Professor Boycotts Sexual Harassment Training

Under California law, employers with more than 50 workers are legally required to provide sexual harassment prevention training to their supervisory employees.  

An interesting Op-ed piece appeared in the Los Angeles Times last week by Alexander McPherson, a tenured UCI professor, who is refusing to attend his employer's mandatory sexual harassment training.  He is basically a "conscientious objector" who is boycotting the sessions on moral and political grounds.  As he explains: 

First of all, I believe the training is a disgraceful sham. As far as I can tell from my colleagues, it is worthless, a childish piece of theater, an insult to anyone with a respectable IQ, primarily designed to relieve the university of liability in the case of lawsuits. I have not been shown any evidence that this training will discourage a harasser or aid in alerting the faculty to the presence of harassment.

What's more, the state, acting through the university, is trying to coerce and bully me into doing something I find repugnant and offensive. I find it offensive not only because of the insinuations it carries and the potential stigma it implies, but also because I am being required to do it for political reasons. The fact is that there is a vocal political/cultural interest group promoting this silliness as part of a politically correct agenda that I don't particularly agree with.

I have to agree with Professor Alexander that there is something vaguely un-American about a state-compelled "re-education" program that aims to teach adults how they are supposed to speak and act.  But even if there were no law on the books it would be a very legitimate goal for any employer to prevent lawsuits and improve morale by preventing harassment.  Also, since everyone is required to take the training I don't quite follow the argument that it communicates some sort of "stigma."

According to the piece, the University has responded to Professor Alexander's boycott by taking away some of his staff and lab resources.  This raises a clear conflict between the professor's political speech rights (which are themselves protected under California law) and the harassment training law. 

This conflict piqued my interest enough to review the actual language of the "mandatory" training statute, California Gov't Code section 12950.1(a).  Interestingly, it doesn't actually require the professor to attend the training.  The statute merely requires that the employer "provide at least two hours of classroom or other interactive training and education regarding sexual harassment."   As illustrated by the recent debate over what it means to "provide" meal and rest breaks to employees, the word arguably requires only that the employer make the training available. 

Thus, the University has discharged its duty to "provide" the training by making it available.  And the professor's refusal to attend doesn't put him or the University in violation of the law.  So maybe everyone can just let it go and get back to their microbiology research.




New DOL Regs expand FMLA Leave Rights to Include Military Families

The Department of Labor's Wage and Hour Division has just published a Final Rule under the Family and Medical Leave Act. The final rule becomes effective on January 16, 2009, and updates the FMLA regulations to implement new military family leave entitlements enacted under the National Defense Authorization Act for FY 2008

That new law expands the FMLA in two ways for military families. Under the first expansion, spouses, children, parents or nearest blood relatives can take up to 26 weeks of leave under the FMLA to care for a service member who is injured or becomes ill while on active duty. The illness or injury must be severe enough that the service member is unable to perform his or her duties.

Under the second expansion, employees are allowed to take up to 12 weeks of leave when a spouse, child or parent is on active duty in the armed forces or is called up for active duty. Leave is allowed for any “qualifying exigency.”


Sullivan v. Oracle -- Residents of Other States are Entitled to Labor Code Remedies for Work in California

The recent case of Sullivan v. Oracle dealt with the thorny issue of what law should apply to employees whose work carries them across state lines.  The Ninth Circuit held that work performed  in California should generally be governed by California's strict wage and hour laws -- even if the employee is a resident of another state and is only temporarily working in California.

Due to a prior lawsuit Oracle treated its "technical instructors" in California as non-exempt  and entitled to overtime.  Outside of California, however, its instructors remained classified as salaried-exempt.  The "choice-of-law" problem arose when several instructors from Colorado and Arizona performed short term assignments in California.  These individuals filed a class action lawsuit seeking overtime wages under California law. 

In the end, the Ninth Circuit held that the "balance of interests" supported the application of California Law.  As the Court explained: "We fail to see any interest Colorado or Arizona have in ensuring that their residents are paid less when working in California than California residents who perform the same work."

The Ninth Circuit's decision  to apply California law was not particularly surprising.  The interesting part is how it got there -- by holding, in effect, that whichever law allows the employee to be paid more should apply.