HR and Law second half
Ch 14 Reasonable Accommodation "Undue Hardship"
"Undue hardship" is where an accommodation is unduly costly, extensive or substantial such that it would fundamentally alter the nature of the business or organization.
Chapter 13 Sexual Harassment - Quid Pro Quo
("this for that")- actual or implied benefit in exchange for sex, or actual or threatened detriment for refusing sexual advances; usually by a supervisor - Problem with supervisor-subordinate dating relationships - Socializing after work can lead to problems
Ch 14 Reasonable Accommodation Not required to hire or retain an employee who poses a direct threat to the health or safety of self or others-
- "Direct threat" is a significant risk that cannot be eliminated with a reasonable accommodation - Risk must be current, not speculative or remote - Risk must be based on objective criteria (including reasonable medical judgment), not irrational fears or stereotypes
Chapter 12 Types of Discrimination Examples of Disparate Impact
- A blanket policy of not hiring job applicants with criminal convictions regardless of the relevance of the conviction to the job - A requirement that all applicants have a high school diploma or college degree when the job does not require a diploma or degree
Chapter 12 Sex Discrimination - Equal Pay - SB358 Must show the wage differential is based on:
- A seniority system, - A merit system, - A system that measures earnings based on quality or quantity of production, or - A bona fide factor other than sex, such as education, training, or experience
Ch 14 Reasonable Accommodation "My Disability Made Me Do It!"- Accommodation of Misconduct
- Accommodation of misconduct relating to a disability may be required in some circumstances - Violence or threats of violence need not be accommodated - Undue hardship standard applies to other types of misconduct; look to whether accommodation of the misconduct compromises the nature of the job or the organization (example: emotional outburst behind closed doors versus in presence of customer or client)
Chapter 12 Discrimination Minimum number of employees for coverage:
- California Fair Employment and Housing Act: 5 or more employees for discrimination or retaliation; 1 or more employees for harassment - California Constitution prohibits discrimination based on sex, race, color, religion and national or ethnic origin; no minimum number of employees
Ch10 Monitoring Telephone Conversations
- California law requires consent of all parties - Consent will be implied if employees are notified in writing that calls may be monitored - Outside callers must also be notified; this is not usually feasible for outgoing calls - Monitoring of employee voicemail is allowed if employees are notified that monitoring might occur
Chapter 12 Sex Discrimination Height and Weight standards must be job related and consistent with business necessity
- Can apply different standards to men and women so long as they are proportionally equal - Discrimination based on appearance or attractiveness is not unlawful so long as no other protected category (e.g. age, disability) is involved
Chapter 12 National Origin Discrimination Laws Protecting Undocumented Immigrants:
- Cannot require applicant or employee to have a driver's license unless driving is included in job duties - May not discriminate against applicant or employee based on their having a driver's license for undocumented immigrants - May not take adverse action against employee who updates personal info based on a lawful change of name, SSN, or employment document - Person's who cannot produce required documents for I-9 need not be employed - Employees whose work authorization documents expire should be suspended or terminated
Ch11 Trade Secrets No general restriction against hiring employees of competitor, but:
- Cannot use trade secrets - Cannot use fraudulent or deceptive means - Cannot knowingly hire employees who are under contract for a specific term
Chapter 12 Sex Discrimination- Equal Pay - SB358
- Changes the burden of proof - Eliminates the requirement that comparators work in the same establishment - Makes it unlawful for an employer to prohibit employees from disclosing their wages, or discussing or inquiring about other employees' wages
Ch 14 Disability Discrimination Major life activities continued
- Concentrating - Reading - Interacting with others - Communicating - Working - Operation of a major bodily function (such as immune, digestive, Genitourinary, cardiovascular, endocrine, musculoskeletal, reproductive systems) - Interacting with others- requires more than inability to get along with the boss or co-workers; a profound limitation on person's ability to function socially is required - Working- can apply to a particular job or a broad range of jobs
Chapter 12 Marital Status Discrimination
- Covers married, unmarried status, divorce, widowhood, etc - Cannot have a rule that prohibits employment of spouses, but you can prevent one spouse from supervising the other or refuse to place both spouses in the same department or facility where there is a good business reason relating to supervision, safety, security, or morale
