California Labor and Employment Defense Blog : California Employment Lawyer & Attorney : Van Vleck Turner & Zaller Law Firm : Wage and Hour Class Actions : Serving Los Angeles, San Diego, San Francisco

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.

    

 

  

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I recently founded the California Human Resources Networking Group in LinkedIn. I’ve found that LinkedIn is becoming more and more popular with human resource professionals as well as legal professionals, so I created the group in order to promote HR related discussions specific to California.

To join, visit the California Human Resources Networking Group page in LinkedIn, or drop me an email and I will approve your request. There are no particular qualifications required to join - only a need for a better understanding of California's employment laws.

The group is devoted to discussing questions about human resource and other employment law issues that arise in California.

If you know of anyone else that would find the group beneficial, please send them to the group.

To get things started, I will be conducting a free webinar for the group in early October on how to use the Internet to conduct background checks on applicants and/or employees without creating liability for your company. More information to come.
 

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Rush Nigut wrote recently about five common mistakes he see employers make in drafting sexual harassment policies.  Rush makes very good points, here are a few highlights:

• The written policy does not provide and communicate in writing multiple channels for the complaint procedure. Employees should be able to report harassment to more than one person within the company. The complaint process should be clearly defined in your employment manual.
• Supervisors are not trained each year and supervisors are not required to report harassing conduct. Consequently employers often miss out on a possible defense in any lawsuit.
• Once notified of harassing conduct employers fail to take immediate action to investigate. Employers have the attitude that the employee must "deal with it." Complaints of harassment are often not taken seriously.
  

Rush's post is a good reminder for employers, and the entire post can be read here.  Don't forget, California employers with 50 or more employees must provide two hours of sexual harassment prevention training to their supervisors and managers every two years.  This requirement started in 2005.

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The long-running tragedy of the Catholic clergy abuse scandal has, by now, become a lurid fixture of our popular culture. (On a non-sectarian note, a large number of abuse cases are pending against Protestant clergy as well). The recently announced $660 million dollar abuse settlement by the Los Angeles Archdiocese has once again put these cases in the media spotlight. 

Yet, despite their religious context, these clergy abuse claims are not unlike the lawsuits for sexual harassment routinely faced by California employers. At their core, all such claims are premised on the allegation that the employer (whether secular or religious) should be held liable for the bad acts of its employees (or other agents). Thus, aside from the threshold question of whether the misconduct actually occurred in the first place, employer liability in the secular realm will turn on the same set of questions:

• Was the misconduct closely related to the workplace or the employee’s job duties?
• Was the employee a supervisor or highly placed manager?
• Did the employer have advance notice that the employee could pose a risk to others? 
• Did the employer take reasonable steps to prevent the employee’s misconduct before it happened? 
• Did the employer investigate and discipline the wayward employee, or did it implicitly “ratify” the conduct after-the-fact by turning a blind eye?

Depending on the answers to these questions, any California employer could find itself legally liable for an employee’s sexual misconduct. For example, the California Fair Employment and Housing Act (the “FEHA”) imposes strict vicarious liability against the employer for any sexual harassment (which may arise from conduct running the spectrum from offensive language to rape) perpetrated by a supervisor.

In the recent case of Myers v. Trendwest Resorts, Inc., 148 Cal.App.4^th 1403, (2007), a California Appellate Court held that “in order for the employer to avoid strict liability for the supervisor's actions under the FEHA, the harassment must result from a completely private relationship unconnected with the employment.” Id. at 1421 (emphasis added). Thus, even where the conduct occurs away from work and outside of working hours, employers are likely to be found liable for supervisor sexual misconduct toward other employees so long as there is even the slightest connection to work.  Id. at 1424. 

An employer may also be liable for the sexual misconduct of its employees toward customers or members of the public if it “knew or should have known” of the danger posed by the employee yet failed to take reasonable steps to prevent the assault or other misconduct from occurring. See Randi W. v. Muroc Joint Unified School Dist., 14 Cal.4^th 1066 (1997).

Thus, to avoid the fate of the besieged archdioceses around the country, the same sound advice pertains to any entity with employees – screen your employees in order to avoid obviously bad hiring decisions, have a well-publicized policy against harassment or misconduct, train your employees to identify and report misconduct, and take prompt remedial action rather than attempting to cover up any resulting complaints. 

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This Business Week article about the human resources so-called confidentiality guideline known as the "Need to Know" standard raises a great point many companies could benefit from. The main topic of the article is how HR professionals may inadvertently (or no so inadvertently) disclose information that they said they would only disclose to people who “need to know.”

However, from a legal perspective, and my mantra during sexual harassment prevention training, is that when an employee complains that they or a co-worker is “uncomfortable” with another employee’s behavior or may be a victim of harassment, the HR professional (or supervisor) cannot and should not promise absolute confidentiality. A company has a duty to investigate any potential harassment, and this duty usually falls upon the HR manager. A proper investigation requires speaking to the victim, witnesses, and usually the alleged harasser as well. This probably also requires the disclosure of information reported to the company by the alleged victim. This is not to say that the company can and should not closely guard the facts of the allegation, but promising confidentiality up front can put the company and HR professional in an awkward position because absolute confidentiality cannot always be maintained.

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The U. S. Department of Labor’s Wage and Hour Division website provides a self assessment tool for restaurants that employ minors. The assessment covers common violations of the Fair Labor Standards Act (FLSA ). Restaurant owners should note that this assessment does not cover California state law items. The assessment covers items that the DOL found in the past to be some of the most common problems encountered in restaurants, and therefore, are likely issues a DOL investigator will look for in a restaurant.

Here is a list of a few of the items covered in the assessment:

Do any workers under 18 years of age do the following:
1. Operate or clean power-driven meat slicers or other meat processing machines?

2. Operate or clean any power-driven dough mixer or other bakery machines?

3. Operate, load, or unload scrap papers baler or paper box compactors?

4. Drive a motor-vehicle on the job?


Do any workers under 16 years of age do the following:
5. Cook?

6. Bake?

7. Clean cooking equipment or handle hot oil or grease?

8. Load or unload goods from a truck or conveyor?

9. Work inside a freezer or meat cooler?

10. Operate power-driven bread slicers or bagel slicers?

11. Operate any power-driven equipment?

12. Work from ladders?

13. Work during school hours?

14. Work before 7:00 a.m. on any day?

15. Work past 7:00 p.m. between Labor Day and June 1?

16. Work past 9:00 p.m. between June 1 and Labor Day?

17. Work more than 3 hours on a school day, including Fridays?

18. Work more than 8 hours on any day?

19. Work more than 18 hours in any week when school was in session?

20. Work more than 40 hours in any week when school was not in session?

21. Do you employ any workers who are less than 14 years of age?

22. Do you fail to maintain in your records a date of birth for every employee under 19 years of age?

Click here to take the entire assessment. At the end of the assessment, there is a rules summary that explains an employer’s responsibility under the FLSA for the issues on the assessment.

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