Employment Discrimination

Seyfarth Synopsis: While targeted social media ads may help employers find potential applicants with specific skill sets, inartfully crafted ads may open the door to discrimination claims, particularly in California.

We’ve already told you about the parade of horribles employers may face when using social media when making hiring decisions.

Well, more social media, more problems.

Micro-Targeting May Open The Door To Discrimination Claims

What is micro-targeting, you ask? Remember when you looked up discount flights to Hawaii, and then for the next three weeks, all of your feeds taunted you with ads for more flights, hotels, surf lessons in Kauai and hula skirts? Well, it’s kind of like that.

Social media platforms collect virtually endless volumes of personal data. This practice enables increasingly intricate advertising algorithms to push out content to very specific demographics. Suppose your business wants to advertise to the select group of people who have expressed an interest in the Montessori method, or who juggle, or who space travel and live in three specific zip codes. Micro-targeting was made for you.

Micro-targeting has expanded into the employment context, with some potentially problematic implications. One class action pending in California federal court alleges that Facebook ads targeted to people within certain age ranges are discriminatory. Similar claims could crop up in seemingly innocuous situations if, for example, an employer targeted ads to fellow graduates of his alma mater, which happened to be an all-male prep school.

As a result, employers who recruit via social media should proceed with caution if their ads in any way target (or exclude) persons in a legally protected category.

Particular Risks for California Employers

Federal law prohibits discrimination based on race, color, national origin, sex, disability, age, citizenship status, and genetic information. Of course, California is a bit different.  California extends its protections to prevent discrimination because of additional characteristics, including ancestry, marital status, sexual orientation, gender identity and expression, medical condition, political activities or affiliations, and military or veteran status. As a result, for example, an ad geared towards trying to recruit politically liberal or conservative candidates may raise peculiar legal issues in California.

Workplace Solutions

Employers need to understand their recruitment practices, and decide whether micro-targeting can ever be the right approach for them. When employers decide to use targeted ads, they should do so with relevant employment laws in mind and take steps to minimize potential exposure. Because HR managers or marketing departments may not be aware of the additional sensitivities that arise when advertising in the employment context (particularly in California), additional training on this subject may be helpful.

If you have any questions regarding your workplace’s online recruitment practices, your favorite Seyfarth attorney is only a few clicks away.

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: A proposed bill would amend California employment discrimination law to protect medical marijuana users.

California—already famous (or infamous) as a sanctuary in the immigration area—could soon become a sanctuary for medical marijuana users. A proposed bill would protect medical marijuana users from employment discrimination.

Currently, California employers can deny employment to users of marijuana, even if the use is to treat a medical condition. As previously reported, in Ross v. Ragingwire, the California Supreme Court need not accommodate medicinal marijuana use, irrespective of the Compassionate Use Act of 1996. Ross reasoned that since the California Fair Employment and Housing Act (FEHA) does not require employers to accommodate illegal drug use, the employer could lawfully deny employment to individuals using medical marijuana, which remains illegal under federal law.

The Adult Use of Marijuana Act (passed in 2016) codifies this employer prerogative: employers may “maintain a drug and alcohol free workplace.” Health & Safety Code § 11362.45(f).

Now, however, two California legislators have introduced AB 2069, a bill that would amend the FEHA to create a new protected category: marijuana card holders (i.e., medical marijuana users). AB 2069 would “prohibit an employer from engaging in employment discrimination against a person on the basis of his or her status as, or positive drug test for cannabis by, a qualified patient or person with an identification card.” AB 2069 would permit employers to take corrective actions against employees who are impaired on employer premises because of marijuana use. AB 2069 also would permit employers to deny employment “if hiring the individual or failing to discharge the employee would cause the employer to lose a monetary or licensing-related benefit under federal law or regulations.”

AB 2069, if enacted, would alter the legal landscape. Employers would need to change their drug testing policies and modify how they treat applicants and employees testing positive for marijuana use. AB 2069 would not, however, protect recreational marijuana users. California employers thus could still enforce drug testing policies against those who use marijuana for non-medicinal purposes.

