Summary of Program

The regulations regarding California’s Mandatory Sexual Harassment Prevention Training for supervisors require that certain employers provide training to their supervisors every two years.  The Labor and Employment Group at Weintraub Tobin Chediak Coleman Grodin is offering a two hour in-person training session that will comply with all the requirements outlined in the regulations, including things like:

  • an overview of sexual harassment laws;
  • AB 2054—requires training on the prevention of abusive conduct in the workplace
  • examples of conduct that constitute sexual harassment;
  • lawful supervisory responses to complaints of harassment in the workplace;
  • strategies to prevent harassment in the workplace; and
  • practical and inter-active hypotheticals and examples to help illustrate what sexual harassment, discrimination, and retaliation can look like.

If you are an employer with 50 or more employees, and have supervisors who have not yet been trained, this training is a must. We look forward to hearing from you and helping you comply.

Training Program

Date:  December 11, 2014

Time:  9:30 a.m. – 11:30 a.m.

Charge:  $75 per supervisor.

To register for this seminar, please email Ramona Carrillo at rcarrillo@weintraub.com.  For additional information, visit our website at www.weintraub.com and click on the News and Events tab.

Summary of Program

Most business owners know that customers and employees may need to be accommodated from time to time for various reasons.  Often this is because of an employee’s disability, medical condition or a condition present on property owned by the business and open to the public.  It is important for business owners to understand and comply with how the courts and various federal and state regulatory agencies define accommodations, as well as learn what business owners’ rights and obligations are regarding: (1) engaging in the interactive process; (2) providing reasonable accommodations; and (3) removing barriers to access.

Program Highlights

This informative seminar will cover the many accommodations business owners, employers and HR Professionals may be forced to consider, who should be accommodated, and how to engage in an interactive process to determine an appropriate accommodation.  Topics will include:

  • How to Determine Who is Entitled to an Accommodation
  • How to Engage in the Interactive Process and How to Know When to Initiate the Initial Discussion
  • The Various Protected Classes and/or Activities Entitling an Employee to an  Accommodation—including things like disability, religion, and illiteracy, to name a few
  • Service Animals in the Workplace
  • How to Effectively Document the Accommodation
  • Recent Developments in Accommodation Law
  • A primer on Title III “Public Accommodation” Liability
  • Disabled Access Cases
    • ADA Mills Are Still Active
    • How Alterations to Your Property May Affect Your Obligations Under the ADA
    • It’s Not Just the ADA

Date:   Thursday, November 20, 2014

Time:  9:30 a.m. – 11:30 a.m.

To register for this seminar, please email Ramona Carrillo at rcarrillo@weintraub.com.

 

The Labor and Employment Law group is proud to announce the addition of Vida L. Thomas to our team.  An AV-rated attorney who has practiced employment law for over 20 years, Vida has recently joined Weintraub Tobin as Of Counsel and will head up the Firm’s workplace investigations unit.  She began her career at Kronick Moskovitz as an employment litigator for seven years and then co-founded Carlsen Thomas, LLP, a boutique employment law firm providing top-notch workplace investigations and employee training throughout California for 13 years.  Also, as the Co-Chair of the Association of Workplace Investigators (“AWI”) Committee on Best Practices, Vida helped develop AWI’s “best practices” framework for workplace investigations.  Vida advises employers regarding all aspects of employment law and human resources management, serves as an expert witness in state and federal employment lawsuits, and mediates litigation and non-litigation matters.

Vida is an excellent addition to our deep bench of talented labor and employment attorneys and she shares the firm’s commitment to client service and teamwork.  Please join us in welcoming, Vida to the team.

You may recall my post on August 8, 2014 about the Lupyan v. Corinthian Colleges, Inc. case in which the Third Circuit Court of Appeals reversed a summary judgment in favor of the employer when the employee claimed she never received an FMLA designation letter that her employer claims it mailed to her via first class mail.   Well we now have another case telling employers that sending an FMLA notice or request for recertification via email may not work either.

In Gardner v. Detroit Entertainment LLC dba MotorCity Casino, the employee was out on intermittent FMLA leave over a seven year period.  In October 2011, Defendant and its third-party FMLA administrator, FMLASource,  became aware that Plaintiff had been absent on intermittent FMLA leave nine times in September 2011, five more than anticipated by her doctor, and that she also had called off work every Sunday in September 2011.  So, on October 7, 2011 FMLASource sent a letter via email to Plaintiff, requesting that her health care professional re-certify the basis for her leave by October 25, 2011. Whether this email constituted sufficient notice to Plaintiff was the central issue in the case because Plaintiff claimed that she had informed FMLASource she wished to be communicated with by postal mail regarding FMLA-related communications.

Plaintiff argued that she did not open, and therefore did not effectively receive the October 7, 2011 email, in time to respond by the October 25, 2011 deadline. When there was no response, FMLASource automatically generated another letter on October 27, 2011, and sent it to Plaintiff again by email, advising her that due to the lack of recertification documentation, her intermittent leave was denied.  Defendant then applied its normal attendance policy and treated Plaintiff’s absences as unexcused resulting in an accumulation of 8.5 attendance violation points between July 15, 2011 and November 2, 2011, subjecting Plaintiff to termination.  Defendant terminated Plaintiff and she sued under the FMLA.

