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?

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