Employee-Side Employment Lawyers Are Engines of Our Economy

aa workers

Photo from the National Archives.

August 24, 2015:

As the stock market plummets in reaction to China’s recent currency devaluation, it’s time to take stock of the shape of our own economy, independent of its relationship and connection to the Global Economy.

I have long been disturbed by the trend toward greater income inequality in this country, but mainly from the perspective of quality of life issues and thinking that a strong middle class protects our democracy.

Now the argument is being made by David Madland, managing director of economic policy at the Center for American Progress and author of “Hollowed Out: Why the Economy Doesn’t Work Without a Strong Middle Class”, that income inequality is bad for our economy. This is not the usual argument often put forth in discussions about raising the minimum wage, mainly that in our consumer driven economy, people need to make enough money to buy what companies are selling.  Instead, In his blog on ThinkProgress , ” The Fall Of The Middle Class Is Starving The Economy Of Its Most Basic Need”, Madland makes the case that income inequality weakens the most important component of our ability to maintain a strong economy–mainly human capital.

He uses Steve Jobs to argue his point, citing him as an example of someone whose father, though a high school dropout, was able to provide a  stable middle class lifestyle for his son, Steve.  This lifestyle  nurtured  the young Steve’s  curiosity and gave him the confidence to take apart and rebuild electronics.  These were invaluable skills for the adult Steve who went on to found and manage two of the most important companies the world has ever known.  Madland argues that the ever-widening income gap which is shrinking the middle class, makes the likelihood of another Steve Jobs emerging from such humble beginnings increasingly unlikely.

If we accept his premise, then I think the role of employee-side employment lawyers as engines of our economy and not just champions of social justice and economic opportunity becomes clear.

We are in the trenches, enforcing the laws protecting equality of economic opportunity.  These laws help implement the vision of a stable middle class full of middle class homes where boys and girls can have their curiosity and confidence nurtured and grow up to contribute great innovation to our economy so it can stay strong.  Thus, we employee-side employment lawyers are not just advocating for our clients and fighting unlawful employer conduct, we are helping ignite our economy and keep it strong.  The employers we sue should be thanking us for our efforts to maintain a strong economy.

Lathe operator machining parts for transport planes at the Consolidated Aircraft Corporation plant, Fort Worth, Texas. Photo by Howard R Hollem, October 1942. Credit Line: Library of Congress Prints and Photographs Division LC-USW36-421.

Lathe operator machining parts for transport planes at the Consolidated Aircraft Corporation plant, Fort Worth, Texas. Photo by Howard R Hollem, October 1942. Credit Line: Library of Congress Prints and Photographs Division LC-USW36-421.

 

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Despite the heat, Governor Brown is busy signing new employment laws

August 17, 2015:

It’s scorchingly hot today and probably even hotter in Sacramento than at my Martinez office. Nevertheless, Governor Brown was busy today signing the following employment law bills:

  • AB 359 by Assemblymember Lorena Gonzalez (D-San Diego) – Grocery workers.
  • AB 705 by Assemblymember Susan Talamantes Eggman (D-Stockton) – Psychologists: licensure exemption.
  • AB 1093 by Assemblymember Eduardo Garcia (D-Coachella) – Public safety: supervised population workforce training: grant program.
  • AB 1245 by Assemblymember Ken Cooley (D-Rancho Cordova) – Unemployment insurance: electronic reporting and funds transfers.
  • AB 1291 by Assemblymember Das G. Williams (D-Santa Barbara) – The County Employees Retirement Law of 1937.
  • AB 1514 by the Committee on Insurance – Employment Development Department: training benefits: reports.

International Peace Day and the Workplace

English: Painting by children, International P...

English: Painting by children, International Peace Day 2009, Geneva. Français : Peinture par des enfants, Journée internationale de la Paix 2009, Genève. (Photo credit: Wikipedia)

English: Children dancing, International Peace...

