpaid vacation does not accrue until the termination date, and that all unused vacation pay earned may be the subject of a timely lawsuit.

The court also decided that claims for unpaid wages were subject to the statute of limitations for oral contracts (two years), rather than the three-year statute applicable to statutory claims. This holding likely will not apply to overtime claims, because overtime is a creature of statute. The obligation to pay (base) wages, on the other hand, arises from the "contract" to perform services in exchange for pay.

Finally, the court held that business expense reimbursement claims under Labor Code section 2802 arise as the employee incurs the expense, and that a three-year statute of limitations applies. This means that employees who do not submit expenses for reimbursement within three years of incurring them would be barred from recovery, even if the employees have not yet been terminated. Some of you know people who might wait three years to turn in an expense report.

DGV

Court Cancels "Groundhog Day" for Serial Wage and Hour Class Actions

May Department Stores has been the subject of successive wage and hour class actions. The company defeated class certification in at least two cases and prevailed on appeal as well.

Yet, the plaintiff's lawyer was undeterred and filed yet another class action in Alvarez v. May Department Stores Co., this one venued in L.A. As with the prior cases, Alvarez challenged the exempt status of assistant managers.

The L.A. Superior Court sustained a demurrer to the complaint. The court held that the class action allegations were barred by the doctrines of "collateral estoppel" aka "issue preclusion." Huh?

Collateral estoppel is a doctrine which prevents relitigation of issues
previously argued and resolved in a prior proceeding. . . . In order to apply this principle: (1) the issue must be identical to that decided in the prior proceeding; (2) the issue must have been actually litigated in the prior proceeding; (3) the issue
must have been necessarily decided in the prior proceeding; (4) the decision must have been final and on the merits; and (5) preclusion must be sought against a person who was a party or in privity with a party to the prior
proceeding.

Ohh.

So, Alvarez's lawyer appealed, arguing that collateral estoppel cannot preclude a later class action. Rather, Alvarez said at oral argument that he could continue to litigation class certification in new lawsuits until it was no longer "economically feasible" to do so.

Well, the Court of Appeal in Alvarez v. May Department Stores decided enough was enough and affirmed the trial court, barring re-litigation of the certification question. So, employers who defeat motions for class certification likely will not have to face endless "me-too" lawsuits on the same issue. It is unclear from this opinion whether collateral estoppel would apply no matter how much time has passed between the old lawsuit and the new one. Stay tuned.

DGV

UPS's Safety Standard Violates ADA

UPS operates nearly 6,000 vehicles with a gross vehicle weight of under 10,000 lbs. Those trucks are not subject to US Department of Transportation safety standards. Yet, UPS required drivers of those vehicles to pass the DOT's physical requirements. These include a hearing test. A class of hearing impaired applicants challenged these standards under the ADA.

The Ninth Circuit, in Bates v. UPS, held that UPS's job requirement violated the ADA. UPS' primary argument was that the employees were not "qualified" because they could not perform the essential functions of the job (including hearing at the level mandated by the DOT) "safely" with or without accommodation.

The court rejected the normal "McDonnell Douglas" burden-shifting analysis, saying that when an employer takes disability into account when making a decision, it is unnecessary to use that analysis. The court analyzed whether UPS engaged in "discrimination" under the ADA by using a qualification standard that screens out people with disabilities - here, the hearing impaired. The hearing test of course did screen out the hearing impaired. UPS argued that the plaintiffs could proceed only if the proved that the hearing test screened out applicants who could drive "safely," an essential job function. But the court said that the burden was on UPS to show the contrary.

That left UPS with the burden of proving "business necessity" and "job-relatedness" as an affirmative defense. On that point, the court decided UPS had to prove one of two things to uphold UPS's blanket exclusion: (1) "all" deaf drivers would drive substantially less safely than the "hearing" drivers or (2) it would be impossible to prove whether that was true. The court analyzed the extensive expert evidence submitted and agreed with the district court that the findings were inconclusive. Thus, UPS would have to exclude drivers on a case by case basis rather than categorically reject all drivers having a certain level of hearing impairment or greater.

This case will affect employers who use medical examinations to screen out groups of employees who do not meet the given criteria. The employer will be foreclosed from arguing the employee is not "qualified." Instead, the employer will have the burden of proving the exclusion was "job-related and based on business necessity," a high burden.

