Yesterday, September 30, 2018 was the last day for Governor Brown to sign or veto legislation passed by the California legislature this year.  Here is a list of the employment bills that were signed and will impact California employers in 2019 (the bills will become effective January 1, 2019, unless the bill specifies otherwise):

AB 3109 by Assemblymember Mark Stone (D-Scotts Valley) – Contracts: waiver of right of petition or free speech.  This bill makes unenforceable any provision in a contract or settlement agreement entered into on or after January 1, 2019, that waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged sexual harassment on the part of the other party when the party has been required or requested to attend the proceeding pursuant to a court order, subpoena, or written request from an administrative agency or the legislature.

SB 224 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Personal rights: civil liability and enforcement.  This bill adds “investor, elected official, lobbyist, director, and producer among those listed persons who may be liable to a plaintiff for sexual harassment” under Civil Code section 51.9 of who may be personally liable for sexual harassment.

SB 820 by Senator Connie Leyva (D-Chino) – Settlement agreements: confidentiality.  Prohibits provision in settlement agreements that prevents the disclosure of factual information relating to certain claims of sexual assault, harassment, or discrimination.

SB 826 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Corporations: boards of directors. Requires public companies who have principle executive offices in California to have a set number of women on the board of directors.  The Governor’s signing message can be found here.

SB 1252 by Senator Richard Pan (D-Sacramento) – Payroll records.  Existing law grants current and former employees of employers who are required to keep this information the right to inspect or copy records pertaining to their employment, upon reasonable request. Existing law requires an employer to respond to these requests within a specified time.  This bill provides that employees have the right to receive a copy of the employment records described above and apply the associated time requirements and penalty provisions in this context.

SB 1300 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Unlawful employment practices: discrimination and harassment.  Prohibits an employer, in exchange for a raise or bonus, or as a condition of employment of continued employment, from requiring the execution of a release of a claim or right under FEHA or from requiring an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.  The bill also provides that a prevailing defendant is prohibited from being awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought or that the plaintiff continued to litigate after it clearly became so.

SB 1343 by Senator Holly Mitchell (D-Los Angeles) – Employers: sexual harassment training: requirements.  This bill requires employers with 5 or more employees, including temporary or seasonal employees, to provide at least 2 hours of sexual harassment training to all supervisors and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and one every 2 years thereafter.

SB 1412 by Senator Steven Bradford (D-Gardena) – Applicants for employment: criminal history.  The bill permits employers to conduct background checks for employees under certain narrow exceptions.


Governor Brown vetoed the following employment bills, which will not become effective:

AB 1867 – by Assemblymember Eloise Gómez Reyes (D-Grand Terrace) – Employment discrimination: sexual harassment: records. This bill would have required employers with 50 or more employees to retain records of sexual harassment complaints for at least five years.  The Governor’s veto message can be found here.

AB 1870 – by Assemblymember Eloise Gómez Reyes (D-Grand Terrace) – Employment discrimination: limitation of actions. This bill would have extended the statute of limitations for employment discrimination claims under California’s Fair Employment and Housing Act from one year to three years.  The Governor’s veto message can be found here.

AB 2079 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Janitorial workers: sexual violence and harassment prevention training. The Governor’s veto message can be found here.

AB 2732 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Employment: unfair immigration-related practices: janitorial workers: sexual violence and harassment prevention training. The Governor’s veto message can be found here.

AB 3080 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Employment discrimination: enforcement. The Governor’s veto message can be found here.  I previously wrote about this bill, and the potential effect it would have on employers in California here.

AB 3081 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Employment: sexual harassment. The bill would have created a rebuttable presumption of unlawful retaliation that any adverse employment action within 30 days for anyone that was a victim of sexual harassment.  The bill would have also created joint liability for employers who use contractor labor for any harassment supplied by that labor contractor.  The Governor’s veto message can be found here.

I’ll definitely be writing more about the new laws that will be taking effect.  Please subscribe to the blog (enter email in top right hand column) to receive email notifications when the blog is updated.

