In response to the U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co. (2007) 550 U.S. 618,  Congress passed Senate Bill 181 (the “Lilly Ledbetter Fairy Pay Act of 2009″). There have been a number of attempts to legislatively alter the Ledbetter decision, which held that the statute of limitations for filing a Title VII charge of employment discrimination with the EEOC begins when the discrete discriminatory act occurs.

In Ledbetter’s case, she claimed she was paid a lower salary than her male counter-parts.  Goodyear Tire & Rubber Co. avoided liability by establishing the fact that Ledbetter’s salary had been lower than her male counter-parts for years.  Since discrimination claims must be filed with the EEOC within 180 days of the discrimination (or 300 days in some states), the court held that Ms. Ledbetter failed to timely exhaust her administrative remedies despite the fact that the consequences of discriminatory pay practice continued.  In essence, the court felt that the discriminatory act occured when Ms. Ledbetter initially received the lower pay and the fact that the lower pay led to lower raises over the next several years creating an even greater disparity was insufficient to start a new violation.  Employee advocates dissatisfied with the decision immediately began petitioning the legislature to amend Title VII.

Senate Bill 181 amends Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act and the Rehabilitation Act, to clarify that a unlawful discriminatory compensation decisions occur each time compensation is paid pursuant to the discriminatory compensation decision.  The bill willmake it unlawful each time an employer writes a paycheck that gives some workers less than others, because of race, sex, disability, religion or national origin.  The bill still needs to be approved by President Obama.  Once signed into law, it will apply to bias claims that filed on or after May 28, 2007.

Sayar Fausto, LLP
350 Second St. Suite 5
Los Altos, CA 94022
Tel: (650) 948-6114
Fax: (650) 947-0770

Your use of this blog does not create an attorney-client relationship between you and SAYAR FAUSTO LLP. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and SAYAR FAUSTO LLP cannot guarantee the confidentiality of anything posted to this blog.

Opposing Sexual Harassment

January 27, 2009

The United States Supreme Court clarified what it means to “oppose” sexual harassment.  in Crawford v. Metropolitan of Nashville and Davidson County, Tennessee, Crawford was asked questions during a sexual harassment investigation. In response to questions from the interviewer, Crawford said that the employee relations director had sexually harassed her.  No action was taken against the director, but Crawford soon found herself accused of embezzlement and fired.

Crawford sued aleging her employer retaliated against her for opposing sexual harassment in violation of Title VII.  The trial court and appellate court held that Crawford did not state a cause of action because her responses to questions was not an affirmative opposition of sexual harassment.  In essence, the lower courts believed that the opposition clause demanded “active, consistent” opposing activities, whereas the plaintiff in this case had not initiated any complaint prior to the investigation.  The U.S. Supreme Court disagreed.

Noting that Title VII does not define “oppose,” the Supreme Court applied the ordinary common definition meaning of resisting or contending against.  The court found that intent of the statute’s anti-retaliation provision’s protection extends to an employee who speaks out about discrimination even if it is not done on the employee’s own initiative.

The ruling may broaden the scope of what some employers believed constituted a “complaint” about harassment.  Employers must be cognizant of the fact that any opposition to unlawful harassment or discrimination is protected.  When conducting a sexual harassment or discrimination investigation it is extremely important to remember that additional allegations of harassment, possibly even unrelated events, may be divulged and that such additional allegations may need to be addressed.  The underscores the need to have such investigations conducted by competent outside consultants.

And never retaliate against someone who has participated in a sexual harassment/discrimination investigation!

Sayar Fausto, LLP
350 Second St. Suite 5
Los Altos, CA 94022
Tel: (650) 948-6114
Fax: (650) 947-0770

Your use of this blog does not create an attorney-client relationship between you and SAYAR FAUSTO LLP. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and SAYAR FAUSTO LLP cannot guarantee the confidentiality of anything posted to this blog.

When 69-year-old Theodore DeJung was rejected for a full-time commissioner position for the Sonoma County Superior Court in favor of a person 26 years his junior, Mr. DeJung sued the court for age discrimination in violation of the Fair Employment and Housing Act.  The Superior Court moved for summary judgment contending that the superior court enjoyed discretionary immunity against suits for employment discrimination under the FEHA when selecting candidates for commissioner positions.  The trial court agreed.

The appellate court, however, reversed the trial court’s decision finding that governmental discretionary immunity does not apply to employment discrimination actions under FEHA against public entities as employers.

The Tort Claims Act sets forth specific public employee immunities.  Government Code Section 820.2, sometimes referred to as the “discretionary act immunity,” states: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”

Government Code Section 815.2(b) states: “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”

The question was whether the discretionary act immunity for public employees, when read together with Section 815.2(b), provided the superior court “as an entity” with immunity from FEHA claims based on the discretionary acts of its judiciary in selecting appointees for commissioner positions.

