News & Analysis

English-only policies are presumptively unlawful under new FEHA regs

California leads the United States in foreign-born and non-English- speaking residents. According to data from the U.S. Census Bureau, almost half of all Californians speak a language other than English at home. Nearly one-third of the state's population is foreign-born (10 million people), which accounts for about a quarter of the foreign-born population in the entire country. As a result, workplace protections addressing national origin require particular attention in the Golden State. Effective July 1, 2018, California's Fair Employment and Housing Council (FEHC) issued new regulations under the Fair Employment and Housing Act (FEHA) that directly address issues like language restrictions at work, immigration status, and national origin discrimination and harassment.

AutoZone worker gets second chance to prove sexual harassment

A California appeals court has ordered a new trial in a sexual harassment lawsuit brought by a female employee against car parts supplier AutoZone Inc. The court of appeal found the trial court made several erroneous evidentiary rulings that harmed the employee's case. In particular, the trial court abused its discretion when it (1) precluded the employee from describing sexually explicit text messages a male coworker allegedly sent her, (2) barred her from relying on evidence of his alleged harassment of four female coworkers when she wasn't present, and (3) permitted the accused harasser to show the jury a photograph of a tattoo of a heart with wings on the accuser's lower abdomen. As the court of appeal concluded in its published opinion, "The trial was essentially a 'credibility contest,' and the trial court's errors cumulatively may well have unfairly 'tipped the balance' in favor of the defense."

Is employer's rounding policy legal under California law?

Employers are required to pay employees for all the hours they work. In the following case, the issue was whether an employer's use of a payroll system that automatically rounds employees' time to the nearest quarter hour violates California law. Both the employer and the employees asked the court to rule in their favor without a trial. The trial court refused, and the employer appealed.

What happens when employer doesn't engage in ADA interactive process

Under the Americans with Disabilities Act (ADA), when an employer is on notice that an employee needs a reasonable accommodation to perform the essential functions of his job, the employer is required to engage in a good-faith "interactive process" with the employee to see if it can make a reasonable accommodation that would allow him to continue working. The question presented in a recent case before the 9th Circuit Court of Appeals (whose rulings apply to all California employers) is, what are the consequences of failing to engage in that process?

School district promptly responded to complaints about students' behavior

A schoolteacher in Hawaii sued the public school system that employed her, asserting three basic claims: She was subjected to disparate treatment based on her race and sex, she was exposed to a hostile work environment, and she was retaliated against after she complained about the harassment. The federal district court in Hawaii concluded the teacher didn't have sufficient evidence to prove any of her claims and dismissed her case. She appealed to the 9th Circuit. The most informative portion of the 9th Circuit's decision for employers focuses on the hostile work environment claim.

Should you be an HR leader?

Whether you are a salesperson or a CFO, you should be thinking about the people in your organization. You may think, "I'm in sales, why should I care about the people in my organization?" or "I'm the CFO, numbers are my thing, not people," but you are dead wrong. It's part of your job to think about your organization and its employees.

Abood: in memoriam

Now that the U.S. Supreme Court has decided Janus v. AFSCME et al. by a 5-4 margin, one of the most heavily anticipated labor law issues in decades is settled. The Court's 1977 decision in Abood v. Detroit Board of Education has been reversed and deemed wrongly decided. Agency shop—a public-sector labor law fixture for more than 40 years—is now unconstitutional and, in the view of the Supreme Court majority, always has been.

9th Circuit says Uber, Lyft drivers might not have right to organize

In 2015, the city of Seattle adopted a first-in-the-nation ordinance that permits independent contractor drivers for ride-share companies such as Uber and Lyft to band together like a union and bargain collectively over their compensation. Uber, Lyft, and a more traditional taxi company—supported by the U.S. Chamber of Commerce—challenged the ordinance.

Fair play in Fairbanks: bargaining in good faith

The Alaska Supreme Court recently issued a rare decision addressing labor and employment issues. In Public Safety Employees Association, AFSCME Local 803 v. City of Fairbanks, the court analyzed an unfair labor practice (ULP) claim filed against the city after it approved a new collective bargaining agreement (CBA) but changed its mind two months later. The court reaffirmed the presumption of regularity that benefits public employers even when they use unusual procedures, and it concluded the city did not commit a ULP.

High court upholds arbitration agreements that bar class actions

In recent years, one of the most highly disputed issues in employment law circles was whether an employer could require employees to waive their right to participate in a class action lawsuit and instead submit employment-related disputes to binding arbitration. Such a requirement has become a common condition of employment contracts, typically entered into at the beginning of an employment relationship, and/or as a condition of continuing employment.