English: Children dancing, International Peace Day 2009, Geneva. Français : Enfants dansant, Journée internationale de la Paix 2009, Genève. (Photo credit: Wikipedia)

September 21, 2013: Today is International Peace Day.  One year ago, I posted my first blog–about trying to promote  world peace by stopping Equal Opportunity Bullies (EOBs) in the workplace.

One year later, I realize basically everything I do as a mostly plaintiff-side employment attorney relates to dealing with workplace bullying. Some of it is illegal, some of it is just plain dumb for an employer to tolerate–all of it is stressful and non-productive for its victims and often costly to the employer– in loss of morale, high turnover, employee health issues, absenteeism, work sabotage and even workplace violence.

Ultimately everyone – with the possible exception of the EOB,  suffers from unchecked workplace bullying.   Borrowing a phrase from the Chamber of Commerce, EOBullying is a “job-killer”.

I get so many calls from prospective clients suffering under an EOB at work who is making their lives miserable and costing the employer good will, good morale, productivity and ultimately money.  Yet judging from the calls I receive, employers in a significant number of workplaces fail to reign in EOBs. My callers are typically quite taken aback when I tell them that the law does not guarantee them a harassment free workplace unless they can show the harassment is directed at a particular protected status such as race, religion, gender or sexual orientation.   But by definition, EOBs are status-blind when it comes to heaping abuse–they bully everyone without regard to race, gender, national origin, marital status, religion or sexual orientation.  And so far, no state protects employees  from an EOB.

A few states actually have laws against school EOBS. New York’s anti-bullying legislation (Dignity for All Students Act or DASA)  applies to public school students and prohibits harassment by EOBs.  But once those New York students are employed, neither New York or any other state so far will protect them from EOBs who create a hostile work environment without regard to the protected group status of their victims.

The Healthy Workplace Bill (HWB), is a movement seeking to change this by passing status-blind anti-workplace bullying legislation throughout the U.S.   The HWB website claims that 37% of all workers in the U.S. suffer at jobs where EOBs harass them verbally, physically and/or by interfering or sabotaging their work. Professor David C. Yamada  is the recognized expert of workplace bullying and the author of the original HWB.  He has written extensively about workplace bullying.

The goal is for states to pass “status-blind” workplace harassment laws which would allow a plaintiff who suffers documented health-related harm to sue the bullying employee as well as the employer who knows or should know about the bully but fails to curb the bullying behavior.  The legislation typically caps emotional distress damages to make it more palatable to employers.  The hope is that having such legislation on the books will spur employers to take steps to stop EOBs before they are sued.

So far no states have passed a version of the law, but 23 states currently have introduced some form of the legislation.

California was the first state to introduce an anti-workplace bullying law in 2003, AB 1582.  The bill placed a cap of $25,000 on emotional distress damages not linked to a negative employment action( defined in the act) and gave the worker the option of seeking relief through the Worker’s Compensation process.    But the bill died in committee.

Yesterday I read a public employees’ labor agreement which actually protected union members from an EOB’s “arbitary” or “capricious” change of an assignment or “hostile attitude” which is not “justified or necessary” for the proper  supervision of the employee’s work.   I would love to know if anyone has successfully used this section against an EOB.

October 20th-26th is Freedom from Workplace Bullies Week.

In a future blog I will cover all the new employment laws our legislature passed and our governor signed this year.  It has been a busy year for them.

Maybe Sacramento will take up EOBs in 2014.  There is always hope.

Here’s to the long arc of history bending toward a more peaceful, less hostile workplace.

Happy Birthday to my blog and Happy International Peace Day!

Governor Signs SB 462 Which Clarifies Fee Shifiting for Wage Claims

Wage list

Wage list (Photo credit: Wikipedia)

ImageSB 462 (Author: Senator Bill Monning): Conforming  Attorneys’ Fees in unpaid wage cases so the winning employer must show the losing employee’s bad faith to recover attorneys’ fees :

Monday, August 26, 2013:  Today Governor Brown signed into law this important law which clarifies fee shifting for unpaid wage claims and makes fee shifting of attorneys’ fees for wage claims brought under Labor Code §218.5 consistent with Federal law and the rest of the Labor Code. (except for one other outlier fee award statute).

