California Employment Law

LAHHRA PRESENTATION RECAP: AND THE EMPLOYMENT LAW CATEGORY IS ....

Nancy Yaffe — Tue, 30 Apr 2013 16:49:44 -0800

If you missed last week’s presentation for the LA Hotels Human Resources Association, and want a little sampling of the employment law game you missed, let’s play!

In the Jeopardy-styled game, I give the answer and you respond with the question. Feel free to hum the show’s theme song in your head. The more points, the harder the question.

Employment Law Category: Religious Accommodation

For 100 the answer is: Scheduling and Dress & Grooming

The question? What are the most common types of religious accommodations requested?

For 200, the answer is: Interactive Process

The question? What is required of employers whenever an employee makes a religious accommodation request?

For 300, the answer is: Maintain Good Documentation

The question? What should every employer do to prove that it engaged in the interactive process?

For 400, the answer is: Essential Functions

The question? What do not need to be changed as part of a reasonable accommodation?

For 500, the answer is: To the Back of the House You Go

The question? What can a hospitality employer no longer say when someone requests a dress and grooming accommodation?

Of course there was a lot of discussion around these topics, but hopefully you get the idea. I think the attendees all agreed that it was a fun and interactive way to address the issues. Hope to see you next time!

I'm Perfectly Normal, But My Disability Makes Me Act Crazy

Jeff Polsky — Tue, 30 Apr 2013 13:34:08 -0800

I wrote two years ago about the challenges employers face when an employee attributes his or her misconduct to a disability. In the less-than-sympathetically titled post: "To What Extent Are California Employers Required To Accommodate Violent Nutjobs," I pointed out the lack of guidance on this issue. In that case, the employer prevailed because the misconduct included threats of violence against co-workers. But what if the conduct doesn't rise to that standard?

Our prolific colleague Richard Cohen posted earlier today about an interesting case out of the U.K. There, a court reversed a school's decision to terminate a teacher for taking a 16-year old former student to a concert, getting her drunk, and bringing her home at 3 a.m. You can read the details here.

This issue -- employees attributing their bad behavior to a disability -- isn't going away. And given the range of craziness in the workplace, it may be a long time before employers have clear guidance on where their obligation to accommodate disabilities gives way to their right to enforce basic standards of behavior.

When You Fire Employees, Tell Them the Reason

Jeff Polsky — Mon, 29 Apr 2013 17:01:26 -0800

When you terminate an employee, how much detail should you give them about the reason for the decision? Human resource professionals and employment lawyers don’t agree on this issue. Some suggest giving a minimal explanation, because the more you say, the greater the chance that you may say something wrong.

In a case from the early days of California wrongful termination law, See's Candies terminated a 31-year employee without giving a reason. When the employee asked for one he was told to “look deep within [him]self.” Pugh v. See’s Candies. The problem with that type of response (aside from it being sanctimonious and cruel) is that it makes it too easy for the employee to conclude that the employer is hiding an unlawful motive.

If you're an employer, you want the employee to leave the termination meeting with a clear understanding of the reason for the decision. They don’t have to agree with it. But they should understand that it’s a decision that the company has given serious thought to and that the company believes is justified.

There’s one caveat, however. The reason you provide needs to be accurate. As one California court of appeal put it:

[E]vidence that the employer's claimed reason is false—such as that it conflicts with other evidence, or appears to have been contrived after the fact—will tend to suggest that the employer seeks to conceal the real reason for its actions, and this in turn may support an inference that the real reason was unlawful.

Mamou v. Trendwest Resorts, Inc.

So give a reason, but tell the truth. It won't necessarily set you free. But it could help you to avoid a lawsuit.

What The Interactive Process Requires

Jeff Polsky — Tue, 23 Apr 2013 16:30:44 -0800

In a prior post, I discussed what triggers the obligation to engage in the interactive process. Once that obligation arises, what is it employers are required to do?

