California Employment Law Update

January 2019 California Employment Law Notes

We invite you to review our newly-posted January 2019 California Employment Law Notes, a comprehensive review of the latest and most significant developments in California employment law. The highlights include:

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A California Jury Strikes Again – Hands Out $11 Million Verdict

A Los Angeles jury awarded more than $11 million to two former employees who claimed they were sexually harassed and retaliated against for complaining about the harassment.

Megan Meadowcroft and Amber Brown, who worked at the Keyways Vineyard and Winery in Temecula, California, alleged they had been harassed by the general manager, Carlos Pineiro.

Meadowcroft and Brown filed an FEHA sexual harassment and retaliation lawsuit, claiming that Pineiro made sexually inappropriate comments to Brown, touched her on the knee, was drunk at work, and threated to harm Brown if she complained about his behavior. Meadowcroft alleged that Pineiro also made sexually explicit comments, took pictures of her rear, touched her rear and vagina, and pushed her against a wall and told her that he would make her a manager if she had sex with him. After complaining, the two were taken off the work schedule.

Brown claimed panic disorder and post-traumatic stress disorder, while Meadowcroft also described symptoms consistent with post-traumatic stress disorder.

A jury sided with Meadowcroft and Brown on all causes of action for harassment, retaliation, failure to prevent harassment/retaliation, and negligent in supervision, retention or hiring. The jury awarded each of the women $1 million for past emotional distress damages, $1.5 million for future emotional distress damages, and $3 million in punitive damages, for a total verdict of $11 million. Added to that amount will be a substantial amount of prevailing-party attorney’s fees as well.

We’ve reported on massive verdicts against employers in California again and again. With massive punitive damages accounting for more than half of the total award in this case, this is yet another example of why California sits atop the judicial hellhole list year in and year out.

The Coming Battle Over ‘Implicit Bias’ in Employment Discrimination Cases

 

 

 

 

 

Employers are facing the growing threat of “implicit bias” evidence in employment discrimination cases.  Employment partner Tony Oncidi explains how to meet the challenge: https://www.proskauer.com/uploads/the-coming-battle-over-implicit-bias-in-employment-discrimination-cases

 

 

 

We’re #1 Again! California Tops “Judicial Hellhole” List!

The American Tort Reform Foundation has just released its annual report on “Judicial Hellholes.”  The Report claims that in California, the legislature and courts “extend liability at almost every given opportunity,” including fostering “no-injury” litigation in the form of class action and PAGA (Private Attorneys General Act) lawsuits in the workplace. California takes the number one spot for the fourth time in the last seven years.

Excessive employment-related lawsuits and ubiquitous PAGA claims in particular continue to plague both large and small employers in California  — the Los Angeles Times published a piece on this shortly after California was crowned top “Judicial Hellhole.”

Read the full report here.

The Cost of PAGA to Small Businesses (Los Angeles Times op-ed)

A small business owner wrote an op-ed piece for the Los Angeles Times, explaining how the Private Attorneys General Act (PAGA) hurts employees as well as employers – and primarily benefits lawyers. He uses his own experience defending such a case to demonstrate how PAGA is forcing him to operate his business in a way that benefits neither him nor his employees.

Read the full opinion here: https://www.latimes.com/opinion/op-ed/la-oe-monroe-paga-small-businesses-20181206-story.html

The Electric Scooter Craze: What Can Employers Do to Protect Themselves from Potential Liability?

If you haven’t ridden one yet, it’s likely you’ve had one fly by you on the sidewalk. Electric scooters – or e-scooters – have quickly descended upon most major cities in America. These app-based scooters let a user ride across the city at up to 15 m.p.h. and then discard the scooter wherever the rider happens to disembark. While relatively new, injuries from riding these scooters are already fairly common, and the scooters also have even been involved in some fatal accidents already. With the use of e-scooters on the rise, an employer should be prepared for the potential legal problems they create.

The increasing popularity of these scooters indicates that some employees will, sooner or later, jump on an e-scooter during work hours. Thus, an employer should lose no time in doing the following:

  • Draft new language for the employee handbook relating to e-scooters;
  • Add e-scooters to an existing section of the handbook that regulates employee use of bikes, motorcycles, cars, or other company vehicles; and
  • Consider providing/mandating safety equipment if the business allows employees to ride e-scooters while on the job.

Although an employer should prepare, it’s worth noting that the law isn’t fully developed yet concerning the contours of employer liability relating to employee use of e-scooters. In New York, for example, an employer was held liable for fines that workers incurred when the workers were operating e-bikes on the employer’s behalf. Such liability could result from an employee’s failure to wear proper safety equipment, riding in an unauthorized manner or off-limits area or the city, or failing to obey traffic signals, among other things. In California, these could be costs or expenses attributable to and requiring reimbursement by the employer under Labor Code § 2802.

Beyond fines, an employer could be liable for injury that occurs when an employee is riding an e-scooter. For example, when an employee uses his/her own car during work hours to perform services for the employer, an employer may incur liability. The same could be applied to e-scooters. In general, if an employee uses an e-scooter to come to or from work, the employer generally would not be liable for injuries that occur (the “Going and Coming Rule”). However, if the employee uses the e-scooter during the workday to accomplish tasks for the employer or is on an errand for the employer while commuting to/from work, the employer may be held liable. Thus, the ubiquity of e-scooters may lead to more employees using them to run errands during work hours, which could in turn result in an uptick in employer liability.

E-scooters have already been the target of numerous legal battles, so we expect the law regulating e-scooters to continue to evolve. Employers would be wise to keep an eye on these developments.

***Photo credit to Lime

Consider the True Implications of Waiving Arbitration

Employers: have you thought about the true implications of waiving arbitration? When considering how to end sexual harassment issues in the workplace, prioritizing training and policy review may be a better course. Read more in Anthony Oncidi’s latest column in the Los Angeles Daily Journal: https://lnkd.in/dcMBBFm

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