Los Angeles, California Employment Law Blog | Bononi Law Group, LLP

Protections For Mothers In The California Workplace

2012-05-11T16:36:29Z

Then-President Woodrow Wilson declared Mothers Day a national holiday in the United States in 1914. Although the U.S. holiday is not yet 100 years old, protections for mothers in the workplace have come a long way since the presidential action of setting aside one day a year to honor mothers throughout our country.

Before motherhood comes pregnancy. Thanks to several federal and California laws, pregnancy can no longer be used as a reason not to hire or to fire an expectant mother. Pregnancy discrimination is prohibited by Title VII of the Pregnancy Discrimination Act and related EEOC regulations.

]]> In California, the FEHA (Fair Employment and Housing Act) protects the right of pregnant women to:

Disability leave before and/or after the birth of a child
Return to a job within four months of taking leave
Request a transfer to a less stressful or strenuous position during pregnancy
Medical insurance coverage of pregnancy-related expenses

Expecting mothers are also entitled to reasonable accommodation in their work duties as recommended by a physician.

California's State Disability Insurance (SDI) program allows for a new or expectant mother to receive two-thirds of her average weekly pay, up to a certain limit, while she is considered disabled. A new or expectant mother may also be eligible for disability pay under her employer's own plan.

When a mother returns to work, she is guaranteed the right under California law to a break period during her workday for lactation purposes.

The Family and Medical Leave Act (FMLA) as well as the California Family Rights Act (CFRA) govern a mother's right to take time off work related to the birth or adoption of a child without having to worry that she will be terminated from her position or demoted upon return.

EEOC Updates Guidelines Related To Background Checks

2012-05-01T19:02:56Z

New employees with a criminal record may be breathing a sigh of relief after the Equal Employment Opportunity Commission (EEOC) issued new guidelines to employers when running background checks on new hires.

The current guidelines, as applied, have a disparate impact on minorities, particularly African American and Hispanic job seekers, because they are more likely to have a criminal record. This practice, in effect, discriminates based on race in hiring decisions, according to the EEOC.

Under the new guidelines, employers can no longer exclude an applicant simply because he or she has a criminal record. An employer must consider for what offense the applicant was convicted, the time elapsed since the conviction and whether the offense that resulted in conviction would have an impact on the potential employee's desired job.

]]> Individuals must also be given an opportunity to explain a criminal record. An employer should consider, among other evidence, when determining whether a criminal conviction makes a person ineligible for hire:

The facts of the actual offense(s)
The number of convictions
The age of the prospective employee when convicted of the offense and when released from jail/prison
The existence of other, similar incidents
Whether the individual has been rehabilitated
Any employment or character references

Changing hiring practices related to background checks and the use of criminal histories should mean more opportunities for minority males because they tended to be excluded from the hiring process more frequently than any other group because of a criminal past.

Source: 89.3 KPCC, "New protections for job seekers with criminal records," April 30, 2012

EEOC Officially Extends Gender Discrimination Protections To Transgender Employees

2012-04-26T16:27:03Z

Former Phoenix police detective and military veteran Mia Macy was offered a job as a ballistics technician at a California lab with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in 2010. At that time, Macy was a man. During the time period that the agency was running a background check, Macy underwent the transition to live as a female.

Macy let her new employer know of the change and moved to the Bay Area with her wife. She was then told that the ATF position had been eliminated due to budget cuts but later found out that the job had been filled by another applicant. Macy filed a complaint with the Equal Employment Opportunity Commission (EEOC) in 2011, claiming gender discrimination.

]]> Macy had initially reported the discrimination to the ATF, but her claim was denied. According to the ATF, gender identity was not protected under anti-discrimination laws. The EEOC declined to take the same position as the ATF, finding that discrimination based on gender identity is a form of sex or gender discrimination.

"The term 'gender' encompasses not just a person's biological sex but also the cultural and social aspects associated with masculinity and femininity," noted the EEOC in its decision.