According to California's new disability regulations (specifically, 2 CCR sec. 7294.0), "Both the employer or other covered entity and the applicant, employee or the individual's representative shall exchange essential information identified below without delay or obstruction of the process."

[Does the requirement to involve the applicant or employee's representative mean they get to bring their lawyers? Probably not. "[O]rdinarily, a disabled employee may not require an employer to communicate directly with the employee's attorney, because the interactive process contemplates that the employee and employer will communicate directly with each other to exchange information about job skills and job openings." Claudio v. Regents of University of California, 134 Cal.App.4th 224, 228 (2005).]

To fulfill its obligations, the employer must do one of the following:

Grant the applicant or employee's requested accommodation.
Reject it "after due consideration" and initiate discussion of other possible accommodations. Rejecting an employee's suggested accommodation without proposing a practical alternative constitutes failure to engage in the interactive process as a matter of law.
If the need for accommodation is not obvious, and the applicant or employee has not already provided "reasonable medical documentation confirming the existence of the disability and the need for accommodation," the employer can require him or her to do so.
If information provided by the applicant or employee needs clarification, then the employer can identify what is unclear, specify what further information is needed, and allow the individual a "reasonable time to produce the supplemental information."
When necessary to assess a requested accommodation or "to advance the interactive process," the employer can consult with experts.
If reassignment to a different position is being considered as an accommodation, the employer can request information concerning the applicant's relevant education and work experience.

Once the necessary information has been exchanged, the employer must consult with the applicant or employee to identify potential accommodations and assess their effectiveness. While the employer must consider the individual's preference, it has the right to decide which accommodation to implement.

After implementing an accommodation, an employer should follow up with the employee to ensure that the accommodation is effective. If it isn't, the employer has to start this process over again. This is an ongoing obligation.

In most situations, an effective interactive process will require face to face discussions between the employer and the individual seeking accommodation. While those discussions should be informal, careful documentation is a "must." Under state or federal law, failure to engage in the interactive process is itself a statutory violation. So if litigation erupts over what caused a breakdown in the process, the employer will want to have records describing the steps it took.

Next we'll look at some of the different types of accommodations.

Hot Topics in Employment Law (Come See Me Speak)

Nancy Yaffe — Mon, 22 Apr 2013 19:47:50 -0800

If you work in Human Resources in Hospitality, are in Los Angeles on Thursday, and are interested in a terrific networking event with a fun and informative speaker, then look no further. The Los Angeles Hotels Human Resources Association is sponsoring an event on Thursday, April 25th, and I am the guest speaker. Get ready for Hot Topics "Jeopardy" – And the Employment Law Category Is? Participants will engage in a "Jeopardy-style" interactive game to learn about the latest employment law issues and challenges. For those of you who can’t make it, I will report on the best lessons after the event. Stay tuned.

What Triggers the Obligation to Engage In the Interactive Process?

Jeff Polsky — Thu, 18 Apr 2013 08:34:42 -0800

I spoke at a seminar yesterday on Recent Developments in Employment Law. Talking to the attendees confirmed that there is still considerable angst over the new disability regulations that took effect in California in December 2012 (found in Title 2, Division 4, Chapter 2, Subchapter 9 of the California Code of Regulations). While I gave an overview before, I'll try to spend a few posts clarifying specific issues.

Title 2 CCR section 7294.0 defines the employer's obligation to engage in a "timely, good faith, interactive process." It identifies three situations that trigger this obligation to explore possible accommodations.

First, and most obviously, the obligation arises when an employee requests accommodation.
Second, the obligation arises when an employer "becomes aware of the need for an accommodation through a third party or by observation. So even if the employee doesn't say anything, if the employer is aware from some other source that the employee has an impairment that is interfering with his or her ability to perform the job, the employer is required to initiate the process.
Third (and this is the one that trips up employers the most), the employer must initiate the interactive process if an employee with a disability exhausts the leave provided under some other law (such as FMLA, CFRA, or pregnancy-disability leave) and remains unable to return to work.