Still More Amendments to AB 1825 Regulations

On October 2, the Fair Employment and Housing Commission further revised the proposed harassment training regulations. In this round of revisions, the Commission primarily addressed "duplicate" training - e.g., when a supervisor is hired from another company and had AB 1825-compliant training at the former employer within two years. In such cases, the supervisor must receive, read, and acknowledge having read the new employer's anti-harassment policy. That supervisor must be trained again within two years of the prior training. The Commission also continues to wrestle with the interval between training, attempting to balance administrative convenience with the statutory mandate of training every two years.

DGV

Commission Plans - Chargebacks and Forfeitures

As shown in Koehl v. Verio, the courts in recent times are more likely to enforce clear provisions in commission plans permitting employers to recover advanced commissions and bonuses. The language must be clear, and there must be a rationale for the advances and chargebacks. The key is to define when commissions are "earned," e.g., when payment is received, after a certain stage of the installation / serving process etc. The Court in Koehl relied in part on recent court decisions upholding such arrangements, as well as the California Division of Labor Standards Enforcement's "Enforcement and Interpretations Manual."

This opinion is thoroughly reasoned, including a comprehensive discussion of related case law. It can help employers and their lawyers draft lawful commission plans that permit sales employees to benefit from early cash flow without receiving windfalls from overpaid commissions. Yes, even in California.

DGV

Video Monitoring of Employees at the Workplace

Surveillance technology continues to collide with employees' privacy interests. Telephone monitoring and recording, email and web use monitoring, GPS tracking, and video camera surveillance all present potential employment law problems. The law is struggling to keep up, and employers must be careful to anticipate how courts will react to new technology.

The newest California decision is Hernandez v. Hillsides, Inc. An employer set up a motion-activated video camera in an office to determine who was accessing a computer at night to view porn. The manager who installed the camera disconnected it each day and re-connected it only at night. Two employees who used the office during the day discovered the camera one day when it had not been disconnected. They sued for invasion of privacy.

The employer argued the camera was not even activated during the day (except for the one day it was mistakenly left on). But the California Court of Appeal held "a plaintiff need not establish that he or she was actually viewed or recorded in order to succeed on a cause of action for invasion of privacy." Employers can monitor employees' work areas by ensuring the employees do not have an "expectation of privacy." The way to do this is by giving notice of the monitoring. Notice may take away the element of surprise, but it also deters the conduct sought to be monitored.

Unintended consequences department: What effect will this decision would have on "nanny cams?" A nanny or babysitter is an employee. The workplace is the parents' home. Under this decision, a nanny may be able to argue a privacy invasion if the parents set up hidden cameras. However, the court pointed out that the employer failed to establish a sufficient justification for the monitoring, nor did the employer sufficiently establish the employees had a diminished expectation of privacy. Perhaps homeowners may argue that nannies do not have privacy expectations while working in a private home. Stay tuned (so to speak).

DGV

OFCCP Says, "Never Mind" Those Surveys

Contractors with the federal government may have completed an "Equal Opportunity Survey" (EOS) from the OFCCP, the federal agency that enforces affirmative action plan requirements. The OFCCP began the EOS program in 2000, and had issued some 80,000 of them to date. The EOS was intended to determine which contractors were most likely to be violating EEO obligations imposed on federal contractors, triggering audits.

Anyway, the OFCCP apparently determined the EO Surveys were not a necessary enforcement tool and eliminated the requirement. They initially proposed to do this in January.

One less paperwork obligation!

DGV

Another Non-Compete Provision Struck Down

We know California law is tough on "non-compete" agreements. However, the law (Bus. and Prof. Code section 16601) does allow non-competes in the context of the sale of a business. So, if a doctor sells her practice to another doctor, the patient list and the ongoing "goodwill" will be a significant value. A transaction like that can include a non-compete, so the seller does not open a new practice across the street. But even those lawful non-competes have to be drafted correctly. The Court of Appeal held in Strategix, Inc. v. Infocrossing West, Inc., that a non-compete precluding the seller from soliciting the buyer's employees and customers (even those who were not the seller's former customers and employees) was too broad. The Court also refused to "blue pencil" or modify the agreement to apply only to seller's former customers. Ouch.

Non-competes, non-solicits, and trade secrets agreements are tricky (obviously). So, if they are important to you, ensure they are drafted to survive at least four judges' scrutiny (one trial judge and three at the court of appeal).

DGV

Independent Contractors in California

The characterization of workers as "independent contractors" can be tempting for employers: no workers' compensation coverage, no benefit plans, etc. Some workers may like being independent contractors too because they receive payment withhout tax withholdings. The government, on the other hand, is not a fan.

