California Employment Law Update

March 2018 California Employment Law Notes

We invite you to review our newly-posted March 2018 California Employment Law Notes, a comprehensive review of the latest and most significant developments in California employment law. The highlights include:

Federal Government Challenges California’s “Sanctuary State” Status

 

On Tuesday, the United States of America filed a lawsuit in federal court in Sacramento, naming California Governor Jerry Brown and Attorney General Xavier Becerra as defendants, and claiming that California’s proclaimed status as a “sanctuary state” puts federal agents in danger.

Specifically, the lawsuit targets three state laws that became effective on January 1, 2018 that the federal government claims undermine federal immigration law: one prohibiting local governments from contracting with for-profit companies and the Bureau of Immigration and Customs Enforcement (“ICE”) to hold immigrants; one preventing police officers from asking questions regarding someone’s immigration status during routine interactions; and one prohibiting employers from allowing immigration agents to enter worksites or view employee files without a subpoena or warrant (AB 450).

We previously blogged about California’s becoming a sanctuary state with the enactment of AB 450.  If past experience in the immigration context is any guide, this case is destined for the Ninth Circuit and ultimately the United States Supreme Court.

“Inclusion Riders” On The Storm

Image: Craig Sjodin/ABC

 

Last night, Oscar-winner Frances McDormand ended her acceptance speech  with a reference to two words – “Inclusion Rider” – that sent many Oscar viewers scrambling to Google her cryptic message. But the term, and its legal implications, are somewhat more complicated than several news and entertainment outlets are reporting today. The term “inclusion rider” was coined a few years ago by Dr. Stacy Smith, the founder and director of the Annenberg Inclusion Initiative  at USC. Dr. Smith delivered a Ted Talk in 2016 describing an inclusion rider as a potential solution to ongoing diversity issues and concerns in Hollywood. Specifically, she described the idea of having A-list actors demand provisions in their contracts that call for all the roles in whatever project they are working on to reflect broader demographics.

There is likely nothing wrong with a narrowly-tailored and creative provision like the one Dr. Smith described in her Ted Talk. Creative types already have in some instances exercised considerable leeway in setting their own casting criteria, and one need look no further than the hit Broadway musical “Hamilton” with its famously diverse casting to understand that under the rubric of creative choice, such standards can pass muster (although they may still face opposition).

Notwithstanding what may happen in the creative/artistic space, explicit demands or requirements based on race, religion, gender, or any other protected characteristic could run into challenges. In an interview backstage last night, McDormand told reporters “I just found out about this last week. It means you can ask for and/or demand at least 50 percent diversity in, not only casting, but also the crew.”  When it comes to a film or television crew, although an actor may request that good faith efforts be undertaken to hire a diverse crew, demanding that certain race or gender quotas be met could run afoul of Title VII of the 1964 Civil Rights Act and comparable state law, which generally bans employment discrimination and quotas by private employers.

An inclusion rider like the one described by Dr. Smith might work in the entertainment industry based on First Amendment and creative license protections. But employers, both in the entertainment industry and outside of it, should be wary of agreeing to riders demanding that specific quotas be met. Those demands, no matter how well-intentioned, could be challenged as being discriminatory.

 

California Labor Commissioner Issues $500,000 Citation Against Los Angeles Restaurant For Labor Code Violations

The California Labor Commissioner issued a press release this week announcing a $500,000 citation against Los Angeles restaurant Shrimp Lovers, arising from wage theft allegations made against the restaurant by employees who claimed they were paid far below the minimum wage. Although relatively rare, the Labor Commissioner does occasionally bring charges against California employers for these and other types of violations. Over the entire course of 2017, for example, the Labor Commissioner announced citations against five California employers.

The common thread between these cases appears to be that the investigations into these employers were launched as a result of complaints brought by employees. Although we do not know how many complaints submitted to the Labor Commissioner do not result in investigations and citations, employers should be aware that the potential exists for employees to complain to, and subsequently involve, the Labor Commissioner with regard to labor code violations.

 

Dark Day For Hollywood – Law Prohibiting Online Publication Of Actors’ Ages Is Unconstitutional!

A federal court has struck down as unconstitutional a California law (AB 1687) that prohibits commercial online services from publishing actors’ ages without their consent.  The law, which the California legislature enacted in 2016, was undoubtedly one of the best things to happen to Hollywood since the invention of BOTOX.  Now, however, a court has ruled that the statute is “clearly unconstitutional” and granted summary judgment in favor of the film and movie website Internet Movie Database (IMDb).  IMDb.com, Inc. v. Becerra/SAG-AFTRA. The law requires database sites like IMDb to remove an actor’s age if requested, with the stated goal of preventing age discrimination in casting.  In the suit, IMDb argued that the law violated the First Amendment by “chill[ing] free speech and undermin[ing] public access to factual information” without actually addressing age discrimination.  SAG-AFTRA joined the case in support of the State of California and the legislation.  Ruling that “regulation of speech must be a last resort,” the district court found that the state should have attempted less invasive options, such as strengthening existing discrimination laws, rather than “censor[ing] a source of truthful information.”  The court acknowledged that fighting discrimination against women was a more appropriate target for legislation in the entertainment industry, asserting that age bias in Hollywood is “at root . . . far more a problem of sex discrimination” and stating: “The defendants barely acknowledge this, much less explain how a law preventing one company from posting age-related information on one website could discourage the entertainment industry from continuing to objectify and devalue women.  If the government is going to attempt to restrict speech, it should at least develop a clearer understanding of the problem it’s trying to solve.”

Los Angeles Jury Awards Former UCLA Oncologist $13 Million In Gender Discrimination Case

On Thurs. Feb. 15, 2018, a downtown Los Angeles jury awarded Dr. Lauren Pinter-Brown, a former UCLA oncologist, $13 million in a gender discrimination case.  Pinter-Brown alleged that she was forced to take another job after complaining about discriminatory treatment based on her gender.  (The jury rejected Pinter-Brown’s age discrimination claim.)  Among other things, Pinter-Brown claimed that she was subjected to comments such as “angry woman” and “diva” and was told “everyone hates you.”  She also claimed that a male colleague whom she had clashed with would interrupt her or ignore her during meetings and that he had complained about the state of her research.  The jury verdict consisted of approximately $3 million in past and future lost earnings and $10 million in past and future emotional distress damages.

 

January 2018 Employment Law Notes

We invite you to review our newly-posted January 2018 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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