Both private and public employers are prohibited from discriminating against employees or prospective employees on the basis of sex, race, color, religion, and national origin by Title VII of the Civil Rights Act of 1964. Transgender advocates note that this is a landmark decision that uniformly allows for the protection of transgendered individuals from bias and discrimination in the workplace.

Source: LA Times, "Ruling allows transgender woman to sue for job discrimination," April 24, 2012

CA May Block Employer Requests For Applicants' Facebook Passwords

2012-04-20T15:49:06Z

In response to the growing trend of employers asking current and prospective employees for login information for personal social media sites like Twitter and Facebook, discussed previously on our employment law blog, California Assembly Member Nora Campos proposed AB 1844, a bill that would prohibit California employers from doing so. According to Campos, a user's personal profile should be left exactly that -- personal.

Access to current or prospective employees' personal information -- such as commentary, photographs, personal messages and even affiliations -- may increase the likelihood that an employer may intentionally or unintentionally commit employment discrimination in the hiring process.

The California State Assembly Judiciary Committee will hear the bill next Tuesday. If the Committee approves the bill, it will be sent to the full Assembly for consideration and vote.

]]> AB 1844 also provides protection for employers as well as current and prospective employees. Before hiring a new employee, an employer must conduct a reasonable search to determine whether an applicant is incompetent or unfit. The proposed bill would exempt social media from the sources that an employer must investigate before making an offer of employment.

The American Civil Liberties Union, which has supported California's AB 1844, likened digging through someone's social media account to asking for an applicant's house keys and rummaging through his or her mail. Just because social media information is available online and thereby easier to review, doesn't mean that it should become part of the decision-making process prior to hiring.

Maryland recently passed legislation prohibiting employer access to password-protected social media sites of current and prospective employees. The practice of demanding Facebook and Twitter passwords is intimidating to applicants and an invasion of privacy, according to advocates of the bill. Whether the prohibition will become law is uncertain; the Governor of Maryland has not yet signed the protections into law.

Source: The Sacramento Bee, "Landmark Social Media Privacy Bill to be Heard before California Assembly Judiciary Committee," Nora Campos, April 20, 2012

CA Supreme Court Says Workers Can Work Through Meal Breaks

2012-04-13T19:21:49Z

Employers throughout California are required by law to provide meal breaks to hourly employees for every shift over five hours. But, the California Supreme Court recently ruled that if an employee chooses to work through his or her meal break, the employer has met its duty by simply giving the worker the opportunity to take a meal break.

For an employer to have met his or her duty to provide meal breaks, an employee must be allowed to:

Take an uninterrupted, 30-minute break
Leave the premises if he or she chooses, and
Be free from any work requirements during that time period

An employee who works through his or her meal time must be paid for that time as normal or "straight pay," unless the additional time takes the employee over 40 hours a week, into overtime pay. As a penalty to employers who don't allow the required 30-minute break at all, employees who are not allowed to take 30-minute break are entitled to a full hour's worth of pay.

]]> The Court determined that employers need not "police meal breaks and ensure that no work is thereafter performed," but must give employees the opportunity to take the meal and rest breaks and may not offer incentives or otherwise try to coerce and employee into not taking his or her break.

The ruling is a partial resolution of nine years of litigation against Brinker Restaurant Corporation, which owns Chili's Grill & Bar and Maggiano's Little Italy. Over the years, Brinker has also owned and operated other chain restaurants throughout California, including Romano‟s Macaroni Grill, On the Border Mexican Grill & Cantina, Corner Bakery Café and 3 Cozymel's Mexican Grill.

Source: Fox News, "Court: Managers don't have to ensure lunch breaks," April 13, 2012

Discrimination or Self-Segregation Keeping Minorities Out Of Tech Industry?

2012-03-30T15:15:20Z

African American startups received less than 1 percent of all venture capital investments in 2010, compared to about 87 percent going to white startups, according to a report from CB Insights. That statistic has led many to wonder why there aren't more minorities in the tech industry.