Many employers believe that, if an employee exhausts the statutorily mandated leave and still can't return to work, their job is no longer protected. And there's a certain logic to that. After all, if the Family Medical Leave Act requires you to provide leave for up to 12 weeks, doesn't that imply that you don't have to provide more than that?

As these regulations explain, and last February's decision in Sanchez v. Swissport, Inc. (which Nancy Yaffe reported on here) highlighted, that is not the case. Employer's can't just focus on the requirements of a single law. If an employee has exhausted FMLA leave or pregnancy disability leave, an employer still has obligations under the ADA and California's FEHA. So if the employee can't return to work upon the exhaustion of a disability-related leave, the employer is required to initiate the interactive process to explore whether further accommodation (perhaps additional leave) is warranted.

It's tempting to want to cut ties with someone who's been gone for an extended period. But don't let your company be put in the position of having to explain why, with its considerable resources, it couldn't let a disabled employee stay out on unpaid leave a little longer.

Your Company's Training About Quid Pro Quo Harassment Is Wrong

Jeff Polsky — Sat, 06 Apr 2013 13:28:13 -0800

A primary purpose of sexual harassment training is helping managers recognize and address inappropriate workplace behavior. A lot of time gets spent on what constitutes a sexually hostile work environment. Considerably less time gets spent on quid pro quo harassment. More importantly, the training frequently gets it wrong.

"Quid pro quo" means "this for that" in Latin. So most trainers will explain that it's inappropriate for managers to condition job benefits on the employee providing sexual favors or making the rejection of a sexual advance the basis for an adverse employment decision. But in the real world, "quid pro quo" harassment doesn't usually result from a manager's calculated decision about how to bargain his or her authority for sexual favors. In the real world, it's often the result of a man misperceiving whether a female subordinate is sexually interested.

Some psychologists think there's an evolutionary basis for this. Carin Perilloux, a psychologist at Williams College, hypothesizes that overconfident men were more likely to "go for it" (my words, not hers) and therefore had more opportunities to pass on their genes. As a result, as reported in Discovery News, "men are more likely to walk away from an interaction with a woman thinking that she's into him, while the woman thinks, 'Well that was a nice friendly conversation.'"

This situation isn't hard to imagine. A male supervisor is thinking about his interactions with his younger, female subordinate. He thinks about how pleasant she is towards him, how she appears to pay close attention to what he says and even laughs at the jokes that his wife tells him are stupid. He's wondering, is it because he's her boss and she has a powerful economic incentive to stay in his good graces? Or is it because she thinks he's hot?

This is where men's innate tendency to overestimate women's interest comes into play. If he pursues a relationship and she rejects his advances, is he going to treat her the same? Because, even if it's subconscious, if he becomes more critical of her work, less inclined to give her desirable assignments, or looks for ways to get her out of the organization, then that's pretty blatant quid pro quo harassment. The motive was not a calculated effort to use his authority to get sexual favors. It was his mistaken belief that she would be receptive to his advances.

Training on quid pro quo harassment needs to help managers understand this dynamic. As a start, perhaps we should teach that "quid pro quo" is Latin for "No. I won't sleep with you for a raise. You're gross. Now leave so I can call my lawyer."

Law360 Profiles Our Own Nancy Yaffe

Jeff Polsky — Tue, 02 Apr 2013 09:25:32 -0800

Today, Law360 (subscription required) profiled our partner and co-blogger Nancy Yaffe. She offered insights into the challenges facing California employers and those of us who advise and represent them. She even shares mistakes she made early in her career and the lessons she learned. You can read the profile here. Way to go, Nancy!

Increasing Diversity in the Legal Profession

Jeff Polsky — Tue, 26 Mar 2013 15:23:53 -0800

I'm incredibly proud that, in a survey of 150 law firms, The Recorder ranked Fox Rothschild #2 in California in terms of diversity. But that doesn't mean that there isn't much more that needs to be done.

