By Diane McCarty, SPHR,HR Consultant for Pro Back Office
I recently attended the Procopio’s Annual Labor & Employment Seminar held on November 16, 2017 in San Diego. The seminar focused on the most pressing California labor law issues facing employers including highlights and lessons to be learned from more than 25 recent court decisions.
Learning from previous California labor law court cases helps provide insights on how to handle employment issues facing California employers. Read below to learn about some labor law court cases discussed during the Procopio’s Annual Labor & Employment Seminar and discover employment issues facing California employers that you need to know.
In Bareno v. San Diego Community College District, Bareno was on a medical leave and claimed she provided a note for a seven day leave extension. The employer didn’t receive the note, and terminated her after 7 days of absence without notification. The court held the termination was discriminatory due to her leave according to medical leave labor laws in California. Lesson? Do not quickly terminate. Reach out to employees in this situation, via email, text, mail, and by a phone call, and document your multiple efforts.
In another medical leave case with a Facebook twist, Jones v. Gulf Coast Healthcare of Delaware, the employee was on a leave which was extended for 30 days. Upon return from his leave, Jones was presented with copies of Facebook posts and pictures he shared with co-workers from recent trips. The employer felt Jones could have returned to work earlier and terminated him. Another factor that didn’t go in the employer’s favor was that during litigation the employer provided shifting reasons for the term.
Turns out hugs may create a hostile work environment, as in Zetwick v. County of Yolo. Zetwick’s boss, the Sheriff was a hugger. Not sexual, just friendly. Turns out he hugged females more than males, which was enough for a hostile work environment claim. Train employees to respect personal space and err on no touching to avoid a hostile work environment case.
Management watch those inappropriate remarks, as in Husman v. Toyota Motor Credit Corp. Husman was openly gay and promoted diversity in the workplace and after he was terminated for performance, he sued for sexual orientation discrimination in the workplace. The court found that even though the employer appeared to articulate legitimate reasons for the termination, a manager’s comment that Husman was “too gay”, was enough to turn the decision against the employer.
A decision that went in favor of the employer, yep, there was one. It was in Lemke v. Sutter Roseville Medical Center. Lemke, a nurse, improperly administered narcotics to a patient which nearly caused the patient to die. The employer investigated, and Lemke was terminated. Lemke sued for retaliation in the workplace and brought evidence that the term was a retaliation for a prior complaint. The court upheld the termination because there was no dispute that the termination was based on the near fatal incident. The employer did a prompt and thorough investigation.
Regarding proper investigations and best practices on what to do when you receive an employee complaint were also presented. Remember employers must take all reasonable steps to prevent discrimination and harassment and this includes investigating complaints. The talk also reviewed what triggers an investigation, the scope and objectives of an investigation. All of this can help deal with employment issues facing California employers.
Other hot topics that were presented included, new California legislation, navigating transgender rights, marijuana legalization, personal electronic devices used at work, and key elements of a social media policy. So many take aways, for example, update your employment applications. Do not ask about criminal record or prior salary history. Also, trend very lightly with an employee who may be transitioning or expressing a new gender identity. Employers are prohibited from discriminating against any employees that may fall into that category. These were just some of the labor law trends facing California employers in 2017 and 2018.
The seminar wrapped up with a question and answer panel, which was a new addition this year. Issues discussed included our California sick leave benefit accrual cap, independent contractors, and navigating the waters of A.B. 168, which restricts employers from asking applicants prior salary history. In this legislation, employers, upon reasonable request, must provide the pay scale to the applicant. Employers need to be prepared to share salary ranges, if available. Employers without established salary ranges or ranges that aren’t available to the rank and file employees are pondering this new development.
Questions? Reach out, I love helping employers establish good practices that result in a good work environment and keep them out of court.
Diane McCarty, SPHR, HR Consultant, Pro Back Office. You can reach her at 858.945.5336 or firstname.lastname@example.org