California Employment Law Update

Harassment Claims: Best Practices for Employers in the #MeToo Era

Tony Oncidi: On the issue of #MeToo and the current and best way for an employer to respond to those issues, I think there are certain things that are essentially table stakes that all employers need to do before they start considering other options. Number one, they have to make sure that they have all the appropriate policies in place, all of the reporting opportunities that an employee who may be a victim of harassment, or who may have witnessed harassment, can access. Those need to be updated; they need to be state of the art. The best practice when it comes to dealing with allegations of harassment or discrimination, whether it be a #MeToo kind of a claim or otherwise, is to properly, appropriately, and timely investigate the claim. A third thing that many employers are doing now is they’re beginning to consider whether to step away from arbitration.

The reasons that an employer should not step back from an arbitration agreement that’s already in place and that’s already been executed by somebody who is claiming to have been sexually harassed for example, is number one, it’s a risky form of unilateral disarmament. You’re essentially telling that employee that he or she is free to go to a jury. Number two, you are differentiating between sexual harassment claims, and for example, racial harassment claims, or religious discrimination or sexual orientation or disability. All of these are illegal under both state and federal law. And thirdly, it buys into the argument that there’s something inferior about arbitration. And I think that once the employer goes down that route, whether it’s with respect to a sexual harassment claim or any other kind of claim, it’s going to be very difficult to resurrect the position that arbitration is appropriate for any kind of claim.

Tune in to the Webinar Today: Employment Roundtable of Southern California

On Tuesday, April 16, 1-2 pm PDT, Tony Oncidi will be joining the Employment Roundtable of Southern California (ERTSC) and presenting the webinar, A Quick Legal Update of New Employment Laws and Cases.

The New Year rang in nearly twenty new employment laws.  2018 and 2019 have produced dozens and dozens of significant employment cases.  Whether you are an experienced human resources expert/employment attorney or new to the field of labor and employment law, this Webinar will quickly bring you up to date on all that’s new for 2019.

Learn more and register here.  

City of Baldwin Park Hit with $7 Million Sex Discrimination Verdict

Just another day in paradise in Los Angeles… Unless you happen to be an employer. Continuing the recent spate of multi-million dollar verdicts, an LA jury awarded a former police officer $7 million on her sex discrimination claim.

Lili Hadsell, a former police chief for the City of Baldwin Park, alleged that she was subjected to sex discrimination over her 14 years of service. The alleged discrimination came in part from comments by other officers to her subordinates such as “a woman cannot do this [chief of police] job” and comments from members of the department such as “I’m not going to call that woman police chief.” Hadsell also alleged that her Peruvian ethnicity was mocked by officers. When Hadsell was fired (allegedly without cause), she received a text from the mayor that said, “It was retaliation no doubt!!”

The jury found for Hadsell, returning a verdict against the city for $7 million. As we’ve seen, private employers are regularly subject to huge jury verdicts in Los Angeles. This case shows that not even cities are immune from the unpredictable and extraordinary jury verdicts that come out of Los Angeles County.

March 2019 California Employment Law Notes

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

View PDF

California Legislature Tries Yet Again to Outlaw Arbitration Agreements…

There they go again!  As we predicted last November, the California legislature is once again trying to outlaw arbitration agreements between employers and employees.  Former Gov. Jerry Brown routinely vetoed similar bills that sought to prohibit arbitration of employment disputes on the anodyne ground that such legislation unquestionably conflicts with and is preempted by federal law. (Gov. Brown’s veto message.)  However, with a new governor at the helm, apparently the legislature thinks it may get a different outcome with Gavin Newsom.  In other words, “If at first you don’t succeed….”

As everyone knows, plaintiffs’ lawyers really, really hate arbitration agreements – and, therefore, so do their many allies in the California legislature.  The lawyers usually say it’s because of the confidentiality associated with such proceedings or because of the so-called “repeat-player phenomenon” in which arbitrators allegedly tend to favor institutional parties more than individuals or because of a half dozen other reasons…but the actual reason that they really, really hate arbitration is because arbitrators tend to make reasonable monetary awards – and juries can’t always be counted on to do that.

In a 2011 Cornell University ILR School study comparing employment arbitration with jury trial outcomes, the overall median damage award in arbitration cases was between 85 and 90 percent lower than the median damage award in jury trials.  That is why plaintiffs’ lawyers (who share often 50-50 in their clients’ recovery) really, really hate arbitration.

The California Chamber of Commerce has identified this bill, AB 51, as a “2019 Job Killer” on the ground that the bill will only increase litigation costs and will delay the resolution of most claims because the bill will almost assuredly be struck down in the federal courts as being preempted by the Federal Arbitration Act.

AB 51 was heard in the Assembly Judiciary Committee on Tuesday, March 19th and was sent to the Committee on Appropriations with the instruction to pass as amended.

We’ll continue to monitor developments on this front as the news breaks…

Proskauer Releases New Survey of Workplace Issues in the #MeToo Era

The current landscape in the #MeToo Era has heightened the need for leaders at every business organization to ensure that sound and strategically aligned practices for preventing, receiving, and responding to harassment, discrimination and other workplace related claims are in place.

Proskauer has just released its findings from a broad-based survey of employers around the country who are responding to these pressing issues in real time. The initial web-based survey included more than 50 high-level legal decision makers responsible for employment issues within their organizations. Proskauer supplemented its survey results with information learned at several Proskauer Peer Perspectives events around the country, where we then presented our findings to a select group of in-house counsel and solicited additional feedback. We also conducted in-depth follow-up interviews with these decision makers before putting the finishing touches on the Survey.

Read and download the full Survey here.

Tony Oncidi Recognized by the Burton Awards and the National Law Review for Distinguished Legal Writing

March 12, 2019 (LOS ANGELES) – Partner Tony Oncidi has been recognized for distinguished legal writing by both the Burton Awards and the National Law Review. Tony’s article “Consider the True Implications of Waiving Arbitration” earned him recognition in the form of a Burton Award and a Law360 Distinguished Legal Writing Award for clear, concise and comprehensive legal writing. Additionally, he was selected by the National Law Review for a “Go-To Thought Leadership Award” to honor excellence in legal news and analysis.

The 2019 Law360 Distinguished Legal Writing Award is an honor given by the Burton Awards to only 30 articles published by the nation’s 1,000 largest law firms. The Burton Awards is a national non-profit program associated with the Library of Congress. The awards are presented by lead sponsor Law360 and co-sponsored by the American Bar Association, to reward great achievements in law, with a special emphasis on writing and reform.  The Academic Board that reviewed and selected the winning articles consists of professors from Harvard Law School, Stanford Law School, UC Berkeley School of Law as well as retired judges and government officials.

The National Law Review’s “Go-To Thought Leadership Awards” recognize 65 exceptional authors and legal organizations for their reporting of complex legislative and litigation news, as well as their strategic insight and overall industry knowledge. The recipients were selected by the National Law Review’s editors from a pool of over 100,000 legal news and analysis articles.

Tony will be honored at an award ceremony on May 20, 2019 at the Library of Congress in Washington, D.C.