Because the FEHA defines the term “employer” as including “the state or any political or civil subdivision of the state, and cities ….” the court believed the Legislature intended to subject public entities to liability for violations of FEHA.  Therefore, it was a “clear indication of legislative intent that Section 820.2 and Section 815.2(b) immunity be withdrawn.”

Sayar Fausto, LLP
350 Second St. Suite 5
Los Altos, CA 94022
Tel: (650) 948-6114
Fax: (650) 947-0770

Your use of this blog does not create an attorney-client relationship between you and SAYAR FAUSTO LLP. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and SAYAR FAUSTO LLP cannot guarantee the confidentiality of anything posted to this blog.

New FMLA Poster

December 31, 2008

A revised Family and Medical Leave Act (FMLA) poster, reflecting the recently published final rule, is now available for viewing and downloading. Every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act’s provisions.

The FMLA applies to any employer with 50 or more employees working within a 75-mile radius.

The DOL has also provided optional forms for use by employers and employees during the FMLA process.  The DOL revised its Certification of Health Care Provider form (WH-380), and divided it into two separate forms for an Employee’s Serious Health Condition (WH-380E) and a Family Member’s Serious Health Condition (WH-380F).  The DOL also revised its Notice of Eligibility and Rights and Responsibilities form (WH-381).

In addition, the DOL added new forms for Designation Notice to Employee of FMLA Leave (WH-382), Certification of Qualifying Exigency for Military Family Leave (WH-384), and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385).

The poster and forms become effective on January 16, 2009.  Additional compliance assistance materials are also available on FMLA Final Rule Web site at www.dol.gov/esa/whd/fmla/finalrule.htm.

Sayar Fausto, LLP
350 Second St. Suite 5
Los Altos, CA 94022
Tel: (650) 948-6114
Fax: (650) 947-0770

Your use of this blog does not create an attorney-client relationship between you and SAYAR FAUSTO LLP. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and SAYAR FAUSTO LLP cannot guarantee the confidentiality of anything posted to this blog.

This is something every HR Manager or Hiring Manager should be able to answer.  The Fourth Appellate District for the State of California provided some useful hints regarding questions on employment applications regarding marijuana use.  See Starbucks Corporation v. Superior Court of Orange County, No. G039700 (4th App. Distr., December 10, 2008).

Labor Code Section 432.7 limits the information employers can seek from applicants regarding arrests and convictions.

No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or posttrial diversion program, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or posttrial diversion program.

Any person who violates this law is subject to a $200 penalty or actual damages, whichever is greater. If the violation is intenional, the penalty increases to $500 and is a misdemeanor.

Labor Code Section 432.8 (added in 1976) adds to the list of prohibited inquires any question regarding a conviction related to marijuana use two years from the date of conviction.  In other words, employers cannot ask about marijuana convictions occuring in the last two years.  Many standard employment applications ask about convictions.  Period.  In California, at least, the applications should exclude marijuana convictions unless the convictions occured in the last two years.

In Starbucks v. Superior Court, Starbucks was sued because an applicant who had not smoked marijuana and did not indicate he smoked marijuana did not get hired.  He brought a lawsuit purportedly on behalf of those prospective employers who DID have marijuana convictions.  The court through out the case because the plaintiff did not have standing.  Since he did not have a marijuana conviction, he did not need to worry about the question on the application.

The court went on to provide some useful advice.  While Starbucks had a disclaimer indicating applicants did not need to disclose marijuana convictions in the last two years, the disclaimer was buried “at the very end
of a 346-word paragraph, with a U.S. disclaimer, followed by a host of irrelevant provisions from states like Maryland and Massachusetts.”  The court had no problem with the language of the California disclaimer, but felt the placement was flawed.  The court held, “Had Starbucks included
the California disclaimer immediately following the convictions question, Starbucks would have been entitled to a summary judgment in its favor on the reasonableness of the employment application.”

What does this mean for California employers?  First, make sure your employment application and hiring managers do not ask about marijuana convictions in the last two years.  Second, if the employment application asks about convictions, make sure to include a disclaimer immediately following the convictions question clearly indicating applicants do not need to disclose marijuana convictions occuring within the last two years.

Finally, if you have not trained your managers regarding appropriate interview techniques, consider conducting an in-house training by a qualified professional.

Sayar Fausto, LLP
350 Second St. Suite 5
Los Altos, CA 94022
Tel: (650) 948-6114
Fax: (650) 947-0770

Your use of this blog does not create an attorney-client relationship between you and SAYAR FAUSTO LLP. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and SAYAR FAUSTO LLP cannot guarantee the confidentiality of anything posted to this blog.

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