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Posts Tagged ‘Sexual Harassment’

#MeToo Movement Leads to New California Laws

Posted on: October 9th, 2018

By: Gretchen Carner

California Governor Jerry Brown signed into law several work-related bills that will make it easier for workers to speak out about and sue over workplace sexual harassment.  The new laws codify a broader definition of sexual harassment that will make it easier for workers to bring and sustain harassment allegations in California courts, and block businesses from making workers sign nondisclosure agreements when they come on board, ask for raises or settle sex harassment suits, among other things.

California Government Code Section 12940 redefines sexual harassment and amends FEHA to make harassment legally actionable if it makes it harder for workers to do their jobs. The law, which takes effect Jan. 1, 2019, also tells judges to scrutinize employers’ motions for summary judgment on harassment claims. It also blocks businesses from giving workers raises or bonuses in exchange for their waiving FEHA claims or signing NDAs and makes it harder for businesses to win fees when they beat workers’ bias suits. Government Code section 12964.5 blocks businesses from making workers sign NDAs as conditions of sexual harassment settlements.

California lawmakers adopted an expansive definition of sexual harassment as outlined by Justice Ruth Bader Ginsburg in her 1993 concurring opinion in Harris v. Forklift Sys. (1993) 510 U.S. 17, in which she said that harassment is discriminatory conduct that could make a reasonable person who experienced it believe that it made it harder for them to do their job.  Section 12923 states harassment cases are “rarely appropriate for disposition on summary judgment” because a single incident of harassing conduct is sufficient to create a triable issue of fact.  In addition, the new section instructs courts that the legal standard for sexual harassment “should not vary by type of workplace.”

While California law has previously required harassment prevention training of 2 hours for supervisors of employers with 50 or more employees every two years, revisions to the law now require employers with 5 OR MORE EMPLOYEES to provide the harassment training for supervisors and adds that non-supervisorial employees must now be trained.  (Government Code section 12950.1.)

Brown also signed a bill enacting Corporations Code section 301.3 which is aimed at giving women more say in corporate governance by making public, California-based businesses put one woman on their board of directors by the end of 2019 and as many as three by the end of 2021.  This statute will have a significant impact on dozens of public companies that have no women on their boards.  For a review of this new law in more detail, please see Rebecca Smith’s upcoming blog, Women On Board.

We anticipate much litigation over these new laws and will be keeping an eye on how the courts will enforce and interpret these statutes.  If you have any questions, please contact Gretchen Carner at [email protected].

Employment Arbitration Agreements are Still Alive in California, At Least For Now

Posted on: October 4th, 2018

By: Rebecca Smith

As Freeman Mathis & Gary brought out in its August 24, 2018 Blog by attorney Dave Daniels, the California Senate had voted to approve Assembly Bill 3080 (“AB 3080”) intended to combat the use of mandatory arbitration agreements and confidentiality clauses to prevent the public disclosure of workplace sexual harassment.  September 30, 2018 was the last day for Governor Brown to sign or veto legislation passed by the California Legislature this year.  Included in the last day of vetoes, Governor Brown vetoed AB 3080.

AB 3080 sought to amend the California Fair Employment and Housing Act and the California Labor Code making it an unlawful employment practice to require an applicant, employee or independent contractor to agree to arbitrate claims arising under the Fair Employment and Housing Act and Labor Code.  AB 3080 would also have added Section 432.4 to the Labor Code, which would have barred any person from prohibiting an applicant, employee, or independent contractor, “as a condition of employment, continued employment, the receipt of any employment-related benefit, or as a condition of entering into a contractual agreement,” from “disclosing to any person an instance of sexual harassment that the employee or independent contractor suffers, witnesses, or discovers in the workplace or in the performance of the contract.”

In returning the bill unsigned, Governor Brown pointed to several recent court decisions that invalidated state policies which unduly impede arbitration.  “The direction from the Supreme Court,” Governor Brown indicated “has been clear – States must follow the Federal Arbitration Act and the Supreme Court’s interpretation of the Act.”  “Since this bill plainly violates federal law,” Governor Brown indicated in this statement, “I cannot sign this measure.”

So, at least for the time being, California Employers are still able to use arbitration agreements as long as they are drafted with care.  Employers should review all arbitration agreements and practices to ensure that the agreements they are using will withstand challenge, or to update their agreement to comply with recent authorities addressing arbitration agreements.  Additionally, this will, in all likelihood not be the last challenge which will be made to arbitrations in the employment context in California as bills similar to AB3080 have previously been introduced and undoubtedly will be introduced again in the future.

If you have any questions or would like more information please contact Rebecca Smith at [email protected].

New York Passes Sexual Harassment Laws and Issues Employer Guidance

Posted on: September 11th, 2018

By: Will Collins

By October 9, 2018, New York employers must adopt a sexual harassment prevention policy and must provide training on that policy to all employees by January 1, 2019. Last week, New York launched a website that will serve as a hub for all resources related to the state’s new sexual harassment laws. The site contains key guidance setting the baseline for employer compliance. Among the resources, the website provides employers with a:

  • Model Sexual Harassment Policy & Complaint Form;
  • Model Sexual Harassment Prevention Training; and
  • FAQs section addressing the requirements of New York’s sexual harassment laws.