The new legislation would raise further issues. One would be whether use of medical marijuana could be a reasonable accommodation under disability discrimination laws. Another is whether California’s new law would be preempted by the Controlled Substances Act (“CSA”). The CSA still classifies marijuana as a Schedule I drug—having no recognized medical value and being subject to criminal prosecution regardless of whether state law authorizes its cultivation, distribution, and use. Courts have differed on the preemptive fate of medical marijuana laws. In a 2016 New Mexico case, for example (Garcia v. Tractor Supply Co.), a federal district court held that the CSA preempted a state marijuana law: “To affirmatively require Tractor Supply to accommodate Mr. Garcia’s illegal drug use would mandate Tractor Supply to permit the very conduct the CSA proscribes.” In a 2017 Connecticut case, however, a federal district court held (in Noffsinger v. SSC Niantic Operating Co.) that a statute similar in form to AB 2069 was not preempted by the CSA, because the CSA does not specifically regulate the employment relationship.

Seyfarth Synopsis: Genetic discrimination lawsuits can result in substantial costs. California employers should regularly review their hiring and employment policies and procedures to ensure that they are not exposing themselves to potential liability on the basis of genetic information discrimination.

For most of us, exposure to “DNA” dates back to high school science class or dinosaur theme park movies. Many of us would not know how to begin to explain the intricacies of the human genome, including how different nucleotides form the basis of DNA, or how they cause characteristics in multi-cellular organisms. Luckily, for purposes of California employment law, all that you need to understand are the basics of what is permissible and impermissible when it comes to the use of genetic information for employment purposes in California.

What’s the Rule?

Since January 1, 2012, the California Genetic Information Nondiscrimination Act (“CalGINA”) has prohibited genetic discrimination in employment, housing, mortgage lending, education, and public accommodations. CalGINA provides broader protections for employees than does the federal Genetic Information Nondiscrimination Act (“GINA”) of 2008, which is limited to health insurance and employment discrimination coverage. Additionally, CalGINA, unlike GINA, allows for an employee to seek unlimited damages if they have been the victim of genetic discrimination. This prospect can be scarier than a reconstituted velociraptor, and makes it significantly more important for employers to ensure that they are not using genetic information improperly.

CalGINA added “genetic information” as a basis for discrimination to California’s Fair Employment and Housing Act (“FEHA”), which now states that “[i]t is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California … [f]or an employer, because of the … genetic information…of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” Cal. Gov’t Code § 12940 et seq.

CalGINA defines “genetic information” as (1) the individual’s genetic tests, (2) the genetic tests of family members of the individual, or (3) the manifestation of a disease or disorder in family members of the individual. This definition includes any gene or chromosome (or combination or alteration thereof) that is known to cause a disease or disorder in a person or the person’s offspring, as well as inherited characteristics that are associated with a statistically increased risk of developing a disease or disorder. The definition does not include information about a person’s age or sex.

Why should employers care?

Although discrimination on the basis of “genetic information” may seem like an obscure proposition, it is easier than an employer might think to be exposed to liability on these grounds.

Genetic employment discrimination can occur when you—as the employer or potential employer—gain information about an applicant or employee (or his or her family) related to genetic tests or family medical history, and then use that information as a factor in making an employment decision. You don’t necessarily have to have access to a medical file. Think about conditions that are generally known to have a genetic or inherited component, such as some forms of cancer, sickle cell anemia, Huntington’s disease, cystic fibrosis and Down syndrome. Once you know of such a condition, you can’t “unknow” it, so it is better to avoid being the recipient of such information, when possible.

Employers should also be very careful if they canvass social media profiles of applicants or employees. Social media sites can reveal all kinds of personal information about a candidate that would be illegal to request during the hiring process. For example, an employer could glean from a Facebook post that an applicant has a daughter or sibling with cancer. If not hired, that applicant might bring a claim for association discrimination under the ADA, the FEHA, or even the CalGINA/GINA.

What can employers do to comply with CalGINA?

Generally, employers should make sure that:

  • Policies and procedures specifically include prohibitions on discrimination, harassment and retaliation based on genetic information.
  • Applications, medical leave certifications, and other employment-related forms do not, even inadvertently, seek genetic information.
  • Pre-employment physical examinations do not inquire about family medical histories.
  • Managers and supervisors are trained on how GINA and CalGINA affect the company’s policies and procedures. For example, teach managers and supervisors how to respond to an employee who discloses family genetic information, such as “my father has cancer,” and encouraging them not to do any digging on social media on applicants or employees, lest you may discover some information you really do not want to know.

Finally, you can always reach out any of our experts at Seyfarth Shaw for more information.

