2018 Cal-Peculiarities

Seyfarth Synopsis: When must an employer provide leave time in addition to FMLA/CFRA-type leave as a reasonable accommodation? The answer to that question, as with many other leave-related questions, may depend on your location on the map.

Remember that early TV sitcom “Leave It To Beaver,” starring Jerry Mathers as the Beaver? “The Beave” constantly got into trouble and vented his righteous indignation at seemingly arbitrary parental authority. California employers might relate when they try to understand when to grant additional leave to employees failing to return from various protected leaves. Employers can find themselves exasperated by sometimes arbitrary-seeming rules for reasonable accommodation.

“Swell” in the Seventh Circuit

Outside of California, courts have imposed limits on leaves that extend beyond the specific leaves mandated by statute. Take the Seventh Circuit decision in Severson v. Heartland, which held that an employer granting a reasonable accommodation under the Americans with Disabilities Act (ADA) need not grant leave of more than a few weeks beyond an FMLA leave. Part of the rationale for this decision was that requiring employers to provide significant leave beyond an FMLA leave would convert the ADA to a medical leave entitlement statute (see our detailed blog on the decision here).  The U.S. Supreme Court has declined to review Severson.

Severson reflects an interpretation of the ADA that would limit the leave employees would be entitled to in ADA-only jurisdictions.

“Gee Whiz” in California

Within California, courts have approached the issue differently. What should an employer do when an employee has used all mandated leave time? In California, the employer may be required to grant substantially more leave, as a matter of reasonable accommodation.

In Sanchez v. Swissport, Inc. (2013), the appellate court held that where an employee had exhausted her allotted leave under the California Family Rights Act (CFRA) and Pregnancy Disability Leave Law (PDL), the employer had to continue an employee’s leave as a reasonable accommodation under the Fair Employment and Housing Act (FEHA).

Likewise, in Gardner v. Federal Express Corp. (2015), where a driver on leave for a work injury had exhausted his 90-day leave, a federal district court denied summary judgment to the employer on a FEHA claim where a question of fact existed as to whether additional leave would have been a reasonable accommodation.

In deciding if continued leave would be a reasonable accommodation, courts look at whether the leave appears finite, and whether the employee could return to perform essential job functions at the end of the requested leave. Unfortunately, this analysis can pose factual problems for even the most cautious employer, as it can be obscure when (or if) an employee is likely to return.

Be-very Cautious Going Forward

Luckily, there are some limits to extended leave requirements, even in California.

In one leading case, Hanson v. Lucky Stores, Inc. (1999), the Court of Appeal made clear that after an employee’s protected leave entitlement has expired, “a finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform his or her duties.” The Court of Appeal further noted that a “reasonable accommodation does not require an employer to wait indefinitely for an employee’s medical condition to be corrected.”

So there is a limit to how much leave an employer must provide beyond CFRA, FMLA, or PDL-related leaves. Unfortunately, exactly how long the employee can remain off work depends on the specific circumstances. Case law indicates that courts will look to the particular aspects of the business, difficulties in maintaining the employee’s position, and the general outlook of the employee’s ability to return to the position.

In one recent decision, Markowitz v. UPS (2018), the Ninth Circuit upheld summary judgment for an employer, holding that accommodating an employee for twelve months of leave after she had exhausted FMLA leave was reasonable, under the specific circumstances of that particular case.

Workplace Solution: Even though there are limits, the amount of time a California employer must grant FEHA leave in excess of other statutory entitlements is in the gray area of “reasonable accommodation.” Our suggestion is that employers tread cautiously, proceed step by step, evaluate developments as they occur, and consult with counsel at each fork in the road.

Edited by Coby Turner

Seyfarth Synopsis: Given recent headlines, a storm could be brewing over the boundaries of the attorney-client privilege in some parts of the country. California employers can avoid this vortex, at least when dealing with their current and former employees. Both can be part of the “corporate client” for purposes of attorney-client privilege, so long as communications with counsel meet a few requirements.

To provide sound legal advice, in-house counsel often communicate with current and even former employees from all levels of their corporations. Particularly with the storm over the scope of the attorney-client privilege currently raging in Washington, it never hurts to review when employees are “corporate clients” whose communications are privileged and sheltered from disclosure. The last place an employer wants to find itself is in the rain, without an umbrella, when the government or a bombastic plaintiff’s attorney starts poking around for in-house counsel’s communications.

Which Employees Are “Clients?”