This new law  fixes what was an anomaly with attorneys’ fees awards for wage and hour actions under Labor Code §218.5.  Previously, if a California employee lost  his/her action to recover unpaid wages or benefits, she or he could be out the unpaid wages and also be liable for the winning employer’s attorneys’ fees.  This is because Labor Code §218.5 provided for attorneys’ fees to the “prevailing party”, not the “prevailing employee”, so “party” included the prevailing employer.   This law ignored the reality that in many if not most cases, the wealth gap between employer and employee made the employer far more likely to be able to afford paying both sides’ attorneys fees, while this possibility, which could financially ruin an employee, was a powerful deterrent to filing many legitimate wage theft claims.

No longer can employers flaunt wage laws, essentially bully their unpaid employees and unfairly compete with their law abiding competitors–with the unintended help of Labor Code §218.5‘s former two-way fee shifting.

In my practice I have seen the chilling effect the risk of having to pay a $500+/hour attorneys’ fee bill has on a wage earner earning a fraction of that who decides the risk is too big to take, so abandons a valid wage claim.

The new law only allows a prevailing employee to recover attorneys’ fees, unless a prevailing employer can show the employee brought the action in  “bad faith”.   Since this has long been the norm with most other fee award statutes, there is lots of authority on what is “bad faith”.

The question arises: is this law retroactive?  Please feel free to comment on this, below.

You can read the bill’s full text here:

Marjorie Wallace is a California licensed employment lawyer.  The information contained in this blog is for educational purposes only and does not create an attorney-client relationship between the writer and any reader or constitute legal advice to anyone reading it. 

Update on Proposed California Employment Laws

English: Seal of the Senate of California

English: Seal of the Senate of California (Photo credit: Wikipedia)

best pose  fixed In March, I blogged about three bills which clarify, simplify or fix existing employment laws.  They were introduced into our State Senate and sponsored by a wonderful organization of which I am proud to be a member:  the California Employment Lawyers Association (CELA).   CELA attorneys represent millions of California employees who want to work, free of unlawful discrimination and be paid their earned wages.

I promised to update the progress of these bills.

So–here is the latest on them:

SB 292: (Author: Senator Ellen Corbett) Sexual Harassment:

Update as of August 13, 2013:Governor Brown signed the bill into law on Monday, August 12, 2013.  Yay! 

This bill clarifies.  The Fair Employment and Housing Act (“FEHA”), does not require a sexual harassment victim to prove that his or her same sex harasser was motivated by sexual desire for the victim.  It arose from a terrible appellate court decision, Kelley v. The Conco Companies (1st Dist 2011), 196 Cal. App. 4th 191 which held that in a case of male to male sexual harassment, to survive a motion a motion for summary judgment, the plaintiff must prove the harasser sexually desired the plaintiff, despite a showing of  sexually explicit and offensive acts of harassment, including threats of sexual violence.  Read the bill here:

This bill makes it clear. Sexual harassment is all about unequal power in the workplace and using sex as a weapon to create a hostile work environment. Sexual desire has nothing to do with it. This was the pre-Kelley status quo under the Federal Title VII (42 U.S. C §2000e et seq.) and California’s FEHA (Gov. Code §12900 et seq.)

The bill puts same sex and heterosexual harassment victims on an equal footing.  It eliminates Kelley’s double standard and its Pandora’s boxes which required probing into alleged same sex harassers’   sexual preferences and sexual history in depositions in order to discern their sexual desire for their victims.  It also ends the same sex harasser’s loophole for avoiding liability, even in egregious cases i.e., (“I wasn’t attracted to the employee I tormented”).   Thanks, elected officials for your common sense in legislatively overruling a terrible court case!

Here is more detail on how it got to the Governor:

– April 22, 2013: the bill passed the Senate and was sent to the Assembly

-July 3, 2013: the bill passed the Assembly, Happy Independence Day!

-August 6, 2013: the bill was enrolled and presented to the Governor for his signature.