Chapter 12 Age Discrimination
- Covers persons who are age 40 and over - Not illegal to favor older employees over younger ones - Use of salary as criterion for choosing employees for layoff may be illegal age discrimination if it adversely impacts older employees as a group
Ch 14 Disability Discrimination Drugs and Alcohol
- Current users of illegal drugs are not protected by FEHA or ADA - Current alcoholics are covered, provided they can perform essential functions of job and to not pose a direct threat to themselves or others - Person's who have completed alcohol or drug rehab and no longer use drugs or abuse alcohol are protected - "One strike" rules (I.e., fail a drug test and never be eligible to work for this company) are lawful
Ch 14 Disability Discrimination Physical Disability also includes:
- Deafness - Blindness - Missing limbs - Mobility impairments - Cerebral palsy - Chronic or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, diabetes, multiple sclerosis and heart disease
Ch10 Monitoring E-mail and Internet Usage continued Employer cannot require employees to:
- Disclose user name or password for social media - Access social media accounts in the presence of employer - Divulge any personal social media - Social media includes personal text messages, e-mails and websites - Employer may require employees to disclose usernames and passwords where: - Investigation of employee misconduct or violation of law - For accessing an employer-issued device
Chapter 12 Employment Discrimination What is "Discrimination"?
- Discrimination simply means making a choice - Examples: choosing to hire Applicant A vs. Applicant B, or terminating Employee C but not Employee D - Discrimination is only unlawful if it based on protected category
Chapter 13 Failure to Prevent Harassment
- Distribute policy against harassment - Distribute DFEH pamphlet on harassment - Post required DFEH poster - Promptly and objectively investigate all complaints of harassment - Take prompt and corrective action where unlawful harassment occurs - For employers of 50 or more employees, provide training on harassment and discrimination for all managers and supervisors every 2 years
Ch10 Searches of Employees (Starred)
- Do employees have a "reasonable expectation of privacy"? - you can negate that expectation by providing advance notice that employees and their vehicles, purses, briefcases, backpacks, toolboxes, etc. are subject to search while on company property - Do not physically force a search - terminate employee for refusal to cooperate
Chapter 12 Sex Discrimination - Equal Pay - SB358 Employer must show wage differential involving:
- Employee of the opposite sex - Performing substantially similar work, when viewed as a composite of skill, effort and responsibility, and - Performed under similar working conditions
Ch 14 Workers Compensation Disability Discrimination Laws Apply:
- Employees on workers' comp leave have same rights as employees with non-work related disabilities - Interactive process applies to employees on workers comp leave - "Permanent disability" rating in WC system does not mean that employee cannot perform any work; must undertake interactive process to determine employee's limitations and whether any vacancies exist - Cannot have a "100% healed" policy; if employee can return with restrictions you must determine whether restrictions can be accommodated
Chapter 12 Types of Discrimination Direct Evidence
- Employer admits discriminatory motive - Example: "This job is too dangerous for a pregnant woman, so we are going to have to let you go." - Direct evidence cases are rare
Chapter 13 Sexual and Other Unlawful Harassment Employer Liability
- Employer is strictly liable for harassment by managers and supervisors (this includes being aware of harassment and not doing anything to stop it) - Employer is only liable for co-worker or third party harassment if it knew or should have known about the harassment and failed to correct it
Ch10 Video and Audio Recording of Employees
- Employers may not video- or audio-record restrooms or changing rooms without a court order - Video surveillance of employees in work areas is OK with prior notice - May not trespass on employee property to make video-or audio-recording of "personal or familial activity"- may apply to investigation of leave fraud or violation of non-fraternization policy, but observation from public areas is OK
Chapter 12 Sex Discrimination -Equal Pay
- Equal Pay Act has existed since 1949 in California and since 1963 under federal law - Both laws prohibit employers from paying employees of one sex more than employees of the other sex in the same establishment for equal work on jobs requiring equal skill, effort and responsibility and performed under similar working conditions - Because of the difficult burden of proof, few Equal Pay Act lawsuits were filed
Chapter 12 Age Discrimination Mandatory Retirement Age Not Allowed Unless:
- Firefighters and police officers - Age 70 for tenured faculty at colleges and universities - Age 65 for employees who worked in an executive capacity at least 2years before retirement and who will receive a retirement benefit of at least $44,000 annually - Voluntary retirement incentives are lawful
Chapter 12 Types of Discrimination Examples of Disparate Treatment:
- Firing one employee for failing a drug test but giving another employee who failed a drug test a "last chance". - Firing one employee for not meeting sales quota but not firing other employees who missed their quotas. - Firing an employee for an outburst against a supervisor but only warning another employee for a similar outburst
Ch 14 Disability Discrimination
- From enactment of ADA in 1990 until 2008, many ADA plaintiffs were found not disabled enough to qualify for ADA protection or too disabled to do their jobs - Purpose of ADA Amendments Act of 2008 was to shift focus in litigation from whether plaintiff is disabled to whether defendant discriminated or failed to accommodate
Chapter 13 Harassment - Preventative Steps Policy Against Harassment
- Given to every employee at time of hire and at regular intervals thereafter - In other languages if employees cannot read English - Policy must describe types of harassment prohibited - Policy must state prohibition against retaliation - Must provide multiple options for complaining, not just to a supervisor; "hotline" number is recommended
Chapter 13 Sexual And Other Unlawful Harassment Personal Liability for Employees
- Harasser may be held personally liable for unlawful harassment; no right to indemnity from employer - No personal liability for merely knowing about harassment and failing to stop it - No personal liability for discrimination and retaliation
Chapter 13 Harassment
- Harassment is only unlawful if it is based on a protected category and otherwise meets the test - "Harassment that is the result of personal dislikes, abrasive personalities, office politics, a micromanaging supervisor, or employee discipline is not unlawful unless tied to a protected category." - The legal definitions of "harassment" and "hostile" work environment require more than just an unpleasant boss or gossipy co-workers
Chapter 12 Gender Discrimination
- Includes gender identity and gender expression - Gender identity means a person's identification with a gender different than their sex at birth - Gender expression means a person's gender-related appearance or behavior whether or not associated with the person's sex at birth - Protects transgender applicants and employees - Surgery or hormone treatment are not necessary to qualify as transgender
Chapter 12 Religious Discrimination Employees do not have a right to inflict their religion on others at work
- Includes quoting scripture in emails or posting religious posters - Includes criticism of others' lifestyles or moral choices (same-sex relationships, sex outside of marriage, abortion, contraception,etc.)
Chapter 12 Race Discrimination
- Includes skin color and characteristics associated with race such as hair or beards - Applies to employees who associate with (or marry) those of a different race - Reverse race discrimination is also illegal
Ch11 Definition of "Trade secret"
- Information, such as a formula, pattern, compilation, program, method, technique, device or process, that - Derives independent economic value from not being generally known to the public or competitors, and - Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Ch 14 Disability Discrimination Other ways to qualify as disabled:
- Is regarded or perceived as disabled Example: employee with depression can perform without accommodation but employer rejects her under the belief that she cannot perform the job. - Has a record or history of a disability Example: Substance addiction, cancer or mental illness that is in remission - Has a special education disability that requires or has in the past required special education Example: Brain injury, dyslexia
Ch10 GPS Tracking
- It is unlawful to use GPS tracking device (such as on a smart phone) to track the whereabouts of employees, even on a company-provided phone - GPS tracking devices may be installed on company-owned or leased vehicles
Ch11 Trade Secrets May require employees to sign Confidentiality Agreement:
- Keep trade secrets confidential - Agreement not to compete while employed - Agreement to return all employer property upon termination of employment - Agreement not to use trade secrets to solicit customers; requires more than merely contacting customer - Agreement not to recruit employees; must be limited in time and may not prohibit hiring - Assignment of interest in inventions - Representation of no prior agreements or restrictions
Chapter 12 Sex Discrimination Dress and Grooming Standards
- May have different dress or grooming standards for men and women where there is a good business reason and neither sex is unequally burdened compared to the other sex - Rule that requires women but not men to wear makeup is legal
Chapter 12 Sex Discrimination - Pregnancy