In analyzing the sufficiency of the notice to Plaintiff that recertification was required, the court held that an important distinction must be made between oral notification and email notification – “…oral notification, a person-to-person communication, guarantees actual notice to the employee. The transmitting of an email, in the absence of any proof that the email had been opened and actually received, can only amount to proof of constructive notice.”

The court went on to say that this distinction becomes particularly significant when an employee has expressed a preference for correspondence to be sent by postal mail, as opposed to email.  According to the court, there was genuine issue of material fact regarding whether or not Plaintiff had made such a request.  Plaintiff claimed that she never authorized FMLASource to communicate with her via email only and Defendant claimed that Plaintiff had previously authorized email correspondence.  Because there was a disputed issue of material fact, the court denied the employer’s motion for summary judgment.

LESSON FOR EMPLOYERS:  Similar to the message from the Lupyan case – if an employer wishes to prevail on summary judgment, it will need to send FMLA notices and/or requests for certification or recertification via a method that establishes receipt by the employee.

 

Unless you have been living under a rock the last few months, you have undoubtedly heard about the incident that took place between Ray Rice and his fiancée in an Atlantic City elevator, as well as Rice’s subsequent suspension by the NFL. Now, it is worth noting that the NFL is not your average employer.  There are a number a factors present that most employers need not consider, including high profile employees, endless amounts of publicity and collective bargaining agreements.  Despite the differences, the incident has likely caused most employers to pause and reflect on how they would handle a similar situation.

Unfortunately, there are no easy answers. In fact, for employers asking themselves whether they can take an adverse action against an employee accused of off-duty domestic violence, the answer is a rather infuriating “it depends.”  On one hand, at will employees may be fired for any reason, as long as it is a lawful one.  At the same time, employers must be careful when taking adverse action against an employee based on an arrest or conviction under state and federal law. Employers who have a policy or practice of not hiring or firing employees based on convictions should ensure the conviction is job-related and consistent with business necessity.  For Ray Rice, one of the main issues was that he had a contract that prohibited such conduct.  Indeed, there are a number of factors even at will employers should consider prior to taking any adverse actions against employees involved in a domestic violence dispute.

So the question remains, what is an employer to do if presented with a similar situation in which an employee has been accused of domestic violence? The first thing an employer should do is begin a prompt investigation. Before determining appropriate disciplinary action, employers should conduct an impartial and adequate investigation to attempt to discover all facts related to the incident. Employers may want to consider hiring an experienced workplace investigator to ensure the investigator is unbiased and objective, though a trained human resources representative may be sufficient.

The purpose of the investigation should be to determine if the incident might negatively impact the employer’s business or the employment relationship. Investigations should consist of interviews with the employee and/or other witnesses about the incident. These interviews should be clearly documented with reports of the interview, including a date and time, names of all present for the interview and a summary of the information discussed. The investigator should also collect evidence and document the process it took to obtain it. The interviews conducted and evidence collected should then be assembled into a report to allow the employer to make a determination of what disciplinary action should be taken (if any). Among the questions to consider during the process:

  • Does the company have a formal workplace policy that addresses domestic violence, which includes both incidents that occur at work and off-duty incidents? Or, does the company have a broader code of conduct policy that permits termination for off-duty conduct? Employers should have policies in place that lay out the consequences for off-duty conduct that affects the employer’s legitimate interests. The employer’s policy should address the fact that off-duty conduct can contribute to a violation of one of the employer’s policies, and result in discipline (including and up to termination).
  • Has the person been convicted? There is a rather large difference between being charged/accused of a crime and being convicted. Taking an adverse action at the charged/accused stage may open the employer up to a wrongful termination suit.
  • Is there a risk to the workplace? For instance, is the victim also an employee of the company who needs protection? Employers can open themselves up to a wrongful termination claim for taking adverse action without tying the incident to a specific workplace threat.
  • Is the person in a leadership position? If the accused employee is a high profile figure or leader in the company, it will be easier to establish a detriment to the company’s legitimate business interests would occur by keeping the employee on the payroll.
  • How has the company reacted to similar situations in the past? Any disciplinary action taken should be consistent with the company’s prior handling of off-duty conduct incident.

As you can see, there are no easy answers for employers. If you find yourself in a similar situation, consider consulting legal counsel before taking any adverse employment actions to ensure the company’s interests are protected.

Finally, it is at least worth a reminder that California employers should be careful to not punish the victim of domestic violence incidents. In fact, California has a number of laws in place protecting victims of domestic violence. For instance, under Labor Code section 230, employees who are victims of domestic violence, sexual assault, or stalking may take unpaid leave to: (1) obtain TRO or other court assistance; (2) to seek medical/social/psychological/safety assistance for self or child; or (3) attend court hearings. Employees must be permitted to use vacation/PTO time and confidentiality must be maintained regarding the employee’s request for leave. In addition, under Labor Code section 230.1 (which affects those employers with more than 25 employees), unpaid leave must be granted to victims of domestic violence to: (1) seek medical treatment for injuries related to the domestic violence; (2) consult a rape crisis center or domestic violence program; or (3) participate in safety planning.