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16 Mar '22
On March 3, 2022, President Biden signed into law H.R.4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“Act”). The Act provides, in relevant part, that:
“Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.”
What this means is that employers can no longer force employees who have been subjected to sexual harassment or sexual assault to submit their legal claims to arbitration. Employees can now choose to file their cases in court, regardless of the prior existence of an arbitration agreement. Nor can employers force employees to give up the right to file a class or collective action related to sexual harassment or sexual assault.
The Act explicitly provides that it applies to any dispute or claim that arises or accrues on or after the date of enactment, meaning any harassment or sexual assault occurring on or after March 3, 2022. It does not apply to existing cases already in arbitration or ones where the sexual harassment or assault only occurred before March 3, 2022.
The Act provides that any dispute regarding the applicability of the Act to an arbitration agreement must be decided by a court, not an arbitrator.
We anticipate that more employment lawsuits will include claims for sexual harassment, and that courts will invalidate arbitration agreements in those cases.
This law levels the playing field by giving people subjected to sexual harassment and sexual assault a fair shot at justice. Research has shown that consumers are more likely to be struck by lightning than to win a monetary award in arbitration. We hope it opens the door to further legislation prohibiting arbitration in all employment and consumer cases.
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The January 2022 issue of the California Lawyers Association’s Labor & Employment Law Review features an article authored by Ramit Mizrahi, Andrew Friedman, and Tony Oncidi.
The article—”The Top Employment Cases of 2021″—highlights the most important California state and federal employment cases from last year. Click on the below image to read the article in full.
Ramit will also be speaking at the following continuing education program this month:
Thursday, 1/20/22, 8:30-10 a.m.
2022 New Employment Practitioner Conference, Employment Law 101
Program by: California Lawyers Association Labor and Employment Law Section
Description: California provides employees with numerous protections that practitioners need to understand to provide effective representation. In this module, our panelists will provide an overview of filing and defending against claims of discrimination, harassment, and retaliation provided by the Fair Employment & Housing Act, Title VII of the Civil Rights Act, and other key employment laws. The presentation will touch upon exhaustion of administrative remedies, the essential points of analysis for claims, recent changes to the law, and emerging trends and concerns. -
On November 10, 2021, Ramit Mizrahi appeared on KALW’s Your Legal Rights radio show to discuss the new employment laws passed in 2021.
You can listen to the program here and read our blog post delving into the new laws (including some the program did not cover) here.
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Introduction — California Protections for Pregnant Workers
California law offers strong protections to employees who have been subjected to discrimination and harassment. Despite that, pregnancy discrimination and retaliation for standing up to discrimination remain rampant. Once employees have been wrongfully terminated, they often know to reach out to seek legal help immediately. But current employees are often more confused about what to do. They may rightfully feel afraid about reporting unlawful conduct to Human Resources, particularly when the conduct is coming from their immediate supervisor. What if it just makes the situation worse? Indeed, far too often, Human Resources is more concerned with protecting the company than with taking the immediate corrective action that the law requires of them. A retaliating supervisor can make a job feel like death by 1,000 paper cuts: scrutinizing, criticizing, and nit-picking every action by an employee, making them feel ostracized or humiliating them in front of their peers, and leaving them in a constant state of fear and anxiety. Indeed, if true, the experiences of the Google employee whose memo went viral demonstrate the myriad ways that a company can fail its employees and allow discrimination and retaliation to persist.
An employee’s best hope is to be fully informed about their legal rights. They can then decide whether to report internally, to file a claim with one of the government agencies that investigates and enforces anti-discrimination laws, to seek private counsel to negotiate an exit or to file suit, or to make a conscious decision to wait (being mindful that if a person waits too long, they may forever lose their ability to assert the claim–a post on this topic will be forthcoming). To that end, I provide the following brief overview of employment protections for California workers subjected to pregnancy discrimination and retaliation. Note that many of these topics have been covered in greater depth elsewhere throughout the blog. (The archive categories are listed to the right of this post.)
