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  • Bottles of pumped milk

    Update 10/10/2019: Governor Newsom signed SB 142 into law today.

    On September 11, 2019, the California Legislature passed Senate Bill 142 (“SB 142”), which would significantly expand lactation accommodations and protections for working mothers. Among other things, SB 142 would: (1) clarify employer obligations to provide breaks to nursing/pumping mothers; (2) require employers to provide safe and sanitary lactation rooms for employees wishing to express milk; (3) increase penalties for non-compliance; (4) prohibit discrimination and retaliation against employees who exercise or attempt to exercise their right to lactation accommodations; and (5) require that employers implement lactation accommodation policies.

    SB 142 comes on the heels of last year’s Assembly Bill 1976 (“AB 1976”). AB 1976 required that employers “make reasonable efforts” to provide a lactation room other than a bathroom. Under SB 142, employers must provide such a room, subject to a limited undue hardship exemption.[1]

    Given Governor Gavin Newsom’s support for the expansion of paid family leave from six weeks to eight weeks, and his championing of increased worker protections, we are optimistic that he will sign SB 142 into law.

    WHAT DOES SB 142 DO?

    SB 142, introduced by Senator Scott Weiner (D-San Francisco) and principally co-authored by Assemblymember Lorena Gonzalez (D-San Diego), amends Labor Code sections 1030, 1031, and 1033 and adds section 1034. The amendments and additions, which are discussed below, significantly expand lactation accommodations and protections for working mothers.

  • The September 2019 issue of the California Lawyers Association’s Labor & Employment Law Review featured Ramit Mizrahi’s final message as Chair of the Labor and Employment Law Section. In her column, Ramit invites readers to reflect on their lives and life choices, and thanks those who made her role as Section Chair possible.

    CLA September Message from the Chair

  • Various workers standing together

    Governor Newsom has signed into law Assembly Bill 5 (“AB 5”), a landmark bill that will give millions of California workers job benefits and protections by limiting the circumstances under which employers can classify them as independent contractors. Unlike contractors, employees receive broad protections and benefits under California law—including Labor Code protections (minimum wage, overtime, meal and rest breaks, sick pay), unemployment and disability insurance, workers’ compensation, anti-discrimination law protections, and leave law rights.

    1.       What does AB 5 do?

    AB 5, authored by Assemblywoman Lorena Gonzalez (D-San Diego), codifies and expands the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 (“Dynamex”). In Dynamex, the Supreme Court reaffirmed that all California workers performing services for hire are presumptively employees, and held that the proper test in determining whether a worker should be classified as an independent contractor for purposes of California wage orders is the “ABC” test. Under this test, an employer seeking to classify a worker as an independent contractor bears the burden of establishing:

    (A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact, (B) that the worker performs work that is outside the usual course of the hiring entity’s business, and (C) that the worker is customarily engaged in an independently established trade, occupation, or business . . . .

    (Id. at 955-56.)

    AB 5 extends the ABC test to apply to all claims brought under the Labor Code (not just to claims related to wage orders) and to claims for unemployment insurance. The bill has a number of carve-outs, discussed below.

  • podium

    On October 12, 2019, Ramit Mizrahi will be presenting at the California Lawyers Association’s 2019 Annual Meeting. She will be providing a California employment law legislative update, covering the new laws passed this year.

    Date and time: October 12, 2019, 8:45 a.m. – 9:45 a.m.

    Location: Monterey Conference Center, Portola Hotel & Spa at Monterey Bay, CA

    Additional information can be found on the CLA 2019 Annual Meeting page.

  • Update 10/10/2019: Governor Newsom signed AB 9 into law today. AB 9 increases the time to file claims under the Fair Employment and Housing Act, Pregnancy Disability Leave Law, and California Family Rights Act from one year to three years. However, it does not revive previously lapsed claims.

    Last year, we outlined several bills that California legislators put forth in response to the momentum of the #MeToo and #TimesUp movements. While Governor Brown signed many of these bills into law, he vetoed several important ones. Among the legislation he vetoed was AB 1870, a bill that would have given more time to employees to file employment discrimination claims. Given AB 1870’s broad support, was resuscitated as AB 9. Like its predecessor, AB 9 sought to extend from one to three years the time that employees have to file an administrative complaint with the Department of Fair Employment and Housing—the first step before being able to file a lawsuit.