For the past year, I've been heavily involved in the Bay Area Urban Debate League. BAUDL is part of a movement that seeks to establish and maintain competitive debate leagues in under-resourced public high schools, through which under-served youth are taught to research and advocate positions on complex policy issues. Its participants are overwhelmingly students of color (98%) and low income (66%). BAUDL currently serves 15 high schools locally, with about 450 student participants, principally in San Francisco and Oakland.

BAUDL helps kids develop communications skills and confidence. It gives them structure and discipline. It exposes them to positive role models. It increases their odds of academic success and progress (literacy scores, grade point averages and graduation rates all demonstrably increase for BAUDL participants). A disproportionately high percentage of BAUDL participants go on to college (88%, compared to barely half of their schools’ student populations). And more than half of the participants aspire to a career in the legal profession. BAUDL is thus successfully feeding the pipeline today with the diverse lawyers (and teachers, leaders, business people, etc.) of tomorrow.

Currently, BAUDL is in the midst of its Champions of Diversity Challenge, in which Fox Rothschild and 16 other law firms are competing to see who can raise the most (overall and per attorney). You can see the participating firms and the current standings here. If you'd like to donate, you can use that link to donate and have it credited to whichever of the competing firms you choose. If you're a Bay Area law firm and want to get in on the act next year, please let me know.

I've met many of these young people and their stories are inspiring. The challenges they've survived and the strides they've made are amazing. You can read some of their stories here. One of our alums, Rashid Campbell (pictured below), is currently vying for the national debate championship and was just named 2nd out of the 288 top speakers in the country.

Please consider helping BAUDL to help these young people. They deserve a chance and BAUDL can provide it.

NANCY'S TOP 10 TAKE AWAYS FROM THE CORNELL HR IN HOSPITALITY CONFERENCE

Nancy Yaffe — Fri, 15 Mar 2013 10:02:06 -0800

I just had the pleasure of attending the Cornell HR in Hospitality Conference in Las Vegas, with my colleagues Carolyn Richmond, Alka Bahal, and Rachel Silverstein. I participated in the Executive Summit and shared ideas with some of the most progressive minds in the hospitality industry. Here is my top ten list of take-aways:

1. Rather than thinking of employment “at-will,” just think of it as employment of “free will.”

2. Just because you call someone an intern, does not mean you can not pay them minimum wage regardless of whether they are getting class credit, lawsuits by interns are on the rise.

3. Even Wall Street has learned that management trainees are not exempt, at least for the first six months of their tenure (if not longer).

4. To make sure employees are engaged and productive as the economy improves, don’t just conduct exit interviews, but also conduct periodic “stay interviews.”

5. Employee “opinion” surveys are outdated; the new approach is employee “engagement” surveys.

6. The unemployed may be a new protected category, so watch out for any blanket rule prohibiting hiring of individuals with employment gaps on their resume.

7. When responding to agency charges (EEOC or DFEH), do not attach your entire handbook or full policies, just attach excerpts; the agencies are now scrutinizing policies and looking for fault.

8. There is no such thing as an “automatic gratuity” (such as for a party of 8 or more); if it is not discretionary then it is a service charge, which means that it is included in the regular rate for overtime and sales tax calculations.

9. Employers who want to hire attractive people to service clubs and bars are creating job descriptions that require performances during the shifts, such as dancing or walking down a catwalk.

10. The new I9 form must be used by May 7th, so start using it now, and make sure you train the employees responsible for filling it out. There are many traps for the unwary and even minor violations can be costly. See Alka Bahal’s blog post for tips.

