Settlement Agreements To Resolve Employment Claims Filed By A Person Against Their Employer Can No Longer Contain No-Rehire Clauses

December 2019
Number 83

In the wake of the #MeToo movement, and as part of the ongoing legislative response to it, Governor Gavin Newsom signed Assembly Bill (AB) 749 into law, which prohibits no-rehire clauses in certain types of settlement and severance agreements. While the intent behind that law focused on victims of sexual harassment or sexual assault, the law is broad in scope and is not limited to such claims.

AB 749 applies to any settlement agreement between an employer and an “aggrieved person” entered into to resolve an employment dispute. An “aggrieved person” is defined as a “person who has filed a claim against the person’s employer in court, before an administrative agency, in an alternative dispute resolution forum, or through the employer’s internal complaint process.” Beginning January 1, 2020, California employers-including public agencies-will be prohibited from including no-rehire language in any settlement agreement to resolve a claim filed by such aggrieved persons against their employer. Existing agreements regarding an employment dispute containing a no-rehire clause will be void (as to that provision) as of January 1, 2020.

Under AB 749, no-rehire clauses can only be included where there is a good faith determination by the employer that the person entering into the settlement agreement engaged in sexual harassment or sexual assault. The bill further clarifies that employers are not required to continue employing or rehire a person if there is a legitimate nondiscriminatory or nonretaliatory reason for terminating or refusing to rehire the person. In addition, the settlement agreement can contain resignation or termination of employment language.

Takeaways

Employers should review and revise standard settlement and severance agreements regarding employment disputes and remove any no-rehire clauses. It is important to keep in mind that not all settlement agreements will be subject to this prohibition, only those to resolve a claim or claims filed by a person against their employer. Additionally, employers may see an uptick in applications for reemployment from employees who settled employment disputes with the employer in the past, and employers should be prepared on how to handle such applications.

If you have any questions about AB 749 or about labor and employment issues in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedInor download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Marina L. Ramirez

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Complainants Now Have 3 Years To File Charge Of Employment Discrimination

December 2019
Number 79

Effective January 1, 2020, employees complaining of discrimination in the workplace will have three years to file a charge of discrimination with the California Department of Fair Employment and Housing (DFEH).

On October 10, 2019, Governor Gavin Newsom signed Assembly Bill 9 into law, which extends the deadline under the Fair Employment and Housing Act (FEHA) for employees to file a charge from one year to three years-tripling the amount of time employees previously had to do so.

According to the bill’s author, extending the deadline was prompted by the #MeToo movement, which “has brought attention to many of the dynamics related to sexual harassment.” Many victims needed “ample time to fully grasp what happened to them before they felt comfortable coming forward,” and “the fear of retaliation often prevented victims from being able to report incidents of sexual harassment.” The same is true for other types of discrimination as well, where victims “may be initially unclear about what happened, unaware of their rights, or reluctant to report misconduct to their boss.”

FEHA prohibits employer discrimination, harassment, and retaliation against employees based on certain protected classes, such as race, religion, sex, gender, sexual orientation, marital status, disability, and age. Employees must first file a charge with the DFEH, which entails filling out and filing an intake form provided by the DFEH. The DFEH then reviews the information provided by the complainant supporting his or her claim. If the DFEH declines to investigate the case, the complainant receives a “right-to-sue” letter, allowing him or her to file a complaint in superior court within one year from receiving the letter.

AB 9 defines “filing a complaint” as filing the DFEH intake form. So, under the new law, employees must file the intake form with the DFEH within three years of the alleged unlawful practice. This deadline may be extended by 90 days if, within 90 days of the deadline, the complainant first learns of the unlawful conduct. This situation commonly arises when employers conceal their unlawful conduct and the employee has no reasonable means to discover it.

The new law will not apply retroactively-that is, it will not revive claims that have already lapsed under the former one-year limitations period. And it only applies to claims under the California-specific FEHA; for most employers, federal claims of discrimination under Title VII must still be filed with the EEOC within 300 days of the alleged discriminatory conduct.

Takeaways

This new law will have a significant impact on all employers, including public agencies. Employees will now have up to four years to file an employment discrimination complaint in state court-three years from the misconduct, plus one year to file in court. This places employers in the difficult position not only to maintain documentation and other evidence for longer, but to rely on fading memories and to locate witnesses who may have since relocated. In light of these new realities, employers should revisit and update their internal document retention policies, implement effective anti-discrimination trainings and policies, and promptly address any inappropriate conduct in the workplace.