SB 404 (Author: Senator Hannah-Beth Jackson) Banning Family Hostile Workplace Stigmatization for family care giving duties:

Update as of August 13, 2013:

The bill passed the Senate on May 29, 2013 and was sent to the Assembly where it made the rounds of a number of appropriate committees.  July 3, 2013 it was amended, read for a second time before the Assembly and sent back for a second time to the Appropriations Committee, its present resting place.

This family-friendly bill addresses discrimination based on out-dated stereotypes and unfounded assumptions about family care giving for workers who care for a grandparent, parent, parent- in-law, sibling, spouse, domestic partner, child or grandchild.  It does not require employers to accommodate family care giving, it just bans discrimination based on assumptions or stereotypes about those who do care for a family member.  It does this by including “familial status” in the list of characteristics protected from employment discrimination under FEHA.  Here is the latest amended version of the bill:

This bill will: 1) help employers know when they need to take steps to stop this form of discrimination, 2) protect workers with family care giving responsibilities and 3) promote family friendliness, which should make California workplaces more attractive to the best talent and more productive.

Some examples of banned stereotyping include:  1. a single dad firefighter denied a promotion and given a negative performance review because he spent his flex time taking care of his children instead of playing golf like his male colleagues;   2. a mother with young children denied the option to vie for a promotion which requires overnight travel because it is assumed she would not want to be away from her children overnight.

This bill is needed because growing numbers of workers have care giving responsibilities for their children, siblings, disabled spouses, domestic partners or elderly parents and find themselves unfairly stigmatized and denied workplace fairness by family-hostile attitudes and behaviors.

In 2007 and 2009 the Federal Equal Employment Enforcement Commission (“EEOC”) issued Enforcement Guidance on familial status discrimination, finding that it is often difficult to remedy using traditional gender discrimination laws. It is sometimes referred to as “sex plus” discrimination because if affects a subset of women or men who are pregnant or have family care giving responsibilities.

California needs to catch up to other states and local entities which ban familial status discrimination.  Let your state legislators know your views on this important change to the law.

SB 462 (Author: Senator Bill Monning): Conforming  Attorneys’ Fees in unpaid wage cases so the winning employer must show the losing employee’s bad faith to recover attorneys’ fees :

Update as of August 13, 2013:

The bill was passed by the Senate on May 29, 2013, cleared the Assembly on Monday, August 12th and will be heading to the Governor for his signature.  Cross your fingers he signs it!

This bill fixes an anomaly with attorneys’ fees awards for wage and hour actions under Labor Code §218.5.  Right now if a California employee loses his/her action to recover unpaid wages or benefits, she or he could be liable for the winning employer’s attorneys’ fees.  This is because Labor Code §218.5 provides for attorneys’ fees to the “prevailing party”, which includes the prevailing employer.   This law ignores that in many if not most cases, the wealth gap between employer and employee means the employer is far more able to pay attorneys’ fees.

In my practice I have seen the chilling effect the risk of having to pay a $500+/hour attorneys’ fee bill has on a wage earner earning a fraction of that who decides the risk is too big to take, so abandons a valid wage claim.   Law abiding employers who pay their employees their earned wages suffer, too since this law creates a competitive disadvantage for them relative to those who  unlawfully withhold earned wages from workers too scared to hold them accountable.

This bill would bring this outlier attorneys’ fee statute into conformity with Federal law and the rest of the Labor Code (which except for one other fee award statute) only allows a prevailing employee to recover attorneys’ fees, absent a finding of “bad faith” by the employee bringing the wage claim.  Since this has long been the norm with most other fee award statutes, there is lots of authority on what is “bad faith”.

It is embarrassing that only California, Oklahoma and Florida maintain this outlier position when it comes to awarding attorneys’ fees to the prevailing party in wage claims.

California needs to get with it!   You can read the bill’s full text here:

In a future blog I will let you know what the Governor does with it and what happens to SB 404 (“familial status” protected against workplace discrimination).

Marjorie Wallace is a California licensed employment lawyer.  The information contained in this blog is for educational purposes only and does not create an attorney-client relationship between the writer and any reader or constitute legal advice to anyone reading it. 

