Tuesday, July 24, 2007
The purpose of the meeting is to allow members of the public "to inform the newly appointed California State Labor Commissioner, Angela Bradstreet, of their concerns regarding how recent changes to the meal and rest period enforcement practices required by legislation and recent court decisions has impacted their daily work-lives."
Alternatively, the Labor Commissioner will accept written comments by August 31, 2007.
Sunday, July 22, 2007
Here are the regulations.
They will become effective on or about August 17. Employers have until then to ensure that their training programs are in compliance with the specifics. There are provisions that may require employers' attention. Here are a few:
1. Electronic learning -
An employer utilizing a webinar for its supervisors must document and demonstrate that each supervisor who was not physically present in the same room as the trainer nonetheless attended the entire training and actively participated with the training’s interactive content, discussion questions, hypothetical scenarios, quizzes or tests, and activities. The webinar must provide the supervisors an opportunity to ask questions, to have them answered and otherwise to seek guidance and assistance.2. Who are qualified trainers -
(A) A trainer shall be one or more of the following:
1. "Attorneys" admitted for two or more years to the bar of any state in the United States and whose practice includes employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964, or
2. "Human resource professionals" or "harassment prevention consultants" working as employees or independent contractors with a minimum of two or more years of
practical experience in one or more of the following: a. designing or conducting
discrimination, retaliation and sexual harassment prevention training; b. responding to sexual harassment complaints or other discrimination complaints; c. conducting investigations of sexual harassment complaints; or d. advising employers or employees regarding discrimination, retaliation and sexual harassment prevention, or
3. "Professors or instructors" in law schools, colleges or universities who have a post-graduate degree or California teaching credential and either 20 instruction hours or two or more years of experience in a law school, college or university teaching about employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964.
(B) Individuals who do not meet the qualifications of a trainer as an attorney, human resource professional, harassment prevention consultant, professor or instructor because they lack the requisite years of experience may team teach with a trainer in classroom or webinar trainings provided that the trainer supervises these individuals and the trainer is available throughout the training to answer questions from training attendees.
(2) Documentation of Training. An employer shall keep documentation of the training provided its employees under this section to track compliance, including the name supervisory employee trained, the date of training, the type of training, and the name the training provider and shall retain the records for a minimum of two years.Small employers crossing the 50 employee threshold - six months to do the training
Content - review your training programs carefully to ensure all the elements care covered.
Too much trouble? Well, I have a suggestion [shameless plug alert!]:
Poland accepted the transfer, but retired 3 years before the mandatory retirement age.
Poland sued for, among other things, retaliation and constructive discharge. He said that the administrative review was retaliation for his age discrimination claim. The trial court awarded damages for constructive discharge and retaliation.
The Ninth Circuit reversed on the constructive discharge claim. 2/3 of the judges said that Poland did not establish his working conditions were intolerable merely because he was demoted and transferred. Among other things, the court noted that Poland worked 5 months in Virginia, contradicting his argument the transfer created intolerable conditions.
The really significant part of the case, though, is the Ninth Circuit's stance on liability for actions taken by innocent superiors on the basis of lower level employees' complaints. Hillberry did instigate the investigation into Poland's conduct, true. But the court did not rely on that alone and said that Hillberry's referral alone would not have been enough. Rather, the court focused on the fact that the investigators had access to Hillberry's notes, that Hillberry gave the list of witnesses to the investigators, and that the panel relied on performance reviews that had increased in frequency after Poland filed his first discrimination complaint.
In upholding Poland's claim, the court announced the rule for holding employers liable for negative, non-discriminatory actions taken on the basis of an employee's complaint that is tainted by bias:
We hold that if a subordinate, in response to a plaintiff’s protected activity, sets in motion a proceeding by an independent decisionmaker that leads to an adverse employment action, the subordinate’s bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decisionmaking process.
The court added that if the investigation is "entirely independent" of the subordinate's influence, the animus of the retaliating employee is not imputed to the employer.
So, if an employee engages in protected activity by complaining against a manager, that manager cannot be the impetus for negative treatment against the complaining employee, unless an "entirely independent" investigation finds the negative treatment is justified. Otherwise, the odds of a retaliation finding are very high.
The case is Poland v. Chertoff. Opinion is here.
Friday, July 20, 2007
The new text of the regulation makes clear:
Favoring an older individual over a younger individual because of age is not unlawful discrimination under the ADEA, even if the younger individual is at least 40 years old. However, the ADEA does not require employers to prefer older individuals and does not affect applicable state, municipal, or local laws that prohibit such preferences.
Here are links to some of the recent ones. Wear sunscreen in case you fall asleep.
WORKPLACE BULLYING AND THE FUTURE OF THE “EQUAL OPPORTUNITY HARASSER” By Jennifer Brown Shaw and Becki Graham
ENFORCING NON-COMPETE AGREEMENTS IN CALIFORNIA AFTER ADVANCED BIONICS V. MEDTRONIC
By D. Gregory Valenza
INDEPENDENT CONTRACTORS: A DYING BREED?
By D. Gregory Valenza
FREE SPEECH AND ENGLISH-ONLY POLICIES IN THE WORKPLACE
By Jennifer Brown Shaw and Matthew J. Norfleet
Monday, July 16, 2007
They say, though, if you go for the king, make sure you kill him. Because if you don't, he has the resources to sue you all the way to the Supreme Court.
Thomas Siebel is one such CEO. Debra Christoffers sued him and Siebel Systems for a variety of claims, many of which may not be asserted against individual managers as a matter of settled law. After Mr. Siebel won on the claims asserted against him as an individual, he sued Christoffers' attorneys, E. Rick Buell II and Carol L. Mittlesteadt for malicious prosecution. The trial court threw the case out. The court of appeal reinstated Siebel's case.
The complication here was that all parties settled Christoffers' underlying lawsuit and the cross-actions while that suit was on appeal. Mittlesteadt therefore argued that Mr. Siebel could not sue for malicious prosecution because he did not receive a "favorable" judgment in the underlying case.
The Supreme Court, 7-0, decided Mr. Siebel was free to proceed on his malicious prosecution claim even though the parties settled the underlying lawsuit. The opinion is here. The case is Siebel v. Mittlesteadt.
Those plaintiff attorneys who sue individual defendants based on frivolous legal theories may take away something from this decision. To be honest, in my experience, most plaintiffs' lawyers are more professional than that.
Thursday, July 05, 2007
Wednesday, July 04, 2007