1. Discrimination
The Fair Employment and Housing Act (“FEHA”) prohibits discrimination against employees because they belong to a protected category (sex, pregnancy, race, religion, disability, etc.). This includes refusing to hire or promote employees, terminating them, or discriminating against them in compensation or in terms, conditions, or privileges of employment.
2. Harassment
The FEHA further prohibits harassment against employees, applicants, unpaid interns or volunteers, and contractors because of their protected status. Employers are strictly liable for harassment by a supervisor. They are liable for harassment by non-supervisors, and even non-employees, if they knew or should have known of the conduct but failed to take immediate and appropriate corrective action. Employers are obligated to take all reasonable steps to prevent harassment from occurring. An employee need not lose tangible job benefits (e.g., be terminated or demoted) to establish harassment. More on workplace harassment can be found here.
3. Retaliation
The FEHA protects an employee who has “opposed any practices forbidden” under the Act.
An employee is engaging in protected activity when she opposes any practice that would violate the FEHA, even if the practice is not directed at her: “The ‘opposition’ clause protects conduct by an employee who is not the direct victim of a practice made unlawful under Title VII, but who ‘opposes’ such discrimination against others.” (Chin, et al., Cal. Practice Guide Employment Litigation (2019 The Rutter Group) ¶ 5:1527.) Thus, it is unlawful for an employer to retaliate against an employee who reports or otherwise opposes pregnancy discrimination. The FEHA separately imposes liability on an employer for failing to prevent retaliation.
An employee does not have to be right that discrimination actually occurred; they are protected if they had a good-faith belief of discrimination.
Employees also have protections under California’s general whistleblower protection statute, Labor Code § 1102.5, which protects employees from retaliation when they (1) disclose information that they reasonably believe to violate state, federal, or local laws or regulations, or (2) refused to participate in any activity that would violate state, federal, or local laws or regulations.This protection applies whether the employee complains (a) externally to a government or law enforcement agency or to a public body conducting an investigation, inquiry or hearing, or (b) internally to “a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance” (e.g., their manager or HR).
Employees are protected even if the disclosures were part of their job duties (so for example, a safety officer is still protected when speaking out about unsafe conditions). Family members of a person who has, or was perceived to have, engaged in protected activities are also protected from retaliation.
Despite these protections, research has shown that when discrimination or harassment is reported, the consequences can be dire: an estimated 75% of employees who speak out against workplace mistreatment faced some form of retaliation.
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So you think you have an employment discrimination or wrongful termination case and are looking to hire a lawyer. Just as you must evaluate the lawyer to decide if they are right for you, the lawyer must assess your legal claims to determine whether they should represent you. Once you have gone through the preliminary consultation and conflict check, the lawyer will likely schedule an in-person or Zoom meeting to delve into your claims in greater detail. The more information you have readily available, the more easily the lawyer can assess your claims. Of course, that does not mean you should share every scrap of paper conceivable! Below, I describe what information and documents you should share to help the consulting lawyer evaluate your case.
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You say it’s a “hostile work environment.” But is that workplace bully breaking the law? The answer may surprise you.
So your boss/supervisor is a jerk. He’s mean, abusive, and he talks down to you. He embarrasses you in front of others and he diminishes your work. You think he may be sabotaging you and intentionally setting you up to fail. Surely he’s breaking the law and you have a case, right?
Not necessarily.
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Did you ever wonder what’s in your personnel file? Do you know that you have a right to find out? What other documents are you entitled to see or copy? Below, I discuss the employment records you are entitled to get and share sample language for making such a request.
Labor Code § 1198.5 provides that (with limited exception): “Every current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records. . . .
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15 Oct '21
With a Democratic supermajority in the California legislature and a Democratic governor (who survived a recall election), 2021 brings another slew of employment law bills that expand employee protections.
