Insight & Commentary on California Workplace Law Issues & Developments
Several significant employment law bills relating to sexual harassment are pending before the California legislature which could significantly affect employer practices.
SB-1343 seeks to amend current sexual harassment prevention training for employers. Under current law, employers with 50 or more employees must provide sexual harassment training to supervisors within six months of the supervisor’s assumption…
Employers subject to California’s mandatory sexual harassment training requirement for supervisors will need to ensure their programs include prevention of harassment based on gender identity, gender expression, and sexual orientation following an amendment (SB 396) to California’s Fair Employment and Housing Act (FEHA).
On October 15, 2017, Governor Jerry Brown signed SB 396 into law.…
New California regulations declaring that “[e]mployers have an affirmative duty to create a workplace environment that is free from employment practices prohibited by” the California Fair Employment and Housing Act and that “[e]mployers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct” will go into effect on April 1, 2016.
Continue Reading New California Regulations on Workplace Anti-Harassment, Anti-Discrimination Policies Effective April 1
The California Court of Appeal reversed a $1 million judgment against the City of Los Angeles in a racial discrimination, harassment and retaliation case brought by a firefighter under the California Fair Employment and Housing Act. Jumaane v. City of Los Angeles. After 12 years of litigation and two jury trials, the Court ruled that the firefighter’s claims occurred outside the one-year statute of limitations period and that the “continuing violation” exception to the statute of limitations did not apply.
Continue Reading Reversing $1 Million Judgment against Los Angeles, the California Court of Appeals Ruled Continuing Violation Doctrine did not apply to Firefighter’s Decades-Old Race Discrimination and Harassment Claims
In a recent opinion affirming an arbitrator’s judgment in favor of an employer on various employment law claims, the California Court of Appeal held that an employee agreed to arbitrate all claims against her former employee when she signed an arbitration policy contained in an easy-to-read document distinct from any other document the she signed at the time of her hiring. In doing so, the Court clarified important aspects of the test for enforcing an arbitration agreement signed by a company’s employees.
Continue Reading California Appeals Court Affirms that Employee Signature Acknowledging Clear Arbitration Policy Makes Policy Binding
An employer cannot be held liable for failure to prevent sexual harassment under the California Fair Employment and Housing Act (“FEHA”) if there is no actionable sexual harassment, the California Court of Appeal has ruled. Dickson v. Burke Williams, Inc., No. B253154 (Cal. Ct. App. Mar. 6, 2015). Likewise, a jury’s finding that an employer is not liable for sex discrimination precludes liability for failure to prevent discrimination.
Domaniqueca Dickson, a massage therapist at a spa, sued her employer, Burke Williams, Inc. (“BWI”), for alleged sexual harassment by two customers. She asserted claims for sexual harassment, sexual discrimination, and the failure to prevent sexual harassment and sexual discrimination under the FEHA, among other things.Continue Reading No Employer Liability If There is No Actionable Harassment or Discrimination, California Court Rules
AB 2053 went into effect on January 1, 2015, thereby requiring that California employers with 50 or more employees provide training on the “prevention of abusive conduct” along with the sexual harassment training already required by law.
“Abusive conduct” is defined under California Government Code section 12950.1(g)(2) as the “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” For example, abusive conduct “may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.” Notably, there is no requirement that the abusive conduct be tied to a protected characteristic.
Continue Reading AB 2053: Sexual Harassment Training Must Now Include the “Prevention of Abusive Conduct”
In a case of first impression, Patterson v. Domino’s Pizza, LLC (Cal. Aug. 28, 2014) [124 FEP Cases 994], the California Supreme Court concludes franchising does not automatically create an employment or agency relationship with a franchisor for purposes of holding it vicariously liable for the sexual harassment of a franchisee store’s employee by her supervisor. In a 4-3 opinion authored by Justice Baxter, the Supreme Court holds a franchisor becomes potentially liable for the actions of a franchisee’s employees only if it has retained control over “relevant day-to-day aspects of workplace behavior” of the franchisee’s employees.
Factual Background
The plaintiff Taylor Patterson, a former pizza store employee, brought a sexual harassment lawsuit against her male supervisor, franchisee Sui Juris LLC (solely owned by Daniel Poff) and franchisor Domino’s Pizza, LLP (“Domino’s”). Patterson asserted the franchisor was the “employer” of persons working for the franchisee and the franchisee was the “agent” of the franchisor, arguing the franchisor could be held vicariously liable for her harasser’s alleged breach of statutory and tort law. Plaintiff argued the store manager Rene Miranda sexually harassed her whenever they shared the same shift. He made lewd comments and gestures, and grabbed her breasts and buttocks. After he refused to stop, Patterson reported the problem to her father and to Poff. Patterson stayed away from work for one week, and then returned. She soon resigned. She perceived that her hours were reduced in retaliation for reporting sexual harassment.
Continue Reading California Supreme Court Finds Franchisor Not Vicariously Liable for Sexual Harassment
In a recent opinion with important implications for California businesses, the California Supreme Court held that franchisors are not vicariously liable for the conduct of employees managed by its franchisees.
In Patterson v. Domino’s Pizza, LLC, et al., the plaintiff, a service employee at a Southern California Domino’s Pizza franchise, alleged that she had been sexually harassed by her supervisor, the store’s Assistant Manager. She asserted claims against the alleged harasser, the franchisee, and Domino’s Pizza, the franchisor, alleging that, although she (and the alleged harasser) formally were employed by the franchisee, the franchisor was vicariously liable for her injuries. More specifically, she argued that because the franchisor exercised extensive control over the franchisee’s operations, the franchisee was an “agent” of the franchisor and the franchisor was an “employer” of the franchisee’s employees, subjecting the franchisor to liability for injuries arising out of the employees’ performance of their job duties.
Continue Reading California High Court Rules that Franchisors are Not Liable for Workplace Injuries Inflicted By Franchisees’ Employees
On May 15, 2014, the California Assembly passed a proposed amendment to California’s statute governing sexual harassment training.
Currently, the statute requires employers with 50 or more employees to ensure workplaces are free of sexual harassment by providing training to their supervisory employees at least once every two years. Such training must include information regarding…