Edited by Chelsea Mesa.

Seyfarth Synopsis: Our mission here at Cal-Pecs is to illuminate how California employment law differs from the law that employers generally experience throughout America. In this back-to-basics piece, we provide some background and a brief catalog of stark contrasts.

In 1846, American settlers in Mexican Alta California staged the Bear Flag Revolt. They declared an independent republic, seeking freedom from Mexico. The rebels got lucky: the Mexican-American War soon intervened to dislodge the California territory from Mexican control. California, in 1850, became our thirty-first state.

The legacy of the Bear Flag Revolt continues: the state flag depicts a grizzly bear astride a patch of grass, above the logo “California Republic.” The underlying rebellious attitude has persisted as well. State politicians—especially since the 2016 election—have defiantly proclaimed California’s right to chart its own course on such vital matters as the environment, health care, immigration, and the right to use marijuana.

Perhaps nowhere is California’s independence more prominent than in the area of employment law. Federal labor law hit high tide in the 1930s, with the National Labor Relations Act and the Fair Labor Standards Act. The high tide returned in the 1960s—bringing us the Equal Pay Act, Title VII, and the Age Discrimination in Employment Act—and returned yet again in the 1990s, bringing us the Americans with Disabilities Act and the Family and Medical Leave Act.

In the Golden State, meanwhile, the waves of employment regulation have risen ever higher, even when federal regulations have ebbed. The chart below spots differences between federal and California law in key areas of interest to employers that operate both in California and in the rest of America. In each case, of course, the California version favors employees, plaintiffs, and unions, while never favoring the employer.

Issue U.S. Law & State Law Generally California Law
What’s the minimum wage? $7.25, and higher in a few states $10.50, rising to $15 by July 2022
Must that wage be paid separately for all work, including unproductive tasks? No. Employers generally can comply with an average wage that meets the minimum. Yes. This result has surprised some employers that pay piece rate or commissions.
Must employers pay non-exempt piece-rate and commission workers separately for rest breaks? No Yes
Must employers pay non-exempt employees for required travel outside regular hours? No Yes
What overtime hours generally require premium pay? Only hours worked in excess of 40 per week. Weekly overtime plus daily overtime (over 8 hours per day) plus any time on seventh consecutive workday in a workweek.
Can employers use the “fluctuating workweek method” to compute overtime pay for salaried non-exempt employees? Yes. The regular rate is salary divided by all hours worked, with a 0.5 multiplier for overtime hours. No. The regular rate is deemed to be weekly salary divided by 40, and the overtime multiplier is 1.5, not 0.50.
Is doubletime ever required? No Yes, for hours exceeding 12 per day or 8 hours on a seventh consecutive workday.
Are there civil penalties for labor law violations? Often no, and penalties that do apply are relatively modest. Yes: for many Labor Code violations penalties are typically $100 per employee per pay period.
Can plaintiffs personally sue supervisors and co-workers under anti-harassment statutes? No Yes
Are middle managers, pharmacists, and nurses typically exempt from overtime rules? Yes No
Are employees entitled to reimbursement for routine business expenses? No Yes
What statuses do employment discrimination laws protect? Race, color, religion, sex, national origin, age over 40, disability (and sexual orientation by some judicial readings of Title VII) Those plus sexual orientation, gender identity, transgender status, political affiliation, marital status, breastfeeding, HIV status, requests for disability accommodation, etc.
Can employers invoke the “undue hardship defense” for religious accommodations simply by showing a cost > de minimis, and can they accommodate grooming and dress practices by transferring employees to a more remote location? Yes and yes. No and no. The “undue hardship” defense must meet the same tough test required in disability cases. And it is categorically unreasonable to accommodate a religious dress or grooming practice by moving the employee away from the public.
Can undocumented workers recover back pay on a claim for wrongful termination? No Yes; immigration status of a worker is irrelevant to any California remedy, except reinstatement of employment if prohibited by federal law.
Can an employer fire a worker who provided a false name, SSN or information about legal status to work? Yes No; an employer cannot discharge, discriminate, retaliate or take any adverse action against an employee who updates such information based on a lawful change.
What consequences do employers suffer for denying meal or rest breaks? Breaks that are too short are counted as working time. Failure to provide specified, timely breaks can result in up to two extra hours of premium pay per day.
Are “use it or lose it” vacation plans acceptable? Yes, generally. No
Is paid sick pay required? No Yes
Do farmworkers have the right to unionize, and do unions enjoy special protections with respect to their mass picketing? No and no. Yes and yes. California’s Agricultural Labor Relations Act protects farmworkers, and its Moscone Act limits judicial power to prohibit mass picketing.