California and federal privilege rules treat company employees similarly, but there are some differences. Federal courts, while applying federal-question jurisdiction, apply the well-known Upjohn standard. The Ninth Circuit describes this standard as protecting communications by any corporate employee, regardless of position, when

  • the communications concern matters within the scope of the employee’s corporate duties, and
  • the employee is aware that the information is being furnished to enable the attorney to provide legal advice to the corporation.

California courts apply a different set of factors. In the leading case, D. I. Chadbourne, Inc. v. Superior Court, the California Supreme Court listed eleven “basic principles” to determine when the attorney-client privilege exists in a corporate setting. Chadbourne’s principles overlap somewhat with federal law: (1) the communications must emanate from the employees’ job responsibilities and (2) the employee must understand that the communications are confidential. But Chadbourne adds some additional wrinkles, breaking privileged communications into three categories:

  1. If the employee is a defendant or may be charged with liability because of being employed, statements to in-house counsel relating to the potential dispute are privileged.
  2. In the ordinary course of business, employee communications with counsel are privileged if they “emanate” from the corporation, and the employee is the person who would ordinarily communicate the information to counsel.
  3. If the employee has witnessed an event requiring legal advice, communications with counsel are privileged when the employee is required to report the matter, and the “dominant purpose” for requiring the employee to talk with a lawyer is to provide the lawyer information from the company.

Multi-factor legal tests are not known for the clarity they provide. Chadbourne’s is no different. For instance, what happens if an employee walks into counsel’s office, undirected by a manager, to raise concerns about the job? Is that conversation privileged? The federal standard would suggest that privilege applies, so long as the conversation is confidential and the employee is seeking legal counsel about employment. But the California standard clouds up the legal skyscape. A strict reading of Chadbourne could suggest that privilege attaches only if the employer requires the employee to report conduct, a requirement arguably not met in our hypothetical.

Are Former Employees Ever “Clients?”

California courts have extended attorney-client privilege to some situations involving communication with former employees. Courts recognize the privilege where the corporate lawyer communicates with former employees when (1) matters fall in the former employees’ prior scope of employment, and (2) the lawyer needs to provide legal advice to the company. But corporate counsel again must proceed with caution.

As an initial matter, the privilege as to former employees is narrower than it is as to current employees. For instance, one federal judge interpreting California law refused to extend the privilege to counsel’s fact gathering interviews and deposition preparation with a former employee, as nothing required the former employee to communicate with counsel. The employee did not have a cooperation agreement with his former employer, and the former employee was not the only source of the information the company sought. Many employers could avoid this predicament with a joint-defense agreement with the former employee. But these agreements could come with their own risks, particularly where a potential conflict looms with the employee.

Further, even if the former employee’s communications with corporate counsel are privileged, opposing counsel could contact the employee directly. The opposing side cannot inquire into privileged communications, but there is little in practice that corporate counsel can do to ensure that the former employee does not unknowingly disclose privileged information.

So How Do Employers Avoid Privilege Storms With Their Employees?

Contrary to some high-level publicity on the subject, the attorney-client privilege is not dead. Indeed, it thrives, at least as it exists between California employers and their employees. But to ensure clear sailing, employers communicating with current and former employees should keep some tips in mind, lest they destroy the privilege in a storm of their own making:

  • Always be clear with current and former employees that you do not represent them personally, and that the communications are confidential. Often called “Upjohn Warnings,” the strongest notices to employees (1) make clear that the corporate lawyer does not represent the individual employee, (2) that anything the employee says to the lawyers will be protected by the company’s attorney-client privilege, (3) the employer retains the right to waive the privilege, and, depending on the type of situation, (4) individuals may wish to consult their own independent counsel if they have any concern about potential legal exposure. These warnings often are given in writing.
  • Document that the communication is related to providing legal advice to the company. That the conversation concerned legal issues relating to the company is a requirement for the attorney-client privilege to attach. Proper documentation could help establish the privilege in the event a court ever should question the purpose of the conversation.
  • Limit discussions with current and former employees to matters within the scope of their job duties. Again, this is a requirement for the privilege to attach, and thus, important to document, where feasible.
  • Do not discuss litigation strategy or share work product with the employees. This is a good strategy for all employees, but especially important for former employees because the opposing party in litigation can contact them directly, without going through the company’s counsel.
  • Ensure company policies include provisions reminding employees not to disclose the contents of communications with counsel. This is another opportunity for employers to impress upon employees that communications with counsel are confidential, which is key for the communications to be privileged.
  • Consider having departing employees sign cooperation agreements. Particularly for employees involved in active litigation, or where litigation is possible, having a cooperation agreement in place with former employees will help remove doubt whether they are “required” to provide information to employers, even after their employment ends.