- May not discriminate based on pregnancy or perceived pregnancy - Pregnant employee is entitled to reasonable accommodations if prescribed by her health care provider - Cannot require a pregnant employee to take a leave of absence - Cannot transfer a pregnant employee to another position unless she is on a reduced work schedule or intermittent leave
Ch10 Social Security Numbers (Starred)
- May not show more than last 4 digits on pay statement - May not mail documents to employee containing whole SSN unless required by state or federal law (e.g.,W-2) - If SSNs stored electronically without encryption, must promptly notify employees in event of security breach - If employer is source of breach, must offer 1 year of identity theft protection
Ch 14 Medical Exams and Inquiries
- Medical exams include physical exams, blood pressure and cholesterol screening, vision tests, tests for alcohol use, diagnostic procedures such as X-rays and CAT scans, and psychological tests designed to diagnose mental disorders - Medical exams do not include drug tests, physical agility tests or personality tests
Ch10 Drug Testing continued
- Medical marijuana use is not a valid excuse for failing a drug test - Current use of illegal drugs is not covered by ADA - No "my disability made me do it" defense - If employee comes forward and admits drug or alcohol problems before failing test and seeks leave for rehab, leave must be granted unless it would cause an undue hardship
Ch9 Restrooms
- Must provide restrooms for employees - Where 5 or more employees are not of the same gender, separate restrooms must be provided for each gender
Ch10 Employee Privacy Rights Constitutional Rights
- No rights under U.S. Constitution for private sector employees - No "freedom of speech" - Public sector employees have due process rights - California constitutional right to privacy applies to private businesses and employees - Personnel and medical records
Chapter 12 Medical Condition Discrimination
- Not all medical conditions are covered - Only cancer and genetic characteristics are covered
Chapter 13 Sexual Harassment
- Not all sexual language or conduct at work is unlawful sexual harassment, but company policy against harassment should be zero tolerance for unlawful harassment - Laws against harassment apply after hours as well as during working time, especially where a manager is involved - Beware of managers and subordinates socializing together after hours - Same-sex harassment is unlawful - No requirement that harasser desire to have sex with the victim of harassment - If conduct is welcomed by the complainant, the conduct will not be illegal, but be wary of "she asked for it" excuse; active instigation is required, not merely going along with it
Chapter 12 Discrimination Some adverse employment action is required-
- Not just "ultimate acts" such as failing to hire, firing, demoting or failing to promote - But must be a substantial adverse change to employee's working conditions - If a change only angers or upsets an employee it does not qualify
Ch10 Drug Testing continued Post- Accident Testing
- Permitted unless accident could not have been related to drug use - Do not have a rule that every drug- related injury required drug testing - potential for workers' comp retaliation (Labor code sec. 132a)
Ch10 Drug Testing (Starred)
- Prohibit employees from coming to work with drugs in their system, not "under the influence" - Describe when testing will occur - Describe consequences of testing positive or refusing to cooperate Pre-Employment Testing - not considered a "medical examination" under ADA, so you can test prior to making an offer, or make offer conditional on passing drug test Don't fall for excuses - I went to concert, I'm taking antidepressants, Hire a druggie anyway? Reasonable Suspicion Testing - must have objective evidence to suggest drug use: - Erratic behavior - Physical manifestations - Reliable report of recent drug use
Chapter12 Military or Veteran Status Discrimination
- Protects current military and military veterans - Intended to prohibit discrimination in hiring against veterans out of concern that they may be too old, not willing to take orders from younger supervisors, or suffering from PTSD or other service-related conditions
Chapter 13 Other Unlawful Harassment - Slurs, jokes, insults, emails, cartoons, physical assaults and threats; examples include:
- Racial slurs (the "n" word) - Other ethnic slurs - Jokes or insults about "illegal aliens" - Jokes or insults about Arabs or Muslims ("************," "terrorist") - Jokes or insults directed at gay people - Jokes or insults about disabled ("retard") -Practical jokes involving nooses or graffiti - Physical altercations based on race or ethnicity No "free speech" right to use slurs or insults in the workplace
Chapter 12 Religious Discrimination Religious Organizations and Corporations
- Religious organizations may discriminate in favor of their own religion when hiring for jobs where the practice of or belief in the religion is a legitimate job requirement ("ministerial exception") - Religious corporations are exempt from state anti-discrimination laws in California but not from federal laws.
