We’re only weeks from the new year and employment lawyers and HR professionals are still reeling from the changes that COVID-19 brought to the workplace. While many are starting the countdown now to 2021 with cautious optimism that some normalcy will return to the office, take a moment to check on the HR professionals in your life. Most of us are still wading through the newest regulations and "guidance" from Sacramento looking for a life preserver. Much of it is due to preparing for the rather profound (hyper)activity from our courts and legislators – which contributed to the fair state of California receiving the dubious distinction of No. 2 “Judicial Hellhole” in the nation.1
Summer looked very different this year; gone were trouble-free getaways, and uncomplicated air travel came to a screeching halt. However, legal obligations regarding vacation time in the workplace cannot be overlooked if an employer wants to carefully avoid a potential COVID-19 related employment claim. Employers undoubtedly recognize the need for their employees to disconnect and enjoy some much needed R&R with their families. How does an employer balance that with concerns of employee health during a pandemic and where is the line between smart business practices and a lawsuit?
As we all attempt to read the tea leaves in the post (or current) COVID-19 era, we wanted to start a new series on what employers can expect, and do to prepare, for a new wave of employment litigation. Coronavirus has shuttered our Courts for a brief period but the doors are slowly reopening and so will your pocketbook if you are not prepared for the novel claims being advanced in this new era.
As employers reopen their doors and employees return to work, all involved are likely to have concerns about the impact, and risk, of COVID-19 in the workplace. Hand washing is being encouraged, the acrylic barriers have been installed, and you are ensuring that your employees are keeping proper social distancing protocols. But some employees may be uncomfortable with whether these changes are compliant or sufficient, and voice a concern. Is a worker who vociferously raises a concern about these perceived deficiencies a hero or a troublemaker? While it may be tempting to want to dismiss employee complaints (and even the employee), you could be faced with a much bigger problem by doing so – a whistleblower lawsuit.
California employers are wrestling with unprecedented challenges as they start to reopen their doors. In addition to considering capacity requirements, maintaining social distancing, and protecting the health of customers and employees alike, employers are also saddled with the challenge of running afoul of California wage and hour laws in new and unanticipated ways. This may require employers to reevaluate the classification of previously exempt employees.
One of the first items on the To Do List for new employers is typically spending serious time, and resources, with their corporate attorneys creating a business entity which they think shields them from a bad day in court. And then they sleep well at night under the presumption that their personal assets are protected from liability. But have they been promised a false sense of security?
California appears to be stretching its legs and slowly awakening from the COVID-19 hibernation. As more employers reopen their doors, they must thoughtfully consider how they can keep their employees safe as we move forward into fighting the next battle in the war against the novel corona virus.
These are difficult times throughout the country and layoffs are becoming an unfortunate reality for some employers. Even in this pandemic, there are California requirements that employers should be mindful of as the navigate this painful process.
These are unsettling times on a historic scale. Amidst the chaos, Hall Griffin LLP remains open and committed to providing the same exceptional service our clients have come to expect from our team of expert litigators and experienced staff, all of whom are working remotely and are ready to help.
Former Property Owner Responsible For Tenant’s Hazardous Waste Discharge Despite No Actual Knowledge
In United Artists Theatre Circuit, Inc. v. Regional Water Quality Control Board (Ca. Crt. App., 1st Dist., Div. 5, Nov. 27, 2019), Case No. A152988, the Court of Appeals ruled that a landlord of a strip mall could be held responsible for the costs of hazardous waste clean up caused by a dry cleaning tenant without the landlord’s knowledge or consent if the landlord “knew or should have known that a lessee’s activity created a reasonable possibility of a discharge of wastes into waters of the state that could create or threat to create a condition of pollution or nuisance.” The Court further held the cleanup claim was not discharged by bankruptcy.
Mobilehome Parks’ Super-Priority Status in California Bolstered with Attorneys’ Fees Against Lenders
If you service or own loans secured by mobile/manufactured homes in California, your letter to Santa was lost in the mail. The California Court of Appeals delivered a lump of coal for mobile home lenders by confirming California law affords mobile home parks super-priority status over other lenders/lienholders in conducting sales of homes for defaulted borrowers, and holding that same law now entitles those parks to attorneys’ fees if they bring a quiet title action to confirm the sold-property is free and clear of your liens.
