Governor Brown Signs AB 2337 Adding Additional Notice Obligations on Employers

Earlier today, California Governor Jerry Brown signed AB 2337, a bill that requires employers with 25 or more employees to provide notice to employees of their right to take protected time off, without threat of termination or retaliation, for domestic violence, sexual assault, or stalking.  This notice must be provided to each employee “at the time of hire” and thereafter upon request by the employee.

[Note:  Existing California law already requires employers to allow time off to any employee who is the victim of domestic violence or sexual assault and who needs time off: (1) to seek a temporary restraining order or other injunctive relief to help ensure the health, safety, or welfare of the employee and/or his/her child; (2) to seek medical attention; (3) to obtain services from a domestic violence shelter or rape crisis center; (4) to obtain psychological counseling; and/or (5) to participate in safety planning or relocation.  This new law, AB 2337, adds the additional requirement that employers provide employees with notice of these rights.]

The California Labor Commissioner will develop a template by July 1, 2017 that employers can use for this purpose.  The only good news for employers is that employers will not be required to comply with AB 2337 until such time as the Labor Commissioner develops this new notice template and posts it on their website.

Many California employers are already complying with AB 2337 by virtue of having an employee handbook which is provided at the time of hiring and that explains an employee’s right to take leave under these circumstances. If you don’t have an employee handbook, however, or if you don’t provide it at the time of hiring to all new employees, I recommend that covered employers download the Labor Commissioner’s new template once available and incorporate its language into all new hire offer letters.

You can read the full text of AB 2337 here.

 

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Job Available — Family Law Associate Attorney

I have been exclusively retained by the Silicon Valley family law firm Hanson Crawford Crum Family Law Group to recruit a new associate for their growing family law practice.  This is a fantastic opportunity to work with one of the largest and most prestigious family law firms in Northern California.  Hanson Crawford Crum handles complex family law matters – often involving sophisticated business issues, venture capital, private equity, and intricate real estate structures.  If you are interested in applying, or if you know someone who might be, you can apply directly through our LinkedIn job posting, which can be found here.

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75% of Workers Report Experiencing “Workplace Bullying”

According to a recent article in Forbes magazine, workplace bullying is “frighteningly common,” with 75% of all workers reporting that they have been the target of abusive behavior at work.

Workplace bullying is defined by the Workplace Bullying Institute (WBI) as “repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators.”  It is “abusive” conduct that is either (a) threatening, humiliating, or intimidating, or (b) work-interfering. in that it prevents work from getting done.

Compared to schoolyard bullying, workplace bullying is typically less physical and more verbal and psychological.  Interestingly, according to the WBI, the targets of workplace bullying are often the strongest team members, not the weakest.  Often, the boss of the bully knows about the bully’s behavior, but the boss mistakenly thinks that the company cannot do without the bully.  So the boss makes “allowances” and excuses that allows the bullying behavior to continue.

What’s the solution?  According to Forbes, the first step is to confront the bully.  Then, outline specific performance, behavioral, and attitudinal changes that must occur.  Then, implement organizational structures that emphasize problem solving and teamwork, such as:

  • Reward ideas and innovations
  • Reward people for bringing safety or other problems to management’s attention
  • Utilize management structures that reduce finger-pointing and blame
  • Implement an intranet where team members can give each other praise and recognize contribution
  • Ensure that performance measurement systems are fair, objective, and actually rewarding those skills and behaviors that you want to incentivize

Workplace bullying is not, by itself, illegal in California; however, if the bullying is happening because of the target’s race, gender, sexual orientation, disability, religion, or membership in some other protected category, then the target may have a claim under California’s Fair Employment & Housing Act (FEHA) or Title VII.  In addition, California employers should know that California law requires employers with more than 50 employees to include “abusive conduct” prevention training in their mandatory sexual harassment training.

You can read the article from Forbes here.

You can read AB 2053, the California law that requires employers to include workplace bullying training in their sexual harassment training, here.

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EEOC Issues Enforcement Guidance on Workplace Retaliation

On August 25, 2016, the Equal Employment Opportunity Commission (EEOC) published its Enforcement Guidance on Retaliation and Related Issues.  The EEOC’s new enforcement guidance is critical for all employers because it states clearly the EEOC’s intention to more vigorously enforce federal anti-retaliation laws.  It also provides employers with some helpful guidance for avoiding liability for retaliation claims.

The Role of the EEOC

The EEOC enforces the nation’s federal EEO laws, all of which include anti-retaliation provision, including Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act (Section 501), the Equal Pay Act (EPA), and Title II of the Genetic Information Nondiscrimination Act (GINA).

“Protected Activity” — Participation and Opposition

Under existing law, an employer cannot retaliate against an employee for engaging in a “protected activity.”  One type of “protected activity” is participation.  According to the EEOC, an individual is protected from retaliation for having made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII, the ADEA, the EPA, the ADA, the Rehabilitation Act, or GINA.  Protected “participation” activity includes filing or serving as a witness in an administrative proceeding or lawsuit alleging discrimination made illegal by federal EEO laws.

Another type of protected activity is opposition.  An individual is protected from retaliation for opposing any practice made unlawful under the various EEO laws.  According to the EEOC, protected “opposition” activity “broadly includes the many ways in which an individual may communicate explicitly or implicitly opposition to perceived employment discrimination.  The EEOC gave several examples of protected opposition activity in its new publication, including:

  • Complaining or threatening to complain about alleged discrimination
  • Providing information in an employer’s internal investigation of an EEO matter
  • Refusing to obey an order reasonably believed to be discriminatory
  • Advising an employer on EEO compliance
  • Resisting sexual advances or intervening to protect others
  • Passive resistance
  • Requesting reasonable accommodation for disability or religion

What Should Employers Do?

