Wednesday, November 21, 2012

Join Us At Our Legal Beagle Bagel Breakfast on Nov. 27th

Each month I hold a training conference for employers on various aspects of managing a workforce in California.  This month we will focus on the concept of a disability.  Here is the invitation to the training course.  Join us if you can. 





The term “disability” has different meanings depending on the particular law.  Disability may also mean something different to the agencies investigating claims of discrimination than to an employer.  Not recognizing the different meanings, or failing to understand the position taken by the EEOC or DFEH, may result in liability to an unwary employer.  We invite business owners, senior managers, attorneys, and human resource professionals to attend, in person or via teleconference, our monthly “Legal Beagle Bagel Breakfast” to learn ways to reduce potential liability with respect to disabled employees.    

The New Face of Disabilities

·         What qualifies as a disability?

·         How much leave is reasonable as an accommodation?

·         Can pregnancy be a disability under the ADA?

·         Perception of and associational disabilities


When:             Tuesday, November 27, 2012

            This session will be available via teleconference.

 Time:              8:00 a.m. – 9:30 a.m.

 Where          Fishman, Larsen, Goldring & Zeitler

                          7112 North Fresno Street, Suite 450

                           Fresno, California  93720


Cost:  $25.00 per person (FREE for HR Business Partners); an additional cost of $10 per line for teleconferencing.  The registration deadline for the teleconference is November 26th.  One (1.0) hour of MCLE credit is available from Fishman Larsen Goldring & Zeitler, an authorized California MCLE provider.


To register, please contact our receptionist at (559) 256-5000, via fax at (559) 256-5005; or via e-mail to  Sign up now!  Seating is limited.  An RSVP is a commitment to pay. No refunds or cancellations; however, substitutions will be accepted.


Name(s): _________________________________________________________________

Company: ________________________________________________________________

Telephone: _______________________________________________________________

E-mail: __________________________________________________________________

Via Teleconference: _____________________

Amount Enclosed: _______________________

Monday, November 19, 2012

Tulare is in the News Again, This Time for a Business Failing to Provide Seats for its Workers

It's a crazy law, but someone should benefit from it -- and no one is more deserving than lawyers!

Each wage order contains a provision requiring seats for workers "when the nature of the work reasonably permits the use of seats."  When the meal and rest period class action litigation started a few years ago, lawyers looked at other provisions of the wage order that could support mass litigation -- and revenue. 

It was like another golden grail.  A lowly seat.  Maybe just a bench ... or stool.  Think of all those cashiers at every store who must stand to work.  Yet, couldn't a seat reasonably be permitted?  And who better to decide when seating accommodations should be provided by lawyers and juries?  Really, I am kidding.  Lawyers and juries are probably the worst people to have making decisions on seating in any particular store. 

Well Kmart in Tulare had a class action lawsuit filed against it.  Kmart is saying that revenues keep going down and that it would cost $10,000 per aisle to reconfigure check-out stands to accommodate seating. 

So what does this mean for you?  You need to consider whether any particular job performed by employees could be done in a seated position.  If so, you may want to compare the cost of those seats to the cost of litigation. 

Aren't you glad you own a business in California? 

Friday, November 16, 2012

Pigs Get Fat, Hogs Get Slaughtered

Am I bummed!  I understand that Ding Dongs, Twinkies and Ho Ho's might be a thing of the past.  And why was this?  Because some hard-headed union members refused to accept the company's final offer.  The company told them that they could not continue to operate with the high labor costs.  But the union called the company's "bluff" only to lose 18,000 jobs.

Unions serve a purpose in society.  However, often these unions go too far.  This is very evident in California, particularly with public unions.  (I can't figure out any possible justification for public unions.)

One of my buddies would tell clients, "Pigs get fat; hogs get slaughtered."  Perhaps this adage is applicable with the Hostess strike and company closure.  I guess the union did not believe the company.  Hard to imagine, however, when the company was in bankruptcy and even the judge said there was no money for additional wages and benefits.

Thursday, November 15, 2012

I Didn't Know Men Complained About Sexual Harassment!

A common misperception is that men are either not sexually harassed, or that they like it and won't complain.  While this may occur in some cases, Michael Crichton taught us a decade ago that even if Demi Moore was the aggressor, a man might not appreciate being the victim of sexual harassment.  (Read the book or watch the film, Disclosure.) 

Recently, the Sparks Steakhouse in NYC, settled a sex harassment lawsuit brought by the EEOC on behalf of 22 male waiters.  The waiters alleged they were subject to vulgar sexual comments, touching of their buttocks, and attempted touching of their genitals by a male manager.  The company denies liability, and said it wanted to get the matter behind it. 

Both state and federal discrimination laws protect either gender from sexual harassment.  "Sex" is defined not limited to biological gender.  It also covers sexuality and gender stereotyping.  Sex harassment is unlawful whether conducted against a person of the opposite gender or the same gender. 

