Employer Liability Archives - Page 9 of 12

Taylor v. Nabors Drilling and California’s SB 292 Clarify that Sexual Harassment Need Not Be Motivated by Sexual Desire

On January 13, 2014, the California Court of Appeal decided in Taylor v. Nabors Drilling USA, L.P., 222 Cal. App. 4th 1228 (2014), that a person may maintain an action for sexual harassment when subjected to verbal attacks on his or her heterosexual identity, regardless of whether the attacks were motivated by sexual desire. This ruling came soon after the implementation of SB 292, which became effective in California on January 1, 2014. This bill revised the definition of sexual harassment under California Fair Employment and Housing Act (“FEHA”) to specify that sexually harassing conduct “need not be motivated by sexual desire.” As a result, to prove harassment “because of sex,” plaintiffs need only show that there was evidence that gender was a substantial factor in the harassment.

Both Taylor and SB 292 explicitly reject the view adopted by the California Court of Appeal in Kelley v. Conco Companies, 196 Cal. App. 4th 191 (2011), which held that a plaintiff failed to prove sexual intent because there was no evidence that heterosexual harassers sexually desired the male plaintiff. The court made this decision despite the fact that the defendant and coworkers in Kelley used “graphic, vulgar, and sexually explicit” language to express sexual interest and solicit sexual activity from the plaintiff.

Taylor and SB 292 resolve any ambiguity created by the Kelley decision, and make clear that a showing of sexual desire is not an essential element of a claim of sexual harassment—thereby affirming and solidifying California authority published before Kelley. Thus, it is clear that a plaintiff may establish an inference that an alleged harasser’s conduct is sexual by producing: (1) evidence of the alleged harasser’s sexual desire; (2) evidence that the alleged harasser is motivated by general hostility towards the particular gender of which plaintiff is a member; or (3) comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.

These developments in California sexual harassment law have important consequences for employers. To avoid a greater occurrence of suits, employers must now scrutinize offensive comments by same-sex employees objectively, based on the content of the remarks, not the intent of the speaker. Employers can minimize liability through adequate complaint protocols, instituting zero tolerance policies, and encouraging employees to report any inappropriate workplace behaviors. These actions may prevent alleged harassing conduct from being deemed sufficiently severe or pervasive. Employers should also stress that bullying, such as the use of homophobic epithets to heterosexual employees (Taylor), subjects the employer to liability. Accordingly, employers should update their policies and handbooks to reflect the change, as well as provide employees relevant information and a copy of the updated policy. Lastly, employers may consider additional training for supervisors or issuing a memo, advising them of SB 292 and their responsibilities to administer policies in conformity with the new law.

Obligations for Employers Before, During and After a Storm

As cleanup from the Nor’easter that pummeled the East Coast last week continues, and the prospect of more snow looms, we hope that you and your families, as well as your businesses and employees, are safe and warm and that the lights are on. As this has been one of the more problematic winters in recent memory, we wanted to remind employers of some of their obligations before, during and after a storm.

Temporary Closings

Unless your agreements or policies provide otherwise, you are generally not required to pay non-exempt employees when they are not working. Therefore, if your business is closed and your employees do not report to work, you are not obligated to pay non-exempt employees. However, make sure that these employees are not checking work e-mails, communicating with supervisors about work-related issues or otherwise working from home, because non-exempt employees are entitled to receive pay for these activities even if they do not physically report to work.

Note that some states require an employer to pay employees for reporting to work, even if the business closes and the employer sends them home. For example, a New Jersey employer must pay employees who report to work at least one hour of pay. A New York employer must pay employees who report to work at least four hours of pay (or the number of hours in the scheduled shift if it is less than four hours). With regard to exempt employees, they are generally entitled to receive their full salaries, even if the business is closed – at least if the shutdown lasts for less than a week. If a business is closed for an entire week and an exempt employee performs absolutely no work during that time, the employer is generally not required to pay the employee for the week.

When a business is temporarily closed, the employer can require exempt employees to use accrued vacation time for the time off, but this requirement should be set forth clearly in the Employee Handbook and any employment contracts.

Cleanup

After a storm passes, employees whose homes remain without power, who are repairing damage to their property or whose children’s schools remain closed, may seek additional time off from work. While an employer that can afford to do so may allow additional flexibility to these employees in order to give them peace of mind and boost their loyalty and morale, these requests may otherwise be handled pursuant to the employer’s contracts and policies.

Other Issues

In addition to the above general points, employers should also be aware of state laws that affect certain employees and certain industries. For instance, in New York and New Jersey, the prohibition against mandatory overtime for health care personnel includes an exception for a declared state of emergency. New Jersey also provides protections for employees who miss work because of their responsibilities as volunteer first responders.

Conclusion

Extreme weather and natural disasters that disrupt business create big headaches for employers and employees. We recommend clear and consistent communication with your employees to avoid confusion about your expectations. Also, maintaining sound employment policies and consulting with counsel when issues arise is critical for avoiding additional headaches resulting from ensuing workplace legal liability.

