• Robert Nuddleman to Present Seminars at PFAC 20th Annual Education Conference

    I’m excited to be able to work with the Professional Fiduciary Association of California next week at their 20th annual education conference San Francisco, CA.  PFAC is a wonderful organization that provides continuing education and promotes minimum standards in the administration of conservatorships, guardianships, trusts, estates and durable powers of attorney.  I’ve had the pleasure of working with several of their members and their clients to develop strategies for in-home care and assistance with elderly and disabled clients in conjunction with third-party care agencies.  I’m always impressed by their level of professionalism and commitment.

    In the past, I’ve conducted seminars for PFAC regarding the difference between independent contractors and employees, how to employ caregivers correctly, and employment law updates.  This year, I will be co-presenting a 3-hour intensive seminar called: Hiring, Employing, Supervising, and Disciplining Workers.  I will also conduct a breakout session about Workplace Policies and Procedures for Caregivers where I can share some tips regarding caregiver rights and employer responsibilities.  This year’s conference will also include roundtable discussions for a more direct educational experience, where I will discuss how to handle workplace performance and discipline issues.

    I’m really looking forward to this year’s conference.  If you are attending the conference, please look for me and say, “Hi.”

    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.

  • 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.

  • Brinker is Published!

    The long awaited decision in Brinker v. Superior Court is out.  You can download it here.  The Court also issued the following press release:

    California Supreme Court Rules on
    Employer Meal and Rest Break Obligations
     
    Court Decides Employers Must Relieve
    Employees of All Duty During Meal Periods
    But Need Not Ensure They Perform No Work

    San Francisco—Resolving uncertainty over the scope of an employer’s obligations to afford hourly employees meal and rest periods, the California Supreme Court concluded today that an employer’s obligation is to relieve its employees of all duty during meal periods, leaving the employees thereafter at liberty to use the period for whatever purpose they desire, but that an employer need not ensure no work is done.

    On the related question concerning when meal periods must be provided, the court concluded a first meal break generally must fall no later than five hours into an employee’s shift, but an employer need not schedule meal breaks at five hour intervals throughout the shift.

    These questions arose in Brinker Restaurant Corporation v. Superior Court, S166350, one of a number of meal and rest break class actions pending in the state.  After the Brinker trial court certified classes of employees alleging the Brinker Restaurant Corporation had failed to provide meal and rest periods in the number and at the times required by state law, the Court of Appeal reversed and ordered each subclass vacated.  The California Supreme Court accepted review and agreed to resolve lingering uncertainty over the nature of rest and meal period obligations and the suitability of such claims for class treatment.

    In a unanimous opinion authored by Associate Justice Kathryn M. Werdegar, the court explained that neither state statutes nor the orders of the Industrial Welfare Commission (IWC) compel an employer to ensure employees cease all work during meal periods.  Instead, under state law an employer must provide its employees an uninterrupted 30-minute duty-free period during which the employee is at liberty to come and go as he or she pleases.  Absent a statutorily permissible waiver, a meal break must be afforded after no more than five hours of work, and a second meal period provided after no more than 10 hours of work.

    On the question of rest periods, the court explained that under the IWC’s orders, employees are entitled to 10 minutes of rest for shifts from three and one-half to six hours in length, and to another 10 minutes rest for shifts from six hours to 10 hours in length.  Rest periods need not be timed to fall specifically before or after any meal period.

    As to the suitability of rest and meal period claims for class treatment, the court reversed in part, remanded in part, and affirmed in part the Court of Appeal’s rejection of class treatment.  With respect to rest period claims, the court concluded plaintiffs had identified a theory of recovery suitable for class treatment.  With respect to meal period claims, the Supreme Court remanded to the trial court for reconsideration of class certification in light of its clarification of the substantive law governing meal period claims.  Finally, with respect to a third subclass—for claims that Brinker required off-the-clock work—the court affirmed vacation of class certification.

    The principal opinion by Justice Werdegar was signed by Chief Justice Tani G. Cantil-Sakauye and Associate Justices Joyce L. Kennard, Marvin R. Baxter, Ming W. Chin, Carol A. Corrigan, and Goodwin Liu.