Is it because African American's tend to self-segregate, forgoing networking opportunities by staying within an ethnically-based community, as suggested by University of Connecticut professor Maya Beasley? Is it that the focus in the black community has been on confronting civil rights issues rather than economics when choosing a profession, according to one African American strategy consultant with over a decade of experience working in venture capital funding. Is it that historically black colleges don't put enough emphasis on technology education, but focus on more traditional careers?

Or is it fundamentally simpler than that? Are African Americans experiencing discrimination based on race in the tech industry? Yes, according to Mitch Kapor, founder of Kapor Capital, the tech industry has its own set of cultural biases that make it difficult for African Americans to break into the tech sector.

]]> Slightly over 8 percent of entry-level Silicon Valley technical positions are filled by underrepresented minorities, including African American, Latino/Hispanic and Native American employees. That number shrinks to about 5.5 percent at high-level management.

Women of underrepresented minorities make up even less of the Silicon Valley tech world. Less than 2 percent of high-level tech positions are held by women of color.

A diverse workforce is often considered a key to the success of a business, allowing it to compete on a global scale by encouraging innovation and creativity through the different ideas and backgrounds that each person brings to the workplace. Based on these statistics, there is room for improvement in today's technology fields.

Source: Business Insider, "PROFESSOR: Self-Segregation Is What's Keeping African Americans Out Of Silicon Valley," Vivian Giang, March 5, 2012

Welcome, Sonya Paskil!

2012-03-14T20:05:34Z

Bononi Law Group, LLP is so pleased to announce the arrival of our new associate, Sonya Paskil. We are looking forward to working with her and are confident she will be an excellent addition to our firm.

JURY VERDICT FAVORS FORMER DIVISION SALES MANAGER FOR ROCHE PHARMACEUTICALS

2012-03-12T18:00:50Z

Dossat vs. Hoffman-La Roche, et. al., 2:09-CV-00245-KJD-PAL

Las Vegas, Nevada - March 12, 2012 -- The law offices of Esteban-Trinidad Law in Las Vegas, Nevada and Bononi Law Group, LLC, in Los Angeles today announced that a federal jury in the United States District Court of Nevada unanimously rendered a verdict awarding their client Randy Dossat $1,868,000.00 on his claims for retaliation in the workplace and intentional infliction of emotional distress.

]]> With Judge Kent J. Dawson presiding, the eight members of the jury determined that Defendant Hoffmann La-Roche willfully retaliated against its employee, Mr. Dossat, for complaining about what Mr. Dossat reasonably believed to be age discrimination in violation of the Age Discrimination in Employment Act (ADEA) and that the company's retaliatory actions caused Mr. Dossat damages for mental pain and suffering.

Mr. Dossat's attorneys issued a statement that, "This verdict sends a clear message to employers that they should not retaliate against employees for complaining about discrimination in the workplace. The verdict also sends a message to employees to speak up about unlawful discriminatory acts in the workplace."

The jury awarded Randy Dossat the amount of $168,000 for lost pay and $1,700,000 in damages for mental and emotional pain and suffering, for a total of $1,898,00.00. The Court entered judgment on the verdict on March 6, 2012.

Counsel for Plaintiff Randy Dossat: M. Lani Esteban-Trinidad, Esteban Trinidad Law, P.C. in Las Vegas, Nevada and Bononi Law Group, LLP, William S. Waldo and Michael J. Bononi from Los Angeles, California.

Counsel for Defendants Hoffman-La Roche: Anthony Martin, Christopher Pastore and Michael W. Fox of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Fashion Industry Insiders Say Employers Fail to Follow Employment Laws

2012-02-11T15:55:21Z

Employers have the responsibility to stay alert to employment law changes and modify any policies that do not comply with federal and state laws. The fashion industry, however, continues to show signs that they're far behind in protecting models. As independent contractors for fashion designers, it's sometimes unclear for the employer how to treat the models under the law, but it's becoming increasingly clear that further regulation may be needed to prevent grievous harm.

Industry insiders have long said that the fashion industry hires underage models who are seriously underweight. The models are not often paid for the overtime hours that they work and models under age 18 work much later than California employment laws allow. Many former models have also spoken out about the rampant sexual harassment that is prevalent throughout the international fashion industry.