    Before delving into AB 9 and its impact, it is helpful to start with an overview of statutes of limitations and California’s administrative filing requirements for employment law claims.

  • Applause

    Ramit Mizrahi has been recognized in U.S News & World Report’s 2020 Edition of The Best Lawyers in America© for her work in employment law representing individuals.

    Ms. Mizrahi has also been selected to the 2020 Southern California Super Lawyers® list, again for her work in employment law representing individuals.

    Both honors reflect peer recognition of excellence in practice.

    This marks the eighth year that Ms. Mizrahi has been recognized by Super Lawyers®, including having previously been distinguished as being among the top 100 Rising Stars and top 50 Rising Stars women for three consecutive years.

    Ms. Mizrahi and the Mizrahi Law team remain committed to serving as tenacious advocates for the firm’s clients while working to build collegiality and community in the legal profession.

  • pregnant worker contemplating her leave

    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.

  • pregnant worker contemplating her leave
    On August 7, 2019, Ramit Mizrahi appeared on AirTalk (guest hosted by Libby Denkmann) at KPCC to discuss pregnancy discrimination and retaliation in the workplace. The primary topic was the memo by a former Google manager that has since gone viral; the show also welcomed guest callers to speak about their own experiences.

    The episode can be found here: Another Google Employee Memo Has Gone Viral, This Time Alleging Discrimination Against Pregnant Women. Ramit can be heard starting at 9:33.

  • The July 2019 issue of the California Lawyers Association’s Labor & Employment Law Review featured Ramit Mizrahi’s fifth message as Chair of the Labor and Employment Law Section.

    In her column, Ramit shares insights on how attorneys can avoid burnout and thrive while engaging in demanding careers. Click on the below image to read the article in full.

    CLA July Message from the Chair

  • Senate Bill 707 is directed at employers who force employees into arbitration then refuse to pay the fees

    Gavel over currency

    On May 28, 2019, the California Senate passed Senate Bill 707 (“SB 707”), otherwise referred to as the Forced Arbitration Accountability Act. SB 707 seeks to end an abusive tactic that employers use to deny their employees justice—forcing them to arbitrate their legal claims and then suspending the process by refusing to pay the arbitration fees. The bill would pull employees out of this legal limbo by giving them options that allow them to proceed with their cases despite employer non-cooperation. SB 707 also aims to examine the alarming lack of diversity in the arbitration industry. It would require arbitration service providers to collect and share demographic data about the self-reported ethnicity, race, disability, veteran status, gender, gender identity, and sexual orientation of all arbitrators, as California judges are required to do.

    1. OVERVIEW OF ARBITRATION

    To understand the potential impact of SB 707, it is helpful to start with an overview of arbitration.

    Arbitration is a form of private dispute resolution that takes place outside of the court system.  In arbitration, an arbitrator—often a retired judge or lawyer—acts as both the judge and jury and renders a decision, which is generally final and binding. Employers are increasingly requiring employees to sign arbitration agreements and waive their right to a jury trial as a condition of employment. According to estimates from the Economic Policy Institute and the Center for Popular Democracy, almost 83% or 95 million of the country’s private, non-unionized employees will be subject to arbitration by 2024. These arbitration agreements are often buried in the fine print of job applications, employment agreements, or employee handbooks, and employees often only learn that they have signed arbitration agreements after-the-fact.

    Arbitration generally favors employers. When employees are forced into arbitration, they are less likely to win their claims, and even when they do, they receive lower awards that employees who had jury trials.

    One reason for this is that employers get to choose the rules governing the proceedings. The rules often make the process less favorable to employees, including by restricting discovery, limiting appeal rights, and prohibiting class actions. Discovery is the process by which each side formally obtains information from the other, including depositions (in which a party’s lawyer can examine witnesses under oath), interrogatories (written questions), requests for admissions, and requests for production of documents. In cases where an employee must prove that an employer acted with wrongful intent or discriminatory bias, the lack of meaningful discovery (for example, being denied the ability to take a sufficient number of depositions) can be fatal to an employee’s claim. (In some states, employers also use the rules to shorten the time that employees have to file their statutory claims (the statute of limitations) and to restrict legal remedies; this is not permissible in California.)

    Another reason that the process favors employers is that . . .

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