At this point, all guidance on the site is only proposed and subject to change following the close of the public comment period on September 12, 2018. Once final, the model policies and training may be adopted by employers as their own.

Model Sexual Harassment Policy and Complaint Form

At a minimum an employer must adopt a sexual harassment policy that meets or exceeds the standards set by the New York Department of Labor.  The Model Policy expounds on those requirements and:

  • Contains a broad statement of coverage, including “all employees, applicants for employment, interns, whether paid or unpaid, contractors and person conducting business with” an employer;
  • Requires “[a]ll employees, including managers and supervisors,” comply and cooperate with any investigation of sexual harassment;
  • Mandates that any manager or supervisor is “required to report any complaint that they receive, or any harassment they observe” to a designated individual;
  • Outlines the investigation procedure, indicating that the investigation should be complete within 30 days;
  • Contains a document retention component, requiring that an employer maintain documentation memorializing the details of the investigation, including the timeline, facts learned during the investigation, and any witnesses; and
  • Requires that the employer notify the complainant of the employer’s determination at the end of the investigation, including notification of the complainant’s right to file a complaint or charge externally.

Model Sexual Harassment Prevention Training

Employers must provide training to all employees by January 1, 2019. After January 1, 2019, employees must receive training on the employer’s sexual harassment policy annually and new employees must receive training within the first 30 days of their employment. The Model Training guidance:

  • Provides that all employees who work in the state of New York must receive training, even if the employee “works for just one day in New York;”
  • Requires that training be offered in the spoken language of employee; and
  • Tracks the Model Policy language, but contains details of specific examples of conduct illustrative of sexual harassment.

Again, employers do not have to use the training and materials provided by the New York Department of Labor. However, if developing their own training, employers must meet the minimum requirements.

FAQs Section

Among several key topics in the FAQs, this section of the website provides guidance on non-disclosure agreements and arbitration.

  • Non-Disclosure: Beginning July 11, 2018, the law prohibits agreements preventing the disclosure of facts of any alleged sexual harassment unless the NDA is the preference of the individual making the Complaint. The FAQs clarify that the parties must enter into two separate agreements—one setting out the complainant’s preference and a second containing the non-disclosure provisions.
  • Arbitration: The FAQs again reiterate that the law prohibits employers from mandating arbitration to “resolve any allegation or claim of an unlawful discriminatory practice of sexual harassment.”

Bottom Line

These are just a few of the developments in New York’s sweeping response to the #MeToo movement, pushing employers to adopt robust and comprehensive sexual harassment policies and training. Given the broad coverage of the requirements and the fast approaching deadlines, employers should take this opportunity to work with counsel to review their policies, including provisions of their handbook and any arbitration agreements to ensure compliance.

The attorneys in the FMG Labor and Employment Nation Practice Section are available to assist your organization, determine your obligations under New York law, and help you navigate day-to-day compliance as other states, counties, and cities enact similar regulations.

If you have any questions or would like more information, please contact Will Collins at [email protected].

California Attacks Arbitration Agreements …. Yet Again!

Posted on: August 24th, 2018

By: Dave Daniels

On August 22, 2018, the California Senate voted to approve AB 3080, a bill prompted by the #MeToo movement against sexual harassment. Nominally, the bill is intended to combat the use of mandatory arbitration agreements and confidentiality clauses to prevent the public disclosure of workplace sexual harassment, a practice vigorously opposed by the #MeToo movement. As written, however, AB 3080 goes much further, imposing a ban on mandatory arbitration agreements for all claims of employment discrimination, retaliation, and harassment, as well as wage and hour claims.

The bill is currently on Governor Jerry Brown’s desk, awaiting his signature or veto. If signed, the new law would apply to any employment contracts “entered into, modified, or extended” on or after January 1, 2019, and would make several sweeping changes to the California employment law landscape:

Ban on Mandatory Arbitration Agreements

Arbitration agreements are ubiquitous in employment contracts and provide for a low-cost, efficient means of resolving employment disputes.

AB 3080 would put a stop to this by adding Section 432.6 to the Labor Code, which would prohibit any person from requiring an applicant or employee, “as a condition of employment, continued employment, the receipt of any employment-related benefit, or as a condition of entering into a contractual agreement,” “to waive any right, forum, or procedure” for claimed violations of the California Fair Employment and Housing Act (“FEHA”) or the California Labor Code.

In other words, if AB 3080 is signed, it will be unlawful—indeed a misdemeanor—for an employer to require its employees to enter into mandatory arbitration agreements for any claims covered by FEHA (i.e., discrimination, retaliation, harassment) or the Labor Code (i.e., wage and hour claims).

While the bill only applies to mandatory arbitration agreements, Section 432.6(c) makes clear that employers will not be able to sidestep the new prohibitions by using opt-out clauses or otherwise requiring an employee to “take any affirmative action to preserve their rights.”  Moreover, Section 432.6(b) prohibits employers from threatening, terminating, retaliating against, or discriminating against any employee or applicant who refuses to voluntarily sign an arbitration agreement.

