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!

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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
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