A new California law takes a giant step toward helping employees who have faced workplace discrimination. In a state that has more than 12.1 million workers — with 5.54 million of them women and 7.67 million non-white, just to name a couple of categories — the issue has broad implications.

Discrimination is pervasive but often underreported. During the past year, many companies have been grappling with varying concerns related to that very issue, including Pinterest, Facebook and even Airbnb. 

The law, A.B. 1947, took effect on Jan. 1, and it could make a real difference for many who have been wronged by businesses and who may find themselves tangling with an opponent that has outsized influence and resources. A.B. 1947 applies to anyone who reasonably believes he or she has been fired or faced other types of discrimination in violation of state labor laws. 

First and foremost, the new law doubles the amount of time during which a person can file a complaint with the California Division of Labor Standards Enforcement. Previously, victims had six months from the time of the incident; now, it’s a full year. With the angst and second-guessing that can accompany conflict at work, that additional time can prove vital.

Secondly, if a court sided with the employee, affirming discrimination, the court also could choose to award reasonable attorney’s fees to the employee. This potential financial help can give victims the courage to come forward with discrimination allegations.

A common concern among victims is that they’ll face a backlash if they speak out. Importantly, California law prohibits retaliation against employees who exercise their rights to report activities that they reasonably believe violate the law — or who refuse to do something that they believe violates the law. It also prohibits employers from enforcing rules that would keep workers from providing information to authorities. 

Keller Grover offers free consultations to advise workers about their specific situations. In more than 25 years litigating fraud and employment cases, the lawyers at Keller Grover have recovered hundreds of millions of dollars for clients and class members.

Increasing numbers of employers are bringing people back to work in some measure, but the office view — from masks to mandates — looks far from normal. 

The return of “non-essential” employees, many of whom have been working from home, has varied widely across the country, with some bosses even prohibiting masks at work. In California, the government is attempting to guide a safe return, offering a COVID-19 Employer Playbook and legislative efforts to revamp employment laws to protect workers amid a pandemic.

“As California businesses begin their reopening, it is essential that all possible steps be taken to ensure the safety of workers and the public,” states the COVID-19 Employer Playbook, provided by the California Department of Public Health. “In addition, it will be critical to have appropriate processes in place to identify new cases of illness in the workplace and, when they are identified, to intervene quickly and work with public health authorities to halt the spread of the virus. These efforts are essential to avoid further shutdowns.”

Here’s what to expect in terms of your employer’s responsibility to keep you safe:

1. Require masks. This comes as no surprise, given California’s mask mandate. Pretty much anytime someone is outside the house and around others, a mask is required — including for workers in offices, factories or other group settings, or for those in customer-facing industries. Certain localities, such as Los Angeles, require employers to provide masks for workers; many employers provide masks even if it’s not required. Note that there are a few select exceptions to the mask mandate, often due to other health factors.
2. Have a plan. The playbook says employers must do a detailed risk assessment and set up a COVID-19 prevention plan specific to the work site. This includes protocols for handling a positive case of COVID-19 or an outbreak, which is considered three or more positive cases within two weeks among employees who don’t live in the same household. At the very least, employees with symptoms should not stay at work, and they should follow health officials’ guidelines for when to return. The playbook includes further details, by industry, about appropriate communication (trying to maintain workers’ health confidentiality as well as reporting to the government), contact tracing, when to consider temporarily suspending operations, and other steps.
3. Provide training. Employers must train workers about limiting the spread of COVID-19, including how to know whether to stay home from work.
4. Provide screening. That includes individual screenings, such as temperature checks, and various control measures. 
5. Keep the work environment clean. Regular disinfection helps keep everyone healthy.
6. Make physical distancing possible. Health officials recommend a distance of 6 feet.
7. Accommodate COVID-related absences from work. Employees in the state start earning paid sick leave from day one.  Amounts may vary, but generally workers accrue at least an hour for every 30 hours worked; that may be capped at 48 hours of sick leave a year. An executive order by Gov. Gavin Newsom expanded those laws for COVID-19, specifically for essential workers in the food sector or for those employed by large companies (500-plus employees). The executive order included up to 80 hours of paid sick leave; it rounded out the federal measure that applied to companies with fewer than 500 workers. Other localities may have additional requirements. 

For longer absences, California’s Family Rights Act offers up to 12 weeks of leave with job protection for certain workers who are coping with a serious health condition — either their own or a family member’s. To qualify as serious, a health condition must require inpatient care or ongoing treatment or supervision by a health care provider.

Notably, California law includes strong anti-retaliation measures to ensure that workers who take sick leave aren’t penalized.

The California government is considering more labor law changes to help employees amid the pandemic. Legislative proposals include expanded workers’ compensation eligibility to cover COVID-19 diagnoses, more sick days for food service workers, and having employers help teleworkers pay for utility and Internet costs. Newsom has mentioned making workers’ compensation claim requirements easier and making sure employers report outbreaks. (Read more from the Los Angeles Times.) We keep tabs on government actions so we can best advocate for our clients — stay tuned for more in this rapidly developing arena.

