Recent Developments in Employment Law

Dated: March 14, 2005

We are pleased to provide the following information to our clients and friends regarding recent legal developments affecting employers.

I. Legislation.

A. Sexual Harassment Training Made Mandatory. Informed employers have been conducting harassment sensitivity training of their employees for years, simply as a good business practice. Now, for employers with more than 50 employees, regular sexual harassment training is mandatory for supervisors. The training sessions must be at least two hours long, and must be conducted by someone with knowledge and expertise in the prevention of harassment, discrimination, and retaliation. It must be interactive, allowing for questions and immediate answers, and must include practical guidance regarding federal and California laws, prevention and correction of harassment, discrimination, and retaliation, and remedies available to victims of harassment. The training must be provided by no later than January 1, 2006 for supervisors employed as of July 1, 2005, and within six months for all new supervisory employees. An employer is exempt from the January 1, 2006 deadline for any supervisor who previously received training, as long as the training met the requirements of the new law, and was conducted after January 1, 2003. After being initially trained, each supervisor must receive retraining once every two years. Employers with 50 or more employees should make plans to provide the required training. While this new statute does not mandate similar training for non supervisory personnel, the smart employer will conduct that kind of training at regular intervals, as well. Employers with less than 50 employees would be well advised to also provide the training, since they are not immune from sexual harassment claims just because of their size. Indeed, an employer who fails to take all reasonable steps necessary to prevent discrimination and harassment from occurring (which includes harassment training for supervisors and employees) violates California law.

B. Rights for Domestic Partners. For several years, same-sex couples have been able to register with the State of California as domestic partners, provided they met certain requirements. Registration provided the domestic partners with some rights that married people enjoyed. Under a new law effective January 1, 2005, registered domestic partners are entitled to the same rights, protections, and benefits as spouses. Thus, if an existing California law gives a benefit to a spouse, a registered domestic partner is entitled to the same benefit. The employment aspects of this law are significant. For example, current law provides that employees who receive paid sick leave from their employer, may use up to one-half of that leave to take care of a sick spouse, parent or child. Under the new law, a registered domestic partner will be able to use one-half of his or her sick leave to also take care of a domestic partner, or the child of a domestic partner. Similarly, registered domestic partners are entitled to the same leave rights as spouses under California’s family and medical leave laws. The law also protects registered domestic partners from workplace discrimination and harassment based upon their domestic partner status. Thus, employers should review all of their employment policies and practices to ensure that they are not inadvertently discriminating against registered domestic partners.

II. Administrative Developments.

A. Megan’s Law and its Impact on Background Checks. On December 15, 2004, California's new Megan's Law Website was unveiled, allowing anyone to easily obtain access to California's database of the state's more than 63,000 registered sex offenders. The purpose of the website is to help Californians better protect their families, by providing information about where convicted sex offenders live. Use of the information for employment purposes is problematic. California law expressly prohibits the use of this sex offender registry for employment purposes, except to protect someone who "is or may be exposed to a risk of becoming a victim of a sex offense committed by the offender." Employers must be cautious to avoid hasty decisions based on information obtained about a job applicant or current employee from the website. Misuse of registry information can lead to a lawsuit, and may expose the employer to actual and punitive damages, attorney fees and a civil fine. Employers are not left without options in the face of such information. The same information can be obtained through the hiring process, by asking about criminal convictions, and through background checks. Employers must always be careful to base their employment decisions only on information they are permitted to consider. Since it is not always easy to determine what information you are permitted to use, when in doubt, consult an experienced employment lawyer.

B. Injury and Illness Posting Period Has Begun. Starting February 1, 2005, and ending April 30, 2005, some employers must post in a conspicuous place Cal/OSHA Form 300A, which provides a summary of work-related injuries and illnesses for 2004. This requirement is applicable to employers with 11 or more employees, excluding some low-hazard establishments in the retail, services, finance and real estate sectors.

