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  • California Expands What Constitutes Sexual Harassment

    In 2011, a California appellate court decided that a series of extremely egregious comments and conduct by male co-workers against another male co-worker did not constitute sexual harassment because the harassment was not motivated by sexual desire.  If the perpetrators and the victim were not of the same sex, I suspect the court would have had no trouble finding the behavior constituted unlawful sexual harassment.

    The case, Kelley v. The Conoco Companies, was viewed as an aberration.  Even die-hard defense lawyers condemned the decision as an anomaly.  The perpetrators used vulgar, sexually-explicit comments and physically demeaning behavior to force the worker out of his job.  Since the court determined that sexual harassment had to be motivated by sexual desire, the employee was left without a remedy under the law, because the law does not provide a general civility code.

    Yesterday, Governor Brown signed SB 292, sponsored by the California Employment Lawyers Association, to override the Kelley decision.  SB 292 amends California’s Fair Employment and Housing Act to specifically state that “Sexually harassing conduct need not be motivated by sexual desire.”  Signing the bill limits the chances that future conduct similar to the facts in Kelley will fall short of the “sexual harassment” hurdle.

    Although I am generally not a fan of more laws, this concise and direct addition will prove useful to plaintiff’s lawyers in sexual harassment claims.  The employee no longer has to prove that the inappropriate conduct was motivated by the aggressor’s desire to have sexual or intimate relations with the victim.

    Most responsible employers take appropriate measures to educate employees regarding what is and is not acceptable behavior in the workplace.  With this broader definition, employers should consider revising their employee handbooks and modify their annual sexual harassment prevention training.  (You are conducting annual or at least semi-annual sexual harassment prevention training, right?)

    Employers and employees with questions about how this new law will impact their work environment should contact an experienced employment attorney familiar with the ever-changing landscape in sexual harassment law.

    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.

  • Domino’s Pizza Possibly Liable for Wrongful Termination by Franchisee

    Domino’s Pizza, like many companies, offers franchise opportunities for potential purchasers.  Domino’s allows the franchisee to use Domino’s name, trademarks, secret sauces, etc., in exchange for a royalty or license fee.  The Franchise Agreement grants the franchisee  the freedom to conduct its own independent business, and specifically states the franchisee “shall be solely responsible for recruiting, hiring, training, scheduling for work, supervising and paying the persons who work in the Store and those persons shall be your employees, and not [Domino’s] agents or employees.”

    When Taylor Patterson, a teenage restaurant employee, was allegedly sexually harassed and assaulted by the assistant manager at the local Domino’s owned by Sui Juris, LLC.  She also alleged that Domino’s Pizza, LLC, Domino’s Pizza, Inc., and Domino’s Pizza Franchising, LLC (the franchisor) were the assistant manager’s employers and therefore were vicariously liable for his actions under the doctrine of respondeat superior. The trial court disagreed and granted Domino’s motion for summary judgment.

    The appellate court overturned the trial court’s decision finding  reasonable inferences that there was a lack of local franchisee management independence. The court focused on several factors where the franchisor exercised control over the franchisees.  Sui Juris owner testified a Domino’s “area leader,”  told him to fire Taylor and one other employee. He said he had no choice; he had to follow the area leader’s instructions.

    Domino’s provided its franchisees with a “manager’s reference guide” describing the specific employment hiring requirements for all “personnel involved in product delivery.” It also described the documents that had to be included in employee personnel files, required all employees to submit “[t]ime cards and daily time report,” and specified explicit grooming standards for employees. The franchise agreement itself substantially limited franchisee independence in areas beyond food preparation standards. It limited the franchisee’s ability to relocate and dictated many of the internal programs and hours of operation and advertising requirements.

    Based on all these factors, the court concluded the assistant manager was not an independent contractor, or at least that there was sufficient evidence for a jury to conclude that the franchisor could be liable for the franchisee’s actions.

    I expect this case will be used by the plaintiff’s bar as a way to bring in franchisors in typical employment disputes.  This would not only increase the number of defendants and the breadth of discovery, it could also create conflict between the franchisee and the franchisor.  Companies or individuals considering a franchise agreement should seek the advice of competent legal counsel before signing the franchise agreement.

    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.