Do you feel unsafe at work? Is your employer lax with COVID-19 prevention efforts or hard on employees who need time off? Keller Grover can help. We offer free consultations to advise workers about their specific situations. In more than 25 years litigating fraud and employment cases, the lawyers at Keller Grover have recovered hundreds of millions of dollars for clients and class members. 

Related:

• As more businesses reopen amid COVID-19, will employees pay the price?
• Coronavirus and your rights: Balancing protection and privacy
• Coronavirus and your job: 8 FAQs about your rights at work

 

A law firm administrative manager got fed up this summer with requests to wear masks, even though he said he had tested negative for COVID-19. In a rant on his personal Facebook page, the Texas man vented his frustration in a big way, circling around to mentions of a handgun and hollow-point bullets.

The threatening post promptly resulted in a pink slip for the man, whose longtime employer publicly apologized for the incident, saying it violated the firm’s values and merited a notification of the proper authorities.

Now we don’t know much about this man personally, but we do know that it’s easy to mess up on social media. A hotheaded moment, a few clicks, a post — and a career derailed.

Particularly recently, countless stories detail how personal social media posts have resulted in firings, in roles that run the gamut from professionals to public servants. During a tense time in history, with COVID-19 compounding the stress and cravings for social contact, remarks that are violent, threatening, racially charged or just plain insensitive can land employees in hot water.

It’s true that we live in a country where people prize their First Amendment right to free speech — but while that right protects us from government retaliation, it doesn’t mean we can say whatever we want without consequences. When it comes to our employers, those consequences can vary from disciplinary action to firing to being turned in to the authorities. Still, employees have some latitude — and knowing your rights is key to protecting your rights. 

Here’s a primer on seven social media no-no’s at work, as well as how to protect yourself: 

1. Violate the employee handbook.

This may seem obvious, but some employees never crack open their handbooks. Get familiar with any guidelines or restrictions on social media use. They may primarily involve ethics, discrimination or bullying, but in industries such as health care or technology, there may be an emphasis on confidentiality too. Similarly, if your employer has a public stance on certain issues, the social media policy may limit workers from publicly contradicting those issues. Again, this is the fine line between what you can say under the constitution and what you can say under your employment contract.

On the flip side, familiarity with such rules — or lack thereof — may help you effectively defend yourself if you face complaints about personal social media use.

2. Post something egregiously offensive. 

Wait a beat before you post something on social media, particularly if it’s flippant or if your blood is boiling. Read it again in a minute or two, after you’ve been able to come back to it with fresh eyes. Given the many fraught issues these days, tread lightly when it comes to controversial topics — especially if, as in our example at the beginning of this blog, there is any mention of violence, threats or weapons. 

However, employers can’t fire you for discriminatory reasons, including political activity/affiliation or lack thereof. And employers can’t fabricate reasons to fire you when their real motives are illegitimate. There are many government agencies designed to protect employees from all sorts of discrimination, such as the Equal Employment Opportunity Commission, National Labor Relations Board, Office of Special Counsel and Merit Systems Protection Board.

Still, keep in mind that social media posts often can be misinterpreted, even posts on public review sites such as Yelp or Amazon. Remember that nothing on the Internet truly disappears — a simple screen shot could turn a post you tried to delete into a major headache.

3. Share confidential company information.

We touched on this earlier, but it’s worth emphasizing on its own. Whether it’s about clients/patients, internal operations or trade secrets, it’s best to steer clear. Even if employees are posting about something that’s not specifically about their jobs, sometimes they can reveal things without meaning to — particularly if they’re talking to someone on social media that they don’t actually know. 

Certain California companies deal very harshly with leaks. Remember in 2018 when Apple cracked down on 29 leakers, including having 12 arrested? This doesn’t mean the companies are always in the right — we advocate for workers who find themselves in conflict with their employers — but it does mean they can make life difficult or make it hard to find another job.

4. Lie about working conditions at your job.

Certain complaints and whistleblowing are protected from retaliation, but those protections don’t apply to malicious, knowing lies.

Controversial statements aren’t lies, though. Public complaints about sexual harassment, underpayment, lack of COVID-19 safeguards, or policies that seem to discriminate based on race or age likely would be protected. We specialize in helping employees who face retaliation for bringing to light illegal, discriminatory or other wrong actions by their employers.

5. Publicly disparaging your employer’s products or services.

It’s no mental leap that publicly complaining about your job probably wouldn’t do you any favors at work.  However, it’s important to note that this speech is protected if the content is made in relation to a group activity among employees. The NLRB gives employees the right to form or join unions and “engage in protected, concerted activities to address or improve working conditions” (or the right not to do those things). 

6. Posting during working hours.

Employers are likely to scrutinize your posts more strictly if they were made while you were on the clock (not during set breaks). If you’re being paid to work but are spending that time making personal posts on social media, you’re asking for trouble.

7. Using company property to post.

If you are using your work computer — or a work-provided phone or other device — to post on social media, your company has a lot more say in what you can do. Employers typically have the right to access those devices and any software on them, and they may have policies against using company property for personal use. 