As this limited sample of comparisons might suggest, an employer used to doing business elsewhere can find California employment law a real bear. For more detailed treatment, see the 2017 edition of our Cal-Peculiarities: How California Employment Law is Different.

Seyfarth Synopsis: When the decision is to terminate, getting the basics right can go a long way toward preventing claims down the road by departing employees. 

Inevitably, at some point, every employment relationship comes to an end. For many people, where they work and what they do is a source of pride and self-worth, as well as livelihood. People generally like to drive their own destinies. This includes deciding when and for whom they will work. Therefore, when it is the company, rather than the worker, who decides to terminate employment, shock, dismay and injured feelings may result.

In 2015, the California Department of Fair Employment & Housing received over 16,000 complaints of employment discrimination. (See DFEH 2015 Annual Report, released in June 2016.) Most alleged disability discrimination or retaliation. Although the DFEH does not analyze the complaints based on job action (i.e., termination, demotion, or some other negative employment event), it is safe to assume that most of the employment claims filed with the DFEH are based on lost employment.

This post offers some suggestions for how to try to minimize risks when the employer has made the decision to call it quits with a worker. We assume for purposes of this discussion that there is no employment agreement or collective bargaining agreement that promises discharges only for cause or that specifies what steps an employer must follow to implement a termination. Even without those contractual restrictions on the employer’s ability to terminate employment, it will behoove the employer to act in a manner that others will see as fair and just.

Accordingly, even if  the employer had made no promises at all about continued employment, its tactical goal should always be to conduct a fair and just termination, every time. Striving for this ideal should result in consistency in approach that, in turn, should result in equal treatment of employees. This approach is important to an employer charged with illegal discrimination or retaliation, because juries often equate what they perceive to be unfair treatment with illegal treatment.

What is the road to fairness and justice, you ask? Because the reasons for letting someone go can be as varied as the individuals, there is no one answer. But, the following tips may help smooth the way:

  • Appreciate the context and be consistent in process. Is the decision performance or “cause” related, or is it a company-wide reduction in force? A position elimination? The employee is just not working out? The more the termination is based on performance issues, the more important it is to document that the employee was (1) placed on notice of the issues and the employer’s expectations, and (2) depending on the circumstances, given sufficient time to improve. If an investigation into performance is called for, even in response to a concern that surfaces just before termination, it should be thorough. People who engaged in similar conduct should be treated similarly. To the extent feasible, everyone should be subject to the same process. “On the spot” firings are usually best avoided.
  • Respect the employee. Whoever conducts the termination conversation should show respect for the employee’s feelings, confidentiality, and rights. Conversations should be conducted in private, usually at a time when other employees will not necessarily be alerted to the fact. A respectful tone and manner can go a long way toward helping an employee feel better about the termination decision.
  • Get the basics right. Countless termination-related claims are based on the employer failing to observe the technicalities of timing or the amount of final pay. Use the correct forms. Pay all wages and accrued but unused vacation or PTO when due, with no unauthorized deductions. Give the employee the required brochures and documents (e.g., Notice of Separation, EDD pamphlet about unemployment benefits, COBRA notice, information about pension or other benefits).
  • Special cases. A separating employee may be on leave when the decision to terminate is made or is implemented. The employee may have already made a claim when termination occurs. If so, it will be important to have evidence that the decision was made prior to the claim being received, or that the decision would have been the same even if the employee had not been on leave or had not complained. Sometimes, for a variety of reasons (including if the separation is part of a reduction in force), the employer will decide to pay severance in exchange for a release. In each of these situations, the employer may be well-served by an internal or external legal consultation, before implementing the termination.

In summary, employers who wish to avoid life in the fast lane and want to try to minimize risk resulting from terminations should try to ensure that their employees are treated fairly in the beginning, middle, and end of their journey together. Approaching the termination decision and communications with this approach in mind can help smooth the road to the parting of the ways, and ultimately prevent meritorious claims.

By Brian Long

The California Supreme Court rarely puts employers in the holiday spirit. But this year, amidst all the lumps of coal that employers could find in the Christmas stocking, there was one treat: Harris v. City of Santa Monica (2013) 56 Cal.4th 203.

