Workplace Hot Topics and Trends Presented by: Michael J. Christian | City of Anderson October 26, 2017 Workplace Hot Topics and Trends © Jackson Lewis P.C. 2017

AGENDA New Legislation Recent Case Highlights Key 2016 Legislation

NEW LEGISLATION

New Legislation Highlights AB 168 - Prohibits an employer from relying on the salary history information of an applicant for employment as a factor in determining whether to offer an applicant employment or what salary to offer the applicant. An employer is prohibited from seeking salary history information from an applicant. However, an employer is not prohibited from considering an applicant’s salary history information if it is voluntarily disclosed by the applicant. Upon reasonable request, an employer is required to provide the pay scale for a position to an applicant. Gov. Signed 10/12/2017

New Legislation Highlights AB 1008 - Repeals the prohibition on a state or local agency from asking an applicant for employment to disclose information regarding a criminal conviction. Instead, this bill provides that it is unlawful for an employer with 5 or more employees to include on any application for employment any question that seeks the disclosure of an applicant’s conviction history and to inquire into or consider the conviction history of an applicant until that applicant has receive a conditional offer, among other things. The bill requires an employer who intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history to make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the duties. Also requires the employer who makes a preliminary decision to deny employment based upon its individualized assessment to provide written notice to the applicant and would grant the applicant 5 business days to respond to that notification before the employer may make a final decision. Gov. Signed 10/14/ 2017

New Legislation Highlights SB 396 – Amends Government Code section 12950.1 so as to require employers conducting mandatory sexual harassment training to include training on gender identity, gender expression, and sexual orientation.  The training must include examples of harassment and be conducted by a trainer with knowledge and expertise.  Employers must also display a DFEH issued poster regarding transgender rights in a prominent and accessible location in the workplace. SB 396 also amended the Unemployment Insurance Code to: (1) include transgender and gender nonconforming individuals as persons eligible for programs and services under the California Workforce Innovation and Opportunity Act; and (2) allow community-based organizations that assist transgender and gender nonconforming individuals to serve as members of the California Workplace Development Board. SB 396 takes effect on January 1, 2018.

New Legislation Highlights SB 63 - Prohibits an employer from refusing to allow an employee with more than 12 months of service to take up to 12 weeks of parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement.   Further prohibits an employer from refusing to maintain and pay for coverage under a group health plan for an employee who takes this leave. Prohibits an employer from refusing to hire or discharging, fining, suspending, expelling or discriminating against an individual for exercising the right to parental leaved provided by the bill.   Gov. Signed 10/12/2017

New Legislation Highlights AB 5 - This bill would have created the Opportunity to Work Act, which would require an employer with 10 or more employees to offer additional hours of work to an existing nonexempt employee before hiring an additional employee or subcontractor. * Failed to become new law

New Regulation These regulations took effect July 1, 2017. New California Code of Regulations, Title 2, sections 11030, 11031, and 11034 further define and expand transgender protections. Employers must honor requests by employees to be identified by a preferred gender, name, and/or pro-noun, which includes gender-neutral pronouns.    Employee rights are expanded to guarantee that employees be allowed to use restrooms or locker rooms that conform with their gender identity or expression, and to perform job duties corresponding with the employees’ identity or expression, not the gender assigned at birth. These regulations also expand upon existing definitions to include “transitioning” so that employees are not discriminated against during the process of transitioning. Employers cannot seek gender or sex-related information from applicants and employees, including proof of gender or gender identity. These regulations took effect July 1, 2017.

Recent Case Highlights Jamie’s slide

Recent Case Highlights Zetwick v. County of Yolo   Employee filed suit under Title VII and the FEHA, alleging her supervisor greeted her with unwelcome hugs on more than one hundred occasions during a 12-year period. The Ninth Circuit reversed an award of summary judgment in favor of Yolo County finding that hugging can create a hostile or abusive workplace when it is unwelcome and pervasive, and summary judgment on a hostile work environment claim is appropriate only if the defendant’s conduct was neither severe nor pervasive enough to alter the conditions of the plaintiff’s employment.  (2017) 850 F.3d 436.

Recent Case Highlights Soria v. Univision Radio Los Angeles, Inc. The Court of Appeal reversed summary judgment for the employer because triable issues existed as to whether an employee who had a benign tumor which did not cause any symptoms but required multiple pre-approved absences for doctor visits, had a “disability”. Disputed facts existed as to whether decision makers knew about her disability, that she gave sufficient notice of her need for leave, and that she was not really fired because of ongoing tardiness, but due to discrimination, retaliation, and refusal to engage in the required interactive process and to accommodate her.   (2016) 5 Cal. App. 5th 570.