For more information about AB 9, including Lozano Smith training opportunities, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Michelle L. Cannon

Partner

Angela J. Okamura

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

California Expands Definition Of Domestic Partners To Include Opposite Sex Couples

October 2019
Number 63

In California, registered domestic partners have “the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under the law” as spouses. (Fam. Code § 297.5, subd. (a).) Existing law limits domestic partnerships, among other requirements, to two groups of individuals: (1) couples of the same sex or (2) couples of the opposite sex, one or both of whom are over the age of 62 and eligible for social security benefits. On July 30, 2019, Governor Newsom signed Senate Bill (SB) 30 which eliminates these criteria for registering as domestic partners. As of January 1, 2020, any couple over the age of 18 (or under 18 with a court order), regardless of gender, can enter into a domestic partnership. This expansion has significant legal implications for California employers, including public entity employers.

Policy and Review of Collective Bargaining Agreements

To the extent an employer has policies, negotiated collective bargaining agreements, or employee handbooks that address domestic partnerships, it is important for employers to review such documents to ensure compliance with SB 30.

Health Benefits and Other Considerations

In light of SB 30, employers may have more employees eligible and interested in enrolling their domestic partner in an employer-sponsored healthcare plan. If such plan, whether self-insured or otherwise, offers health benefits to spouses then it must afford the same health benefits to registered domestic partners, under the same terms and conditions. Employers may, but are not required to, offer healthcare benefits to unregistered domestic partners as well. Employers should review the terms and conditions of their insurance policies/healthcare plans to ensure compliance with SB 30.

Because healthcare benefits are generally included as part of an employee’s wage for tax purposes, absent an exception, there may be related tax implications that employers should be aware of.

For more information about SB 30 and its implications for employers, or to discuss any other labor or employment questions, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Carolyn L. Gemma

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

PERB Articulates Duties Of Employer When Faced With Internal Union Strife

October 2019
Number 56

In City of Arcadia (2019) PERB Dec. No. 2648-M, the Public Employment Relations Board (PERB) grappled with a variety of issues surrounding a public employer’s duties in the face of warring factions within one of its unions, as well as the propriety of “exploding” offers-an offer or proposal that expires on a given date-in the context of labor negotiations.

PERB held that the City unlawfully interfered with internal union affairs when its police chief encouraged a union representative to oust its president, and violated its duty to meet and confer in good faith when it unilaterally set ground rules in advance of negotiations, invited a non-leadership union member to a pre-negotiations meeting without notifying the union’s official representatives, and made an exploding offer without adequate justification.

An Employer Interferes with Internal Union Affairs by Offering an Incentive for a Change in Union Leadership

Bargaining units have a right to choose their leaders without employer interference. In this case, after receiving reports of unprofessional conduct by the union president, the Chief of Police informed the vice president of the Arcadia Police Civilian Employees Association (Association) that he was cancelling the regular labor-management meetings between the City and the Association until the president no longer held that position.

PERB held that this encouragement to remove the union president constituted interference under the Meyers-Milias-Brown Act (MMBA). Suspending the labor-management meeting until a change in union leadership constituted an incentive for the union to oust its president. A reasonable employee would have viewed his comments as inserting the employer into internal union affairs and/or favoring one faction over another, and as promising a benefit if members took a particular action with respect to their leadership.

An Employer Does Not Engage in Interference by Temporarily Recognizing and Bargaining with a Newly Elected Board

An employer must maintain strict neutrality between bargaining units, as well as between competing factions within the same unit. At the same time, the employer remains obligated to deal with the union regardless of internal strife, and may have little choice but to recognize one faction on an interim basis, pending resolution of the internal union dispute. Here, members of the Association voted out existing leadership and replaced them with different members. The new leaders informed the City Manager of the election results and provided supporting documentation. The ousted president informed the City Manager that she disputed the results of the election, but the City Manager stated that he would negotiate with the newly elected Board.

While an employer may violate the MMBA if it favors one internal faction over another in a manner that materially strays from a good faith effort to comply with its duty to deal with the union’s chosen representatives, here PERB held that the City properly maintained its neutrality and complied with its good faith duty to bargain when it temporarily recognized one faction over the other.