The Startling Facts about the Gender Wage Gap

June 10, 2013 was the 50th anniversary for the Equal Pay Act. 29 USC §206(d). 

Despite the media hype about wives making more than their husbands, 50 years after its passage, there continues to be a very significant wage gap between men and women in the same jobs.  The Institute for Women’s Policy Research (the “IWPR”) , tracks the wage gap every year and publishes annual updated fact sheets.  For 2012, the IPWR found the wage gap actually got wider from the previous year as women’s median weekly pay rate declined from 82.0 percent of men’s in 2011 to only 80.9 of men’s median weekly pay in 2012. http://www.iwpr.org/publications/pubs/the-gender-wage-gap-2012 While women: 1) make up nearly half of the workforce, 2) are the equal or main breadwinner in 4 out of 10 families and 3) have more college and graduate degrees than men, on average they earn only 77 cents for every dollar men earn.  This is a 23 cents wage gap which amounts to billions of dollars every year and hundreds of thousands, if not millions of dollars less pay over the earning life of an individual woman worker.  At the recent Equal Rights Advocates fundraiser luncheon on June 13, 2013 in San Francisco, guests were shown a dramatic movie short documenting the enormous loss of income unequal pay represents over the life of several young girls and what they could buy with all that lost income.  The Real Cost of the Wage Gap.   

The IWPR found a wage gap in virtually every occupation where earnings data is available to compare men’s and women’s earnings.    It concluded that at the current rate of slow increase in women’s pay, it will take almost another 50 years–until 2057 to reach pay equity for women.      

Women of color are even worse off: on average they earn only 62 cents for every dollar a man earns doing the same job.  The Real Cost of the Wage Gap

 

Mind (and Close) the Wage Gap! (Loosely based on the London Tube Warning)

Equal Rights Advocates Annual Fundraiser Luncheon: June 13, 2013   Last Thursday, June 13, 2013 the San Francisco sky was cloudless, almost painfully brilliant-blue.  For the sixth year in a row, I volunteered to help at the annual fundraiser for Equal Rights Advocates, the public interest law firm dedicated to reversing gender inequality via targeted, high impact lawsuits.  The event was emceed by local award winning news journalist Rita Williams.

It is always so inspiring to mingle with the hundreds of men and women who attend and sponsor this event, mostly my fellow lawyers– who share a common interest in eliminating gender inequality in the workplace, school, healthcare, politics and military services.  Did I leave something out?

The theme this year was “Close the Wage Gap”, referring to the wage gap between men and women which unfortunately still exists — despite the passage of the Equal Pay Act,  29 USC §206(d), 50 years ago in 1963.  This federal law requires employers pay their women workers the same as their male workers for doing substantially similar work in similar working conditions.

Equal Pay Today!     The theme compliments Equal Pay Today! an initiative launched by a national coalition of women’s rights non-profits, including Equal Rights Advocates, on June 10, 2013, the date the Equal Pay Act was passed in 1963.  The initiative seeks to draw attention to the gender wage gap and enlist the help of all 50 state governors and ordinary citizens to end the gap -TODAY.  You can see the letter sent to California’s Governor Brown here:

The Equal Pay Today! 5 point platform goes beyond equal pay.  It seeks to end or at least minimize working women being:

  1. paid less than men for doing the same job,
  2.  segregated by gender stereotypes into low paying jobs,
  3.  retaliated against for discussing their pay 1
  4.  paid less and/or promoted less due to pregnancy and caregiving duties 2 and
  5. subjected to wage theft (e.g., violations of wage laws covering minimum wage,      overtime, meal and rest breaks, etc. ).For more details click here:

Equal Rights Advocates has a Facebook page where working and wannabe working people can submit a self photo holding a sign highlighting the wage gap in their chosen occupation.   At the ERA luncheon, a professional photographer shot willing guests for inclusion on ERA’s Facebook page.  My lawyer signs reads:  Lawyer: Women: .79   Men: $1. lawyer gap

ERA’s executive director, Noreen Farrell posted a blog forcefully advocating an end to the wage gap on the Huffington Post.