What Employers Need to Know About California's New Disability Regulations

Jeff Polsky — Wed, 13 Mar 2013 09:35:38 -0800

New disability regulations (pdf) took effect this year for California employers with five or more employees. They include the following:

Examples, examples, and more examples. These examples are illustrative – not exclusive.

o Examples of physical disabilities, namely “deafness, blindness, partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, cerebral palsy, and chronic or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, multiple sclerosis and heart disease.”

o Examples of mental disabilities include “emotional or mental illness, intellectual or cognitive disability (formerly referred to as ‘mental retardation’), organic brain syndrome, or specific learning disabilities, autism spectrum disorders, schizophrenia, and chronic or episodic conditions such as clinical depression, bipolar disorder, post-traumatic stress disorder, and obsessive compulsive disorder.” Also included are specific learning disabilities “manifested by significant difficulties in the acquisition and use of listening, speaking, reading, writing, reasoning or mathematical abilities.”

o Examples of the types of temporary impairments that do not merit protection, namely “the common cold; seasonal or common influenza; minor cuts, sprains, muscle aches, soreness, bruises, or abrasions; non-migraine headaches, and minor and nonchronic gastrointestinal disorders.”

o Examples of reasonable accommodations include:

§ “[P]roviding accessible break rooms, restrooms, training rooms, or reserved parking places; acquiring or modifying furniture, equipment or devices; or making other similar adjustments;”

§ Allowing use of assistive animals (more on this below);

§ “Transferring an employee to a more accessible worksite;”

§ “Providing assistive aids and services such as qualified readers or interpreters to an applicant or employee;”

§ Job Restructuring (although the employer is not required to reassign essential job functions);

§ Part-time or modified work schedules;

§ Changing “when and/or how an essential function is performed;”

§ Adjusting or modifying “examinations, training materials or policies;”

§ Modifying policies or supervisory methods;

§ Providing additional training;

§ Letting the employee work from home;

§ Leaves of absence (although indefinite leaves are not required); and

§ Reassignment to a vacant position (although there is no need to create a position or disregard an established, bona fide seniority system).

Renewed emphasis on employees’ rights to use “assistive animals.” We’re not just talking about guide dogs. One case that our friend Christina Stoneburner at the Employment Discrimination Report wrote about involved a miniature horse that helped pull a wheelchair. Also, the requirement extends to animals that provide “emotional or other support” to people with emotional problems or brain damage. So it won’t necessarily be clear at first glance whether the animal performs a support function.

Employers are entitled to set standards for service animals, such as:

o Requiring that the animal behave appropriately in the workplace, not smell offensive, and not befoul the workplace with urine and feces.

o Prohibiting the use of animals that endanger any employee’s health or safety.

o Requiring the animal be trained to provide assistance.

o Requiring employees to get certification from their health care provider that they need the animal as an accommodation.

Increased emphasis on the obligation to engage employees in a “timely, good faith interactive process” to explore possible accommodations. This obligation arises not just when an employee requests accommodation, but also when:

o The employer becomes aware of the need for accommodation “through a third party or by observation” and

o Whenever an employee exhausts his or her leave under other laws, such as the Family Medical Leave Act, California Family Rights Act, or workers’ comp laws” and has not been released to return to work.

These are only the highlights of these expansive new regulations. Given the extent to which they expand employers' obligations, it seems certain that they will result in an increase in the number of claims. Employers need to act now to protect themselves.

More than ever, California employers (and their managers) must be alert to the breadth of impairments that can constitute a disability and the range of accommodations they are required to explore. Employers should also review their policies to ensure that they comply with the regulations and review their job descriptions and performance evaluation forms to ensure they clearly identify which job functions are essential.

These are not the type of discrimination laws that require employers to treat everyone the same. On the contrary, they expect employers to accept certain expenses, burdens, and even inefficiencies if doing so allows a disabled worker to remain in or reenter the workforce.

New I-9 Form Released - Valid for Immediate Use

John Witts — Mon, 11 Mar 2013 12:35:24 -0800

This post was authored by Alka Bahal, Partner in Fox Rothschild's Roseland, NJ office. It originally appeared on Fox Rothschild's Immigration View blog.