An Employer Commits a Per Se Violation of its Duty to Bargain in Good Faith by Unilaterally Imposing Negotiations Ground Rules

It is a per se violation of the employer’s duty to bargain in good faith if it unilaterally imposes ground rules in advance of negotiations. Here, the City Manager informed the bargaining units that negotiations would commence much earlier than anticipated, that the early start date would be paired with an “accelerated” approach capped by a specific deadline and, in the absence of a deal by the deadline, there would be a “cooling off” period during which there would be no negotiations. PERB held that this constituted a per se violation of the duty to negotiate in good faith.

PERB Held that the City Violated its Duty to Bargain in Good Faith Based on Totality of Circumstances

PERB also held that under the totality of circumstances, the City acted in bad faith in its bargaining conduct with the Association. PERB based its holding on three indicia:

  1. The City’s unilateral imposition of ground rules, discussed above;
  2. The City’s undermining of the Association’s selection of itsrepresentatives; and
  3. The City’s “exploding” offer.

PERB held that the City undermined the Association’s selection of its representatives when it invited a former Association Board member who had resigned from her position years earlier, to a pre-negotiations meeting. That employee attended the meeting-which was reserved for union representatives-without the City notifying the union leadership. This act undermined the Association’s selection of representatives by giving the unauthorized member detailed information about negotiations, elevating her at the expense of the designated representatives.

PERB also held that an “exploding” offer (an offer or proposal that expires on a given date), without an adequate explanation for its termination date, indicates bad faith bargaining. Such an offer is a form of regressive bargaining-making proposals that are less generous to the other party than prior offers. These tactics are indicative of bad faith unless supported by adequate explanation of a legitimate purpose for the expiration, such as changed economic conditions or other changed circumstances.

Here, the City indicated to the Association that a “signing bonus” would not be on the table if the Association and City did not strike a deal by the end of November. The City explained that the deadline was necessary because of the City Council election in the spring, and the new Council could have different budgetary goals. PERB rejected this explanation, because there were several months between the deadline and the election, and it was speculative whether the election would lead to a new Council with goals so different as to change the City’s bargaining position.

Takeaways

Public agency employers’ obligations to bargain in good faith do not change when there is internal union strife. In such circumstances, employers should ensure they continue to engage in good faith negotiations, which may require temporary recognition of one faction over another until the internal union disputes are resolved. Employers should also be wary of presenting exploding offers, as such proposals are only lawful if the employer can demonstrate changed economic conditions or other changed circumstances to support its position. It is crucial to note that PERB’s assessment of the lawfulness of employer behavior in the face of internal union strife is very fact specific, so it is important that all employer bargaining team members understand their obligations under such circumstances.

If you have questions regarding this PERB decision, or to discuss any employee bargaining matter or labor in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Angela J. Okamura

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Department Of Labor Opinion Says Family Medical Leave Allowed For Parental Attendance At IEP Meetings At School

October 2019
Number 50

On August 8, 2019, the U.S. Department of Labor issued an opinion letter (Opinion Letter) stating that the Family Medical Leave Act (FMLA) covers intermittent leave to attend a child’s Individual Education Program (IEP) meeting, so long as the child suffers from a qualifying “serious health condition” under the FMLA. Special education IEP meetings are convened to develop, review, and revise the written document created and implemented to meet the educational needs of a child with a disability.

Under the FMLA, an eligible employee of a covered employer is allowed to take up to twelve weeks of job-protected, unpaid leave each year to “care for a family member with a serious health condition.” “Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment and care for a family member. Leave may be intermittent, and can be used to cover both psychical and psychological care, as well as making arrangements for changes in that case. The Opinion Letter informs employers that parental attendance at a qualifying child’s IEP meeting may constitute “care of a family member with a serious health condition” under the FMLA.

The Opinion Letter notes that attendance at an IEP meeting is “essential to [the parent’s] ability to provide appropriate physical or psychological care” for a child. According to the Department of Labor, parents help participants make medical decisions, discuss their child’s well-being and progress with the providers of services, and “ensure the school environment is suitable to their medical, social, and academic needs.” Such contributions constitute “arrangements for changes in care” within the scope of intermittent leave under the FMLA. Notably, a change in care for a family member does not have to involve a facility that provides medical treatment. (Wegelin v. Reading Hosp. & Med. Ctr., 909 F. Supp. 2d 421, 429-30 (E.D. Pa. 2012).)