Facing a tough situation? Seek the right advocate. While there are limits, you have many rights and protections under the law. If you and your employer are at odds over social media use, Keller Grover offers free consultations to advise workers about their specific situations. In more than 25 years litigating fraud and employment cases, the lawyers at Keller Grover have recovered hundreds of millions of dollars for clients and class members. 

In a landmark decision this summer, the U.S. Supreme Court ruled that a 1964 civil rights law clearly protects gay and transgender workers. The ruling makes it illegal for employers nationwide to fire workers for being gay, bisexual or transgender.

Significantly, though such discrimination already was illegal in California (as well as in 21 other states), victims now can bring lawsuits in both state and federal court. 

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender,” the opinion states. “The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision — exactly what Title VII (of the Civil Rights Act of 1964) forbids.”

And the court didn’t give employers any wiggle room to drum up additional reasons to cover for firing a homosexual or transgender worker. If the person wouldn’t have been fired apart from sex, liability attaches.

“There is simply no escaping the role intent plays here,” the ruling reads.

Harassment and retaliation against protected workers for asserting those protections also are illegal, and it’s illegal to withhold opportunities from protected workers solely based on sex. That includes factors such as pay, employment terms and job perks — not simply hiring and firing.

Attempting to right the wrongs: Remedies

Federal law aims to restore victims of discrimination to nearly the same position as if the discrimination had not occurred, such as providing back pay and benefits, the desired job/promotion or whatever most directly resolves the discrimination. Employers also must stop any discriminatory practices and guard against their recurrence.

On top of that, a judgment could cover attorney and court costs, as well as tack on compensatory and punitive damages when there is intentional and malicious/reckless discrimination.

Compensatory and punitive damages have caps based on an employer’s size:

• $50,000 if the company has 15-100 employees.
• $100,000 for 101-200 employees.
• $200,000 for 201-500 employees.
• $300,000 for more than 500 employees.

California law includes many of the same remedies, including past lost earnings, future lost earnings, hiring or reinstatement, promotion, out-of-pocket expenses, policy changes, training, reasonable accommodations, damages for emotional distress, punitive damages, and attorney’s fees and costs. However, state law doesn’t explicitly limit compensatory and punitive damages.

No person should ever have to face discrimination, harassment or retaliation. For victims, it can be difficult to know where to turn. If you need help, Keller Grover provides free consultations. In more than 25 years litigating fraud and employment cases, the lawyers at Keller Grover have recovered hundreds of millions of dollars for clients and class members.

California’s new gig worker law tried to help people — particularly Uber and Lyft drivers — who received few protections and no benefits because they were classified as independent contractors instead of employees.

Now, state legislators are trying to improve A.B. 5 — which took effect Jan. 1 — to make allowances for other types of workers who rely on their independent status to make a living. 

In June, the Assembly voted unanimously to advance bills that would exempt from A.B. 5 creative professionals such as freelance journalists, musicians and photographers, as well as a handful of others. The state Senate must act on the bills by Aug. 31; passage would send them to the desk of Gov. Gavin Newsom.

Independent writers, freelance journalists, editors, photographers and others in California usually contract with several employers and require independent status to make a living. So state legislators are attempting to walk the fine line between protecting certain workers while not hindering others. Changes also would affect certain roles related to youth sports coaching, performing arts teaching, appraisers, translators, certain insurance industry roles, competition judges, international exchange visitor program workers, and those whose work relates to the sale of sound recordings.

As related to the specified professions, key changes would include:

• Deleting a provision that would require employee status when submissions to a single employer surpass 35.
• Exempting services with terms contractually defined in advance, so long as the contractor is not replacing an employee who performed the same work at the same volume, the person isn’t typically working at the hiring entity’s location, and the person isn’t restricted from working for multiple employers.

(See more details in this legislative summary of A.B. 1850.)

For non-exempted professions, the law would continue to consider a worker as an employee (rather than an independent contractor) unless the situation meets the following three requirements:

1. The person is autonomous from the hiring entity in performing the work.
2. The work performed is outside the usual business of the hiring entity.
3. The person typically works in an independently established trade, occupation or business similar to the work being performed.

Separately, rideshare companies are challenging the new law in court and at the ballot box. Lyft, Uber and DoorDash reportedly raised more than $100 million to fight the law. Their group recently gathered enough signatures to put an initiative on the Nov. 3 ballot. If passed, the measure would allow app-based transportation and delivery drivers to remain as independent contractors. However, the measure would require that the companies who use those drivers provide alternative benefits such as minimum compensation and healthcare subsidies based on engaged driving time, vehicle insurance, safety training, and sexual harassment policies.

If you’re confused about this fluid situation and need legal advice, Keller Grover can help — whether you’re a rideshare driver in need of protections or an independent contractor trying to make a living. Begin with one of Keller Grover’s free consultations. In more than 25 years litigating fraud and employment cases, the lawyers at Keller Grover have recovered hundreds of millions of dollars for clients and class members.