On March 8, 2013, U.S. Citizenship and Immigration Services (USCIS) published a revised Employment Eligibility Verification Form I-9 for immediate use. The Department of Homeland Security (“DHS”) published a Notice in the Federal Register informing employers of the new Form I-9. This form replaces all other forms and should be used from today forward for all new hires and reverifications. The previous editions of the Form (with an OMB control number expiration date of August 31, 2012) are valid for 60 days. Thereafter, only the new edition of the form is acceptable.

Improvements to Form I-9 include new data fields, a revised format that expands the form to two pages, and clearer instructions to both employees and employers.

All U.S. employers are required to complete a Form I-9 for every employee hired in order to verify that the individual is authorized for employment in the United States under the Immigration Reform and Control Act of 1986 (IRCA). Beginning May 7, 2013, employers must use the new version of the Form for all new hires and for re-verifying current employees with expiring employment authorization documentation. [Employers should not complete new Forms for existing employees who do not require re-verification.] A best practice would be for employers to begin using the new edition of the form immediately.

The new Form I-9 and List of Acceptable Documents is available on USCIS’ website in English and in Spanish. (Note, however, that the Spanish version of the Form may only be executed by employer’s in Puerto Rico; Employers in the 50 states, Washington, D.C., and other U.S. territories may use the Spanish version of the Form as a translation guide, only, but must complete the English version of the Form.)

Where Things Stand With Suitable Seating Claims

Jeff Polsky — Thu, 07 Mar 2013 13:41:40 -0800

We’ve been following the fate of “suitable seating” class actions for three years now. There was a brief glimmer of hope in 2011 when a federal judge in LA dismissed a class action by bank tellers because they didn’t claim that they’d ever asked for seats. But the Ninth Circuit Court of Appeal, finding no such requirement in the Wage Order, reversed in an unpublished opinion.

Then in December, we reported on Garvey v. Kmart, the first such case to go to trial. Although the employer won, the court wondered aloud whether the result would have been different if the plaintiffs had requested a different type of seat – called a lean-stool. Now that case is up on appeal, too.

So if you're waiting for clarity to emerge regarding the requirement that "all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats . . . ," you might want to take a seat. It could be a while.

Or, if you have a category of employees who are traditionally required to stand in one place, ask yourself whether their duties are such that you could provide them with seats - perhaps these newfangled lean-stools (or what the DOL calls stand-lean stools). That way, as other employers wait to see if they’ll be subject to expensive class action claims, you can sit on the sidelines, or in the cheap seats. In other words, you could just sit this one out.

CALIFORNIA BROADENS THE PROTECTIONS FOR PREGNANCY (PUN INTENDED)

Nancy Yaffe — Tue, 26 Feb 2013 12:03:14 -0800

We already know that California law for pregnant employees is much more generous than other states. Pregnant women here can get up to seven months of protected time off, with insurance benefits and reinstatement; that is up to four months off for pregnancy disability leave (PDL) in addition to twelve weeks off for baby bonding under the CFRA.

But what happens if a woman is disabled by pregnancy and needs more than four months off? What if she is put on bed rest early in her pregnancy and uses her PDL pre-birth? The regulations still indicate that an employer “may” advance CFRA baby bonding leave pre-birth, so doesn’t that mean it is optional? Or what if she is not eligible for CFRA leave at all (perhaps she has not worked for a year or your company does not employ 50 people); are you safe to terminate her after four months of PDL?

One would think the answer to all of these questions would be YES, but alas, this is California after all. A recent California Court of Appeal case (Sanchez v. Swissport) answers a big bold NO to all of these questions, and holds that four months of leave may not be enough. Rather, the employer has a duty to engage in the interactive process under the FEHA, and may need to provide additional time off for a pregnant employee as a reasonable accommodation.