DISCRIMINATION AND HARASSMENT
SB 331 – “Silenced No More” Act – Non-Disclosure Agreements
The most important bill from this legislative session is SB 331, also known as the Silenced No More Act. SB 331 expands the protections created in 2018 by the Stand Together Against Non-Disclosures (STAND) Act (SB-820) and omnibus sexual harassment bill SB 1300. Those bills targeted attempts by employers to silence employees who have been sexually harassed or subjected to discrimination or retaliation based on sex. SB 331 ensure that these same protections apply to all employees subjected to discrimination, harassment and retaliation. It expands protections to claims based on all protected categories covered by the Fair Employment and Housing Act (FEHA), including race, religion, disability, age, veteran status, etc.
The STAND Act added Code of Civil Procedure Section 1001. Section 1001 prohibits confidentiality provisions in settlement agreements involving civil or administrative actions that state a cause of action for: sexual assault; workplace harassment or discrimination based on sex; failure to prevent workplace harassment or discrimination based on sex; sexual harassment in a business, service, or professional relationship; and sex discrimination, harassment, or retaliation by the owner of a housing accommodation.
SB 331 amends C.C.P. § 1001 to expand the prohibition on non-disclosure agreements to encompass claims of discrimination, harassment, or retaliation based on any protected category covered by the FEHA (not just those based on sex). This expanded prohibition applies to agreements entered into on or after January 1, 2022. SB 331 clarifies that C.C.P. § 1001 prohibits provisions that prevent or restrict the disclosure of such information.
SB 1300 had added Government Code § 12964.5, which made it unlawful for an employer, in exchange for a raise or bonus, or as a condition of employment or continuing employment, to: (1) require employees to sign a release of claim or right under the FEHA, or (2) to require employees to sign a nondisparagement agreement that gags employees from disclosing information about sexual harassment and other unlawful acts.
SB 331 amends Government Code § 12964.5 as follows:
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12 Oct '21
After years of advocacy to raise the minimum wage, all California workers can look forward to a $15 an hour minimum wage by January 1, 2023.
While the federal minimum wage of $7.25 per hour has not changed in over a decade, states, counties, and cities all have the ability to set a minimum wage. Below, we summarize the minimum wages set by the State of California, Los Angeles City and County, and other cities within Los Angeles County. Employees are entitled to the highest applicable minimum wage.
State of California
California State Minimum Wage Effective Date Large Employers (26+ Employees) Small Employers (≤25 Employees) 1/1/2022 $15 per hour $14 per hour 1/1/2023 $15 per hour $15 per hour The State minimum wage will rise $1 per hour on January 1 of each year until it reaches $15 per hour for both small and large employers in 2023. Further details (including regarding the rare exceptions) can be found on the Labor Commissioner’s website.
City of Los Angeles and Unincorporated Areas of Los Angeles County
Los Angeles City and County Minimum Wage Rates Locality Minimum Wage (As of July 1, 2022) Unincorporated Los Angeles County $15.96 per hour Los Angeles City $16.04 per hour Pasadena $16.11 per hour Santa Monica $15.96 per hour ($18.17 for hotels) West Hollywood $16.50 per hour for large businesses, $16.00 per hour for small businesses, $18.35 per hour for hotel employers Malibu $15.96 per hour Long Beach $15 per hour for large employers, $14 per hour for small employers, different rates for hotel and concessionaire workers Cities Without Specified Minimum Wage Track State minimum wage -
Here’s a scenario that I come across regularly: A worker with health issues goes out on a medical leave under the Family and Medical Leave Act (FMLA) and/or the California Family Rights Act (CFRA). Her employer tells her that once her FMLA/CFRA leave is exhausted, she will be terminated if she cannot return to work immediately. The worker is unable to return to work at the required date and is fired.
Big mistake. Here’s why: Even if the worker’s leave is no longer covered by the FMLA/CFRA (or was not covered in the first place), other protections may apply, including those created by the Americans with Disabilities Act of 1990 (ADA) and California’s Fair Employment and Housing Act (FEHA). . .