Employers need to make sure they have effective anti-harassment policies and procedures in place.  Employers need to train employees so that they really understand what the law requires and what they can do in the event of unlawful behavior. 

22 men are $600,000 richer today because of same-sex harassment. 

Wednesday, November 14, 2012

Associational Discrimination -- The Zone of Interest and the EEOC

I thought I would give another update on EEOC enforcement strategies.  Citing the case of Thompson v. North American Stainless,LP., 131 S.Ct. 863 (2011), EEOC made reference to discrimination against a person due to his/her association with a person in a protected class. 

Miriam Regalado was Eric Thompson's fiancee.  She filed a complaint with the EEOC alleging sex discrimination.  The company fired Eric who then claimed that he suffered retaliation because Miriam had filed her complaint. 

The Supreme Court concluded that a person could file suit under Title VII if (s)he was a person aggrieved.  The test to determine if the person was aggrieved is whether or not (s)he was in the "zone of interests" sought to be protected by the law.  In this case, Eric was within the zone of interests.  He was an employee of the company.  Title VII was written to protect employees. 

Expect substantial litigation over the next few years on the issue of who might be within the zone of interests and thus a person aggrieved. 

Don't forget as well that in California, a person is protected by the Fair Employment and Housing Act ("FEHA") if:  (1) The person is in a protected class; (2) the person is associated with a person in a protected class; (3) the person is associated with a person who the employer perceives to be in a protected class; and (4) a person who the employer perceives to be associated with a person the employer perceives to be in a protected class. 

Wow!  That's a mouthful.  It's also another litigation nightmare for California employers.  Laws like this keep me employed. 

Email me if you need help avoiding or defending a claim made by a person within this zone of interests. 

Thursday, November 8, 2012

EEOC Cases Against Central Valley Employers

This morning, Anna Park with the EEOC, described several cases the Agency has prosecuted.  Three of them were against Central Valley employers.

Delano Regional Medical Center recently settled a case after preventing Filapino employees from speaking their native language.  The medical center did not prohibit other employees from speaking their native languages.

The EEOC sued ABM Industries after a supervisor sexually assaulted female workers.  The company attempted to defend itself by showing its anti-harassment policy.  However, none of the employees, including managers, could articulate the company's policy.

Olam Industries was prepared to hire an employee until she told them she was pregnant.  The job offer was then revoked.  Apparently, there were emails between the staffing agency that assisted in recruiting and Olam suggesting that the job should not be given to the applicant who was pregnant.

There are some good lessons to learn from these cases.  I recommend that employers attend our training seminars to learn how to avoid EEOC prosecutions.

EEOC Enforcement Focus -- Employers Beware

I am sitting in an EEOC training course in Los Angeles.  I will post some blogs about it today.  Here is what we have learned so far.

* Equal pay will be a focus of the Obama Administration.  Employers will probably be required to report pay information on annual EEO reports.
* the agency will go after employers whose policies bar employing anyone with a criminal background.
* The Commission has determined that gender identity (transgender issues) are covered under Title 7.
* The Commission is focusing on caregiver status.
* The Commission will be focusing on leaves of absences as a reasonable accommodation

This is a very aggressive agenda for the EEOC.  Employers beware.

Wednesday, November 7, 2012

The EEOC Sues Tenaya Lodge for Harassment and Retaliation

The EEOC issued a press release today stating that Tenaya Lodge will be paying $195,000 to settle a sex harassment and retaliation claim.  The plaintiff filed a complaint with the EEOC.  After investigation, the EEOC concluded that the plaintiff was subjected to harassment and discrimination.  The EEOC also concluded that other women were also victims of harassment.  This is what makes this case so interesting to me. 

The EEOC spoke with other employees.  During this process it found evidence, at least in its opinion, to pursue claims on behalf of other employees.  That discovery doubled the payout for the employer.  The plaintiff is receiving $100,000.  The $95,000 is set aside for other females at the business who have suffered harassment. 

It's not a pleasant experience to be accused of harassment or retaliation.  The process is expensive.  You pay your lawyer.  You may pay a settlement or judgment.  And you may pay attorneys' fees. 

And what's worse is that DNC Parks owns the property.  They run all of the concessions in Yosemite.  That means the next time I stop at the store in Wawona, I'll be charged a little more for my "It's It".  If you haven't eaten an It's It, you need to.  Ice cream in a cookie sandwich.  Great treat after a day of hiking or swimming in Yosemite. 

By the way, I will be at an EEOC training course on Thursday (at a hotel on the beach in Oxnard).  If you have a question you want me to ask the EEOC, email me. 