I’m moderating a panel discussion on best practices for how to hire and retain good employees at the Western Food Service and Hospitality Expo (WFHE).  The panelists are Joseph Pitruzelli owner of Wurstküche, Francis Drelling General Counsel at Specialty Restaurants Corporation, Naz Moin former director of Human Resources at PizzaRev, and Madelyn Alfano owner of Maria’s Italian Kitchen.  It is on Monday, August 20 at 4 p.m. in the Education Theater (session number S127.  Hope you join us if you are attending the Expo.

In addition, in connection with the California Restaurant Association (CRA), my firm is offering a special an in-person training session that will comply with all the requirements outlined in the regulations regarding California’s Mandatory Sexual Harassment Prevention Training for supervisors (AB 1825) . Supervisors for large employers are required to take this training every two years.  As a bonus, Sexual Harassment Prevention registrants will gain complimentary access to the WFHE show floor, valid day of training (Tuesday, 8/21/18).  The training is at the LA Convention Center, and will take place from 9 to 11:30 a.m. (the show starts at 11 a.m.).  This training is offered to CRA members for FREE and $25 for non-members. Both members and non-members will need to register online here before the day of the training.  Click here for more details about the training and to register.

My firm will have a booth at the show again this year, so if you attend the show, be sure to stop by and say hello.  We are at Booth #1543 (across the aisle from the California Restaurant Association’s booth).  The Expo runs from August 19 to 21 and is at the LA Convention Center.

Also, please stop by our booth and say hi to us if you are attending.  We have some nice swag for readers of the blog!

This Friday’s Five provides a few reminders about documenting employee performance. While good documentation is hard to gather at the time, it is critical in communicating clear objections to employees for better performance. Also, should a dispute arise that results in litigation, how well the employee’s performance was documented can be the different in winning or losing the litigation. You’ve probably heard these before, but these five reminders are a must for documenting employee performance:

1. Get employee feedback during counseling.

Employees are more likely to ultimately accept critical performance reviews if their feedback is heard. This does not mean that the employer must agree with the employee’s feedback, but just that the employer is considering their feedback in the decision-making process and the employee is not being pre-judged. A good example on how obtaining the employee’s feedback avoided a potentially embarrassing situation and harming a relationship with the employee was noted in an article by SHRM (“How to Create Bulletproof Documentation”). The article recalled a situation when a manager wanted to discipline an employee for being late to her new position in the company. But prior to issuing the discipline, the HR manager asked the manager to seek clarification from the employee about why she was late. The manager followed the advice, and it turned out that the employee’s tardiness was a result of employee providing training to the replacement at her prior position in the company.

2. Set clear consequences.

Employers need to be clear in their documentation of performance with employees. Set out clear benefits and consequences for the employee’s success or failure going forward. The documentation should not forget to document the positives if the employee improves. Likewise, while sometimes difficult to confront employees with the consequences for their failure to improve, it is critical to be clear. The documentation should be clear, such as: “Failure to improve performance as set forth in this review may result in further disciplinary actions, up to and including termination.”

3. Avoid vague language like “bad attitude” or “failure to get along with other employees.”

One of the hardest issues as a litigator is defending a wrongful termination claim when the documentation provided to the employee contains vague criticisms of the employee’s performance. Managers should avoid at all costs performance reviews that the employee has a “bad attitude.” If litigation ensues, and the company is forced to defend its decision to terminate the employee, and vague statements like this do not clearly establish the reasons for the termination. Instead a creative plaintiff’s lawyer can spin this language as evidence to support their allegation that the reason was based on the employee’s complaint, race, gender or age. A good practice is to use concrete examples in the performance review, such as:

  • You were 25 minutes late today.
  • Your conduct towards your coworker was unacceptable today when you informed Mr. Jones that “it was not your job to help him and he should know how to do these tasks by now.” You are expected to assist others in all aspects of their job, and to the extent they need additional help, you need to provide assistance to ensure that the customer’s needs are met.
  • You did not provide adequate customer service last Tuesday when you ignored the customer’s request for help in retrieving a different size three times.

