Employment Liability and Claims: Hot Topics And Trends

1. Presented by: Sander van der Heide November 1, 2018 Employment Liability and Claims:Hot Topics And Trends

2. Agenda • I. Areas of Significant Activity: • Sexual Harassment • Lactation Accommodations • Privacy Rights • Disability and Worker’s Compensation • Free Speech • II. Best Practices

3. Sexual Harassment

4. Statistics on Sexual Harassment • #MeToo Movement’s Effect: • The EEOC’s statistics for 2018: • Amount of sexual harassment charges filed increased by 12% • Number of lawsuits alleging sexual harassment jumped up by 50% • The EEOC recovered $70 million in these actions • They recovered roughly $20 million more than in 2017, where they only recovered $47.5 million • A 2018 verdict against the City of Los Angeles for $3,000,000in damages.

5. California’s New Laws • Senate Bill 1343: • Sexual harassment training is now required for more employers.Employers of 5+ employees, including temporary and seasonal employees must provide training. • Supervisor employees must receive two hour training by January 1, 2020. • Non-supervisor employees must receive one hour training by January 1, 2020. • Senate Bill 1300: • Employers can be held liable for any type of harassing behavior by nonemployees. • Employers cannotas part of a raise, bonus, or continuation of employment agreement release FEHA claims or have nondisparagement agreement to prevent disclosure of unlawful acts including harassment, BUT such releases are permissible in a negotiated settlement agreement.

6. New Laws on Settlement Agreements • Senate Bill 820: • Settlement agreement may not prevent disclosure of facts related to sexual assault, harassment, or discrimination. • Assembly Bill 3109: • Settlement agreement may not prevent a party from testifying on criminal conduct or sexual harassment in an administrative, legislative, or judicial proceeding.

7. Lactation Accommodations

8. Lactation Accommodations • Assembly Bill 1976: • Generally employers must provide a permanent lactation location – but not a bathroom – that is private, in close proximity to the work area and can be their own office so that an employee can express milk. • If a permanent lactation location cannot be provided a temporary location may be used if: • A permanent location is not possible because of operational, financial, or space limitations • It is private and free from intrusion while an employee expresses milk. • It is used only for lactation purposes while an employee expresses milk. • It is not a bathroom. • If there is undue hardship the lactation location may be in a bathroom, but not a toilet stall.

9. Privacy Rights

10. Privacy Rights • Perez v. City of Roseville (9th Cir. Feb. 2018): • Holding: A public entity violated an employee’s privacy rights when it terminated the officer for having a private, off-duty extramarital affair with a fellow police officer. • Test: To take action, an employee’s private off-duty conduct must negatively impact the on-the-job performance or violate a regulation that is constitutionally permissible and narrow.

11. Privacy Rights (cont.) • Hurley v. California Dept. of Parks and Recreation (Feb. 2018): • Holding: An employer will violate the Information Privacy Act if they disclose personal information about employees to other employees when the disclosure is not relevant and necessary to the performance of official duties. • Key Facts: • Plaintiff’s supervisor disclosed information to non-supervisory employee about Plaintiff’s failure to pass probation. • The manager provided Plaintiff’s supervisor with the supervisor’s desk file on Plaintiff while the supervisor was on leave.

12. Disability Rights & Workers’ Compensation

13. What is a Disability? • Fair Employment and Housing Act: • A physical or mental disorder that affects a specified body system and limits a major life activity. • Americans with Disabilities Act: • A physical or mental impairment that substantially limits one or more major life activities

14. Defined – “Limits” • When Does a Condition “Limit” a Major Activity? • Old Definition: Makes achievement difficult • New Definition: • Individualized assessment • What most people in general population can perform with little or no difficulty • Peer group’s ability to perform • Employee’s ability to perform in absence of disability • Includes issues with major bodily functions

15. What Doesn’t Count? • Statutorily excluded conditions: • Current use of illegal drugs • Compulsive gambling • Kleptomania • Sexual Behavior Disorders

16. What Doesn’t Count? • Conditions that are mild, which do not limit a major life activity • Common cold • Flu • Minor cuts, sprains, muscle aches, bruises and abrasions • Non-migraine headaches • Minor, non-chronic gastrointestinal disorders

17. Disability & Workers’ Compensation • Hernandez v. Rancho Santiago Cmty. College (May 2018): • Holding:An employer failed to reasonably accommodate a probationary employee when it terminated that employee who was out on medical leave at the time so that it would not have to make her a permanent employee without evaluating her performance. • Key Facts: • Plaintiff was on worker’s compensation leave for surgery during her probationary period. • The employer terminated her because no one reviewed her performance and the employer did not want to make her a permanent employee yet

18. Disability & Workers’ Compensation (cont.) • Camacho v. Target Corporation (June 2018): • Holding: If an employer seeks a general release of claims in a worker’s compensation settlement agreement, then the release must be in clear and nontechnical language. It cannot be buried or hidden. • Key Facts: • Plaintiff had a Workers’ Compensation claim based off workplace harassment. • He subsequently filed a civil complaint and on appeal, the court found the buried language in the worker’s compensation settlement agreement was not enough for a release.

19. Common Mistakes Thinking a Workers’ Compensation (WC) claim eliminates liability for the disability claim Not engaging in the interactive process Waiting to engage in the interactive process until after WC claim is resolved Relying too heavily on WC decisions

20. Freedom of Speech

21. Tests For First Amendment Retaliation • For First Amendment Retaliation: • 1) Matter for Public Concern, • 2) As a private citizen and not part of their job, and • 3) The speech a motivating factor for the adverse action • Employer’s Defense: • Adequate justification exists for treating the employee differently OR • The same adverse action would happen, even without the speech.

22. Freedom of Speech • Barone v. City of Springfield, (9th Cir. Sept. 2018): • Holding: An employee’s free speech claim can be defeated when they speak while in their capacity as a public employee. However, it is improper for an employer to restrain an employee from making any type of speech. • Key Facts: • Plaintiff attended a community event wearing her police uniform and regularly participated in community outreach programs. • When asked about racial profiling, she admitted that she heard of such complaints.

23. Best Practices • Make sure policies are updated. • Train supervisors and non-supervisors and document the training. • Call for help on law and practical guidance. • With employee complaints conduct a proper investigation and document it • Plan to accomplish target goals: • Put the entity in a position to defend claims • Avoid claims • Create a better and more productive work environment

24. Questions?

25. Thank You! Workplace law. In four time zones and 58 major locations coast to coast.