Notably, this particular employee did not have a claim under PDL because she got four months off. Instead, the Court ruled that she could state a claim under the FEHA which governs disability leaves. A finite leave of more than four months could be a reasonable accommodation under the FEHA (even for a pregnancy related leave), and this employer had not met its obligation to engage in the interactive process on that issue prior to termination. And lest we forget, failure to engage in the interactive process is a separate-and-distinct claim under the FEHA.

Maybe it is just me, but I find this stunning. The regulations clearly state that PDL is “not to exceed” four months. Yet, the Court held that in certain circumstances the FEHA can govern a pregnancy disability leave above-and-beyond the requirements of PDL. Plus, there is an ever-growing focus on the interactive process in all circumstances.

The lesson: Rights for pregnant women begin with PDL, but certainly do not end there.

HIRING FOR START-UPS: AN OUNCE OF PREVENTION IS WORTH A POUND OF CURE

Nancy Yaffe — Tue, 19 Feb 2013 17:27:10 -0800

I was speaking to a group of women entrepreneurs last week for Women in LAVA, a great group chaired by my partner Emily Yukich. The topic was Hiring for Startups and I was presenting the legal side of how to hire and onboard to limit risk. My theme was: An Ounce of Prevention is Worth a Pound of Cure.

To that end, there are three things that every California employer should have, regardless of whether you have five employees or five thousand: (1) an employee handbook that sets forth your policies and expectations; (2) a confidentiality agreement that clearly defines and allows you to protect the key aspects of your business; and (3) an arbitration agreement.

Common mistakes include: Preparing these documents without regard to the particularities of the business (such as defining) “confidential information” in a way that is nonsensical for their company), or having the three documents contradict instead of cross-reference each other. Another common mistake is to fail to update these document periodically, as the business grows and as the applicable law changes. The policies a business needs change with different thresholds of employees, especially small businesses when they hit 25 and 50 employees.

And finally, there tends to be a lot of confusion over when a business should enter into an employment agreement with employees. Put simply, most agreements define employment for a particular term, and typically provide the employee with some comfort level as to pay and benefits during a defined period of time. An employment agreement may be necessary for a key executive, but is more than most businesses need for the vast majority of their workforce. Rather, what most employers need is an offer letter which provides employers with more flexibility and explains the concept of employment at-will (i.e., employment for no particular amount of time, no guarantees, and that can end with or without notice or cause). The offer letter should reference the policies in the handbook, the confidentiality agreement, and the arbitration agreement, and should not set forth any terms or concepts that contradict those documents. While you can have an employment agreement providing for employment at-will, I find that many such agreements contain contradictory terms (such as employment for a particular time period or termination for cause), and typically do not recommend it.

Taking some time to set up these documents at the onset is the best way to protect your business as it grows. It is a much better option than spending your time, energy and money fixing issues in response to an employee complaint, or worse yet a lawsuit, agency charge or attorney demand letter. Remember, an ounce of prevention is worth a pound of cure.

Come Hear Me Speak: Labor and Employment Law 2013

Jeff Polsky — Sat, 09 Feb 2013 17:10:10 -0800

On April 17, 2013 in South San Francisco, my partners Keith Chrestionson and Dan Berkley and I (along with some other fine legal minds) will be speaking at a day-long seminar entitled Labor and Employment Law 2013.

The seminar, put on by Sterling Education Services, is intended for lawyers, HR professionals, business owners, managers, and everyone else who can benefit from knowing where California and federal employment law draw their ever-shifting lines. Lawyers, HR professionals, and accountants can even get continuing education credits.

You can review the agenda here, download a brochure here, and enroll here. I promise that you'll get an up-to-date summary on the legal issues facing California employers.

Keys to Preparing Witnesses (Including Not Flipping Off the Judge)

Jeff Polsky — Fri, 08 Feb 2013 10:57:39 -0800

Have you seen this video of an 18-yr-old whose cluelessness and extreme disrespect toward the judge results in a 30-day jail sentence?

