It’s High Time to Update Your Marijuana Policies

The legalization of recreational use of marijuana in several states, including California, has left many employment policies vague and confused. This article offers insights to questions every employer should be asking in light of legalization.

California’s Rollout of Legal Marijuana

California voters passed the Adult Use of Marijuana Act (“Prop 64”) on November 8, 2016, legalizing recreational marijuana use. However, the California Bureau of Cannabis Control only began accepting, processing, and issuing licenses to commercial marijuana dispensaries as of January 1, 2018. As of April 2018, the Bureau has granted over 5,000 licenses for a variety of commercial uses, including retail sales and distribution. Continue Reading

Title VII In Transition? Texas Federal Court Rules That Anti-Discrimination Statute Protects Transgender Individuals

In a landmark ruling, a federal court judge in Texas issued an opinion holding—unequivocally—that Title VII protects transgender individuals from discrimination based on their gender identity. Wittmer v. Phillips 66 Company, No., 4:2017-cv-02188 (S.D.Tex, April 4, 2018). The ruling is the first of its kind in Texas and will likely have a major impact in Texas workplaces. Indeed, recent studies have shown that approximately 430,000 workers in Texas identify either lesbian, gay, bisexual, or transgender (LGBT). Of that number, 79% of transgender workers in Texas have reported—either formally or informally—some kind of discrimination in the workplace, including harassment, discriminatory hiring practices, and promotion denials. Texas employers should take note of the recently-issued decision. Continue Reading

Update: New York State Passes Budget, Creates New Sexual Harassment Obligations For Employers

On April 12, 2018, Governor Andrew Cuomo signed into law a 2019 New York budget implementing the provisions of S-7848A (the “Budget”). Beyond the obligations created by S-7848A, which we summarized in a previous post, the Budget also obligates New York employers to: (i) distribute a written sexual harassment policy; and (ii) perform annual sexual harassment training. The full impact of the Budget on employers is detailed below. Continue Reading

Sex + Discrimination = Liability, Says First Circuit

In Franchina v. City of Providence, 2018 WL 550511, 2018 U.S. App. LEXIS 1919 (1st Cir., Jan. 25, 2018), the First Circuit offered no sympathy to the City in its appeal of a jury award that found the City’s fire department liable for tormenting a former lieutenant on the basis of her sex. The court’s sentiments were readily apparent from the outset of its opinion, which admittedly “decline[d] to put out flames of the Department’s own making.”

Harassment at the Firehouse

In the underlying trial, the plaintiff testified at length about the workplace harassment she experienced, which began after a superior filed a complaint on her behalf about another firefighter’s sexual misconduct toward her. Following the harassing firefighter’s discipline, the plaintiff was exposed to escalating verbal and physical mistreatment. The plaintiff’s colleagues referred to her in derogatory terms, physically assaulted her, gave her poisoned meals, refused to cooperate in providing emergency care at the peril of civilian lives, and once even flung the blood and brain matter of a suicide victim into her face. Despite awareness of these incidents, the Department failed to intervene. On these facts, the jury awarded the plaintiff front pay in the amount of $545,000  and a separate figure for emotional damages. Continue Reading

New York City Council Enacts Package of Bills to Combat Sexual Harassment

On Wednesday April 11, 2018, the New York City Council enacted a package of eleven bills, collectively titled the Stop Sexual Harassment in NYC Act (the “Act”). The Act awaits final signature from the Mayor. Introduced to the New York City Council just one month ago, the Act was likely inspired by the #metoo movement and includes five sections that will directly affect private employers in New York. These sections include: Continue Reading

Ninth Circuit Holds Prior Salary Cannot Justify Wage Differences

Enacted in 1963, the Equal Pay Act prohibits differential payments between male and female employees doing equal work except when made pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a fourth, catch-all exception for “a differential based on any other factor other than sex.” 29 U.S.C. § 206(d)(1). These exceptions are affirmative defenses which the employer must plead and prove.