Chapter 13 Harassment- Preventative Steps Supervisor Training
- Required for all supervisors of employers of 50 or more employees - Required every two years, or within 6 months of hire or promotion - Training must be two hours in length - Training must be interactive; cannot just be a video - Must have means for participants to ask questions - Must include training on "abusive conduct" (bullying) even though bullying is not illegal
Ch9 Smoke-free Workplaces
- Smoking is not allowed in enclosed spaces in the workplace, including stairwells and restrooms. - Non-employees who smoke in a workplace must be requested not to do so. - May provide ventilated smoking break rooms or outdoor smoking area but not required to do so
Ch 14 Disability Discrimination The applicant or employee has burden of proving that they are "qualified" to perform the job in question. This means:
- They have the required skill, experience, education or other requirements for the job, and - They can perform the essential functions of the job with or without reasonable accommodation
Chapter 12 Religious Discrimination Employer must reasonably accommodate employee's religious beliefs or practices unless undue hardship would result
- Time off for Sabbath or holy days - Religious dress such as head coverings or jewelry - Religious grooming such as hair or beards - May not segregate employees from other employees or the public on account of religious dress or grooming - Safety or operations concerns may make accommodation impractical
Ch 14 Disability Discrimination Conditions excluded from coverage:
- Voyeurism - Exhibitionism - Pedophilia - Compulsive gambling - Kleptomania - Pyromania - Psychoactive substance use disorders that result from the current use of illegal drugs - Mild, temporary conditions such as colds and flu, minor cuts, sprains, aches and bruises, non-migraine headaches, and minor gastrointestinal disorders.
Ch 14 Disability Discrimination Major Life Activities-
- Walking - Lifting - Bending - Performing manual tasks - Caring for oneself - Seeing - Hearing - Speaking - Breathing - Sleeping - Reproduction - Learning - Thinking
Ch9 Changing and Break Rooms
- Where employees must change clothes as part of work, changing rooms must be provided - Break room or resting area must be provided apart from restrooms
Ch 14 Reasonable Accommodation Examples of Reasonable Accommodations
1. Making facilities accessible (e.g., restrooms, parking) 2. Providing assistive aids and services - Employer need not provide personal items such as eyeglasses or hearing aids 3. Modifying examinations, training, materials or policies - Not required to lower or eliminate performance criteria - Not required to tolerate disruptive or dangerous behavior 4. Modifying supervisory methods - Not required to provide a new boss to an employee who cannot get along with her current boss 5. Job restructuring to eliminate non-essential function - Need not eliminate essential functions - Need not eliminate job stress
Ch 14 Reasonable Accommodation Interactive Process
1. Must start when employee requests an accommodation or the need for an accommodation is apparent 2. Is an ongoing process; if the first accommodation fails, interactive process must continue until all possible accommodations are exhausted 3. Requires exchange of views; employer must consider employee suggestions but may choose best accommodation 4. Where the disability or need for accommodation is not obvious, the employer may require the employee to provide medical documentation 5. Process must be well-documented because if it is not successful, employee is likely to claim that employer did not do enough to find accommodation
Ch 14 Reasonable Accommodation Examples continued
6. Reassignment to a vacant position for which employee is qualified - Applies only to existing employee who cannot return to old job, not to new applicants - If disabled employee is qualified for vacancy, you cannot choose a more qualified outside candidate 7. Part-time or modified work schedules - Need not accommodate erratic attendance or unannounced absences 8. Unpaid leave or extension of FMLA/CFRA leave - Leave must be granted only if purpose is to enable employee to recover and return to work at end of leave - Indefinite leave is not required 9. Working from home - Not required where teamwork, interacting with customers or co-workers, or supervising others is part of the job 10. Allowing use of service animals - Animal must be trained to assist employee - "Emotional comfort" animals are not permitted - Animal must be housebroken - Animal must not endanger health or safety of others in the workplace
Ch9 Meal Periods