Or have you read this piece in the ABA Journal where Lady Gaga, in a profanity-laced tirade, tells the attorney taking her deposition that she's the Queen of the Universe?

While these are obviously extreme cases, it's safe to say that many cases can be won or lost based on witness preparation. Two years ago, I gave this presentation on the fine points of witness prep.

Preparing witnesses from Jeff Polsky

I didn't specifically say "don't flip off the judge." But I fortunately am usually working with witnesses who figure that out on their own.

The Latest On HIPAA/HITECH Rules for Employers

Jeff Polsky — Thu, 07 Feb 2013 11:38:41 -0800

Want to know what's required of employers under the very latest rules about HIPAA Privacy under the HITECH Act? Check out this post by Keith McMurdy at the Employee Benefits Legal Blog!

Don't Let Your Customers Harass Your Employees

Jeff Polsky — Tue, 05 Feb 2013 09:44:46 -0800

Employers who seek to avoid sexual harassment claims must do more than make sure that their employees behave. Employers can also be liable for how third parties (customers, clients, vendors, contractors, etc.) treat their employees.

In California, it's the same standard that applies to non-supervisory co-workers. If the employer knew, or reasonably should have known, of the harassment and fails to take prompt remedial action, the employer is liable.

Our friends over at the Employment Discrimination Report just posted this item about a prison guard suing because the employer didn't do enough to prevent inmates from harassing her. I wrote about the same issue two years ago (You Think Your Customers Are Bad?) and discussed how the California Department of Corrections argued that it could not be held responsible for harassment by inmates in the Secure Housing Unit at Pelican Bay State Prison. The Ninth Circuit rejected that argument in Freitag v. Ayers.

There are lots of businesses where employees have to deal with poorly controlled third parties, bars being one obvious example. But those employers still have a legal duty to protect their employees from harassment. Unless an employer can show that its employees deal with third parties who behave significantly worse than California's most violent and incorrigible prison inmates, the obligation remains.

Court Lets Firefighter Who Stood Up For Gay Daughter Proceed With Harassment Claim

Jeff Polsky — Thu, 31 Jan 2013 10:25:35 -0800

A California court of appeal ruled last week that a firefighter could proceed with a claim that his supervisor harassed him because he stood up for his lesbian daughter. The unpublished decision, Derr v. Kern County Fire Dep’t, was reported by Anne Marchessault in BNA’s Employment Discrimination Report (subscription required).

The plaintiff, David Derr, alleged the following facts:

Derr responded to a “condemnation of homosexuals” by his captain (James Rummell), by saying that he had family members who were gay and that he was offended. The captain later told Derr in an e-mail that his “embrace” of homosexuality was a “blatant opposition to the commands of God” and that his support for same-sex marriage was equivalent to standing “with [his] fist in [God’s] face.” Rummell’s wife also sent Derr (and others) homophobic e-mails.

Derr requested and received a transfer, but the captain continued to seek him out and make sarcastic, condescending, and anti-gay comments. Derr says that he was forced to retire because of this behavior and the stress it caused him. Although a lower court dismissed the harassment claims, the appellate court reversed and allowed the claims to proceed.

California’s Fair Employment and Housing Act specifically prohibits harassment and discrimination based on sexual orientation. As previously reported (California Legislature Clarifies What Sex Is), the Act defines “sex” broadly to include gender identity and gender expression. The important takeaway here, though, is that the law prohibits harassment of employees because of their association with someone who is a member of a protected class, even if they aren’t in the protected class themselves.

As current events continuously remind us -- most recently a comments by one of our own San Francisco 49ers -- too many people think that it's acceptable to make anti-gay comments in the workplace. Policies and training need to reinforce that, in California and other jurisdictions that prohibit this behavior, doing so exposes the employer and the person making the comments to liability.