Workplace Solutions: As one can see, navigating the stormy waters of corporate attorney-client privilege can be difficult. If you have further questions about this article, please feel free to contact the author or your favorite Seyfarth attorney.

Edited By: Michael Wahlander

On April 30, 2018, the California Supreme Court issued a long-awaited opinion in which it considered which test should be used to decide whether a worker asserting claims under a California Wage Order is an employee or an independent contractor.  The following Seyfarth One Minute Memo summarizes the case and what it means for employers.

Seyfarth Synopsis: The California Supreme Court, in Dynamex Operations v. Superior Court, held that “engage, suffer or permit to work” determines employee status for Wage Order claims, requiring a defendant disputing employee status to prove (A) the worker is free from control and direction of the hirer in connection with performing the work, both under contract and in fact; (B) the worker performs work outside the usual course of the hiring entity’s business; and (C) the worker customarily engages in an independently established trade, occupation, or business of the same nature as the work performed for the hirer.

The Trial Court Decision

Delivery drivers Charles Lee and Pedro Chevez sued Dynamex Operations West for unlawfully classifying them and 1,800 other drivers as independent contractors. To argue that they were really employees, they cited California’s Industrial Welfare Commission Wage Order No. 9. Their motion for class certification argued that, under Martinez v. Combs (2010), they were employees in that Dynamex knew that they provided services and had negotiated their rates. The trial court certified a class. Dynamex petitioned the Court of Appeal for a writ of mandate.

To view the full alert, please click on the link below:

http://www.seyfarth.com/publications/OMM050118-LE

Seyfarth Synopsis: California is rife with regulation of how employers may obtain and consider background check information for use in hiring and personnel decisions. The relatively new California ban-the-box law (effective January 1, 2018) and the older Los Angeles and San Francisco ordinances and amendments to the California Labor Code set strict rules on when and how employers can consider criminal and credit histories in employment. Many details to follow.

Before 2014, when San Francisco enacted a city-wide ban-the-box law, criminal history background checks were largely unregulated in California, except for a handful of Labor Code provisions that barred consideration of certain types of criminal records. And California employers were stripped of their ability to use credit checks for hiring and other personnel decisions in 2012, by amendments to the Labor Code that restricted the use of credit checks to very narrow circumstances. Los Angeles and the State of California have now joined San Francisco with their own ban-the-box laws, which markedly differ from San Francisco’s.

This blog highlights the laws concerning criminal and credit history background check reports in California, after briefly discussing the decades-old federal Fair Credit Reporting Act (“FCRA”). As the number of class actions alleging FCRA violations continues to skyrocket, it is critical that California employers understand the basics of all laws affecting employment screening programs and determine what changes to policies, forms, and practices will ensure compliance and reduce the risk of claims.

FCRA Basics

Generally speaking, before an employer may obtain a consumer report (aka a “background check report”)—which may include criminal or credit history, from a third-party background check company (“consumer reporting agency” or “CRA”)—the employer must make a clear and conspicuous written disclosure to the individual, in a document that consists “solely” of the disclosure, that a background check may be done. California’s fair credit reporting statute also requires a separate, stand-alone disclosure, which cannot be combined with the FCRA disclosure. The applicant or employee must provide written consent for the employer to obtain a background check report. There are other requirements for “investigative consumer reports” (those based on interviews of the individual’s friends, neighbors and associates) and employers regulated by the Department of Transportation.

Before an employer relies in whole or in part on a background check report to take an “adverse action” (e.g., rescinding a conditional job offer or discharging an employee), the employer must provide the individual a “pre-adverse action” notice, and include with it a copy of the report and the Consumer Financial Protection Bureau’s Summary of Rights. This notice gives the individual an opportunity to discuss the report with the employer before the employer takes adverse action.

Once the employer is prepared to take the adverse action, it must then give the individual an “adverse action” notice, containing certain FCRA-mandated text.

California employers that rely on criminal and credit history information for employment purposes must also consider state and local laws that impose additional compliance obligations, regardless of whether the information is obtained from a CRA.