While a child’s physician does not need to be present at an IEP meeting in order for a parent’s leave to qualify as intermittent FMLA leave, employers can continue to require employees to timely provide a copy of a certification issued by their child’s health care provider that meets the criteria to support the request for leave. It is possible that not every student with an IEP will have a serious medical condition under the FMLA. Therefore, it is important to verify that the FMLA eligibility requirements are met when a request for such leave is made.

Public agency employers should take steps to ensure that supervisors and human resource professionals are informed of this permissible use of intermittent FMLA leave and associated verification parameters. Public agencies should review employee handbooks, policies, and collective bargaining agreements regarding qualifying leave under the FMLA to determine whether any updates are necessary.

If you would like to discuss the Opinion Letter, how to handle requests for FMLA leave, whether your policies need updating, or if you have any other questions as to what constitutes “care for a family member with a serious health condition” under the FMLA, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Michelle N. Silwa

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

More Time For Paid Family Leave Is Now Available For State Employees

September 2019
Number 39

Governor Gavin Newsom recently signed Senate Bill (SB) 83. SB 83 affects employees who are eligible for and pay into State Disability Insurance (SDI). SDI allows employees to receive income replacement for up to six weeks while disabled and off work. SB 83 extends the wage replacement benefits under SDI from six weeks to eight weeks effective July 1, 2020. In addition, SB 83 expands the uses for California’s SDI to include:

  • care for a seriously ill child, spouse, parents, grandparent, grandchild, sibling, or domestic partner; or
  • bond with a minor child within one year of the birth or placement of the child through foster care or adoption.

SB 83 further requires the Governor, by November 2019, following recommendations from a task force, to present a plan to the legislature for the further expansion of paid family leave from six weeks to six months for parents to care for and bond with their newborn or newly adopted child.

Public agency employers with employees who pay into SDI should review existing leave benefits and policies and be prepared for the increase in benefits, including the increase starting July 2020, and the potential increase by 2022 pending the Governor’s November 2019 proposal.

For further information regarding SB 83, paid family leave, or employment issues in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Dulcinea Grantham

Partner

Marina L. Ramirez

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Law Clarifies Anti-Discrimination Laws Include Hair Discrimination

August 2019
Number 38

The California Legislature recently passed Senate Bill (SB) 188, known as the CROWN Act, which amends the definition of “race” contained in state anti-discrimination laws under both the Fair Employment and Housing Act and the Education Code to include “hair texture and protective hairstyles.” The new law does not mean that public agencies have to change their dress codes unless specific hair texture and hairstyles are specified in their policy. Rather, the new law clarifies that dress codes may be considered discriminatory if they explicitly or implicitly affect individuals who have their hair textured or styled in a manner historically associated with their race. For example, a public agency could not have a policy restricting Black workers or students from wearing dreadlocks, twists, or braids. Further, a public agency could not enforce a policy demanding “professional” or “clean and tidy” hair that effectively limits workers or students from wearing dreadlocks, twists, or braids.

Courts and administrative agencies have routinely and clearly established that public agencies have a management prerogative to impose non-discriminatory employee dress code policies. Indeed, in the K-12 school context, there is a heightened importance associated with standards for professional appearance because employees’ behavior is often imitated or modeled by students. Similarly, courts have held that school districts may impose viewpoint neutral and content neutral dress code policies for students as long as they are implemented in a consistent and equal manner among all students.

The California Legislature passed the CROWN Act to provide clarity in light of recent federal case law declining to extend anti-discrimination protections based on hairstyles or textures commonly associated with a protected class. Because hair can be changed (i.e., is mutable), federal courts have refused to equate hairstyle with race, with a limited exception for afros, and thus limited Title VII race discrimination claims to only protect against “immutable characteristics.” In contrast, the legislative analysis for SB 188 notes that discrimination is often not based on the immutable nature of a trait but is instead based on the trait’s connection with an identity associated with a protected characteristic.

Importantly, the new law reaffirms a public agency’s control over dress code policies for employees and students. These dress code policies will be lawful so long as they are imposed in a valid and non-discriminatory manner with no disparate impact on individuals based on their dress and appearance’s association with a protected characteristic. Public agencies should review their existing dress code enforcement practices to ensure compliance with SB 188. In addition, public agencies may consider conducting implicit bias training and refocus practices to ensure inclusivity and compliance with this new law.

For more information about SB 188 or about public agency dress code policies in general, whether directed at employees or students, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Joshua Whiteside

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.