• New Laws Require Additional Training and Prohibit Harassment of Unpaid Interns

    Governor Brown signed AB 1443 and AB 2053 amending California’s Fair Employment and Housing Act.  AB 1443 expands FEHA’s anti-harassment protection to unpaid interns.  AB 2053 requires employers to add an anti-bullying module to their sexual harassment prevention training.  Employers and employees (and now volunteers) need to be mindful of the new protections and requirements.

    Protection for Unpaid Interns and Volunteers

    Existing law protects employees and applicants from unlawful discrimination and harassment in the workplace on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sexgender, gender identity, gender expression, age, sexual orientation, or military and veteran status.   AB 1443 expands FEHA’s protections to persons in unpaid internships or other volunteer positions.  The law does not make it lawful to employ unpaid interns, and the Labor Commissioner and the Department of Labor have taken strong positions that make it very difficult to use unpaid interns.  Regardless of whether the intern or volunteer is required to be paid as an employee, effective January 1, 2015, employers and employees may not discriminate or harass unpaid interns and volunteers in violation of FEHA.

    Employers should communicate to its employees that unpaid interns and volunteers are afforded the same rights to a harassment-free workplace as other employees.

    Anti-Bullying Training

    Employers with 50 or more employees are required to provide sexual harassment prevention training to supervisory employees every two years.  AB 2053 requires the training include a module regarding “prevention of abusive conduct.”  The law does not actually prohibit abusive conduct, unless such conduct otherwise violates FEHA, but it does require employers to train supervisory employees regarding conduct “that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”

    AB 2053 instructs, “Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.”

    While abusive conduct unrelated to a protected category may not be illegal (yet), an employer could theoretically be cited for failing to train supervisors regarding such abusive conduct.  There is no indication that an employee could sue an employer for a failure to provide the requisite training, but the failure to provide the training, or a violation of a company’s anti-bullying policy, may certainly be evidence of a hostile work environment in the right case.

    Employers should ensure their next sexual harassment prevention training includes an anti-bullying module.  Employers may also want to consider updating their handbooks to ensure they have a policy prohibiting “abusive conduct.”

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
     
    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Fair Employment and Housing Commission Is Being Eliminated

    Governor Jerry Brown issued the 2011/12 May Budget Revision (May Revise) in an attempt to reduce the  multi-billion dollar deficit.  As part of the revised budget the Governor eliminates and/or consolidatse many governmental programs.  Under the revised budget, the Fair Employment and Housing Commission (FEHC)—the civil rights agency with administrative adjudication and regulatory responsibility—will be eliminated effective January 1, 2012.  The Department of Fair Employment and Housing (DFEH)—the remaining civil rights agency with intake, conciliation, mediation and prosecutorial responsibility—will continue to operate.

    What does this mean for employers and employees? While the DFEH can still receive, investigate and even prosecute claims of discrimination, the parties will no longer be able to pursue claims before the Fair Employment and Housing Commission.  Those that have litigated in both forums realize that the FEHC is oftentimes a lower-cost alternative to litigating discrimination cases.  While some feel that the FEHC was too employee-friendly, a review of published decisions indicate that the amounts awarded to successful claimants before the FEHC were oftentimes significantly lower than similar cases decided by a jury.

    Other actions put in place by the revised budget include:

    • Accelerate End of American Recovery and Reinvestment Act Task Force
    • Eliminate    the    California    Privacy    Security    Advisory    Board
    • Eliminate the Health Care Quality Improvement and Cost Containment Commission
    • Eliminate    the    Colorado    River    Board
    • Eliminate    the    Salton    Sea    Council
    • Eliminate    the    State    Mining    and    Geology    Board
    • Eliminate Nine Advisory Committees and Review Panels at the Department of Fish and Game
    • Eliminate    the    Commission    on    Emergency    Medical    Services
    • Eliminate the California Health Policy and Data Advisory Commission (CHPDAC)
    • Eliminate    the    Healthcare    Workforce    Policy    Commission
    • Eliminate    the    Rural    Health    Policy    Council
    • Eliminate    the    Public    Health    Advisory    Committee    (PHAC)
    • Eliminate the California Medical Assistance Commission (CMAC)
    • Eliminate    the    Rehabilitation    Appeals    Board    (RAB)
    • Eliminate    the    Continuing    Care    Advisory    Committee    (CCAC)
    • Eliminate the Office of the Insurance Advisor (OIA) within the State and Consumer Services Agency
    • Eliminate the Office of Gang and Youth Violence Prevention
    • Eliminate    California    Emergency    Council    (CEC)
    • Eliminate    the    California    Law    Revision    Commission
    • Eliminate    the    Commission    on    Uniform    State    Laws
    • Eliminate the Office of Privacy Protection within the State and Consumer Services Agency
    • Eliminate    the    Unemployment    Insurance    Appeals    Board
    • Eliminate the Occupational Safety and Health (OSH) Standards Board
    • Reduce the Labor and Workforce Development Agency
    • Eliminate    Child    Care    Monitoring    Support
    • Transfer Support of the Governor’s Commission on Employment of People with Disabilities to the Department of Rehabilitation
    •  The    Office    of    Secretary    of    Education    has been eliminated
    • The    Inspector    General    for    the    American    Recovery    and Reinvestment Act has been eliminated
    • No travel by state employees is permitted unless mission critical

    In total, the proposals in the revised budget are supposed to save $82.7 million ($41.5 million General Fund).