Employers May Order “Credit Reports” Only for Certain Positions

As noted, California employers have been hampered in their ability to order credit checks since 2012. Labor Code section 1024.5 states that employers, except for financial institutions, may order a credit check only if the individual works (or is applying to work) in certain positions:

  • a managerial position (as defined in California Wage Order 4);
  • a position in the State Department of Justice;
  • a sworn peace officer or law enforcement position;
  • a position for which the employer must, by law, consider credit history information;
  • a position that affords regular access to bank or credit card account information, Social Security numbers, and dates of birth (all three are required), so long as access to this information does not merely involve routine solicitation and processing of credit card applications in a retail establishment;
  • a position where the individual is or will be a named signatory on the bank or credit card account of the employer or authorized to transfer money or authorized to enter into financial contracts on the employer’s behalf;
  • a position that affords access to confidential or proprietary information; or
  • a position that affords regular access during the workday to the employer’s, a customer’s or a client’s cash totaling at least $10,000.

Setting aside state and federal disclosure and authorization requirements discussed above, any California employer that intends to order a credit check on a position identified above must notify the individual in writing why the employer is using a credit report (e.g., the individual is applying for or holds a position that affords access to confidential or proprietary information).

California’s State and Local Ban-the-Box Laws Restrict Use of “Criminal History”

California’s statewide ban-the-box law (Gov’t Code § 12952), as of January 1, 2018, requires employers with five or more employees (subject to few exceptions) to follow certain procedures when requesting and using criminal history information for pre-hire purposes. Specifically, regardless of the source of the criminal history information, employers must:

  • Wait until after a conditional offer of employment to inquire about criminal history, which means asking applicants directly whether they have been convicted of a crime, ordering a criminal history background check, or making any other inquiry about an applicant’s criminal history.
  • Conduct an individualized assessment of an applicant’s conviction to determine whether it has a “direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” Unlike the Los Angeles ban-the-box ordinance (discussed below), the California law does not require employers to provide the applicant with their assessment.
  • Notify the applicant of any potential adverse action based on the conviction history. The notice must identify the conviction, include a copy of any conviction history report (regardless of the source), and state the deadline for the applicant to provide additional information, such as evidence of inaccuracy, rehabilitation, or other mitigating circumstances.
  • After waiting the requisite time period, notify the applicant of any final adverse action, of any existing procedure the applicant has to challenge the decision or request reconsideration, and of the applicant’s right to file a complaint with the Department of Fair Employment and Housing.

In contrast to the FCRA pre-adverse and adverse action notices—required only if the adverse decision is based on information obtained from a background check report from a CRA—the California notices are required even if the employer doesn’t order criminal background check reports from a CRA, but learns of the criminal history from a different source (such as an applicant self-disclosure).

Substantively, a wide range of criminal records are off-limits to California employers (unless the employer qualifies for very narrow exceptions identified in the Labor Code). Records that cannot be used are:

  • arrests that did not lead to a conviction;
  • non-felony marijuana convictions that are older than two years;
  • juvenile records; and
  • diversions and deferrals.

Although complying with California law can be challenging, employers that hire in the cities of Los Angeles and San Francisco must also look to the ban-the-box ordinances in these jurisdictions, which exceed the requirements found in the FCRA and the California ban-the-box law.

The Los Angeles Fair Chance Initiative for Hiring Ordinance

The Los Angeles ordinance, effective January 22, 2017, applies to any “employer” located or doing business in the City of Los Angeles and employs 10 or more employees. An employee is any person who performs at least two hours of work on average each week in the City of Los Angeles and who is covered by California’s minimum wage law. The ordinance also applies to job placement and referral agencies and is broad enough to cover other types of work, including temporary and seasonal workers and independent contractors.

The L.A. ordinance goes beyond California-imposed requirements by imposing the following onerous steps on employers when considering criminal history (regardless of the source):

  • Perform a written assessment that “effectively links the specific aspects of the Applicant’s Criminal History with risks inherent in the duties of the Employment position sought by the Applicant.” The assessment form that contains the relevant factors can be found on the city’s website.
  • Provide the applicant a “Fair Chance Process”—giving the applicant an opportunity to provide information or documentation the employer should consider before making a final decision, including evidence that the criminal record is inaccurate, or evidence of rehabilitation or other mitigating factors. As part of this process, the employer must include with the pre-adverse action notice a copy of the written assessment and any other information supporting the employer’s proposed adverse action.
  • Wait at least five business days to take adverse action or fill the position. If the applicant provides additional information or documentation, the employer must consider the new information and perform a written reassessment, which is at the bottom of the form mentioned above. If the employer still decides to take adverse action against the applicant, the employer must notify the candidate and attach a copy of the reassessment with the adverse action notice.

Los Angeles also states that all solicitations and advertisements for Los Angeles opportunities must state that the employer will consider qualified candidates with criminal histories in a manner consistent with the law.