]]> Models fear losing future employment if they speak out about unlawful employment law practices, which is why a former model started an organization to advocate for the rights of models called The Model Alliance. The organization is "dedicated to improving the working conditions of models and persuading the industry to take better care of its young," CBS News reported.

While the advocacy group is a good start, models who are sexually harassed or otherwise the victim of employment law violations have rights against their employers. Holding a fashion designer or employer accountable for a wage and hour violation, sexual harassment or overtime violation may help to protect future models from the unlawful practices.

Source: CBS news, "Fashion models organize to fend off abuses," 2/11/2012

New California Law Expands Misclassification Liability

2012-01-31T16:29:47Z

A new law that went into effect in January could have serious consequences for anyone who advises an employer to treat an employee as a contractor, if in fact that classification is knowingly incorrect. The contractor misclassification law is under labor code 2763 and it allows the California Labor and Workforce Development Agency to assess monetary penalties against individuals or employers who violate the law.

The law states "that a person who, for money or other valuable consideration, knowingly advises an employer to treat an individual as an independent contractor to avoid employee status for the individual shall be jointly and severally liable with the employer if the individual is not found to be an independent contractor." It's likely that a person who receives money for advice about employee classification status could be a human resources consultant, an attorney or an insurance agent or broker of workers' comp or employment liability insurance, although it remains to be seen how California courts would interpret the definition of "person" under the law.

]]> The new California law is much broader than most other states' laws, particularly because it imposes a heavy burden on anyone who offers incorrect advice or guidance to an employer. The fines associated with a false contractor misclassification may exceed thousands of dollars.

According to one attorney quoted in the Insurance Journal article, it's believed that this strict law "as far as we know, is the first time the labor code has imposed penalties on people other than employer." For questions about the implications of the new 2012 contractor misclassification law, speak to a knowledgeable California employment law attorney.

Source: Insurance Journal, "California Independent Contractor Law May Be Liability for Agents, Brokers," Don Jergler, 2/7/2012

Welcome, Andrew Russell!

2012-01-23T20:06:41Z

We are pleased to announce the arrival of our new associate, Andrew Russell. Andrew is a strong addition to Bononi Law Group, LLP and we are excited to have him on our team. Welcome, Andrew!

Proposed Department of Labor Rule Would Establish Quota of Disabled Employees

2011-12-12T14:25:20Z

A new rule proposed by the Department of Labor (DOL) and the Obama Administration would set a goal of hiring 7 percent of its federal contracting workforce as employees with disabilities. The proposed rule is not official yet; it will go through a review and public comment process that may change the percentage.

The proposed rule is over and above the regulations imposed by the 1990 Americans with Disabilities Act (ADA). Under the ADA, employers must make only "good faith efforts" to avoid discrimination against the disabled in the hiring process. The new hiring standard would allow the DOL to get involved if a federal contractor was not in compliance with the percentage.

]]> In part, the suggested rule change is an attempt to reduce the unemployment rate among Americans with disabilities. Currently the unemployment rate is one and a half times the rate of other Americans at 13 percent. According to the Huffington Post article, the Obama Administration also reported that 79 percent of Americans with disabilities are no longer looking for employment, whereas the number for unemployed workers without disabilities is 30.5 percent.

A spokesperson for the American Association of People with Disabilities said, "This is the first time that the protection of job opportunities will be clear and enforced. This is a move forward." Critics, however, say that employment regulation of businesses hurts growth and prosperity.

Source: Huffington Post, "Obama Takes Aim at Contractors Who Discriminate," Dave Jamieson, 12/8/2011

Wells Fargo Lending Discrimination Class Certification Denied

2011-12-05T16:39:06Z

A federal court rejected the class certification of a large class of Hispanic and black homeowners based on the analysis in the U.S. Supreme Court employment law decision Wal-Mart Stores Inc. v. Dukes. This is only one of the cases that has relied on the important Dukes decision to deny certification to a class of plaintiffs.