Recent Case Highlights Atkins v. City of Los Angeles The Los Angeles Police Department terminated five recruit officers who suffered temporary injuries while training at the Police Academy.  The recruit officers filed suit and obtained a jury verdict. The court of appeal reversed as to the disability discrimination claim because the recruits were not “qualified individuals” under FEHA - - they could not perform the essential functions of a police recruit with or without a reasonable accommodation.  However, the verdict as to the failure to accommodate claim stood.  The Court reasoned employers are required to offer a reasonable reassignment so long as the employee performed the essential functions of the “current position” before requesting reassignment, not the position the employee would hold upon completing probation/training, i.e. a police officer. (2017) 8 Cal. App. 5th 696.

Recent Case Highlights Bareno v. San Diego Community College Dist. Plaintiff timely informed her employer of her need to take a one- week leave of absence. She later, allegedly, informed the district of her need to take a second, and subsequently, a third, fourth, and fifth week. Plaintiff’s supervisor purportedly failed to receive plaintiff’s notice regarding the second week of leave. Instead of contacting plaintiff to inquire, even after receiving notice of the third week, the district for which the plaintiff worked took the position that plaintiff’s “unauthorized absences” constituted a voluntary resignation. Plaintiff instituted an action claiming retaliation in violation of the CRFA. The court of appeal reversed an award of summary judgment in favor of the defendant, finding that there were material issues of fact as to whether the plaintiff sufficiently and timely requested leave for a CFRA-protected reason. (2017) 7 Cal. App. 5th 546.

Recent Case Highlights Featherstone v. Southern California Permanente Medical Group   Plaintiff appealed summary judgment on claims her former employer refused to rescind her resignation in violation of the FEHA. Plaintiff claimed that she tendered her resignation because of a temporary disability caused by an adverse drug reaction. The Appellate Court affirmed the award or summary judgment on two grounds: (1) the former employer’s refusal to permit the plaintiff to rescind her resignation was not an adverse employment action under the FEHA; and (2) the plaintiff failed to raise a triable issue of fact as to whether the person who accepted the plaintiff’s resignation on behalf of the former employer knew of the temporary disability at the time they took action. (2017) 10 Cal. App. 5th 1150.

Recent Case Highlights Alamillo v. BNSF Ry. An employee with a diagnosed sleep disorder failed to establish a prima facie case of disability discrimination under FEHA where he could not show the disability was a motivating factor in his disciplinary matters where the employer instituted disciplinary proceedings prior to learning of his disability. (2017) 2017 U.S. App. Lexis 16267.

Recent Case Highlights Light v. Department of Parks & Recreation The Court of Appeal found that the reduction of an employee’s hours to zero can be deemed an adverse employment action under FEHA retaliation. Moreover, intentional infliction of emotional distress is not barred by workers’ compensation exclusivity because unlawful discrimination and retaliation in violation of FEHA falls outside the compensation bargain. (2017) Cal.App. 5th 75.

Recent Case Highlights Merrick v. Hilton Worldwide, Inc. The Ninth Circuit affirmed the district court’s award of summary judgment to Hilton Worldwide, Inc. and CHH Torrey Pines Tenant Corp relative to an age discrimination claim by a former Hilton employee because the former employee could not demonstrate that Hilton’s legitimate business reasons for terminating the former employee were pretexts and that age was, in fact, a substantial motivating factor for the termination.  (2017) 867 F.3d 1139.

Recent Case Highlights Sviridov v. City of San Diego   The court of appeal determined that costs were properly awarded to a government defendant in an employment action based upon the plaintiff’s repeated rejection of the government defendant’s statutory settlement offers under Code Civ. Proc. § 998 to waive costs in exchange for a dismissal of the action.  (2017) 14 Cal. App. 5th 514.

KEY 2016 LEGISLATION Jamie’s slide

Key 2016 Legislation AB 1661 - Requires local agency officials, as defined, to receive sexual harassment prevention training and education if the local agency provides any type of compensation, salary, or stipend to those officials, and allows a local agency to require employees to receive sexual harassment prevention training or information. Gov. Signed 9/29/2016.

Key 2016 Legislation AB 1732 - As of March 1, 2017, this bill requires all single-user toilet facilities in any business establishment, place of public accommodation, or government agency to be identified as all-gender toilet facilities, as specified.   Gov. Signed 9/29/2016

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Sexual Harassment & Descrimination Prevention: California Assembly Bill 1825 April 5, 2016 Thank You! Workplace law. In four time zones and 58 major locations coast to coast. © 2015 Jackson Lewis P.C.