Moreover, employers must post, in a conspicuous workplace that applicants visit, a notice that informs candidates of the Los Angeles ordinance. Copies of the notice must be sent to each labor union or representative of workers that has a collective bargaining agreement or other agreement applicable to employees in Los Angeles. This notice can be found on the City’s website.

San Francisco’s Fair Chance Ordinance

San Francisco, as of August 13, 2014, became California’s first city to enact a ban-the-box law. Because the new California ban-the-box law provided greater protections to job applicants, the City and County of San Francisco Board of Supervisors (on April 3, 2018) amended the Fair Chance Ordinance (Article 49) to align (in some respects) with the California law. However, employers with five or more employees working in San Francisco that intend to inquire about and consider criminal history (regardless of the source) also must:

  • Provide the applicant or employee with a copy of the Office of Labor Standards Enforcement’s (“OLSE”) Fair Chance Act Notice before inquiring about criminal history or ordering a criminal history background check.
  • Post the OLSE Notice “in a conspicuous place at every workplace, job site, or other location in San Francisco under the Employer’s control frequently visited by their employees or applicants,” and “send a copy of this notice to each labor union or representative of workers with which they have a collective bargaining agreement or other agreement or understanding, that is applicable to employees in San Francisco.” The posted Notice must be in English, Spanish, Chinese, and any language spoken by at least 5% of the employees at the workplace, job site, or other location at which it is posted. The Notice currently is on the OLSE’s website.

Covered San Francisco employers are barred from considering the following types of criminal records (even though these records are not off-limits in other California cities), subject to narrow exceptions: (i) infractions; (ii) convictions that are older than seven years (measured from the date of sentencing); and (iii) any conviction that arises out of conduct that has been decriminalized since the date of the conviction, measured from the date of sentencing (which would include convictions for certain marijuana and cannabis offenses).

California Workplace Solutions

Class actions against employers for failing to follow hyper-technical requirements for background checks have come to dominate the news. Employers in California and elsewhere will want to conduct (privileged) assessments to strengthen their compliance with the myriad laws that regulate use of an individual’s criminal and credit history. Suggested next steps include:

  • Assess coverage under the California, Los Angeles, and San Francisco ban-the-box laws, and California’s law restricting use of credit reports.
  • Review job advertisements and postings both for unlawful and mandatory language regarding criminal history.
  • Review job application and related forms for unlawful inquiries regarding criminal history.
  • Train employees who conduct job interviews and make or influence hiring and personnel decisions, regarding inquiries into, and uses of, credit and criminal history, including best practices for documentation and record retention.
  • Review the hiring process to ensure compliance, including the timing of criminal history background checks, the distribution of mandatory notices, and the application of necessary waiting periods.

Seyfarth Synopsis: Workplace violence is a major concern that can take the form of intimidation, threats, and even homicide. But fret not: California employers can arm themselves with restraining orders, to prevent a modern version of the “Fight Club” at work.

Rule Number 1: If There’s a Workplace Violence Threat, DO Talk About It—In Court

Being at work during a scene reminiscent of “There Will Be Blood” is not an ideal situation. Yet incidents of workplace violence are alarmingly common. According to the Occupational Safety and Health Administration, nearly two million Americans report that they have witnessed incidents of workplace violence, ranging from taunts and physical abuse to homicide. The recent Long Beach law firm shooting by an ex-employee serves as a chilling reminder of what forms such violence can take.

While there is no surefire way to stop unpredictable attacks against employees—whether by a colleague, client, or stranger—California employers can avail themselves of measures to reduce the risk of workplace threats. One such measure is a judicial procedure: a workplace violence restraining order under California Civil Procedure Code section 527.8.

Rule No. 2: Understand What a California Restraining Order Looks Like

A California court can issue a workplace violence restraining order to protect an employee from unlawful violence or even a credible threat of violence at the workplace. A credible threat of violence simply means that someone is acting in such a way or saying something that would make a reasonable person fear for the person’s own safety or that of the person’s family. Actual violence need not have occurred. Many actions short of actual violence—such as harassing phone calls, text messages, voice mails, or emails—could warrant issuing a restraining order.

Restraining orders can extend beyond just the workplace and protect the employees and their families at their homes and schools. A California court can order a person to not harass or threaten the employee, not have contact or go near the employee, and not have a gun. A temporary order usually lasts 15 to 21 days, while a “permanent” order lasts up to three years.

Rule Number 3: Employer Requests Only, Please

The court will issue a workplace violence restraining order only when it is requested by the employer on behalf of an employee who needs protection. The employer must provide reasonable proof that the employee has suffered unlawful violence (e.g. assault, battery, or stalking) or a credible threat of violence, or that unlawful violence or the threat of violence can be reasonably construed to be carried out at the workplace.