All non-exempt employees, inside salespersons and exempt computer professionals must be provided: -An unpaid meal break, -That in uninterrupted, and -At least 30 minutes long Must begin no later than end of employee's fifth hour of work. -May be waived by employee if shift is no longer than 6 hours -A second meal break must be provided after 10 hours, unless: -Employee works no more than 12 hours -Employee waives the meal break -Employee didn't waive first meal break
Chapter 13 Sexual Harassment - "Love Contract"
Between supervisor and subordinate in a relationship - Acknowledge relationship is consensual - Acknowledge existence of policy against harassment and to whom to contact to complain if harassment occurs - Agreement to keep relationship discreet - Agreement to avoid conflicts of interest
Ch 10 Defamation
California's Anti-Blacklisting Law prohibits making misrepresentations to prevent a former employee from getting a job: - Truth is always a defense, so only give reasons for termination that you can actually prove - Statements about an employee's firing to other employees with a "need to know" are protected - Truthful references are protected
Chapter 12 Religious Discrimination
Covers religious beliefs, practices, and dress and grooming practices - Does not require a traditional religion with a God; sincerely-held moral beliefs can qualify - Also covers those that have no religious beliefs
Ch10 Personnel Records- Access to signed documents
Employee access to documents they signed - Employees must be provided with copies of documents signed by them - These are usually in personnel file - Exceptions are timecards and documents in separate medical file
Ch10 Personnel Records - Employee Access
Employee access to personnel file - Must allow employee to inspect or copy personnel file within 30 days of written request (may charge for copying) - File for current employee must be produced where employee works, and employee need not be paid for time reviewing file. - If file is produced at another location, employee must be paid for time spent traveling there. - File for former employee must be produced where file is kept, or may be mailed. - Employer may redact names of non-supervisory employees whose names appear in file - May remove letters of reference and documents relating to investigation of criminal offense. - Must retain records of each payroll gross and net wages, wage rates, hours worked at each rate (if applicable) and deductions - Must produce to employee for inspection or copying within 21 days of oral or written request.
Chapter 12 Types of Discrimination Disparate Treatment
Employee treated differently because of protected class. - Does not require intentional bias on the part of the employer - Inconsistent treatment of similarly-situated employees is enough - Employer may defend claim by showing either that (I) employee was not treated differently, or (II) that a different treatment was for legitimate and non-discriminatory reasons - Employee may win by showing pretext- important to give true reason for adverse action
Ch9 Cool-down Breaks (Instructor said might be on test)
Employees working outdoors may take a cool-down break of at least 5 minutes to rest in the shade when they feel the need: - Time is paid - In addition to regular rest breaks - Employers must provide shade when temperature is 80+ - Must provide drinking water In outdoor occupations (construction, agriculture, etc) where temperature is 95 or more: - Employers must ensure that employees take a "preventative cool-down rest period" every two hours - In addition to breaks taken at employee's initiative - May be combined with regular meal and rest breaks
Ch9 Meal Periods continued
Employer must "provide" meal break but need not ensure that it is taken. - Relieve employee of all duty - Relinquish control over employee's activities (must be free to leave premises) - Permit a reasonable opportunity to take uninterrupted 30 minute break - Do not impede or discourage taking the break If employee voluntarily chooses to work he/she must be paid for the time, but not the premium On-duty meal period waiver: - Only where the nature of the work prevents employee from being relieved of all duty - Must be agreed in writing by employer and employee - May be revoked at any time
Ch9 Employees' Political Activities
Employers may not: - Control or direct political activities or affiliations of employees - Forbid or prevent employees from participating in politics or running for office - Force employees to follow a certain political ideology, or refrain from doing so
Ch 9 Lactation Breaks
Employers must provide a reasonable amount of break time to an employee for expression of breast milk for infant child: - Breaks should be concurrent with regular rest breaks; if more time is needed it is unpaid - Must provide a private room other than a toilet stall for employee to express breast milk in private.