In Dukes, the SC denied the class certification of around 1.6 million current and former female employees of Wal-Mart who alleged gender discrimination at Wal-Mart stores throughout the country. The court ruled that the class was too large to fulfill the requirements of the federal certification rules.

]]> The federal court deciding the class certification for In re Wells Fargo relied on Dukes after the defendant challenged the class certification of black and Hispanic homeowners. The case resulted from the consolidation of four class action suits against Wells Fargo alleging discrimination in lending practices. The federal court held that after Dukes, the class of plaintiffs does not fulfill the class certification requirements.

The court held that the plaintiff's lawyers did not fully show that the bank officers making the loan decisions used a "common mode of exercising discretion" against the entire large class of black and Hispanic homeowners who had applied for a loan with Wells Fargo.

As case law evolved based on the Dukes decision, it's likely that courts will continue to alter how they handle large class action suits.

Source: American Lawyer, "In Re Wells Fargo Mortgage Lending Discrimination Litigation," 11/1/2011

A Sexual Harassment Claim Often Requires Evidence of Interference With Work

2011-11-30T15:31:12Z

A sexual harassment legal claim requires that the treatment be "severe and pervasive." For employment attorneys, the work to show that the sexual harassment was severe is often to demonstrate the harassment's interference with the employee's work. It's much more likely that a sexual harassment claim will result in a finding for the victim when his or her work performance is affected.

When an employee has solid evidence to show that the sexual harassment was so pervasive that it affected his or her ability to do the job, the court or the jury will often side with the employee. That's because under the law, for a successful sexual harassment claim, the treatment may not be one isolated incident. Instead, for viable legal claim, the harassment needs to be on-going or serious enough to warrant a claim. To show the severity of the sexual emails, jokes, videos or other inappropriate conduct, the employee's work performance is a good measure, courts have said.

]]> Even in cases where there may not be enough evidence to demonstrate how the employee was affected at work, witnesses and family members may be able to provide important testimony about the impact of the sexual harassment. Other options to show how work was affected by harassment include performance reports, diminished productivity, increased sick days and depression.

In some sexual harassment cases, the workplace may be so hostile that they employee felt that he or she had no other chance to leave the place of employment. When this occurs, the employee should immediately consult with a knowledgeable employment law attorney to discuss the options for filing a legal claim.

Source: Wall Street Journal, "Showing Disruption of Work Is Key to Success of Harassment Cases," Brent Kendall and Ashby Jones, 11/4/2011

New Bills Affect Transgender Rights by Prohibiting Discrimination

2011-11-30T15:20:06Z

A bill sponsored by the Transgender Law Center and Equality California was signed into law by Gov. Jerry Brown. The bill, Vital Statistics Modernization Act, makes changing ones birth certificate more simple for transgender Californians. Another bill, the Gender Nondiscrimination Act, was also signed by the governor and it adds to existing protection from discrimination for California residents who identify as transgender.

The Vital Statistics Modernization Act has been touted as a strong step to reducing the difficulty that transgender residents face with documents required by the state. The process for a person looking to change his or her gender on a birth certificate is streamlined. The only documents necessary to make the change is a note from a medical professional stating that the person has "undergone 'clinically appropriate treatment'," the Huffington Post reported.

]]> The Executive Director of the sponsor organization Transgender Law Center said, "Having identity documents that match who we truly are is critical to our ability to work, travel and thrive." The difficulty to travel around the U.S. or internationally by plane is especially difficult for a person who has changed genders due to the scrutiny faced at security checkpoints.

The other bill changed the definitions under the law to bolster the protections against discrimination for transgender men and women. The Transgender Law Center said that these changes "provide[s] clarity to those who are victims of unlawful discrimination as well as for business owners, employers and other entities required to comply with the anti-discrimination protections..." Anyone who is discriminated against on the basis of gender or sexual orientation should speak with an employment law attorney.

Source: Huffington Post, "California Transgender Bills Signed Into Law By Governor Jerry Brown," 10/10/11