So how does an employer request and obtain protection for their employees?

Rule Number 4: Document the “Fight”

The employer must complete the requisite forms and file them with the court. Though the forms do not require it, it often is helpful to include signed declarations from the aggrieved employee and other witnesses.

If a temporary restraining order is requested, a judge will decide whether to issue the order within the next business day, and if doing so will provide a hearing date on a permanent restraining order. A temporary restraining order must be served as soon as possible on the offender. The order becomes effective as soon as it is served. Temporary restraining orders last only until the hearing date.

Rule No. 5: Keep Your Eyes on the Prize at the Hearing

At the hearing, both the employee needing the restraining order and an employer representative should attend. Employers may bring witnesses, too, to help support their case. The person sought to be restrained also has a right to attend, so the employee needing the restraining order should be ready to face that person. If necessary, the employer or the employee can contact the court or local police in advance to request that additional security or protective measures be put in place where there is a threat of harm.

During the hearing itself, the judge may ask both parties to take the stand for questioning. Upon hearing the facts, the judge will either decide to deny the requested order or decide to issue a permanent restraining order, which can last up to three years.

Restraining orders are a serious matter, as employers are essentially asking the court to curtail an individual’s freedom. But such an order is a powerful tool that an employer may find necessary to protect the safety of its employees.

Workplace Solutions: Even though it may relatively easy to demonstrate a credible threat of violence and thus obtain a protective order, know that California courts protect all individuals’ liberty, including their freedom of speech. Obtaining an order to restrain that liberty requires a detailed factual showing. If you have any questions about the process or if this is the right action for you, we highly recommend that you speak to your favorite Seyfarth attorney.

Please click on the below link for an interesting and timely article posted today on our sister blog, ADA Title III News & Insights:

Seyfarth Synopsis: Plaintiffs who pursued web accessibility actions under Title III of the ADA are now using website accessibility to test the limits of a different area of law – employment law – California’s Fair Employment and Housing Act. 

[To continue reading, click here…]

We’re pleased to announce that the 2018 version of our Cal-Peculiarities: How California Employment Law is Different, your indispensable California employment law guide, is arriving next week, to coincide with our annual update Webinar on the same subject.  This edition, like its predecessors, aims to help private employers understand what’s peculiar about California employment law.  In the 2018 Edition, we continue to highlight recent court decisions and legislative developments, and how they may impact you and your business.

The book is available in a convenient, searchable eBook format.  Click here to order your copy today!

We also invite you to join us for a Cal-Pecs Webinar on Tuesday, April 17, 2018! Seyfarth attorneys Ann Marie Zaletel, Chelsea Mesa, and Coby Turner, will discuss the growing list of legal developments—judicial as well as legislative—that should concern executives, managers, general counsel, and human resources professionals with employees in California, including laws related to:

  • Enactment of California’s “Bathroom Bill”
  • New Transgender Identity and Expression Regulations
  • Expansion of Required California Anti-Harassment Training
  • New California Ban-the-Box Law
  • New California Salary History Ban
  • California Immigration Initiatives

There is no cost to attend this program, however, registration is required. Please click here to register! The webinar will be offered at the following times:

1:00 p.m. to 2:30 p.m. Eastern
12:00 p.m. to 1:30 p.m. Central
11:00 a.m. to 12:30 p.m. Mountain
10:00 a.m. to 11:30 a.m. Pacific

On behalf of your Cal-Pecs team, thank you for your continued interest in the blog.

Seyfarth Synopsis: Can employers deny employment to people who use cannabis under a medical prescription authorized by state law? In more and more states, the answer is now “No.”

Changes in cannabis laws are creating a new haze for employers. What follows is a quick summary citing some (not all) states that now require employers to think twice before denying employment to individuals because they tested positive for the use of marijuana that they are ingesting for state-authorized medical reasons.

Potpourri of Pot Protective States

Arizona. Unless failure to do so would cause an employer to lose certain benefits under federal law, an employer may not discriminate because of a person’s status as a cannabis cardholder. While employers may discipline employees for ingesting marijuana in the workplace or for working while under the influence of marijuana, a registered qualifying patient cannot be considered to be under the influence of marijuana solely because of the presence of marijuana in the patient’s system. Ariz. Rev. Stat. §§ 36-2813, 36-2814, 23-493, 23-493.06.

Delaware. An employer cannot discriminate because of a person’s status as a medical cannabis cardholder unless failure to do so would cause the employer to lose certain federal benefits. An employer can, however, prohibit the ingestion, possession, or impairment of marijuana in the workplace. Del. Code Ann. tit. 16, §§ 4905A, 4907A.