The Startling Facts about  the Gender Wage Gap Despite the media hype about wives making more than their husbands, 50 years after the Equal Pay Act was passed, there continues to be a very significant wage gap between men and women in the same jobs.  The Institute for Women’s Policy Research (the “IWPR”) , tracks the wage gap every year and publishes annual updated fact sheets.  For 2012, the IPWR found the wage gap actually got wider from the previous year as women’s median weekly pay rate declined from 82.0 percent of men’s in 2011 to only 80.9 of men’s median weekly pay in 2012. http://www.iwpr.org/publications/pubs/the-gender-wage-gap-2012 While women: 1) make up nearly half of the workforce, 2) are the equal or main breadwinner in 4 out of 10 families and 3) have more college and graduate degrees than men, on average they earn only 77 cents for every dollar men earn.  This is a 23 cents wage gap which amounts to billions of dollars every year and hundreds of thousands, if not millions of dollars less pay over the earning life of an individual woman worker.  At the ERA fundraiser luncheon, guests were shown a dramatic movie short documenting the enormous loss of income unequal pay represents over the life of several young girls and what they could buy with all that lost income.  The Real Cost of the Wage Gap.

The IWPR found a wage gap in virtually every occupation where earnings data is available to compare men’s and women’s earnings. http://www.iwpr.org/publications/pubs/the-gender-wage-gap-by-occupation-2    It concluded that at the current rate of slow increase in women’s pay, it will take almost another 50 years–until 2057 to reach pay equity for women.

Women of color are even worse off: on average they earn only 62 cents for every dollar a man earns doing the same job.  The Real Cost of the Wage Gap.

Lilly Ledbetter: Championing Equal Pay With Grace and Grit The keynote speaker at the Equal Rights fundraiser luncheon was equal pay champion, Lilly Ledbetter.  Born into a life of abject poverty in rural Alabama, she became a champion advocate tirelessly lobbying Congress to amend the Equal Pay Act.  This advocacy came too late to help her gender wage gap: nineteen years after she became one of the first women managers at the Goodyear tire plant where employees were forbidden to discuss their pay, she received an anonymous note indicating she was paid thousands of dollars less per year than her male counterparts for the same work.  She sued for sex discrimination but was denied the millions of dollars of back pay and damages a jury awarded her when the U.S. Supreme Court ruled that her claims were time barred.  Ledbetter v. Goodyear Tire and Rubber Co. (2007) 550 U.S. 618.  It was the classic “Catch-22”.  Not deterred, she spent 8 years lobbying Congress to overrule the Supreme Court . Her obvious strength, dignity and humility were truly awe inspiring. The first bill signed into law by President Obama was the Lilly Ledbetter Fair Pay Restoration Act.    Click here to see the video:

It was too late to help Lilly, but her efforts will help thousands, if not millions of women workers who seek pay equity.

After her keynote speech, she signed her book, Grace and Grit for those lining up to buy it.   Here is the title page she signed of the copy I purchased for my 13 year old daughter, Stephanie: Image

On the BART ride back to my office in Martinez, I started reading Grace and Grit,  which chronicles her fight for equal pay and fairness.  It is a compelling read.  Her persistence and courage make her a great role model for my daughter–and me!

Grace and Grit cvr

The preceding is for educational purposes only and does not constitute legal advice or create an attorney-client relationship between the author and any reader.  Marjorie A. Wallace is licensed to practice law only in California.


[1] Such acts in most cases should violate Section 7 of the National Labor Relations Act (NLRA).

[2] See discussion in my  April 2013 post on proposed caregiver responsibility or “familial responsibility” legislation in California.

Lobbying to Improve California Workplaces

ImageTuesday, March 19th, 2013:  I experienced democracy in action by joining the California Employment Lawyers Association (CELA) Lobby Day at our state Capitol in Sacramento.   (Yes, that’s me in the photo at the state Capitol.) CELA attorneys represent millions of California employees who want to work, free of unlawful discrimination and be paid their earned wages.   Each Spring CELA attorneys from all over California give up a day of work to meet with our state legislators and urge them to support bills to help improve California workplaces for employees and employers.      

