HR California posted a interesting depiction of the top 10 things employers do to get sued in California. I agree with a few of them. HR California is a information source for employers to protect themselves against employee lawsuits. I think they do some decent work in helping employers comply with California’s stringent laws.
In other employment news, Governor Brown just amended California’s main sexual harassment law. SB 292 was recently passed by the California Legislature to overrule Kelley v. Conco Companies (2011) 196 Cal.App.4th 191. This amendment, authored by California Senate Majority Leader Ellen M. Corbett (D-East Bay) is a direct response to the case. Kelley is a terrible decision that harms male employees suffering sexual harassment in California. In Kelley, the Court ruled that although the male worker was subjected to a “barrage of sexually demeaning comments and gestures by his male supervisor” that were “graphic, vulgar, and sexually explicit,” his claim of sexual harassment failed because the male employee could not prove that “the harasser was homosexual” or was “motivated by sexual desire.” The Court further stated: “The mere fact that words may have sexual content or connotations, or discuss sex, is not sufficient to establish sexual harassment.” SB 292 rectifies this illogical result, and shifts the focus back to whether the harasser targeted the victim because of his or her gender, not whether the harasser had sexual intent or desire for the victim.
In a press release, Senator Corbett stated: “SB 292 ensures that all Californians who are sexually harassed will receive the wide range of protections under existing law. I thank Governor Brown for signing this important legislation that protects all individuals whenever they are sexually harassed in the workplace, regardless of motivation. As elected officials, we must always strive to protect all Californians, regardless of gender, sexual orientation, race or any other personal characteristic.”
In todays workplace, employment lawyers like myself are seeing more male-on-male sexual harassment. Most male supervisors know they cannot sexually harass females, but they often don’t think that they can be punished for bullying a male subordinate. This amendment helps give lawyers the tools they need to punish those who behave this way.
Employment Attorney – During the last five years, California’s courts have lost 65% of their general funding. Many courts in Los Angeles, San Diego, and San Bernardino have closed. Hours have been cut, and court fees have skyrocketed. Only 1% of California’s general fund goes to it’s judicial branch (which happens to be the largest court system in the nation…btw). In Los Angeles, 67 courtrooms have been closed and 500 court jobs have been lost.
What does this mean for the average employee seeking justice? The answer is simple – it will take longer. If you are an employee and you want to sue your employer it will take much longer to get to trial.
The California Chief Justice Tani Cantil-Sakauye decried the dramatic decrease in funding for state courts. The situation is so dire that California, “normally a leader in social justice, may now be facing a civil rights crisis,” she said.
But Governor Brown has not listened. Gov. Brown’s 2013 proposed budget does not restore any of the lost funding, and the court system has had to postpone rebuilding dilapidated and unsafe courthouses. Rising fines and fees for filings threaten to make California’s court system “a user-fee institution” that particularly hurts those with lower incomes.
If you are an employee seeking an employment lawyer, should this bother you? Yes, but it should not dissuade you from seeking an attorney. You might have other options available, such as arbitration or mediation. Contact an employment lawyer as soon as possible.
Wage Attorney on Rounding – California just came down with another big court decision. This one involves lots and lots of chocolate. In See’s Candy Shops, Inc. v. Superior Court the California Court of Appeal addressed whether it is legal for an employer to round it’s employee’s time clock entries to the nearest tenth of an hour.
In See’s Candy, Plaintiff was employed in a non-exempt hourly positon by See’s Candies Shops. She filed a wage and hour class action lawsuit. The trial court granted her summary adjudication motion and dismissed four of See’s affirmative defenses. See’s challenged the dismissal of two of the defenses related to it’s policy of rounding employee punch in and out times to the nearest tenth of an hour.
How did this rounding policy work? For example, if an employee clocked in at 7:58 a.m., the system rounds the time to 8:00 a.m., and if the employee clocked in at 8:02 a.m., the system rounds down the entry to 8:00 a.m. The plaintiff argued that this rounding policy violated CA Labor Code sections 204 and 510 because the employees were shorted small amounts of wages.
The Court determined that See’s argument had merit because there was no CA statute or case law related to rounding, so the Court looked to the federal regulatory standard in the FLSA. Under that standard, employers are permitted to use a rounding policy as long as it does not consistently result in a failure to pay employees for time worked. An employer may use a nearest-tenth rounding policy if it is fair and neutral on its face and it is used in a manner than will not result, over time, in failure to compensate employees for the time they actually worked. See’s presented evidence that its rounding policy did not result in a loss of wages to employees over time.
By the way, this lawyer prefers…no loves the dark chocolate marzipan. It will blow your mind. Just saying….
The California Supreme Court just came down with a big decision regarding employment discrimination. Employment lawyers across the state are describing Harris v. City of Santa Monica as a compromise between employee rights and business’ freedom to terminate employees. I find the decision fair, despite the fact that I was rooting for Ms. Harris.
Fair Employment and Housing Act – Pregnancy Discrimination
The facts of the case are relatively straight forward: a bus driver alleged that she was fired by the City of Santa Monica because of her pregnancy in violation of the FEHA. The City claimed that she was fired for poor job performance. At trial, the City argued that if the jury found a mix of discriminatory and legitimate motives in Harris’ termination, the City could avoid liability by proving that a legitimate motive alone would have led it to make the same decision to fire her. The trial court denied the City’s argument, and the jury awarded her $177,905 in damages and more than $400,000 in attorney fees. The Court of Appeal reversed, and the Supreme Court granted cert.
Supreme Court Decision – Employment Lawyers Say “Compromise”
“We hold that under the FEHA, when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, backpay, or an order of reinstatement. But the employer does not escape liability. In light of the FEHA‘s express purpose of not only redressing but also preventing and deterring unlawful discrimination in the workplace, the plaintiff in this circumstance could still be awarded, where appropriate, declaratory relief or injunctive relief to stop discriminatory practices. In addition, the plaintiff may be eligible for reasonable attorney‘s fees and costs. Therefore, we affirm the Court of Appeal‘s judgment overturning the damages verdict in this case and remand for further proceedings in accordance with the instructions set forth below.”
As most readers can tell, the court was trying to make employers and employees happy. This decision permits employees to still bring lawsuits when the employer has a mixed motive, however limits the damages attainable.
Some plaintiff attorneys question whether the court adequately defined when discrimination becomes a “substantial factor” in workplace discipline. The high court’s opinion concluded that “mere discriminatory thoughts or stray opinions are not sufficient to establish liability” under state law. The justices refused to offer a more specific definition “given the wide range of scenarios in which mixed-motive cases might arise.”
All in all, this is just another day in the life of an employment attorney.
Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.
For today’s post I thought I would highlight a recent sexual harassment case: Moran v. Quest Communications. In this case the jury awarded the plaintiff, Amy Moran, $4,292,710.
Let’s outline the facts in detail. I’ve copied and pasted much of it from an online copy of the appellate decision. I want to highlight the kind of behavior that qualifies as sexual harassment. Although a new trial has been ordered on some aspects of the verdict, this case highlights what a jury can do for a sexually harassed employee.
Moran joined Qwest (which is now CenturyLink) in early 2006. She was hired in a sales position and was compensated in base salary plus commission. By mid 2006 her managing boss had been replaced by Dennis Sherwood.
Sherwood seems like a disaster of a boss. He had received sexual harassment training at previous jobs and, according to an appellate brief, “recognized such harassment as a serious issue.” In a previous job, Sherwood tried to start an intimate relationship with a subordinate employee while she was a candidate for hire and after she was hired.