Q: What are the top challenges employers face under today’s California employment laws?
A: With California being one of the most employee-friendly states, employers really need to take a closer look at their hiring practices, and update their policies and procedures annually to conform with the ever-changing labor and employment laws. A few hot button topics for California employers today include the legalization of recreational marijuana use, the MeToo movement, and LGBTQ discrimination.
Statistics show a steady increase in recreational marijuana use since the vote on Proposition 64. With this change the question for employers becomes whether they should continue to use positive test results for marijuana use and lose out on a good prospective hire. Some employers believe if alcohol use while not at work does not disqualify an employee, then why should marijuana use if legal. Don’t get me wrong, employers are within their rights to enforce policies prohibiting the use of marijuana at work and should ensure their policies expressly prohibit the use or possession of marijuana at the workplace.
The other, more recent, challenge for employers comes with the changes to the anti-harassment acts, effective January 1, 2019. The new laws lower the standard for an employee to assert sexual harassment claims, and increase sexual harassment training requirements on employers. Gone are the days where employees were required to prove the alleged conduct was severe or pervasive enough to constitute actionable sexual harassment. As it now stands, a single act of harassment or a stray remark may be sufficient to establish a sexual harassment/hostile work environment claim. The real challenge for employers, once an actual complaint has been filed, is disposing of the case at summary judgment, as more and more courts find the issues appropriate for a jury to decide.
Whether our nation’s civil rights protect the LGBTQ community has been a debate for far too long and now the United States Supreme Court will review three cases involving gay and transgender employees in its next term. The Supreme Court will deliver a ruling on whether Title VII of the Civil Rights Act prevents employers from firing workers because of their sexual orientation and gender identity. While most employers in California have policies in place to protect LGBTQ applicants and employees, it is always best to update policies and practices to ensure compliance with current standards.
Q: What changes do you see coming in employment law? How can employers better prepare?
A: The majority of claims filed with the Department of Fair Employment and Housing are disability discrimination claims. With the proposed amendment to the Fair Employment and Housing Act discrimination law, AB 2069, to include medical marijuana as a form of reasonable accommodation, we may be seeing a further incline in disability discrimination filings. This proposed change seeks to treat medicinal marijuana the same as lawful opioid use. Thus in order to prepare for these proposed changes to the discrimination laws as they stand, employers should review and revise their policies and retrain employees on the interactive process.
Q: When it comes to sexual harassment prevention training, what does the state expect? How can an employer best provide such training?
A: Employers with at least five employees are required to provide at least two hours of sexual harassment training to all supervisors and managers, and at least one hour of sexual harassment training to all non-supervisory employees by January 1, 2020. Under this new law, education and training must be provided within six months of hire and every two years thereafter. Starting in 2020, employers must also provide this type of training to migrant and seasonal agricultural workers. Sexual harassment training may be done in person or online. I provide sexual harassment training to many clients and find in-person interaction to be the most effective way of ensuring employees are truly listening to the message. With the MeToo movement claims on the rise, it is extremely important for employers to continue to train their employees on sexual harassment prevention and reporting.
Q: Would you recommend an employer provide additional training related to other forms of harassment and discrimination? If so, what are some best practices?
A: One of the key areas in anti-harassment training that is often overlooked is workplace bullying. As a mother of two young children, I was recently confronted with bullying in elementary schools and had to train my 8 year old on how to recognize bullying, confronting the situation, and helping others stand up to bullying. We talked about being an “upstander” and standing up to the bully, as opposed to being a bystander. When bystanders step in to help, they are often effective in stopping the bullying.
My hope is that employers provide additional training on anti-bullying. Employers are responsible for creating a safe working environment. Additional training on how to become an “upstander” versus a bystander is a great way to prevent bullying in the workplace and encourage employees to come forward and report the conflict. Education and training is the best way for employers to manage potential risks. Taking the time now to prevent claims in the future is cost-effective and a strategy I encourage my clients to enlist in to avoid the expense and stress of litigation later.
In sum, California employers must continually review and revise all anti-harassment and discrimination policies to ensure they are compliant with California’s new laws.
Q: There has been a lot of talk about classifying employees as independent contractors. What does the law say now? How has that changed?
A: The standard for determining whether workers should be classified as employees or independent contractors in California changed in April 2018 with the decision in the Dynamex Operations West Inc. v. Superior Court case. The court held there is a presumption that workers are employees unless the company can prove (A) the worker is free from the control and direction of the company in connection with performance of work, (B) the worker performs work outside the ordinary course of business and (C) the worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed for the company.
On May 2, the Ninth Circuit held that the ABC test applies retroactively (Vazquez v. Jan-Pro Franchising International Inc.) This decision will be of great concern to companies that retained independent contractors prior to April 2018, and may not have complied with the ABC test.