Ch9 Suitable Seats
Employers must provide seats for employees where: - Nature of the work reasonably permits the use of seats while working - Where work requires standing, an adequate number of seats must be provided for employees to use when not actively engaged in duties of employment. - Sitting does not count as rest breaks
Ch9 Secret Shoppers
Employers that use outside "secret shopper" services may not: - Use shopper report to discipline or terminate an employee without first providing a copy of the report to the employee - Does not apply if you use your own employees as secret shoppers
Ch9 Illiterate Employees
Employers with 25 or more employees must reasonably accommodate and assist illiterate employees: - Must safeguard their privacy - Need not provide paid time for literacy education - May not terminate an illiterate employee who otherwise performs satisfactorily
Ch9 Right to Wear Pants to Work
Female employees have the right to wear pants to work - (presumably, men may lawfully wear pants to work, too)
Chapter 13 Other Unlawful Harassment
Harassment must be tied to a protected status- race, national origin, age, disability, etc.; merely being "picked on" by a supervisor is not enough - "My boss called me stupid" - "My boss gave me an unfair evaluation" - "My boss is always yelling at me" - "My boss wrote me up and I didn't deserve it"
Ch 14 Disability Discrimination "Limits a major life activity"
In order to qualify for protection under the law, a physical or mental disability must limit a major life activity. - A major life activity is "limited" if it is made "difficult" by a physical or mental condition - Whether a major life activity is "limited" is determined without regard to mitigating measures unless the mitigation itself limits a major life activity
Chapter 12 National Origin Discrimination Includes Ancestry
Includes ancestry (where parents or other ancestors are from) Language issues: - May not discriminate based on foreign accent that is difficult to understand unless ability to communicate in English is necessary for the job. - Cannot have an "English-only" policy unless required by business necessity and employees are notified when only English may be spoken
Ch10 Employee Medical Records
Medical info should be kept in separate file not accessible to managers or others, except as necessary to determine work restrictions and reasonable accommodations. - Health plan info - Workers comp info - FMLA leave info - Medical excuses/return to work authorizations Medical info may only be used by employer for: - Administering benefit plans - Administering workers comp claims - Administering medical leaves of absence
Ch10 Personnel Records (Starred)
Must keep personnel records private - Release to third parties only with written authorization of employee - If a subpoena make sure it includes notice to employee
Ch9 Missed Meal or Rest Break Premium
Must pay a wage "premium" to employee of one hour's pay for each day meal period, rest break or cool down break is missed - 3 year statute of limitations - "Waiting time penalty" will be assessed if not paid at termination - Control this exposure by: - Requiring employees to clock out and back in for lunch (monitor to be sure 30 minutes is taken and break taken on time) - Require employees to certify that they received all rest breaks except __________ for each pay period
Ch9 Rest Breaks
Must provide a paid "net" 10 minute break for every 4 hours worked "or major fraction thereof" - up to 3.5 hours - 0 breaks - 3.5-6.0 hours - 1 break - 6-10 hours - 2 breaks - 10-14 hours - 3 breaks - 14-18 hours - 4 breaks Must be paid Must be a "net" 10 minutes not including travel time Does not include restroom breaks Employee may take break at desk (use computer for personal reasons, make personal calls, etc)
Ch10 Drug Testing continued Random Testing
Only in transportation industry or for positions involving a direct safety threat - Luck v. Southern Pacific - random testing of railroad computer employee not allowed - Smith v. Fresno Irrigation District - random testing of construction and maintenance worker who used heavy equipment and power tools in close proximity to others OK
Ch 14 Disability Discrimination Physical Disability:
Physiological disease, disorder, condition, cosmetic disfigurement or anatomical loss that affects one or more body systems: - Neurological - Immunological - Musculoskeletal - Special sense organs - Respiratory and speech organs - Cardiovascular - Reproductive - Digestive - Genitourinary - Hemic and lymphatic - Skin - Endocrine
