Most dermatologists here in the Golden State will advise patients, ad nauseum, to stay out of the sun whenever possible. And if you have to be out in the sun, they’ll tell you to wear lots of sunscreen. All good advice, even if we don’t want to hear it. Like dermatologists, we lawyers also advise our own “patients” of ways to help them avoid getting burned by the law. Unfortunately, here in sunny California, it's getting harder and harder to avoid the heat, especially if you’re an employer. Like flares from the sun, our Legislature is looking to unleash some scorchers on California businesses. Here is a sample of the heatwave coming our way (get out your sunscreen):
In recent cases, we have good news and bad news. First, a ray of hope. In a published case decided on April 10, 2019, the court ruled that an employee who refused to sign an arbitration agreement is still bound to its terms where she accepted continued employment. The question in Erika Diaz v. Sohnen Enterprises (2019) 245 Cal.Rptr.3d 827, was whether an employer could require at-will employees to be compelled to a new dispute resolution program simply by continuing to work after being told that the program was a mandatory condition of employment. The appellate panel ruled 2-1 that even though the employee did not sign the arbitration agreement, and even expressly objected to it, she would be forced to arbitrate her discrimination suit under the principle of "acceptance by conduct." In essence, the Court would not permit the employee to enjoy the benefit of employment without the conditions that come with it. This welcome ruling should cause a warming trend for implementation of appropriate arbitration programs as a condition of continued employment.
The #MeToo movement has now become a social norm since it first went viral on the pages of Instagram, Facebook, Twitter, and Snapchat. And that's a good thing. The days of writing off unacceptable behavior as "boys will be boys" or "paying your dues" are over. However, the pendulum has swung so far that the movement has left unintended victims in its path – good employees who had a moment of less-than-perfect judgment.
Because employers have taken it on the chin recently by the courts and the Legislature, it's important to celebrate the occasional employer victories. In a case decided on March 21, 2019, arising out of the 11th Circuit Court of Appeals , the Court ruled that in race or gender bias suits, the aggrieved employee must prove that whomever they use as a comparison to demonstrate bias must be "similarly situated in all material respects."