    Justice Werdegar also issued a separate concurring opinion, joined by Justice Liu, addressing meal period class certification issues confronting the trial court on remand.  The concurring opinion discussed considerations relevant to the suitability of the plaintiffs’ meal period claims for certification.

    The court’s opinion in Brinker Restaurant Corporation v. Superior Court, S166350, is available on the California Courts Web site in two formats:  Word (http://www.courtinfo.ca.gov/opinions/documents/S166350.DOC ) and Acrobat (http://www.courtinfo.ca.gov/opinions/documents/S166350.PDF. Hard copies of the opinion are available in the Supreme Court’s Clerk’s Office, 350 McAllister Street, San Francisco.  Legal briefs filed in the case are online at http://www.courts.ca.gov/15713.htm.

    I am sure the blogosphere will be full of commentary and analysis.  I know of at least 5 different organizations (including an upcoming presentation by the Labor & Employment Law Section of the Santa Clara County Bar Association) scheduled for ensuing weeks regarding Brinker and the impact it will have on employers and wage and hour litigation.  I, for one, am even more interested in finding out what the court does with Kirby v. Immoos Fire Protection where a lower court held the employee could be responsible for the employer’s attorneys’ fees in a failed meal break claim.  (See my earlier post re: Kirby)

    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.

  • Inexpensive Sexual Harassment Training By The DFEH?

    The DFEH has been conducting no-cost sexual harassment prevention for state employers for the past year. It has now decided to offer the same training to private employers, purportedly at a low cost. The DFEH hasn’t specified what it means by “low-cost,” but it did indicate that the training will be available online.

    You can visit the DFEH’s website for more information. The press release should be available online in the next couple of days.

    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.

  • Guest Post: Holiday Parties: How Businesses Can Avoid Sexual Harassment Lawsuits

    Jessica Hawthorne, an employment attorney with the California Chamber of Commerce, has some good suggestions regarding holiday parties and preventing sexual harassment lawsuits.

    As holiday decorations start to go up around the office and everyone is full of seasonal cheer, many businesses may find that work parties, along with a more relaxed environment, can lead to sexual harassment claims.

    Much too often especially if the event is off-site and the alcohol flows freely the office holiday party becomes a breeding ground for this sort of behavior. It seems that some employees can get the impression that professional behavior isn’t necessary at the festivities.

    But that’s not the case. If its a work-sponsored event, workplace etiquette applies. And unfortunately for employers, liability can be the unexpected Christmas delivery if things aren’t handled properly.

    Every year, claims and lawsuits over sexual harassment problems cost companies millions of dollars. In 2007, for example, the Equal Employment Opportunity Commission received nearly 25,000 sex-discrimination complaints and fined businesses more than $135 million for violating these workplace protections, the highest level since 2002.

    But businesses can protect employees against legal turmoil by taking simple steps to prevent harassment from occurring at the office holiday party or anywhere else:

    Advise employees of all relevant policies, such as harassment, dress code and appropriate workplace behavior.
    Make sure all supervisors have received sexual harassment training.
    Make sure everyone knows how to report unwanted or unwelcome behavior.
    Remind all employees that the company’s sexual harassment policies will be in full force and effect during the event.

    Despite training and preparation, sexual harassment claims could arise, so employers should also be aware of how to mitigate the situation. Its important to act swiftly if there are any complaints to determine what happened and how best to deal with the claim. That way, you will have done your harassment prevention due diligence if any legal situation arises later.

    The best way to accomplish this and follow California law is to conduct proactive employee training and awareness against all forms of harassment.

    All organizations, and that includes businesses, government agencies and non-profits, with 50 or more employees are required to train all supervisory personnel in sexual harassment prevention. Employers must prove that all of these employees take an interactive, two-hour harassment prevention course within six months of hire and every two years thereafter.

    So keep in mind that while sexual harassment prevention is relevant all year round, now is a good time to give your office a refresher course. Your business should enjoy this festive time of year by keeping employees aware and preventing sexual harassment before it starts.

    Jessica Hawthorne is an employment attorney the California Chamber of Commerce.

    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.