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A Pot Pourri of Recent California Employment Law Developments

by D. Gregory Valenza | | July 19, 2018

Here are several developments around the California employment law world…No particular order. 

  • California revises its statute precluding employers from asking applicants about salary history.  AB 2282, text here

This new law clarifies Labor Code section 432.3 and 1197.5 in important ways.  The key amendments are as follows:

AB 2282 clarifies the employer’s  current obligation to provide a “pay scale” to applicants on request. The term “pay scale” is defined to mean a salary or hourly pay range.  Additionally, the employer’s obligation to provide a pay scale is triggered only after an initial interview.

It is lawful to ask an applicant his or her salary / pay expectation for the position applied for.

The new law applies only to outside “applicants” and not current employees.  So, it is lawful to consider the current employee’s salary history when that employee is considered for transfer or promotion, for example.The bill prohibits pay disparities based on race, sex, or ethnicity that would be caused by changing the pay of a current employee, but permits the employer to assert the defenses available under the Fair Pay Act Ie.g., seniority, merit, education, experience, etc..) 

  • The California Legislature emphasizes that negative references concerning a former employee’s sexual harassment are privileged and not actionable as defamation.  AB 2770, text here 

References are already privileged under Civil Code section 47 (c ).  But the Legislature specifically has provided that employers may safely report whether an employee has been terminated for harassment, and whether the employee is ineligible for rehire.  

The problem with this law is that it does not guarantee that “neutral reference policies” are not violated when employers provide substantive information about a former employee’s harassment. And neutral reference policies are important protections against employees’ claims of “compelled self-defamation.”  Case law establishes that an employee is not “compelled” to defame him- or herself if the employer enforces a neutral reference policy (typically limiting references to name, last position, and dates of employment). 

  • Court Upholds Hostile Environment Claim Based on Disability and $500,000 Award 

The “blog worthy” aspect of Caldera v. Dept. of Corr. and Rehab. (opinion here) is that what used to be dismissed as “teasing” or “sporadic” acts of verbal harassment are now sufficient to sustain a jury’s verdict.  The plaintiff had a speech impediment (stuttering). His claim of disability harassment was based on other employees’ mocking his stutter.  The principal evidence of harassment was by one employee who mocked the plaintiff’s stutter “5 to 15 times” over more than two years  There was other, vague testimony that there was a “culture” at the prison of mocking the plaintiff’s stutter.  In addition, as in many cases, the prison did not take adequate steps to ameliorate the problem, such as separating the employees. The plaintiff testified he was hurt and damaged by the conduct. 

The jury’s verdict reflected a finding that the conduct was both severe AND pervasive. Don’t get me wrong. The question is not whether mocking a stutter is wrong, or inappropriate, or worthy of disciplinary action; of course it is.  The question is whether the quantity and severity of the conduct is enough to create legal liability.  The law has evolved, and it is markedly easier to establish the elements of a hostile environment. 

Allowing “some” harassing conduct and relying on the argument that it does not “rise to the level” of actionable harassment is tough sledding now.  Employers must have effective policies against harassing conduct.  And by effective, I mean that it must ensure management takes them seriously and enforces them.  And by that I mean that management must be willing to discipline or discharge not only the harasser, but those in management who refuse to take these policies seriously and enforce them. Training is important, but training must be effective. Most people know by now that making fun of stuttering is wrong.  Therefore, effective training also has to emphasize the consequences of engaging in this sort of conduct, firing, compensation cuts, bad references (see above), whatever will drive the point home.  Additionally, I am wiling to be the jurors took note of the way the employer handled the problem.  Good training must include teaching management what to do in response to harassment complaints.  

  • 9th Circuit Holds Employer Not Liable for “On Duty” Meal Period By Requiring Employees to Eat Discounted Meals on Premises (Rodriguez v. Taco Bell Corp. opinion here)

Taco Bell permits, but does not require, employees to purchase food from Taco Bell’s menu at a discount. However, to avoid theft – employees’ providing discounted food to friends or family – Taco Bell required employees to eat the discounted food on premises. No one was required to buy discounted meals from Taco Bell. Taco Bell did not otherwise require employees to stay on premises during meals or breaks. Taco Bell’s policy required employees to take meals and rest breaks away from work areas.  And, as the Court noted, an employee could buy a full price meal and eat it off premises. 

Nevertheless, employees sued Taco Bell, complaining that requiring them to eat the discounted meals on premises, even though voluntary, was “control” and required Taco Bell to compensate the employees for non-compliant meal periods.  The 9th Circuit, affirming the district court, was unmoved by the plaintiffs’ argument.

Taco Bell’s meal policy satisfies the standard set forth in Brinker, because the company relieves employees of all duty and relinquishes control over their activities. Taco Bell does not require the employee to purchase a discounted meal. The purchase of the meal is entirely voluntary. Plaintiff has not alleged nor introduced any evidence to show that Taco Bell pressured its employees to purchase the discounted meals. Employees are free to leave the premises or spend their break time in any way that they choose that does not interfere with Taco Bell conducting its business. For that matter, employees are free to purchase meals at full price and eat them wherever the employees wish. The company does not otherwise interfere with the employees’ use of the break time or require the employees to serve the interests of Taco Bell. Nor has Plaintiff alleged or introduced any evidence to show that her employer required or pressured her to conduct work activities while on premises during the meal period. Taco Bell’s policy indeed appeared to prohibit this, as employees were required to take rest breaks and meal periods away from “[t]he food production area” and “[t]he cash register service area.”

Employers must be cautious before relying on this case to restrict employees’ activities during meal and rest periods. The discounted meal policy was undisputedly a completely voluntary option for the employees. The meal policy was otherwise fully compliant. And, key here, the management did not pressure or coerce employees to remain on premises or eat discounted meals under the policy.  But, restaurant, hotel, and catering employers  (and others) who provide optional free or discounted meals for employees may avoid meal period claims under  circumstances similar to those in this case.

That’s all for this edition. Thanks for reading.





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