In Rizo v. Yovino, 2018 U.S. App. LEXIS 8882, an en banc panel of the Ninth Circuit considered whether an employee’s prior salary was a permissible “factor other than sex” under the Equal Pay Act. Prior Ninth Circuit precedent held that “the Equal Pay Act does not impose a strict prohibition against the use of prior salary.” Kouba v. Allstate Insurance Co., 691 F.2d 873, 878 (9th Cir. 1982). Under Kouba, employers were prohibited from using a factor which “causes a wage differential between male and female employees absent an acceptable business reason.” Id., at 876.

On April 9, 2018, a bare majority of the 11 judge en banc panel of the Ninth Circuit overruled Kouba and held that “a legitimate ‘factor other than sex’ must be job related and that prior salary cannot justify paying one gender less if equal work is performed.” Rizo v. Yovino, 2018 U.S. App. LEXIS 8882, at *15. Writing for the majority, the late Stephen Reinhardt announced a bright-line rule that “prior salary alone or in combination with other factors cannot justify a wage differential.” Id., at *5-6. Five judges concurred in the result, but disagreed with the majority’s holding that prior salary can never suffice to constitute a “factor other than sex” sufficient to justify a wage differential. Continue Reading

New Tip Pooling Guidelines For Employers

The recent passage of the Consolidated Appropriations Act of 2018 (“H.R. 1625”), an 878-page omnibus spending bill, significantly changes the rules for tip pooling under the Fair Labor Standards Act (the “FLSA”). While the conditions for taking a tip credit toward federal minimum wage obligations remain essentially unchanged, H.R. 1625 appears to permit the inclusion of a larger group of employees in tip pools when a tip credit is not taken. At the same time, H.R. 1625 still prohibits an employer from keeping any portion of the tips received by its employees and expands the scope of remedies and penalties available for violations of the tip rules. Continue Reading

Bill Banning Confidential Settlements and Mandatory Arbitration for Sexual Harassment Claims Passes New York Senate

On March 12, 2018, the New York State Senate passed S-7848A, a bill that, if enacted, would significantly change the legislative landscape for sexual harassment claims in the state. Most notably, S-7848A would: (i) prohibit mandatory arbitration agreements for sexual harassment complaints; (ii) ban confidential sexual harassment settlements unless the confidentiality provision is separately considered and consented to by the complainant; (iii) create a statutory definition of “sexual harassment”; and (iv) expand state-law protections against sexual harassment to independent contractors. Continue Reading

UPDATE: The Federal Defend Trade Secrets Act vs. The California Uniform Trade Secrets Act

We first wrote on this topic nearly a year ago[1]. Since then, courts have had an opportunity to interpret some of the provisions of the federal Defend Trade Secrets Act (DTSA). Indeed, since it was signed into law, more than 360 DTSA claims have been filed, with more than 343 complaints filed in federal court. California has seen more of these cases than any other state, finding itself host to over 15% of all DTSA claims.

As we addressed in our previous blog, there are some key distinctions between the DTSA and California’s Uniform Trade Secret Act (CUTSA) that may inform companies how to run their businesses and prepare for litigation should it be necessary. Some of these distinctions have come into greater focus as courts have interpreted the DTSA, at times with surprising results. Continue Reading

Is Your Online Job Application Accessible To The Visually Impaired? The Newest Website Accessibility Claims

In recent years, businesses have been inundated with a wave of serial litigation wherein private plaintiffs have argued that websites that are insufficiently compatible with screen reading software are in violation of Title III of the Americans with Disabilities Act (“ADA”). The typical allegation in such cases is that the plaintiff could not read the website and, as a result, could not access the goods and services offered by the company. These private plaintiffs have taken advantage of the current ambiguity in the law to bring multiple lawsuits. At least two ADA website accessibility claims are on appeal before the Ninth and Eleventh Circuits to hopefully provide clarity to covered entities on what current obligations, if any, they have to make their websites accessible to persons with disabilities. Continue Reading

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