4. Employees do not need to sign written performance warnings.

While it is a good practice to have employees sign performance reviews to avoid any disputes that they were never shown the performance review, it is no legal requirement to have the employee sign the document. Employees often object to signing documents criticizing their performance. There are two potential responses to this objection: 1) have the employee’s acknowledgment clearly state that the employee’s signature is only acknowledging receipt of the document, not agreeing with the content, or 2) if the employee simply refuses to sign, have the manager or a witness sign and date the document with a notation that the document was provided to the employee and he or she refused to sign.

Also, another misconception: there is no legal requirement that employees must be given three warnings prior to being terminated (as long as the company has maintained the employee’s at-will status).

5. Remember that write-ups and documentation do not have to be on any “official” forms.

Managers sometimes feel that they must wait until they can officially document an employee’s performance on the company’s official form. However, managers need to be trained on how to document performance and it must be made clear to them that while the company’s forms are preferred, documentation can be done on many formats, such as: e-mail to oneself or to HR, the manager’s log, any paper available, or even electronically on any other company device. I personally like when managers send emails to themselves documenting conversations with employees. Given the data associated with e-mails, such as time and date created, e-mails are excellent documentation of a manager’s conversation with an employee about performance issues. Managers should also be reminded that they need to document verbal warnings in some manner – if the verbals are not documented, it is as if they never occurred.

Chipotle had an $8 million verdict against it in a California court last week for a wrongful termination claim.  The verdict is a surprising huge amount and it should be a clear warning to employers about how important it is to document employee conduct, and then store and be able to access that evidence if ever needed to defend a lawsuit.  I posted my thoughts in the video below on Instagram:

I’ve started posting these shorter videos and thoughts on Instagram, so be sure to follow me at:

https://www.instagram.com/anthonyzaller/

Clients come to my firm often frustrated by California employment laws and their complexity, the raising costs of doing business in California (such as the higher minimum wage), and the legal system in general.  I have to agree that California poses one of the most difficult business environments businesses have to operate within, but I come back to thinking that many of the issues the clients voice frustration with can be managed if they are given the tools to do so.  This Friday’s Five lists five things every employment attorney should tell their California clients:

1. Litigation is expensive (and no, I’m not just talking about legal fees).

Two lessons here:  1) Don’t approach litigation with the attitude that you are fighting for principle (unless you have unlimited resources), and 2) focusing on human resources/policy development/legal compliance before litigation (see #5 below) can help prevent litigation and save resources.  For most businesses, litigation should be avoided, but to the extent it cannot be avoided, companies should usually view the transaction not as a personal vendetta, but as a business transaction.  Executives should weigh the costs of litigation versus the benefits just as they do in any other business decisions to determine whether to litigate the case or make an attempt at settlement.  But don’t approach this decision based on any attorney’s advice that litigation can be completed fast and inexpensively.  As there are defense costs, but as just or possibly costlier is the time and effort that the company and its managers and employees will have to spend defending the litigation instead of running the business.  This is often a hidden cost that must be taken into consideration.

2. Treating people with respect will likely result in less litigation.

I understand, it seems like California employment law is always adding new requirements on employers that are difficult to comply with.  However, with a small amount of time and attention, most of the issues that present the largest amounts of potential liability for employers can easily be managed.  But for the few occasions when it is legally unclear about what action the company should take, or if legal counsel cannot be reached in time for a decision where the law is not clear, employers that treat the employee with respect will usually avoid litigation.  I believe that, for the most part, employees understand that employers/managers/supervisors must make difficult decisions.  When the employee is treated with respect during a difficult employment decision, even though they might not like the decision, they will probably understand why it was made, and most likely will not hold a grudge against the company.

3. When in doubt, document.

As a litigator, the worse feeling I have is when the employer provides me with an employee personnel file for a problem employee, but the personnel file contains less than a few pages.  Employers’ primary defenses to many employment lawsuits will be won or lost on the documentation created and maintained by the employer.  The employee that believes they were wrongfully terminated will face a much tougher case if there were a dozen documented performance write-ups in their file setting for the date and examples of what the employee did or failed to do.  For additional information, see my prior post, Five best document storage and retention practices for California employers.