Maine. Employers cannot test applicants for cannabis unless they submit a request to the State of Maine and that request is approved. Nor can Maine employers use a positive test for cannabis, by itself, to prove that an employee is impaired by cannabis. An employer can, however, prohibit smoking medical marijuana on its premises, can prohibit employees from using or consuming cannabis in the workplace, and can prohibit employees from working while under the influence. Rev. Stat. tit. 22, § 2423-E; 10-144-122 Me. Code R. 2.13.2; Me. Rev. Stat. tit. 7, § 2454.

Minnesota. Employers may not discriminate against employees or applicants who hold a medical marijuana card or who test positive for marijuana, unless a failure to discriminate “would violate federal law or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations.” If an employee uses, possesses, or is impaired by medical cannabis on the employer’s premises during work hours, then an employer may take action. Even then, however, employers must allow employees to explain (and present verification of enrollment in the patient registry) before taking any adverse action. Minn. Stat. §§ 152.32, 181.953.

New York. Employers cannot discriminate against certified medical marijuana users. A certified medical marijuana user is deemed to have a disability and employers must reasonably accommodate the underlying disability associated with the legal marijuana use. Employers can, however, enforce their policies prohibiting employees from performing work while under the influence. N.Y. Pub. Health Law § 3369; N.Y. Labor Code § 201-d.

But what about California? California currently permits employers to forbid applicants and employees to use cannabis, regardless of whether it is medically prescribed. We refer you to our fearless prediction, however, that California will soon inhale the winds of change and join those states that protect medical cannabis users against employment discrimination. Two California legislators have proposed a bill that would amend the FEHA to create a new protected category: medical marijuana card holders. The bill would prohibit employers from discriminating against individuals for testing positive for cannabis or for being a qualified patient with an identification card. Continue to monitor this space for further developments.

If you have any questions regarding compliance with cannabis laws, please feel free to contact your favorite Seyfarth cannabis attorney. You can also get further into the weeds on developments in cannabis law at Seyfarth’s marijuana-specific blog: The Blunt Truth.

Seyfarth Synopsis: Even if bad Glassdoor reviews have you feeling like you need to fight back, employers should stay out of the ring, and instead implement social media policies that clearly define prohibited behavior and disclosures, while spelling out the consequences for violations. Employers must not retaliate against employees for their lawful out-of-office behavior.

People are used to sharing everything about their lives—from what they ate for breakfast to the funny name on their Starbucks Frappuccino. But this behavior can be scary for employers when current and former employees take to social media to complain about their jobs—or even defame their boss. Of particular interest are online platforms such as Glassdoor, which purport to provide “inside” information about working conditions, salaries, and company culture.

So what can an employer do when an employee posts a negative comment on Glassdoor about the company? The answer is … not much. The law often protects an employee’s off-duty speech. But the law does not protect defamatory speech, and it does not protect the disclosure of confidential, protected information. So proactive employers can take steps to make sure they are not unfairly smeared online and that their trade secrets are protected. We have a few suggestions in that regard.

What Are You Tryin’ To Prove: Don’t Get In The Ring

Websites such as Glassdoor, which has about 30 million monthly users, allow current and former employees to criticize or praise a company, typically through anonymous posts. Though many such sites screen critiques to prevent the posting of offensive comments and those that would disclose private information, they nonetheless present a conundrum for employers: Do you ignore criticism—even if it’s false—or do you respond to it? The former tactic can permit damage to an employer brand to go unchecked; the latter can make an employer look defensive.

In this new age of information, job applicants search employer review sites for information about companies. Responding to a negative review can help your brand if you do so in a way that shows the organization is genuinely committed to improving. But a response could also provide more fodder for further negativity, so it’s best to try to get ahead of the problem by making changes in-house, if necessary.

If your employees are posting on social media outside of working hours, California’s constitutional right to privacy can protect them from retaliation. Labor Code section 96(k) protects employees where they have engaged in lawful conduct asserting “recognized constitutional rights,” such as free speech postings on social media, occurring during nonworking hours away from the employer’s premises. A better avenue is to get ahead of the problem and educate employees about what they can and can’t post online about the company.

Put Your Robe On—And Implement a Social Media Policy

You can restrict free speech online for current employees with a social media policy (but only up to a point!). Employers should have a social media policy that prohibits posting confidential information about the company (and perhaps about posting anything about the company at all) without permission from the company’s public relations group. Every employee is required to follow the company’s legally compliant policies even if they are stricter than what the law would otherwise allow. If an employee violates your policies, that employee could be subject to employment discipline up to and including termination.

