Last year, the Supreme Court finally clarified the long open question: “Who is a Supervisor under Title VII?” As discussed in our previous post, in Vance, the Supreme Court held that a supervisor is someone who is “empowered by the employer to take tangible employment actions” against a complaining employee. Essentially, a “supervisor” – or someone who can subject an employer to vicarious liability – is someone who can hire, fire, or discipline an employee. The Vance decision was a step in the right direction for employers.

However, members of the House and Senate recently introduced legislation that would effectively overturn the Vance decision. The Fair Employment Protection Act (H.R. 4227, S. 2133) seeks to correct “the error in the Vance decision” and redefine “supervisors” more broadly as those who are “in charge of an employee’s daily work activities.” The Act’s fact sheet says this proposed definition is “consistent with years of EEOC guidance on employer liability and has been endorsed by many of the nation’s largest civil rights and labor organizations.”

Given the divided Congress, whether this bill will pass remains to be seen. We will continue to monitor and post regarding this legislation should it move forward this term.

Summary of Program

Employee policy handbooks are essential for employers in today’s litigious environment. While preparing the handbook and consistently enforcing the policies contained therein may take time and money, it is time and money well spent. Why?  Because the enforcement of effective policies and procedures contained in a carefully prepared and customized handbook can be one of the best defenses an employer has when it is sued by an employee.

This hands-on, in-depth, and informative seminar and training session will outline the ins and outs of drafting an effective employee handbook. You will receive recommended language regarding certain policies and best practices to meet your business needs and will leave with the information and knowledge necessary to complete your handbook.

Seminar/Training Program

Date:     March 20, 2014

Time:    10:00 a.m. – 2:00 p.m.

Location:  400 Capitol Mall, 11th Floor, Sacramento, California

Cost:   $750

For details of this seminar/training and to register, please click here.

Last month this blog reported on an ordinance passed by the San Francisco Board of Supervisors that would ban the use of criminal history checkboxes from employment applications for employers in San Francisco.  Employers statewide should note, however, that a new law became effective January 1, 2014 that adds further limitations on what information an employer can obtain concerning an applicant’s criminal history on a job application.  Governor Brown signed Senate Bill 530 which amended section 432.7 of the Labor Code.  Prior to this amendment, that section prohibited public and private employers from requesting potential hires to disclose (or from considering as a factor for purposes of determining whether to hire) an applicant’s criminal history that: (1) did not result in a conviction; or (2) was related to a referral to a pre/post trial diversion program (i.e., certain drug offenses).  Under this new law, employers are now prohibited from inquiring into any conviction that has been judicially dismissed, sealed and/or expunged.

Employers found to have violated this section may be liable to the potential hire for a monetary penalty.  They may also be subject to paying the reasonable attorney’s fees of any potential hire who brings an action under this section.

Given this change, employers are cautioned that they should revisit their hiring materials, especially job applications, to determine whether they remain in conformity with this new law.  Employers may want to seek the assistance of legal counsel to see if they wording on their applications regarding criminal history satisfies the new requirements of Labor Code section 432.7.

Section 1514A of the Sarbanes-Oxley Act states that:

“No [public] company . . . , or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of [whistleblowing or other protected activity].”

18 U. S. C. §1514A(a) (2006 ed.).

On March 4, 2014, the United States Supreme Court issued its decision in Lawson, et. al. v. FMR LLC, et. al.  The case concerned the definition of the protected class under section 1514A and the Court framed the issue as follows: Does section 1514A shield only those employed by the public company itself, or does it shield as well employees of privately held contractors and subcontractors (for example, investment advisers, law firms, accounting firms, etc.) who perform work for the public company?

Click here to read the full article.

Join Weintraub Tobin’s attorney Beth West who will be speaking at the South Placer EAC’s seminar on Tuesday, March 18, 2014.

The Topic:

The Importance of Conducting an HR Audit Before You Get Audited

Time:

12:00 p.m. to 1:30 p.m.

Location:

Roseville Connections/EDD

115 Ascot Drive, Suite 180

Roseville, CA 95661

For additional information and to register, click here.