4. Train front line managers and supervisors.

A company’s managers and supervisors are the eyes and ears of the company.  They must be well trained about what issues can create legal liability for the company, as well as be trained in new developments in the law (for example, so they are not asking about criminal histories during the interview process since the beginning of 2018) and are trained about how to be managers (and treat people with respect).  This training for managers/supervisors is the difference between a good and a great company.

5. A small investment in human resources will provide a return.

As I wrote about last week, human resource departments need to have a more critical role in organizations and should be viewed on the same level as marketing and finance departments.  Giving HR managers budgets to proactively update policies, handbooks, and training sessions for managers will provide a positive return to the company.  Now it may not be an immediate net gain on the financials, but if one lawsuit is avoided because of the proactive measures put into place, this will be money well spent (see item #1).

In this Friday’s Five, I discuss why people should be more open to attending jury duty.  I sat for jury duty this week, but was dismissed after vior dire.  I’ve served on two juries prior to this, and maybe it is the litigator in me, but I’ve found the process fascinating.  Also, I’m tired of people complaining about the crazy jury verdicts they hear about, and then I ask if they have very been on a jury.  The typical response is that they have been successful in getting out of service.  My response then is for them not to complain about the results if they are not willing to participate in the system.

Jury duty is a great learning experience.  Plus, if you ever find yourself in litigation, you will want an impartial jury to help hear your case, so consider paying it forward in case you ever need the system.

Finally, I discuss employer’s obligations to allow employees to attend jury duty.  Additional information about the law regarding employee’s leave required to attend jury duty can be found in my prior post.

Stay dry out there California.

I bet your lawyer has never uttered those words to you (unless, of course, I am your lawyer).  For today’s Friday’s Five, I wanted to remind readers about five free resources I offer.  That’s right – they are absolutely free.  Happy Friday.Employers Survival Guide

1.  Download the termination checklist

I’m a big proponent of checklists.  Even if you have performed hundreds of employee terminations, there are so many issues that employers must get right every time, I recommend that each employer develop their own termination checklist.  Download my draft checklist as a start to drafting your own checklist for your company here.

2. Subscribe to my webinar and seminar newsletter

I’m routinely conducting webinars and seminars to California employers regarding best practices and employment law updates.  I often times waive the costs or reduce the costs for clients, friends of the firm, and readers of my blog.  You can subscribe here.

3. Subscribe to my Youtube channel – The Employment Law Report

Rather learn by watching videos?  Subscribe to my Youtube channel, The Employment Law Report.  Some popular videos are my overview of California’s paid sick leave law.  More videos to come soon.  View and subscribe to the channel here.

4. Subscribe to my blog

Receive at least weekly updates about California employment law and best practices for employers.  Reading this, right?  Might as well receive an email by subscribing here when I post a new article so you don’t miss any posts.  That is right, as always, this is absolutely free, so why not?  Subscribe to the blog by entering your email address above the big yellow button to the right.

5. Download my e-book on the top ten best HR practices

The Top Ten Best Human Resources Practices for California Employers e-book – need I say more?  Download it here.

Now you do not have any reason to not to utilize these free resources.  And don’t forget, you can find me on Facebook too.  Have a great Labor Day weekend.

 

Working with employers are various sizes, backgrounds, sophistication, and industries, I’ve seen a lot of confusion and simple misunderstandings about what constitutes employee discipline and how to properly document employee performance issues or discipline.  This Friday’s Five addresses five common misunderstandings I’ve seen recently about employee discipline and documentation:

1. If it was not a formal write-up put in the employee’s file, then the action does not constitute disciplinary action.

There is no legal definition of what constitutes a write-up, nor is there a definition of what is required to be in an employee’s personnel file.  Therefore, recollections about verbal warnings, e-mails, letters, even notes on napkins can be evidence to support an employer’s position that an employee was terminated because of performance issues.  The key item employers need to remember is if the employee challenges the reason for the termination that there is support for the termination decision, either through testimony and/or documentation.  The documentation can come in any form and does not have to be a formal write-up that is maintained in the employee’s personnel file.  However, this is not to say that employers can do away with formal employee reviews and write-ups, these are very good practices to maintain.