C. Immigration Compliance. Taking the following simple steps will help employers comply with their obligations regarding immigration issues: (1) require completed I-9 forms from all new employees by no later than three business days after they begin work; (2) ensure the employer completes its portion of the form; (3) keep I-9 forms in a separate file organized alphabetically by each employee’s last name; (4) retain I-9 forms until the later of 3 years from the hire date, or 1 year after termination of employment.

III. Court Decisions.

A. California’s At Will Employment Doctrine Takes a Hit in Two New Cases. Until now, all employees without a definite term of employment were presumed to be at will, meaning that an employer could terminate the employee without having to demonstrate “cause,” or “good cause,” and without having to worry about being sued for breach of contract. Two recent cases have made use of at will status more difficult. In the first case, the employer’s offer letter said that the employment relationship was at will, but limited the description of at will to mean that either the employee or employer could terminate the employment at any time. The letter did not also say that the termination could be with or without cause. When the employee sued for breach of contract, the court of appeal held that by so limiting the meaning of at will in the offer letter, the employer had eliminated its ability to terminate without cause. By simply making an inadvertent mistake in the offer letter, the employer had cost itself the benefit of the at will presumption, and had defined the employment relationship to be one where good cause was needed to terminate it.

In the second case, the court held that a written at will statement does not absolve an employer who misrepresents employment terms. In that case, the employer offered a job to someone it was actively recruiting from a competitor. The recruit turned down the offer: he wanted a job with more responsibility, and higher pay. The employer made a new offer to the recruit, enhancing the job responsibilities, and increasing the compensation. The written version of the employer’s new job offer did not address the length of employment, but did contain a statement of the Company's at will policy.

Three weeks later, the employer terminated the new hire’s employment. It offered him a lesser job at reduced pay. Not surprisingly, the employee refused, and instead sued the employer for fraud. The employer argued that the lawsuit should be dismissed, because the written job offer contained a clear statement of employment at will. The court disagreed with the employer. It held that at will employment does not permit an employer to induce a candidate to quit a job and accept new employment based on promises the new employer does not intend to keep.

These two decisions represent a significant erosion of the at will doctrine in California. Employers must now be ultra-careful in the way they describe what at will means, and in what they tell recruits and applicants about the job. Employers can no longer rely upon the at will doctrine to bail them out when they have not followed the law with precision. Thus, employers must ensure that any description of the at will doctrine, whether communicated orally, or in an offer letter, a confidentiality agreement, an employee handbook, etc., fully complies with the law’s definition of that doctrine. Otherwise, the employer will be found to have unwittingly modified the doctrine, to its distinct disadvantage. Additionally, employers must ensure that their offer letters, or oral offers of employment, carefully reflect just what it is they are agreeing to obligate themselves to do. No longer can employers simply rely upon the general notion that they are an “at will employer.” All employers should carefully review the documents they use to communicate to applicants and recruits the nature of the employment relationship. Employers should also review their hiring procedures, to ensure that representations are not made about the job and its pay that the employer may not keep.

B. Sincere Religious Beliefs Must Be Accommodated. Most employers are aware of their duty to reasonably accommodate a disability. A recent California appeal court decision is a reminder that the reasonable accommodation obligation extends to employees’ religious observances stemming from sincerely held beliefs. In that case, an employee had attended religious conventions nearly every year since 1970, when he became a Jehovah's Witness. He requested time off from work to attend this year’s convention, considered a form of worship and religious study in his faith. The employer denied his request, but the employee told his supervisor that he intended to go to the convention anyway, and did so. As a result, the employee missed one day of work. Upon his return to work, he was immediately suspended for 10 days for failing to show up for that one work day. The employee complained that the suspension was unfair because of his religious obligation, and as compared to others who had received lesser suspensions for more absences. A few days later, the employee was fired. The court found that the employer discriminated against the employee by failing to accommodate his religious beliefs, finding the employee possessed a sincerely held religious belief that his attendance at the convention was a religious observance. The court also found the employer was aware of the employee’s belief, but failed to initiate an effort to accommodate it. In doing so, the employer failed to prevent religious discrimination. The court also found that by firing the employee after he complained, the employer unlawfully retaliated against the employee. This case emphasizes the need for employers, with our very diverse California workforce, to both respect the religious beliefs of each employee, and make every effort to accommodate requests related to religious observances, unless they result in an undue hardship to the business. When an employer believes an accommodation represents an undue hardship, that decision should be reviewed with experienced employment counsel, to be in the best position possible to avoid liability for religious discrimination.