Special Rules Apply To Documents With Employee Protected Health Information

Editor’s Note: The following post by Heather Abrigo, Counsel in the Los Angeles office, appears in the latest issue of the California HR Newsletter.

Special Rules Apply To Documents With Employee Protected Health Information

The Issue: Must an employer safeguard documents containing employee protected health information (PHI) in any special way?

The Solution: Yes. An employer must adopt privacy policies or procedures related to employee PHI. These policies should include controls over who has access to the documents (physically and electronically).

Analysis: Under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), employers must prevent the unauthorized disclosure of protected health information (PHI). This will primarily affect those employers that sponsor self-insured health plans, cafeteria plans with a flexible health spending account component, offer on-site health clinics, and/or that offer significant hands-on help to employees in connection with their group health plans (e.g., handling benefit claims).

Employers subject to the HIPAA privacy rules should have written privacy procedures in effect that safeguard all documents with PHI. This includes the administration of the PHI (e.g., who needs access to such information to administer the health plan, entering into business associate agreements with any third-parties who might handle, and training employees who may handle, PHI as part of their duties). The written privacy procedures should also address other safeguards of PHI (whether in paper or electronic form) including physical safeguards (e.g., workstation use/security) as well as technical safeguards (e.g., person authentication and transmission security).

If you are unsure whether these rules apply and you sponsor any of the aforementioned plans, please contact your benefits lawyer.

Practical Tips for “Bring Your Own Devices” (BYOD) Policies and Practices

Editor’s Note: The following post by San Francisco Partner Cheryl Orr appears in the latest issue of the California HR Newsletter. To view the entire newsletter click here. To sign-up to receive the California HR Newsletter click here.

Practical Tips for “Bring Your Own Devices” (BYOD) Policies and Practices

The Issue: What do employers need to do to minimize risks (privacy, security, safety and wage and hour) caused by use of personal smart phones and tablets in the workplace?

The Solution: Employers can minimize their risks by:

Drafting clear and consistent policies that cover all technologies and servers used;
Having employees sign requests granting them access to the company’s systems and acknowledging when they can be wiped;
Confirming in writing that all information accessed through the company’s systems is confidential and company property and can be wiped if lost or stolen;
Ensuring compliance with the company’s codes of legal and ethical business conduct; and
Addressing when employees can use their devices for work and how they will be paid for this time and any associated reimbursable expenses.

Analysis: Employees can inadvertently expose their employers to loss of confidential or trade secret information, create liabilities when inappropriate material on their devices is shared and blur the lines between work and personal time in a way that could be compensable. By following the above practical tips, employers can protect both themselves and their employees. Our team regularly assists with developing BYOD policies and/or training personnel on how to implement should you need further guidance.

Lynne Anderson Quoted in Miami Herald Story on Miami Dolphins Bullying Incidents

Lynne Anderson, partner in the firm’s Florham Park office, was quoted in a story that appeared in the Miami Herald regarding the recent incidents of bullying on the Miami Dolphins football team and the potential for the victim of the bullying, Jonathan Martin, to bring legal action against the team and its coaching staff.

Lynne addressed the possiblity of Martin bringing a suit against the team based on Martin belonging to a protected class. “If Martin can prove he was harassed because of his race – and Incognito’s vile voice messages might be the proof he needs…” But, being a member of a protected class is only the first step for bringing a claim against the team as Lynne added, “he also has to show that it [the bullying] was unwelcome behavior”.

Lynne also addressed the chance that even if the team was not aware of the bullying that legal action could be brought against the team’s coaching staff itself. “If the coaches were aware that this kind of conduct was going on among the team, that by itself would be enough to give rise to a complaint.” Lynne went on to further explain, “The law does not recognize a stick-your-head-in-the-sand defense for unlawful harassment”.

Cheryl Orr Quoted on Illinois Medical Marijuana Law Story in Chicago Tribune

San Francisco Partner Cheryl Orr was quoted in a recent story in the Chicago Tribune on Illinois medical marijuana law and the legal implications for Illinois employers whose policies are at odds with the law. Some of the issues Illinois employers will need to confront include reconciling their drug-free work place policies with patients’ rights, what they can ask job applicants, how to deal with an impaired employee and whether or not an employer can punish an employee for engaging in what is now deemed to be a legal activity.

Cheryl submitted that the Illinois statute may offer civil employment protections for workers. One provision of the Illinois law appears to narrowly tie the ability to discipline a medical marijuana patient for failing a drug test to those employers who are specifically connected to federal work or funding. This framework, Cheryl wrote, “creates a plausible argument that the statute does provide protections” for medical marijuana users in the private sector.

LaborSphere previously looked at employer liability under the Illinois law, and other states who have laws providing for some form of legalized medical marijuana, and will continue to follow this ever evolving area of law.