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
  • Examples of conduct that constitute sexual harassment
  • Lawful supervisory responses to complaints of harassment in the workplace
  • Strategies to prevent harassment in the workplace
  • Training on the prevention of “abusive conduct” in the workplace (AB 2054)
  • Practical and inter-active hypotheticals and examples to help illustrate what bullying, sexual harassment, discrimination, and retaliation can look like.
  • A discussion of the DFEH’s new updated regulations, including what must be contained in an employer’s policy against harassment, discrimination and retaliation.

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 with your continuing sexual harassment training obligations.

Date and Time

Thursday, December 15, 2016

Seminar Program

9:00 am – 9:30 am – Registration & Breakfast
9:30 am – 11:30 am – Seminar

Approved for two (2) hours MCLE.

Location

Weintraub Tobin
400 Capitol Mall, 11th Floor
Sacramento, CA 95814

Parking Validation provided. Please park in the Wells Fargo parking garage, entrances on 4th and 5th Street.

Cost

$75 per person

For more information please contact:

Ramona Carrillo
400 Capitol Mall, 11th Fl.
Sacramento, CA 95814
916.558.6046 | rcarrillo@weintraub.com

On October 11, 2016, the U.S. Seventh Circuit Court of Appeals granted en banc (by the full court) review in Hively v. Ivy Tech Community College. This rare move means that the entire Seventh Circuit court will reconsider its previous decision, which was originally issued on July 28, 2016.

Kimberly Hively began teaching as a part-time adjunct professor at Ivy Tech Community College in 2000.  In 2013, representing herself, she filed a complaint in district court alleging that she had been blocked from full-time employment at Ivy Tech because of her sexual orientation, in violation of Title VII.  Hively alleged that although she had the necessary qualifications for full-time employment and had never received a negative evaluation, Ivy Tech refused to even interview her for any of the six full-time positions for which she applied between 2009 and 2014.

Read the full HRUSA blog at http://blog.hrusa.com/blog/7th-circuit-to-revisit-title-vii-sexual-orientation-discrimination-ruling/.

On September 25, 2016, Governor Brown approved a very short but powerful piece of legislation for California employees who work for employers who are based outside of California and wish to have another state’s laws govern the employment relationship. Senate Bill 1241 adds Section 925 to the California Labor Code and states expressly that after January 1, 2017, an employer is limited in the use of forum selection and choice of law provisions in employment contracts with California employees.

Specifically, Section 925 states that:

“(a)        An employer shall not require an employee who primarily resides and works in California, as a condition of employment, to agree to a provision that would do either of the following:Beth-West-15_web

                (1)          Require the employee to adjudicate outside of California a claim arising in California.

                (2)         Deprive the employee of the substantive protection of California law with respect to a controversy arising in California.

(b)          Any provision of a contract that violates subdivision (a) is voidable by the employee, and if a provision is rendered void at the request of the employee, the matter shall be adjudicated in California and California law shall govern the dispute.

(c)           In addition to injunctive relief and any other remedies available, a court may award an employee who is enforcing his or her rights under this section reasonable attorney’s fees.

(d)          For purposes of this section, adjudication includes litigation and arbitration.”

The one exception to the new rule is when an employee is represented by counsel when the employment contract is being negotiated.  Specifically, Section 925(e) states that:

“(e)        This section shall not apply to a contract with an employee who is in fact individually represented by legal counsel in negotiating the terms of an agreement to designate either the venue or forum in which a controversy arising from the employment contract may be adjudicated or the choice of law to be applied.”

In addition to the statutory right an employee has to challenge any choice of law or forum selection clause that violates section 925, if an employee suffers some adverse action (e.g. failure to hire or termination) because of either: 1) his/her refusal to sign an employment agreement that he/she believes violates section 925; or 2) his/her legal action to challenge the employment agreement under section 925, it is likely that the employee will also be able to bring a common law claim for violation of public policy based on the public policy contained in section 925.

Take Away:  Employers should review and update the various forms of employment agreements they require their California employees to sign as a condition of employment (e.g. employment agreements, arbitration agreements, confidential & proprietary information agreements) to ensure they comply with the new law after January 1, 2017.

On October 11, 2016, the California Department of Industrial Relations (“Labor Commissioner”) issued an opinion letter clarifying the method of calculation for paid sick leave under Labor Code section 246 (the “Healthy Workplaces, Healthy Families Act of 2014”) for employees paid by commissions and for exempt employees who also receive an annual bonus.  Here is what the Labor Commissioner said:

  1. Commissioned Employees.

The amount of paid sick leave (PSL) due to an employee who is paid almost entirely by commissions may be calculated using either method available under Labor Code section 246(k)(1) or (2), which read as follows:Beth-West-15_web

“(1)      Paid sick time for nonexempt employees shall be calculated in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that week.

(2)        Paid sick time for nonexempt employees shall be calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.”

Thus, the Labor Commissioner has taken the position that for purposes of PSL under the statute, commissioned employees (either outside sales employees, or employees who meet the inside sales exception to overtime requirements) are not exempt and their PSL can be calculated like non-exempt employees under section 246(k)(1) or (2).  To support its position, the Labor Commissioner points to certain legislative history behind the statute that indicates that the language in Labor Code section 246(k)(3) (which governs the calculation of PSL for exempt employees), was meant to apply only to an employee who is exempt under the “administrative,” “executive,” or “professional” exemption.

  1. Exempt Employees Who Receive a Non-Discretionary Bonus.

The Labor Commissioner said that normally an exempt employee would be entitled to continue to receive his or her full pay without deduction for a sick day of less than 8 hours, but the day or partial day of sick leave may be deducted from earned or fronted leave balances.   The non-discretionary bonus would not figure into the salary of an exempt employee (in this case, those administrative, executive or professional employees exempt under Labor Code section 515(a)) because such bonuses are only figured into the pay of a non-exempt employee in order to determine the regular rate of pay for overtime and to figure the PSL rate under Labor Code section 246(k)(1)-(2).

So, under Labor Code section 246(k)(3), the PSL for exempt employees is calculated in the same manner as the employer calculates wages for other forms of paid leave time.  For a full-time exempt employee, the annual salary would be divided by 52 weeks and then by 5 days to determine the daily wage that would have been paid for the sick day.

Take Away:  Employers must be sure that they are not only properly granting and tracking accrued sick leave under the Healthy Workplaces, Healthy Families Act, but that they are also properly calculating the compensation due employees when they take a paid sick leave day under the law.  The attorneys in Weintraub Tobin’s Employment Law Group assist employers in all areas of employment law compliance, including the new and frustrating world of mandatory sick leave.  Contact any one of us if we can be of assistance.

 

On October 5, 2016, the Eleventh Circuit held in Villarreal v. R.J. Reynolds Tobacco Co., that an unsuccessful job applicant cannot sue a prospective employer under the Age Discrimination in Employment Act (ADEA) for a disparate impact claim.  In so holding, the Eleventh Circuit reverses its November 30, 2015 decision holding the opposite.

The ADEA generally protects employees aged 40 and older from discrimination in employment on the basis of their age.  A job applicant who is denied employment because of a practice that is discriminatory on its face, can sue under the ADEA under a disparate treatment claim, by proving that the employer acted with the intent of discriminating against the job applicant.  However, Villarreal now forecloses the possibility that an applicant can state an ADEA claim against a practice that, while not discriminatory on its face, has the effect of disproportionately discriminating against persons aged 40 and older.

To read the rest of this article, visit the HRUSA page at http://blog.hrusa.com/blog/disparate-impact-does-not-protect-job-applicants/