2. Verbal warnings do not have to be documented.

If there is no record of verbal warnings it is very difficult to prove at a later date that the employee had been counseled about the issue.  Managers should always document a verbal warning in some manner, such as in a manager’s log or even e-mailing themselves the specifics about the verbal warning.  By preparing an e-mail and sending it to themselves, it creates a great time-stamped record that is excellent evidence should there ever be any litigation concerning a termination.

3. Employees have to sign disciplinary documents.

Some employers do not think a write-up for an employee is valid unless the employee signs the write-up, but this is not true.  While it is a good policy to have some system that proves the employee was presented with the write-up, it is not required that the employee sign the document.  Many times the employee will refuse to sign such documents because they do not agree with them.  To alleviate this, some employers provide a line on the document that states the employee does not necessarily agree with the write-up, but is signing the document only to acknowledge receipt.  Another method to avoid the argument that the employee never received the written warning is to email the employee.  This creates a great record of when the warning was prepared and sent to the employee.

4. Employers have to follow a progressive disciplinary policy and cannot fire employees on their first offense.

While employers may choose to implement a progressive discipline policy that starts discipline with a verbal warning and progresses to a second or third written warning prior to termination.  However, if using a progressive disciplinary system, employers should be careful to preserve the employee’s at-will status and reserve the right to not follow the progressive disciplinary system at is sole discretion.  As long as the employee is at-will, they can be terminated at any time, even after their first small infraction of a company policy.  For more information about at-will employment, click here for my previous article.

5. Disciplinary documentation should be as broad as possible.

While write-up and counseling should address the overall issue that the employee needs to improve, employers need to avoid general statements without providing specific examples.  For example, instead of writing an employee up for having a poor attitude, the employer should provide a specific performance issue.  The employer should document the time, date and facts of the incident.  Write ups should also list the conduct that is expected of the employee in the future.

Employment Law - Mid Year Update - LinkedinJoin me for a seminar for a mid-year update on California employment law issues.  Learn how to keep your company compliant with new developments in California.  Topics will include:

  • Top five pitfalls facing California employers in 2016
  • How to prepare for the Department of Labor’s changes to the overtime rules going into effect on December 1, 2016
  • Local city minimum wage and paid sick leave developments
  • Revisions to anti-harassment and discrimination regulations potentially requiring revisions to handbooks and policies
  • Q & A – bring your questions to discuss with the attorneys from my firm
  • Mixer – network with other business owners, human resource professionals, and other professionals

The event is from 4 p.m. to 7 p.m. on June 22, 2016  (seminar from 4 to 5 p.m., mixer from 5 to 7 p.m.).

Location: Westside Tavern, 10850 W Pico Blvd, Los Angeles, CA 90064 (click here for map)

1.0 SHRM and HCRI credit for HR Professionals.

$150 Regular Price/$40 for clients of VTZ and California Restaurant Association Members. If you are a client, or a CRA member, email cpeck@vtzlaw.com for promo code.

Space is limited.

For more information and registration, click here

Hope you can join us.

Another Friday, another Friday’s Five.  If you are new to the Employment Law Report, I write about a topic and include five items employers should understand on that topic every Friday.  This Friday’s Five discusses the documents employers should consider providing to employees at the end of employment.

The documents include:

  1. Notice of change of relationship
  2. For Your Benefit, California’s Program for the Unemployed – pamphlet published by the EDD
  3. HIPP notice
  4. COBRA notice
  5. For layoffs, potential WARN Act and California’s Baby-WARN Act

To download these documents and more information click here.

Click here to subscribe to the Employment Law Report Youtube Channel.

Employers should review the issue with legal counsel to ensure that they are providing the required documents for their particular situation.