Tuesday, November 6, 2012

An Example of the Obama Administration's Hostility toward Religion: Hosannah-Tabor Church v. EEOC

By the time you read this, the election will be over.  However, in light of the great day it is when we can exercise our right to vote and select our leaders, I thought it would be appropriate to blog on the 1st great freedom found in the Bill of Rights -- the right to exercise one's religious beliefs.  In discussing this concept, I want to tell you about a small Lutheran school that came up against the might of the EEOC and the Obama Administration. 

In Hosannah-Tabor Church v. EEOC, the Obama Administration filed a discrimination and retaliation lawsuit against the school. Ms. Perich, a teacher at the school, took a leave of absence due to a medical condition.   Ms. Perich was upset the school had given her position to another when she was on an extended leave of absence (which was most of the academic year).  When she didn't get her job back, Ms. Perich filed a claim with the EEOC, the federal agency charged with investigating and prosecuting cases of unlawful discrimination. 

The school fired Ms. Perich because she did not resolve her dispute within the church, as mandated by church doctrine.   The EEOC considered this discrimination and retaliation and sued the small church-based school. 

The school took the position that it could hire and fire whomever it chose, in accordance with its religious doctrine.  In other words, the school based its defense on the 1st Amendment freedom of religion clause. 

The EEOC disagreed, contending that Title VII trumped the Constitution.  Do you see the problem?  I don't really care what religious doctrine was at stake, or what particular denomination was involved.  The troubling part of this situation is that the EEOC took the position that regardless of what the Constitution says about the freedom to practice one's religion, it doesn't trump a statute enacted in the 1960s barring discrimination. 

In fact, the Obama Administration took the position that not only did Title VII apply, but that there is no ministerial exception to Title VII.  In other words, a religious entity can't rely on its doctrine to defend against a claim of discrimination. 

The United States Supreme Court soundly criticized and rejected the EEOC's position.  Fortunately, the Court held that that a religious body can make the determination, based on its doctrine, to select leaders or teachers.  It was a great victory for religious belief.  The government was prevented from telling the church who it had to hire or fire. 

I hope that whomever wins the White House that our religious rights are protected better than they have been the past four years.  I think that most of us, if not all of us, can agree that merit, rather than ethnicity, age, gender and other similar characteristics should be used to make employment decisions.  I hope we also agree that religious bodies have the constitutional right to exercise their religious beliefs as they see fit. 


Friday, November 2, 2012

Stripping Pays -- Especially for Laywers!

The Los Angeles Daily Journal (a legal periodical) today reported on a $12.9 million settlement among "exotic" dancers (strippers) and the "gentlemens' clubs" (strip joints) where they plied their trade.  (Did you get the pun?)  Trauth v. Spearmint Rhino Companies Worldwide, Inc., Case No. EDCV-09-01316, (C.D. Cal., Order filed October 5, 2012).  Several of the dancers filed a class action lawsuit contending that they were misclassified as independent contractors instead of employees.  On top of that, they claimed their compensation was below the federal minimum wage, and that the businesses wrongfully charged the dancers for certain expenses.  (I bet you didn't know it was so expensive to remove your clothing in public.  I'm really glad you don't know that!) 

Dancers in six states will share about $10 million.  The lawyers representing them will receive over $2 million.  That is a lot of money.  Of course, there are many plaintiffs who must share the $10 million.  And there are far fewer lawyers who will split the $2 million. 

So why do I tell you about a stripper case in federal district court in Los Angeles?  Because it illustrates a very important point.  Many businesses attempt to save money on payroll tax obligations, workers' compensation premiums, fringe benefits and other costs by classifying employees as independent contractors. 

A business is an employer as opposed to a contracting party if it has the right to control the means and methods of the services provided.  I realize this is easier to say than to understand.  Many people like to consider some of the IRS questions to help them understand this concept.  For example, who provides the tools of the trade?  Who determines when the workers perform services?  Is the work of the kind that is typically performed by an outside business?  Does the worker maintain a business license and workers' compensation insurance? 

Except in obvious cases, I would suggest that an employer think very hard before classifying a worker as an independent contractor.  The costs associated with a challenge are not worth the risk.  $12.9 million in this case. 

The issue of misclassification can arise in many ways.  For example, a worker may be audited for non-payment of taxes.  The worker claims (s)he was an employee and the employer should have withheld the taxes.  Perhaps a worker injures him/herself and makes a claim on the workers' compensation policy.  Or a worker might claim unemployment insurance. 

Email me if you really want to engage a worker as an independent contractor.  Yes, I will probably try to talk you out of it.  However, if it is a true independent contractor situation, I can help you draft an agreement that can provide some protection for you. 

And if you ever get hit with liability for misclassifying a worker, you might consider stripping to help pay the bills.  Better yet, become a lawyer and represent the strippers.  There is more money on the lawyer's side.  And besides, we really don't want to imagine you in the buff swinging those hips around on stage in some seedy club!