Finally, because these new provisions appear in the Labor Code, violations could subject employers to civil penalties under the California Labor Code Private Attorneys General Act, also known as PAGA.

Elimination of Settlement Agreements

Because AB 3080 prohibits any person from requiring an applicant or employee “to waive any right, forum or procedure” “as a condition of entering into a contractual agreement,” it arguably also eliminates or curtails employers’ ability to enter into settlement and general release agreements with their employees for FEHA and Labor Code claims.  Given that the vast majority of these types of claims are settled, the full extent of AB 3080’s impact remains uncertain.

Ban on Confidentiality Agreements for Sexual Harassment

AB 3080 would also add Section 432.4 to the Labor Code, which would bar any person from prohibiting an applicant, employee, or independent contractor, “as a condition of employment, continued employment, the receipt of any employment-related benefit, or as a condition of entering into a contractual agreement,” from “disclosing to any person an instance of sexual harassment that the employee or independent contractor suffers, witnesses, or discovers in the workplace or in the performance of the contract.”

In short, employers will no longer be able to impose confidentiality obligations on their employees or independent contractors with respect to claims of sexual harassment.

Individual Liability

Importantly, AB 3080 applies to any “person” who commits any of the above-noted violations, not just an employer.  An earlier version of the bill was restricted to “an employer,” but was subsequently amended to replace “an employer” with “a person,” signaling the Legislature’s intent to impose individual liability for violations.

What Employers Should Know Now

For the moment, as it awaits Governor Brown’s signature, AB 3080 is still not the law.  In 2015, Governor Brown vetoed a similar bill, AB 465, which would have outlawed the use of mandatory arbitration agreements as a condition of employment.  In his veto message, Governor Brown noted that there is significant debate about whether arbitration is less fair to employees, and explained that he was “not prepared to take the far-reaching step proposed by this bill.”  Remember, however, that Governor Brown’s term ends in January 2019, and a re-introduced version of the bill could find a more sympathetic audience in his successor.

Even if Governor Brown signs the bill, there will be immediate legal challenges arguing that the bill is unenforceable under the Federal Arbitration Act, which the United States Supreme Court has steadfastly enforced, most recently in Epic Systems Corp. v. Lewis. AB 3080 is just the latest in a long history of California’s antagonism towards arbitration agreements, both in the employment context and beyond.

Notwithstanding the hurdles that AB 3080 faces, employers should now begin reviewing their arbitration agreements and practices in light of these potential changes.  In particular, employers will want to think about best approaches to take during the period after the bill is signed and legal challenges work their way through the courts.

If you have any questions regarding the state of arbitration agreements in the Golden State, please feel free to contact Dave Daniels in our Sacramento office at 916-472-3301 or [email protected].

#MeThree?

Posted on: May 1st, 2018

By: Jason C. Dineros

https://www.fmglaw.com/FMGBlogLine/wp-content/uploads/2018/05/Jason-Dineros-May-01-2018-Blog-300x216.jpg

Chloe Caras, a former female restaurant executive filed a sexual harassment suit last week against celebrity chef and Top Chef Finalist, Mike Isabella.  Caras alleges that Chef Isabella and his company, Concepts, failed to provide sexual harassment training and educate managers to recognize sexual harassment and implement a program to address complaints.  She cites the company’s absence of a human resources department from its inception in 2011, until this past October, and the jovial nature in which the company allegedly handles its sexual harassment training as evidence supporting her allegations.

The #MeToo Movement has brought to the forefront of business operations the need of not only having such training in place but also implementing methods to track its effectiveness and enforce its purpose.  The challenge particularly in the restaurant industry comes in approaching a subject that was frequently a source of humor and typical flirting among those working in it.  In an industry where anyone who has worked in it will agree requires a thick skin and resilient attitude, Caras’ suit falls in line with what has been a steadily rising trend of sexual harassment claims-turned-lawsuits in seemingly every industry—much less the hospitality.

In Meritor Savings Bank v. Vinson (1986) 106 S. Ct. 2399, the landmark Supreme Court case ushering governance over sexual harassment claims, the Court held that 1) a hostile work environment violates Title VII, 2) conduct amounting to sexual harassment must be “unwelcome,” and 3) employers must be on notice of the conduct to be liable for their employees.  While not to be confused with a position that condones any level of sexual harassment—in its unadulterated definition, meaning unwelcome sexual conduct—at what point do the playful flirtatiousness and mutual banter, albeit often immature and often times (in the restaurant industry) perverse, cross the line and become sexual harassment?

As the #MeToo movement continues to gain support, employers can expect to see a rise in employee complaints about workplace behavior.  When faced with such complaints, employers will have to be vigilant in promptly investigating these complaints, fairly assessing their merit and executing a plan that resolves the situation.  Such a protocol will provide employers the best opportunity to identify and resolve workplace conflicts. 

For further information or for further inquiries involving hospitality law or labor and employment law, you may contact Jason C. Dineros, the Chair of the Hospitality Law Practice Team of Freeman Mathis & Gary, LLP, at [email protected].