The California Court of Appeal in JKH Enterprises, Inc. v. Department of Indus. Relations decided that a group of delivery messengers were wrongly classified as independent contractors rather than employees. The court brushed aside evidence that the employer, JKH, did not control the messengers' means or methods of performing the work. The court noted that when the job does not require specialized skills, the employee's autonomy is not as important. Rather, the court focused on the messengers' hourly rate of pay (rather than payment by the job), and the fact that the alleged contractors were performing the job essential to the business' purpose. (That is, JKH was a delivery service, and it classified those responsible for accomplishing that business purpose as contractors).

Interestingly, the court also decided that when independent contractor status is evaluated in the context of whether the employer should have provided workers' compensation insurance, the court must evaluate the case differently than when the case is brought in another context.

DGV

Even "Limited" Non-Competes Illegal in CA

Employers in many states implement "non-compete" agreements. The employer seeks to preclude employees from leaving going to work for the competition, typically to protect the employer's customer list or other proprietary information. Most states limit these agreements to one extent or another. However, in California, with just a couple of exceptions, agreements not to compete are per se illegal.

Employers and their lawyers, fonts of ingenuity that they are, have come up with a variety of end-runs around California's prohibition on non-competes. Non-solicitation agreements, for example, have been held lawful to the extent necessary to protect a valid, protectable interest, such as a trade secrets.

Another example is an agreement not to compete with the employer's primary competitors - a "limited" non-compete. So, hypothetically, McPotroast might implement an agreement restricting employees from going to work for King Carnivorous, but the employee can work for anyone else.

Is that sort of arrangement illegal in California? The U.S. Court of Appeals for the Ninth Circuit has ruled said "no," predicting how the California Supreme Court would rule on the issue.

The Ninth Circuit's interpretation of California was wrong, says the Court of Appeal in the August 30, 2006 decision in Edwards v. Arthur Andersen.

The opinion surveys California non-competition law in some detail and the court then concludes even a limited non-compete is illegal unless necessary to protect trade secrets or unless one of the narrow statutory exceptions to the general rule applies:

In sum, we conclude the "narrow restraint" doctrine is a misapplication of California law. Noncompetition agreements are invalid under section 16600 even if narrowly drawn, unless they fall within the statutory or trade secret exceptions. Thus, the noncompetition agreement at issue here was invalid and violated California's public policy, unless, on remand, Andersen proves the trade secret exception applies.

The Court then held that requiring Edwards to sign the agreement established a required element of the tort of "interference with prospective economic advantage" (the "independently wrongful act" element.). As such, Edwards was permitted to proceed on this theory, exposing Andersen to the a panoply of tort damages, including punitive damages.

Sexual Harassment Training and Prevention Reducing Claims?

Clients who invest in sexual harassment prevention may be reaping a benefit, according to this article in the SF Chronicle. The number of EEOC filings claiming sexual harassment has decreased about 20% between 1997 and 2005. The average verdict in sexual harassment cases has increased tenfold. So, giving short-shrift to prevention is more risky than in the past.

The article tries to link the decrease in EEOC filings with AB 1825, California's mandatory training law. But that law took effect just last year, so it can't be responsible for the decrease in charges between 1995-2005. AB 1825 may further reduce harassment claims in the future, but employers' voluntary prevention efforts deserve at least some of the credit for the decrease in claims.

Since Clarence Thomas' confirmation hearings, companies even of modest size increasingly have implemented comprehensive prevention programs. More than just a zero tolerance policy - these include routine training, open door policies, "grievance" or in-house resolution programs, anonymous tip lines, and skilled investigators.

Harassment prevention really came of age as a result of the Faragher / Ellerth line of Supreme Court cases, where the U.S. Supremes provided employers with a defense to harassment claims when they take preventive measures. California employers also took notice after Weeks v. Baker & McKenzie, where a jury socked the big firm for millions in punitive damages on actual damages of $50,000 as I recall. Finally, the U.S. Supremes' decision in Kolstad v. ADA (why yes I did write an amicus curiae brief, thank you for remembering), provides a defense to punitive damages claims in federal discrimination cases, when an employer demonstrates its good faith efforts to comply with anti-discrimination laws. "good faith efforts" include training and other prevention efforts.

*** Warning: Only slightly tongue-in-cheek marketing ploy follows****

So, you ask, where does one find a great trainer - one who will motivate people to pay attention and take the training seriously, while covering all the legal bases? Hmm. (Yes, you're supposed to click the link!).

DGV