It’s a call that no employer wants to receive – there has been a complaint of harassment and you must decide how to move forward. With the substantial media scrutiny surrounding harassment claims, most employers may feel that they are in a no-win position. But that isn’t entirely true, if the employer is sufficiently proactive. In two 1983 cases, the Supreme Court created an affirmative defense to hostile environment harassment claims when an employer can show that they: (1) exercised “reasonable care” to prevent harassment from occurring - typically shown by establishing and enforcing a meaningful company policy prohibiting harassment; (2) conducted a “swift and remedial” investigation of harassment claims once they “knew or should have known” of the behavior; and (3) took steps reasonably calculated to keep the harassment from happening again. If you’ve been reading our previous articles, you should have no problem meeting the first prong. This month, we want to focus on the elusive second prong of workplace investigations and help employers swiftly and effectively respond when necessary.
“I am not young enough to know everything.” ― Oscar Wilde
No. We're not referring to the frenzy around the Dynamex decision and the imminent legislative expansion by Sacramento in AB 5 (although if you're an organization that classifies any of its workers as Independent Contractors, we need to talk). We're addressing an issue that is likely to be relevant to a more significant swath of employers. Oscar Wilde wisely observed that age and experience tend to instill some humility in us—we simply don’t know it all. His timeless aphorism also holds some lessons for California employers, among them that (1) older employees supply much-needed wisdom and skill to the workplace, and (2) assuming that your old way of thinking is right can be downright foolhardy. Faced with an older workforce, employers would be well-advised to keep Oscar Wilde in mind, understanding the benefits and challenges of an aging demographic.
In the last edition of Employment Awareness, we briefly touched on a recently-published case upholding arbitration agreements. However, having discussed the case with several of our clients, we thought a deeper dive into the court’s holding would be helpful to our wider audience. As an added bonus, it gives us the opportunity to share one of those all-too-rare feel-good moments when the California courts side with the employer.
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."
Greetings, all! We’re only a few weeks into the new year, but employment lawyers and HR professionals feel like 2019 started months ago. Much of this is due to the rather profound (hyper)activity of our courts and legislators – all of which contributes to the fair state of California receiving the dubious distinction of No. 1 “Judicial Hellhole” in the nation.
Those of us who are constantly immersed in the Employment Law environment have witnessed some relatively seismic events in the last several months. Just to list a few, the California Supreme Court's decision in Dynamex1 altered the landscape for classifying independent contractors. The Starbucks 2 decision made it apparent that even small amounts of an employee's work time might need to be accounted for, even when business reality and common sense might suggest a contrary result. The U.S. Supreme Court in is Epic Systems3 ruling clarified the validity of class action waivers in arbitration-agreements. And of course, the #MeToo movement continues to impact employers in both the judicial and legislative arenas.
Vice President Mike Pence has a standing rule: He will not take a closed door meeting or have a meal alone with a woman who is not his wife. In the current #MeToo era, this may be a tempting approach for employers concerned about sexual harassment claims. Unfortunately, adoption of this one-size-fits-all solution could create a whole new problem for employers.
“I think every working mom probably feels the same thing: You go through big chunks of time where you’re just thinking, ‘This is impossible — oh, this is impossible.’ And then you just keep going and keep going, and you sort of do the impossible.”Tina Fey
In 2016, 70.5% of women with children under the age of 18 participated in the labor force. The “traditional” family is no longer the norm. Families, in which the father is the sole breadwinner make up only 27% of families with children under the age of 18. In 61.1% of families, both parents are employed. For the vast majority of working parents, the work day begins long before they clock in at 9 a.m. and don’t end with 5 p.m. happy hour with their colleagues. Almost three out of every four mothers juggle board meetings, conference calls, and fast- approaching deadlines with middle of the night feedings, soccer practice, and homework.
With this inaugural edition of Employment Awareness I get to do a couple of things that really excite me: First, let me introduce myself. I’m John Cone and I’ve been practicing employment law for over 30 years. I’m passionate about working with employers and helping them navigate the employment law minefield; not just to avoid litigation and regulatory risks, but because good HR practices make for better employee relationships – and better employee relations make organizations more profitable.
If anything can be said about the modern workforce, itʼs that there is nothing “traditional” about it. In 2016, 70.5% of women with children under 18 participated in the labor force. Almost three out of every four mothers juggle board meetings with midnight feedings, soccer practice and homework. Fathers likewise balance competing demands of work and home.
The media outrage of the moment, from Hollywood to Capitol Hill, is the apparent epidemic of sexual harassment in the workplace. While this uproar is undeniably appropriate, it also has the ring of the rather disingenuous line from Casablanca: “I’m shocked, shocked to find that gambling is going on here!” The media suggests that workplace sexual harassment was a dirty little secret, but those of us who are employment attorneys and HR professionals know this was no secret – never has been.