    You can download a copy of the state agencies that are slated to be eliminated or reduced

    You can also download the entire Revised Budget Plan.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
     
    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.
    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Ageist Comments Lead to Litigation

    In a recent case from the 4th appellate district, the California Court of Appeals reversed a lower court’s granting of a motion for summary judgment finding there were triable issues of fact.  According to the evidence presented in the motion and opposition, 60 year-old Robert Sundell was terminated from his V.P. of Sales position at Taylor-Listug.  Four years earlier Mr. Sundell suffered a stroke, and thereafter began using a cane.  Up to that time, and even the following year, Mr. Sundell received mostly positive performance reviews.

    Sundell’s 2006 performance review marked him as “needing improvement” in three out of eight areas.  Around the same time Sundell began hearing comments from the company owners leading him to believe they wanted to hire younger, less expensive employees.  According to Sandell, a few days after he returned to work full-time in December 2004, “[Listug] came in my office . . . and closed the door and said that if I didn’t make a full recovery, that the company had the right to fire me or demote me and reduce my salary.”

    Listug also allegedly questioned Sandell’s use of a cane, suggesting that Sandell was using the cane to create sympathy or to get attention. According to Sandell, “[Listug] called me to his office after one of our regular or routine sales meetings, and he asked me when I was going to get rid of the cane and when I was going to drop the dramatization.”

    According to Sandell, Taylor also announced several times in management meetings that “he would rather fire old people and replace them with newer, younger people because it was cheaper.” Sandell heard Taylor say that “he would rather get rid of an older, tenured employee and hire a younger employee because they were . . . less expensive.”

    The company fired Sandell a A few days after Sandell turned 60.  Sandell filed a claim with the DFEH then filed suit.  The lower court thought Sandell failed to establish a prima facie case of age or disability discrimination, and that even if he did, the company established a legitimate business reasons for its action which Sandell could not rebut.  The appellate court reversed.

    According to the appellate court, Sandell showed both that he was disabled for purposes of FEHA and that his co-workers and managers were aware of his disability. Sandell also presented sufficient evidence to support his claim for discrimination in response to Taylor-Listug’s proffer of non-discriminatory reasons for terminating his employment. Sandell offered evidence that Taylor-Listug’s proffered reasons for terminating his employment were untrue, from which a fact finder could infer that those reasons were a pretext for disability discrimination.

    The court found that Sandell’s performance reviews refuted Taylor-Listug’s claim that it terminated Sandell  for performance related issues.  In particular, the court found that the fact that the parties argued extensively about a number of factual issues, including the meaning of various sales numbers and whether or not there were leadership issues, demonstrated why the case was not an appropriate one for summary judgment and should instead have been heard by a jury.

    Comments regarding Sandell’s disability constituted evidence of discriminatory intent and could not be dismissed as mere “stray” remarks. As the California Supreme Court recently observed, the “categorical exclusion of evidence” which could result from application of the stray remarks doctrine could lead to unfair results.

    The court also clarified the burden under the prima facie case. According to the appellate court, an employee is required to show only that he or performed competently according to objective criteria. Consideration of the employer’s subjective criteria does not become not relevant until later. The prima facie burden exists only to weed out patently unmeritorious claims.

    Of significant import is the timing of the company’s hiring of Sandell’s replacement.  Even though Listug, who was only a few years younger than Sandell, temporarily took over the duties of vice-president of sales after Sandell was fired, Taylor-Listug ultimately replaced Sandell with a person in his “mid-forties.” The replacement, however, was not hired for another 18 months.  Even if an inference could be drawn in Taylor-Listug’s favor from the 18-month delay before the younger man took over, such inference was not determinative. A contrary inference could be drawn just as easily.

    So, what can we draw from this case?  Telling employees that you want to hire younger, less-expensive workers is not a good idea.  Also, replacing an older worker with a younger worker can sometimes be a risky proposition, even if you wait a year and a half before replacing the person.  I suspect Taylor-Listug did not consult with their employment counsel on this one, or at least did not tell counsel that they made ageist remarks to the plaintiff before deciding to fire him.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.