The EEOC’s Harassment Prevention Efforts Should Be Highlighted In The Wake of The Harvey Weinstein Debacle

The headlines in the news these last two weeks involving Hollywood producer Harvey Weinstein has put the spotlight on the issue of sexual harassment in the workplace.  But the Equal Employment Opportunity Commission (EEOC) has been attempting to focus our attention on the issue of workplace harassment for over a year now, when it issued a study of harassment in the workplace, in an effort to “reboot workplace harassment prevention efforts.”  The “Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace” (“the Report”) came out in June 2016, finding that workplace harassment remains a persistent problem and too often goes unreported.   The Select Task Force consisted of two EEOC commissioners as well as outside experts from employer, employee, human resources, academic, and other communities. The focus of the report, authored by co-chairs Chai R. Feldblum and Victoria A. Lipnic, was unwelcome or offensive conduct based on a protected characteristic under employment anti-discrimination law.   The Report noted some interesting statistics regarding the prevalence of harassment-based complaints. In 2015, the EEOC received approximately 28,000 charges that alleged harassment from employees working for private or state or local government employers, and 6,741 charges from federal government employees. Broken down by protected characteristic, sex-based harassment was most prevalent in…

Employers Prevail in Two Recent Age Discrimination Cases In California

They say “40 is the new 30,” and in the U.S. labor market that appears to be the trend.  According to the Bureau of Labor Statistics, by 2024, the median age of the labor force will be 42.4, up from 37.7 in 1994. [Link] Yet under California’s Fair Employment and Housing Act, “40” is a protected class, just like race, gender or disability status. Government Code section 12940 et seq. prohibits an employer from taking adverse employment action against an employee who is 40 years or older because of that employee’s age.   In two recent appellate court decisions, employers were victorious in debunking claims that they engaged in unlawful age discrimination.   In Merrick v. Hilton Worldwide, Inc. [link], a 60-year-old former Hilton Hotel employee brought suit in federal court in San Diego claiming he was terminated from his position as Director of Property Operations at Hilton’s La Jolla Torrey Pines Hotel because of his age. Merrick was terminated as part of the hotel’s reduction-in-workforce that took place due to a decline in revenue. The company considered twenty-nine management level employees for lay off and chose Merrick because his position did not add revenue for the hotel (like food or beverage service), he had limited guest contact so the impact on guests was limited,…

Firm Successes in 2016

2016 was a busy year for MCAQ.  It was so busy we forgot to report some of our noteworthy successes on behalf of our clients.  Here is a recap of the year: January 2016 started out great with a jury verdict in favor of a municipal utility client in a case alleging power theft and breach of contract.  Stephanie L. Quinn and Mariel Covarrubias tried the case to a Sacramento County jury.  Representing the plaintiff, Ms. Quinn and Ms. Covarrubias successfully established that the defendants were responsible for damages arising out of the unlawful diversion of power from a home in Sacramento County that was used to grow marijuana. The trial lasted 7 days. In February 2016, Douglas Alliston and Suzanne M. Nicholson obtained summary judgment against the California Insurance Guarantee Association in a case where CIGA had declined to pay the obligations of an insolvent insurer once the insurer was discharged in its liquidation proceeding. Ms. Nicholson, a certified appellate specialist, is currently defending against CIGA’s appeal. The firm had another trial success in March 2016.  We received a statement of decision and judgment on a residential real estate case in which the plaintiff sued our clients alleging nondisclosure of defects in a high-end Granite Bay residential property sold to the plaintiff. In the…

Murphy, Campbell, Alliston & Quinn a Sacramento law firm

Whose Email Is It Anyway?

Whose Email Is It Anyway? A Recent Decision By The National Labor Relations Board Creates A Presumption Allowing Employees To Use The Employer’s Email System On Non-Working Time To Communicate With Other Employees About The Terms And Conditions Of Their Employment             In a decision issued on December 11, 2014, the National Labor Relations Board overruled an earlier decision and held that where an employer has chosen to give its employees access to the employer’s email system, employees can use the employer’s email on non-working time to engage in communications that are protected by Section 7 of the National Labor Relations Act, including communicating about union organizing.  Prior to this ruling, employees did not have a right to use their employer’s email system for Section 7 purposes, as held by the Board in its 2007 decision, Register Guard, 351 NLRB 1110 (2007). In this most recent decision, Purple Communications, Inc. and Communications Workers of America, AFL-CIO, Case Nos. 21-CA-095151 and 22-RC-091584, the Board found that its decision in Register Guard was incorrect.  The Board noted that “[t]here is little dispute that email has become a critical means of communication, about both work-related and other issues, in a wide range of employment settings.”  The Board found that the employee’s right under Section 7 of the National Labor…

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California Supreme Court Decision Limits Remedies Available to Undocumented Workers in Employment Cases

The California Supreme Court recently issued an opinion limiting the remedies available to undocumented workers under The Fair Employment and Housing Act, California Government Code section 12940 et seq., (“FEHA”).  In Salas v. Sierra Chemical Co., the plaintiff provided a Social Security number and a resident alien card when he applied for a job with the defendant.  He signed a federal Immigration and Naturalization form I-9, under penalty of perjury.  He also signed an IRS withholding form W-4, using the Social Security number given to the employer.  During the course of his employment, he submitted a workers’ compensation claim for an alleged on duty injury.  He later sued Sierra Chemical Company for failure to reasonably accommodate a disability under the FEHA.  He also alleged that the defendant wrongfully denied him employment, in violation of public policy, and that he was retaliated against for filing a workers’ compensation claim and for being disabled. During the course of the litigation, the defendant investigated the authenticity of the documents plaintiff submitted to obtain employment with the defendant and learned that the plaintiff used another man’s Social Security number.  Sierra Chemical moved the trial court for summary judgment, arguing that is was entitled to judgment as a matter of law under the after-acquired evidence doctrine and the unclean hands…

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Ban the Box – Is Statewide Regulation of Private Employers Next?

New Law in California Expands “Ban the Box” Movement to all State and Local Agencies – Is Statewide Regulation of Private Employers Next? For employers looking for qualified job applicants, the prospective employee’s past history is in many respects the best predictor of how they will perform.  As employers, we want to know whether the applicant’s history evidences good work ethic, job dedication, and experience that is transferable to the position.  In many industries, the applicant’s criminal history is also an important part of assessing an applicant’s fitness for a particular position.  But a movement is sweeping the country that is changing the landscape for how public and private employers screen job applicants. The movement is generally known as “Ban the Box”.  It was conceived by an organization in San Francisco whose mission was to open doors for convicted felons seeking to reenter the job market after jail or prison.  (See bantheboxcampaign.org.)  The concept is simple – letting those with criminal convictions get their foot in the door and ultimately obtain gainful employment benefits society as a whole.  It is no surprise that ex-convicts who are unable to find jobs after being released from prison are more likely to re-offend than those who obtain work.  However, the realities facing employers in this litigious society should…