This year CELA sponsored three bills introduced in the state Senate, which clarify, simplify or fix existing employment laws.   They are: 

SB 292: (Author: Senator Ellen Corbett) Sexual Harassment: This bill would clarify that the Fair Employment and Housing Act (“FEHA”), does not require a same sex harassment victim to prove that his or her  sexual harasser was motivated by sexual desire.   It arose from a terrible appellate court decision, Kelley v. The Conco Companies (1st Dist 2011), 196 Cal. App. 4th 191 which held that in a case of male to male sexual harassment, the plaintiff must prove the harasser sexually desired the plaintiff, even with a showing of  sexually explicit and offensive acts of harassment, which included threats of sexual violence.  Read the bill here:http://legiscan.com/CA/text/SB292/id/740322 

This bill is needed so employers know that it still is the law that sexual harassment is all about unequal power in the workplace and using sex as a weapon to create a hostile work environment. Sexual desire has nothing to do with it. This is the pre-Kelley status quo under the Federal Title VII (42 U.S. C §2000e et seq.) and California’s FEHA (Gov. Code §12900 et seq

Making harassed workers prove their same sex harassers but not their heterosexual harassers sexually desired them creates a double standard based on sex and opens up a Pandora’s box  requiring intrusive probing of alleged harassers’  sexual preferences and sexual history in depositions in order to discern sexual desire for their victims.  It also gives same sex harassers a convenient dodge for avoiding liability, even in egregious cases i.e., “I wasn’t attracted to the employee I tormented”).  Since Kelley conflicts with another California Court of Appeal decision and the California Supreme Court declined to decide the conflict, it is up to our state legislators to fix this.  

SB 404 (Author: Senator Hannah-Beth Jackson) Banning Family Hostile Workplace Stigmatization for family care giving duties: This family-friendly bill  addresses discrimination based on outdated stereotypes and unfounded assumptions about family care giving for workers with medical or supervisory care duties for a grandparent,  parent, parent- in-law, sibling, spouse, domestic partner, child or grandchild.  It does not require employers to accommodate family care giving, it just bans discrimination based on assumptions or stereotypes about those who care for a family member.  It does this by expanding the list of characteristics protected from employment discrimination under FEHA to include “familial status.”  Read the full bill here: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB404 

This addition will: 1) help employers know when they need to take steps to stop this form of discrimination, 2) protect workers with family care giving responsibilities and 3) promote family friendliness, which should make California workplaces more attractive to the best talent and more productive. 

Some examples of banned stereotyping include:  1. a single dad firefighter denied a promotion and given a negative performance review because he spent his flex time taking care of his children instead of playing golf like his male colleagues;   2. a mother with young children denied the option to vie for a promotion which requires overnight travel because it is assumed without asking her that she would not want to be away from her children overnight. 

This bill is needed because growing numbers of workers have care giving responsibilities for their children, siblings, disabled spouses, domestic partners or elderly parents and find themselves unfairly stigmatized and denied workplace fairness by family-hostile attitudes and behaviors.        

In 2007 and 2009 the Federal Equal Employment Enforcement Commission (“EEOC”) issued Enforcement Guidance on familial status discrimination, finding that it is often difficult to remedy using traditional gender discrimination laws. It is sometimes referred to as “sex plus” discrimination because if affects a subset of women or men who are pregnant or have family care giving responsibilities.  

California needs to catch up to other states and local entities which ban familial status discrimination.  Let your state legislators know your views on this important change to the law. 