That said, there are limits to the restrictions employers can place on what employees can say about them online. The National Labor Relations Act protects the rights of workers to discuss wages and working conditions with other workers. These protections apply to posts on social media, so your social media policy cannot prevent employees from communicating with other employees online about the company’s pay or working conditions, such as might be the case with a Glassdoor review.

For example, in analyzing one company’s social media policy that forbade employees from making anonymous posts about the company online, the NLRB’s general counsel found that “requiring employees to publicly self-identify in order to participate in protected activity imposes an unwarranted burden on Section 7 rights [of the National Labor Relations Act]. Thus, we found this rule banning anonymous comments unlawfully overbroad.”

You Never Got Me Down—Employers’ One-Two Punch Combo for Dealing with Social Media

  • It is prudent for employers to prepare and implement a social media in the workplace policy in order to avoid risks of disclosure of confidential and proprietary information and claims of cyberbullying, harassment, and discrimination.
  • Social media policies should clearly articulate the legitimate business interests the employer seeks to protect, as well as provide clear definitions of prohibited behavior and private and confidential information, and spell out the consequences for violations of the policy.
  • Employers should use caution when disciplining employees based on social networking activities, as certain union and nonunion employee rights need to be considered.
  • An employer may discipline an employee for posting negative comments on a social networking site if the employee’s comments are offensive or inappropriate, and not related to employment issues, and should do so on a consistent basis.

Workplace Solutions: Employers should open up a dialogue with employees about social media and encourage them to bring grievances to Human Resources, instead of airing their grievances online. Employers should also avoid retaliating against employees for posting on social media outside of work hours, and implement social media policies that clearly articulate the penalties for posting confidential information, and any defamatory statements.

Edited by Coby Turner

Seyfarth Synopsis: With a single utterance at the recent Academy Awards ceremony, “inclusion rider” entered the popular lexicon. That has led many to wonder, “What is an inclusion rider?” The next question, of course, is this: “Is an inclusion rider enforceable?”

What is an inclusion rider? In most respects, this is an entertainment industry term for the more commonly known NFL Rooney Rule. The Rooney Rule requires league teams to interview minority candidates for head coaching and senior football operation jobs—the intent being to create equal opportunity. When we think of “riders” relating to the entertainment industry, what most often comes to mind are musicians’ riders: requirements that particular food and beverages be present backstage (e.g., X cases of a particular beer, Y bottles of a particular champagne, and Z sandwiches from a particular shop). An inclusion rider is a provision in an actor’s contract that requires the producer to hire members of historically underrepresented groups (e.g., people of color, women, the LGBTQ community). The idea is that high-powered actors can demand that both the cast and those working “below the line” (the crew) demographically reflect our society.

Some thus envision inclusion riders as providing specific hiring quotas. Frances McDormand (who introduced “inclusion rider” to the world after winning the Oscar for Best Actress in “Three Billboards Outside Ebbing, Missouri”) elaborated on her proposal during an Oscar after-party: “You can ask for or demand at least 50% diversity in the casting and the crew.”

But would this kind of inclusion rider be enforceable? In 2009, in Ricci v. DeStefano, the U.S. Supreme Court concluded that “before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.” In other words, hiring quotas are permissible only if an employer needs the quota to avoid being accused of having facially neutral hiring practices that have an unintended disproportionate impact on a particular (protected) demographic segment of the population.

Demanding that an employer hire at specified diversity levels would almost certainly fly in the face of Ricci, and an employer would accommodate such a rider at its legal peril.

While a specific hiring quota might be unenforceable, the same is likely not true of an inclusion rider that more closely mirrors the Rooney Rule. If an inclusion rider merely requires that a producer interview for cast and crew in a way that reflects the available talent—or even, more broadly, societal demographics—the rider would be unlikely to face the same legal challenges as a hiring quota. Query whether something in between, such as stated aspirational goals (but not mandates) for diverse hiring, would pass muster.

So what does this mean for employers? McDormand’s acceptance speech—referring to a concept involving employment negotiations in the entertainment industry—can inspire conversations about hiring in every industry. When a prospective employer is evaluating a demand for an “inclusion rider,” the employer must keep Ricci’s instruction in mind: is the demand that the employer impose a hiring quota, or is the demand that the employer intentionally expand interviewing and employment opportunities for diverse candidates? While the latter approach can be defensible, the proverbial curtain will almost surely drop on the former practice as soon as it begins.