Ch 14 Medical Exams and Inquiries Pre-offer stage and Post-offer stage
Pre-offer stage- all medical exams and inquiries are prohibited Post-offer stage- medical exams and inquiries are permitted, provided: - The examination or inquiry is job-related and consistent with business necessity - All entering employees in the same job classification are subject to the same examination or inquiry - Job offer may be withdrawn only if medical examination or inquiry reveals that applicant cannot perform essential functions of the job with or without reasonable accommodation, or would pose a direct threat to health or safety of self or others
Chapter 12 Sex Discrimination Equal Pay Act
Prohibits discrimination based on sex in wages paid for equal work on jobs requiring: - Equal skill - Equal effort - Equal responsibility - Performed under similar working conditions
Ch11 Trade Secrets California Civil Code sec. 3426
Prohibits misappropriation, use or disclosure of trade secrets of another: - Court may issue an injunction - Court may award damages - California courts will not apply "inevitable disclosure" doctrine though; it is not enough to show that a former employee knows trade secrets, you must show actual or threatened misappropriation
Ch 14 Disability Discrimination Mental Disability:
Psychological disorder or condition such as: - Intellectual disability - Organic brain syndrome - Emotional or mental illness - Learning disability Includes - Autism spectrum disorders - Schizophrenia - Clinical depression - bipolar disorder - Post-traumatic Stress Disorder - Obesessive-compulsive disorder
Ch 14 Reasonable Accommodation Basic Rule-
Qualified disabled employee must be provided a reasonable accommodation unless an undue hardship would result
Chapter 12 Types of Discrimination Disparate Impact
Seemingly neutral employment practice has a harsher impact on a protected class of employees. - Does not require intentional bias on the part of the employer - Once disparate impact is shown, employer may defend by showing that practice is job-related and consistent with business necessity - Plaintiff can still win by showing that a less discriminatory alternative exists
Chapter 13 Sexual Harassment - Hostile Environment
Sexual jokes, comments, emails, text messages, cartoons, unwanted touching, staring, derogatory comments and insults - Severe or pervasive test - Viewed from perspective of a reasonable person in the position of the victim, not a hypersensitive person - Supervisors, co-workers, subordinates and non-employees can be harassers - Independent contractors can complain of harassment
Chapter 12 Discrimination Protected Categories
Under California Fair Employment and Housing: - Race, color - National origin, ancestry - Age - Sex, gender, gender identity, and gender expression - Sexual orientation - Religion - Disability and protected medical condition - Genetic information - Marital status - Military or veterans status
Ch 14 Reasonable Accommodation Essential Job Functions
They are the reason why the job exists- - Whether function is identified as essential in job description - The amount of working time spent on the function - Consequences if the function were not performed - Whether other employees are available to perform the function
Ch11 Protecting Trade Secrets
Trade Secrets Basic rule: Non-compete agreements are not enforceable in California - Only exception is that on owner of a business may lawfully agree as part of sale of ownership interest not to compete with that business in a specific geographical area - Employer cannot require employee to agree not to compete post-termination - Out-of-state non-compete agreements will not be enforced in California - California-based employer with employees working outside CA may require those employees to sign non-competes if enforceable under local law not referencing California law
Ch10 Monitoring E-mail and Internet Use
With prior notice: - Employer may monitor all e-mails sent or received via company e-mail address - Employer may monitor Internet usage on company computers -Employer may examine all data on company computers and other devices but cannot violate passwords - Should have a Computer Use Policy notifying employees that employer will monitor computer, e-mail and Internet usage.
