California employment law is changing once again.  By January 1, 2020, an employer having five or more employees will be required to provide at least one hour of sexual harassment training to all of its employees, once every two years. The training will be required to start within six months of the employee’s assumption of

The year 2018 has seen significant shifts in the landscape of gender equality and sexual harassment. Complaints of sexual harassment in California nearly doubled in the first three months of 2018. From January through March 2018, the California Department of Fair Employment and Housing received 939 complaints of sexual harassment. This reflects an increase of

Congress recently passed the 2017 Tax Cuts & Jobs Act which includes Internal Revenue Code §162(q). Specifically, § 162(q) provides:

  • No deduction is allowed for any settlement or payment related to sexual harassment or sexual abuse if the settlement or payment is subject to a nondisclosure agreement.
  • No deduction is permissible for attorneys’ fees related

The Sacramento County Board of Supervisors has approved an Ordinance requiring hotel and motel operators in Sacramento County to provide employees with a panic button or notification device that can be used to call for help when an employee reasonably believes sexual harassment activity is occurring in the employee’s presence. The panic button is designed

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

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.

Background

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.


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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.
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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.
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California has become the third state in the country, after New York and Oregon, to ban sexual harassment and discrimination in the workplace directed toward unpaid interns.

The new law (AB 1443) extends workplace harassment and discrimination protections under the California Fair Employment and Housing Act (“FEHA”) to unpaid interns, volunteers, and individuals in apprenticeship training programs. It will go into effect January 1, 2015.
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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. 
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