SB 462 (Author: Senator Bill Monning): Conforming Attorneys’ Fees in unpaid wage cases: Right now if a California  employee brings an action to recover unpaid wages or benefits and loses, she or he could be liable for the employer’s attorneys’ fees.  That’s because Labor Code §218.5 is one of only two statutes which provides for attorneys’ fees to the “prevailing party”, which includes the prevailing employer.   The rest of fee statutes award attorneys’ fees to the “prevailing employee”, unless the employee brought the action in bad faith.  Labor Code 218.5 ignores that in most cases, the employee is far more able to pay attorneys’ fees.  In my practice I have seen low wage earners make the risk assessment that their valid unpaid wage claims are not worth bringing, given the risk of losing and being ruined by the employers’ attorneys’ fees bills, which they could never pay on their measly wages.  This chilling effect also hurts law abiding employers who pay their employees their earned wages since their competitors who unlawfully withheld wages get a cost savings advantage when they are not held accountable for their wage theft by workers too scared to do so.

Since this new  law would bring this outlier attorneys’ fee statute into conformity with the majority of federal and state labor laws requiring a finding of bad faith to shift fees to the losing employee, there is lots of authority on what is “bad faith”.  It is embarrassing that only California, Oklahoma and Florida maintain this outlier position when it comes to awarding attorneys’ fees to the prevailing party in wage claims.  

California needs to get with it!   You can read the bill’s full text here: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB462 

Future blogs will update what happens to these bills this legislative session.

The information in this blog is for educational purposes only and does not constitute legal advice or create an attorney-client relationship between the author and anyone reading it.

Law Office of Marjorie A. Wallace
1155 C Arnold Drive, Suite 454 Martinez, CA 94553
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Make Peace Not Workplace Bullies

Employment Exhibition

Employment Exhibition (Photo credit: Modern_Language_Center)

Friday, September 21, 2012:  Today is International Peace Day.  The UN’s peace theme for this year is “Sustainable Peace for a Sustainable Future”.    http://www.un.org/en/events/peaceday/

I believe that each one of us matters and it matters what each of us does.

As a mostly employee-side employment lawyer in California, I got thinking about promoting sustainable peace in the workplace, where so many people spend so much time and energy interacting with others.

So today I’m doing my bit to promote sustainable peace by making a pitch to employers–please stop enabling your Equal Opportunity Bullies (EOBs)!

For every client I end up taking on, there are many others who contact me, clearly in distress about work place EOBs.  Taking them at their word, the workplace is frequently a jungle, riddled with the most amazing acts of bullying, bully enabling and cover up, where EOBs are rewarded at the expense of those they bully.

If true, these acts run counter to sustainable peace, sap employee morale and productivity, breed distrust and secrecy and lead to expensive turnover, even in this uncertain economy.

It may be stupid and self-sabotaging for employers to tolerate and even encourage this type of unfair behavior, but often it is not illegal.  An equal opportunity bully (EOB) — who bullies everyone, regardless of gender, race, religion, etc., is probably not subject to liability under California’s Fair Employment and Housing Act or Federal anti-discrimination laws.

In my perfect world, employers would recognize how self-sabotaging it is to tolerate EOBs at work.  They would get it — tolerating such behavior may not be illegal, but costs them lots of needless expense and aggravation. Here’s a short list: 1) legal fees,  2) reduced productivity and work disruption, 3) higher health insurance premiums from employee illness linked to EOB-caused stress, 4) unemployment insurance premiums, 5) employee replacement costs, and 6) costs when a replacement employee doesn’t work out, thereby triggering another round of preventable costs.

California is an at-will state, so unless non-union employees can make the case that they are protected under an employment agreement or are being singled out due to a protected trait such as race, gender, marital status, age, religion, nationality, or disability, their employers can terminate them for just about anything on a moment’s notice. There is no exception for long-time loyal employees with excellent performance reviews making lots of money for their employers.

Based on my experience, employers could save themselves a lot of headache and expense by being proactive with EOBs.  EOBs are usually at-will employees, too.

So in the spirit of promoting sustainable peace, I ask employers to observe International Peace Day by taking your first steps toward discovering and rooting out EOBs and their enablers.  You can save money by doing good.

This blog is for education purposes only and does not constitute legal advice or create an attorney-client relationship between the blogger and anyone reading or hearing it.  

The Law Office of Marjorie A. Wallace

1155 C Arnold Drive, Suite 454

Martinez, CA 94553

925.827.2936

marjowallace@sbcglobal.net