IV. Miscellaneous.

A. Are You Aware of These Protections for Women Employees Who are Pregnant, or Are Mothers? Discrimination, harassment and retaliation against working mothers, and pregnant employees, can be very costly to an employer. Pregnant women and mothers have significant workplace protection under both California and federal law. A clear understanding of these protections is essential for all employers. How many of these are you familiar with? First, pregnancy is protected against workplace discrimination under both state and federal law. Employers may not take adverse employment actions against women because they are pregnant, nor may employers treat pregnant employees less advantageously than any other employees. Next, California law provides four months of unpaid Pregnancy Disability Leave (“PDL”) for pregnant employees. PDL is available only when a woman is disabled by pregnancy, childbirth or a related medical condition, and may be taken before or after the baby is born, provided a doctor certifies the woman as disabled. PDL includes a right to job reinstatement upon completion of the leave. California law also provides lactation accommodation for nursing mothers. Employers must allow nursing mothers a reasonable amount of break time to express breast milk, and must provide a suitable private location for that activity. Under California law, a new mother may be entitled to up to 12 weeks of unpaid time off to take care of and bond with her new baby. This leave is in addition to the four months of PDL, but applies only to employers with 50 or more employees. Employers with 25 or more employees must allow mothers to take off up to 40 hours per year to participate in school and daycare activities of their children. Mothers are also entitled to use up to one half of their paid sick time earned in any year to care for an ill child. Each of these laws has a variety of requirements which employers must fully comply with. Employers should review all of their written policies and unwritten practices regarding these rights, and should ensure that all supervisors are fully aware that denial of any one of these rights to a woman could be very costly for their employer.

B. Employers with Difficult Supervisors, Beware! Courts routinely have stated that state and federal workplace anti-discrimination laws are not intended to be general civility codes, protecting employees from bosses who are meanspirited, unduly harsh, or generally abusive. Rather, those laws have been viewed as applying to discrimination, harassment and retaliation motivated by animosity toward employees’ protected characteristics, such as gender, age, race, national origin, etc. This could all change soon. Citing the alleged negative economic and social effects flowing from "work place bullying and abuse," the California Assembly recently considered a bill which would have made unlawful subjecting any employee to an "abusive work environment" of any kind, even if the alleged harassment, discrimination or retaliation was not tied to a protected criterion. Under this bill, every employee with a difficult supervisor, or with a personality clash with a supervisor, would qualify as a plaintiff. The effect of the bill would be to allow employees to dictate how their supervisors managed, and to make courts "super-personnel" boards, capable of ordering the removal of the offending party (the supervisor) from the complainant's work environment. While this bill died in committee, it would not be surprising to see its resurrection in the not too distant future. Employers can only hope that if the legislature passes such a bill, whoever is the governor at the time has the good sense to veto it.

C. It’s Just as Bad for Employers in Great Britain. It looks like British employment law may be just as bad as California law. According to the British tabloid The Sun, a job center in England rejected a company want ad which sought hardworking employees, because the ad discriminated against shirkers. Let’s hope the California legislature doesn’t hear about this.

D. Some of Our Best Friends Are Lawyers, But Really. We recently received a pedometer for a gift, in the apparent hope that it would induce us to exercise more. A pedometer counts the steps a person takes. The instructions, of course, contained a number of disclaimers. One of them advised that the pedometer would not count correctly if a person engaged in “moon walking” (a dance step perfected by Michael Jackson in which he moves backward while seeming to be moving forward). You can be sure the manufacturers’ lawyers had a hand in seeing to it that this disclaimer was included.

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Cohen & Goldfried
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Email: rgoldfried@cogolaw.com

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