How can employers protect themselves?  The EEOC recommends that employers ensure that all proposed employment actions “of consequence” are “based on legitimate, non-discriminatory, non-retaliatory reasons.”  According to the EEOC, employers should:

  • Require decision makers to identify their reasons for taking consequential actions, and ensure that necessary documentation supports the decision.
  • Scrutinize performance assessments to ensure they have a sound factual basis and are free from unlawful motivations, and emphasize the need for consistency to managers.
  • Identify and implement any process changes that may be useful, where retaliation is found to have occurred.
  • Review any available data or other resources to determine if there are particular organizational components with compliance deficiencies.
  • Identify causes, and implement responsive training, oversight, or other changes to address the weaknesses identified

You can read the full text of the EEOC’s Enforcement Guidance on Retaliation and Related Issues here.

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EEOC Issues Long-Awaited Report on Harassment in the Workplace

In January 2015, the federal Equal Employment Opportunity Commission (“EEOC”) established a special task force to study harassment in the workplace.  That task force spent a year and a half studying the “myriad and complex issues” involved in workplace harassment.  Last month, the EEOC task force published their formal findings and employer recommendations.

By way of background, the EEOC task force summarized the latest data on harassment in the workplace.  That data revealed that, for FY 2015, harassment claims brought to the EEOC consisted of the following:

  • 45% alleged harassment on the basis of sex
  • 34% alleged harassment on the basis of race
  • 19% alleged harassment on the basis of disability
  • 15% alleged harassment on the basis of age
  • 13% alleged harassment on the basis of national origin
  • 5% alleged harassment on the basis of religion

The data also revealed the harassment continues to be a costly problem for employers:

  • $125,500,000 was secured by the EEOC in FY 2015 for claimants during the pre-litigation process
  • $39,000,000 was secured by the EEOC in FY 2015 for claimants during litigation
  • Employers have a 11.7% of having an EEO claim brought against them
  • 19% of EEO matters have a defense and settlement cost that averages $125,000 per claim

After an exhaustive review and analysis, the EEOC special task force concluded that:

  • Workplace harassment remains a persistent problem
  • Workplace harassment too often goes unreported
  • There is a compelling business case for stopping and preventing harassment
  • Leadership and accountability are critical to success
  • Training must change — new and different approaches must be examined

Based on these findings, the EEOC special task force made the following employer recommendations:

On leadership and accountability:

  • Employers should foster an organizational culture in which harassment is not tolerated, and in which respect and civility are promoted.
  • Employers should communicate and model a consistent commitment to that goal.
  • Employers should assess their workplaces for the risk factors associated with harassment and explore ideas for minimizing those risks.
  • Employers should conduct climate surveys to assess the extent to which harassment is a problem in their organization.
  • Employers should devote sufficient resources to harassment prevention efforts, both to ensure that such efforts are effective, and to reinforce the credibility of leadership’s commitment to creating a workplace free of harassment.
  • Employers should ensure that where harassment is found to have occurred, discipline is prompt and proportionate to the severity of the infraction.
  • In addition, employers should ensure that where harassment is found to have occurred, discipline is consistent, and does not give (or create the appearance of) undue favor to any particular employee.
  • Employers should hold mid-level managers and front-line supervisors accountable for preventing and/or responding to workplace harassment, including through the use of metrics and performance reviews.
  • If employers have a diversity and inclusion strategy and budget, harassment prevention should be an integral part of that strategy.

On developing proper policies and procedures:

  • Employers should adopt and maintain a comprehensive anti-harassment policy (which prohibits harassment based on any protected characteristic, and which includes social media considerations) and should establish procedures consistent with the principles discussed in this report.
  • Employers should ensure that the anti-harassment policy, and in particular details about how to complain of harassment and how to report observed harassment, are communicated frequently to employees, in a variety of forms and methods.
  • Employers should offer reporting procedures that are multi-faceted, offering a range of methods, multiple points-of-contact, and geographic and organizational diversity where possible, for an employee to report harassment.
  • Employers should be alert for any possibility of retaliation against an employee who reports harassment and should take steps to ensure that such retaliation does not occur.
  • Employers should periodically “test” their reporting system to determine how well the system is working.
  • Employers should devote sufficient resources so that workplace investigations are prompt, objective, and thorough. Investigations should be kept as confidential as possible, recognizing that complete confidentiality or anonymity will not always be attainable.
  • Employers should ensure that where harassment is found to have occurred, discipline is prompt and proportionate to the behavior(s) at issue and the severity of the infraction. Employers should ensure that discipline is consistent, and does not give (or create the appearance of) undue favor to any particular employee.
  • Groups of employers should consider coming together to offer researchers access to their workplaces to research the effectiveness of their policies, reporting systems, investigative procedures, and corrective actions put into place by those employers, in a manner that would allow research data to be aggregated in a manner that would not identify individual employers.

On training and compliance issues:

  • Employers should offer, on a regular basis and in a universal manner, compliance trainings that include the content and follow the structural principles described in this report, and which are offered on a dynamic and repeated basis to all employees.
  • Employers should dedicate sufficient resources to train middle-management and first-line supervisors on how to respond effectively to harassment that they observe, that is reported to them, or of which they have knowledge or information – even before such harassment reaches a legally-actionable level.
  • Employers should consider including workplace civility training and bystander intervention training as part of a holistic harassment prevention program.
  • Groups of employers should consider coming together to offer researchers access to their workplaces to research the effectiveness of trainings, particularly in the context of holistic harassment prevention efforts, in a manner that would allow research data to be aggregated and not identify individual employers.

You can read the EEOC special task force’s full report here.

 

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