In Harris, a unanimous high court held that a “same decision” defense applies to employment discrimination claims under the California Fair Employment and Housing Act (“FEHA”). This defense can apply where the employer’s decision was motivated by both discriminatory and non-discriminatory reasons. The employer can limit its liability by showing that the non-discriminatory reason, standing alone, would have caused the employer to make the same decision. The employer’s burden of proof is simply “preponderance of the evidence” and not “clear and convincing evidence.”

Even this solitary treat can leave a sour taste, however. Although the same-decision defense precludes any award of damages, back pay, or reinstatement, any discriminatory reason that was a “substantial factor” in the employment decision will entitle the trial court to order declaratory or injunctive relief, to “prevent and deter” discrimination, and to award reasonable attorney’s fees and costs.

Certain legislative Grinches then passed a bill that would have nullified most of the pro-employer aspects of the Harris ruling. Only the intervention of Governor Brown, wielding his veto pen, preserved Harris’s limited victory for employers.

On the arbitration front, 2013 saw the California Supreme Court hand down its long-awaited decision in Sonic-Calabasas, Inc. v. Moreno (2013) 57 Cal. 4th 1109. The high court had earlier ruled that an employer cannot require employees to arbitrate disputes while waiving their right to a “Berman hearing” (an administrative proceeding to settle wage disputes). In Moreno, the high court acknowledged that the FAA preempts its earlier ruling. But now a majority of the high court holds that courts can continue to invalidate arbitration agreements under unconscionability rules that do not interfere with “fundamental attributes of arbitration.”  Thus, even if state public policy does not invalidate an arbitration agreement, a court may void it under an aggressive application of the doctrine of unconscionability.

Arbitration agreements will continue to keep us on ice in 2014. We expect the high court to resolve a disagreement between lower courts as to whether employers, through arbitration agreements, can secure waivers of the right to bring representative claims under the Labor Code Private Attorneys General Act (“PAGA”). In Brown v. Ralphs Grocery Co., (2011) 197 Cal. App. 4th 489, the Court of Appeal held that a PAGA waiver contained in an employment arbitration agreement was not enforceable, because a PAGA plaintiff acts as a proxy for the State, which was not a party to the arbitration agreement. But then in Iskanian v. CLS Transportation Los Angeles, (2012) 206 Cal. App. 4th 949, another division of the Court of Appeal held that the FAA and the U.S. Supreme Court’s decision in Concepcion apply to PAGA claims, and preempt any state law rule that would invalidate an otherwise valid arbitration agreement. The California Supreme Court granted review of Iskanian, giving itself the chance to provide some clarity regarding the enforceability of representative action waivers in employment arbitration agreements.

Other cases that might have us reaching for the champagne in 2014 include important questions regarding employment class actions. In Ayala v. Antelope Valley Newspapers, (2012) 210 Cal. App. 4th 77, the high court will review a decision whether to grant class certification in an action by newspaper carriers claiming that they were employees misclassified as independent contractors. And in Duran v. U.S. Bank, N.A., (2012) 203 Cal. App. 4th 212, the high court will address the important issue of whether a class-wide trial by formula in exempt/non-exempt misclassification case would deny employers due process. That decision likely will have have wide-ranging implications on whether proposed misclassification class actions are manageable, and thus suitable for class treatment.

Finally, next year the California Supreme Court will review the decision in Patterson v. Domino’s Pizza, (2012) 207 Cal. App. 4th 385.  In Patterson, the Court of Appeal issued a potentially far-reaching decision that could hold a franchisor vicariously liable for workplace harassment by an employee of one of its franchisees. The Court of Appeal reasoned that the terms of the franchise agreement and the franchisor’s instructions to the franchisee created a triable issue that the franchisor was liable for the harassment that a franchisee employee suffered at the hands of her supervisor, another franchisee employee. The California Supreme Court’s review of this decision may have important implications not only for franchise liability, but also for other corporate relationships and independent contractors.

If 2013 thus unwrapped high-court decisions that were both naughty and nice for employers, one can expect much the same in 2014.

Workplace Solutions:  If you are interested in learning more, please contact us and ask about our “California Peculiarities” full-length publication and if you would like to discuss strategies relating to these pending cases in California, please contact a Seyfarth Shaw attorney.