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Employer Held Potentially Liable for Failing to Prevent Sexual Assault by Ronald W. Novotny

When can an employer be liable for failing to prevent a sexual assault or rape of an employee?  The California Court of Appeal in the recent case of M.F. v. Pacific Pearl Hotel Management, LLC (D070150, FOURTH APPELLATE DISTRICT, DIVISION ONE, 10/26/17), helped provide some answers to this question.

The plaintiff in the case worked as a housekeeper in a five-building hotel property.  One morning, the hotel’s Engineering Manager saw a drunk man who was not a guest of the hotel walking around hotel property with a beer in his hand.  The Manager first saw the trespasser on the third floor of one of the hotel buildings and then on the second floor of the building, and once more in an elevator going to the first floor.  The Manager did not ask the trespasser to leave and did not report the trespasser’s presence to housekeeping management or the police.

The trespasser then approached several housekeepers cleaning hotel rooms several times while walking around the property, and propositioned one housekeeper for sexual favors in exchange for money.  A co-worker overheard the trespasser’s sexual harassing comments and persuaded the trespasser to leave the room.  The trespasser then tried to enter a hotel room in another building, but the housekeeper who was cleaning the room closed the door on him and reported the incident to the Housekeeping Manager.  While broadcasting the trespasser’s activities, the Housekeeping Manager did not go to the building where the second incident occurred.  Moreover, the plaintiff’s supervisor checked one floor of that building, but did not check the second floor where the plaintiff was working.

The trespasser then pushed the plaintiff’s cart aside and pushed the door open, forced the plaintiff back into the room, and raped and assaulted her for over two hours.  After he left, the plaintiff called the police and was hospitalized.

Although the trial court initially dismissed the case, the appellate court held that it could go forward because the hotel had been placed on adequate notice of the problem before the assault occurred.  The court held that after the trespasser began confronting and aggressively propositioning housekeeping employees for sexual favors, the hotel had a duty under the Fair Employment and Housing Act to end the harassment and to take reasonable care to prevent the same conduct from being done towards future victims.  The court specifically held that because the hotel knew or should have known that the trespasser was on its premises for about an hour before the rape occurred and that the trespasser had aggressively propositioned at least one other housekeeping employee for sexual favors, the hotel had a duty to act and could be found liable for sexual harassment based on its failure to take prompt corrective action to end the harassment by the non-employee trespasser.

Although the appellate court only held that a trial could proceed and it is not known whether the plaintiff will prevail on her claims, the case presents a good example of how important it is for employers to act promptly to put an end to any potentially harassing behavior whenever it occurs, whether it is being engaged in by an employee or non-employee visitor.

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IE SHRM Blog

You Don’t Need to Ask for Salary History

Published on October 20, 2017
by David Weaver, CCA

Any idea what’s happening January 1, 2018? Yes, I’ll be watching the Tournament of Roses Parade from Pasadena, California, but that’s not what I’m talking about. This coming January, the new salary history restrictions under the AB 168 adds Section 432.3 to the California Labor Code, takes effect. The new law will not only prohibit salary history inquiries but also prohibit employers from relying on an applicant’s salary history as a factor in determining whether to offer employment or determining what salary to offer.

Employers will be prohibited from seeking salary history information (including compensation and benefits data) about an applicant, either personally or through an agent. An exception exists for salary history information that is disclosable to the public pursuant to federal or state disclosure laws such as the California Public Records Act and the federal Freedom of Information Act.

Further, upon reasonable request, employers must provide an applicant with the pay scale for the position being sought. The law does not define “pay scale.”

Essentially, the law means employers are no longer allowed to ask prospective hires about their salary history. The new law is designed to help combat gender-based pay disparities; as Compensation professional and a huge supporter of equal pay for equal work, I couldn’t be more excited.

As an employer, however, you may be thinking, “If I can’t ask how much they previously made, how can I make a competitive offer?” Luckily, there are several other ways to offer fair, competitive salaries to new hires. In fact, you’ll probably improve your hiring process along the way!

Let’s take a look at some of the best ways you can prepare for this new law:

  • Participate in salary surveys. Since you won’t be able to inquire directly about someone’s previous pay, having access to competitive market pay data for your industry, company size and geography is crucial. Take a look at the CHRG Compensation Survey which is free for participants.
  • Conduct a market analysis. Are you trying to hire top talent? (I hope so!) If so, comparing your internal pay rates to external salaries can help determine where you stand in the market, allowing you to make the best offer possible.
  • Develop salary ranges. Except when playing roulette, it rarely makes sense to just throw numbers out willy-nilly. Instead, create internal pay guidelines that define the range of pay within your organization, depending on the position.
  • Determine pay increase guidelines. Giving raises based on merit and seniority rather than a person’s gender or demographic isn’t just the right thing to do – it’s the law. Luckily, it’s easy to allocate salary increases fairly if you have your salary increase guidelines predetermined.
  • Create a hiring range. Not to be confused with a firing range, this is simply the preset salary range that your company is willing to offer new hires.
  • Embrace pay transparency. Showing your employees how their salary stacks up against your organization’s pay ranges is a great idea. Not only does it show them they’re being paid fairly, giving a glimpse of your pay ladder can inspire ambitious employees as well!
  • Communicate, communicate, communicate. When everyone (employees and managers alike) knows the drill with your pay system, treating everyone fairly becomes a lot easier.

Usually, managers don’t have ill intentions when asking about a new hire’s pay history. But, studies show discriminatory bias – even if subconscious – is more prevalent when they do. Instead, use this new law as an opportunity to help you nail down your strategy for offering the competitive salaries top candidates seek.

If you need help navigating your preparation for this new act, don’t be afraid to ask! Shoot me a message and we can probably help you.

http://chrg.compensationhr.com
dweaver@comphrgroup.com
© 2017 David Weaver. All rights reserved.

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What is on the Horizon with Governor Brown?

The new proposed employment bills that may affect private employers were presented to Governor Brown and he must act upon them by October 15, 2017. Any bills signed by Brown will take effect January 1, 2018, unless otherwise specified by the bill.

The most notable bills on Brown’s desk include:

AB 1008 also known as “Ban the Box” would amend the California Fair Employment and Housing Act (FEHA) and affects employers with five or more employees. This regulation would prohibit questions about an applicant’s conviction history before a conditional offer of employment.  The bill would also limit consideration of arrests that did not result in convictions.

AB 1209 would become effective on July 1, 2019. This regulation effects all employers with 500 or more employees in California. Employers would be required to file a statement of information with the Secretary of State to report the difference between the mean and median wages of male and female employees who are exempt administrative, executive, or professional employees, or board members, in California.

AB 168 limits an employer’s ability to ask about or rely on an applicant’s salary history when making employment decisions. Employers would also be required to provide applicants a position’s pay scale information.

SB 396 would require employers with 50 or more employees to include in their sexual harassment training to supervisory employees, training on harassment based on gender identity, gender expression, and sexual orientation. Additionally, AB 396 would also require employers with five or more employees to display in the workplace a Department of Fair Employment and Housing poster regarding transgender rights.

Several bills that did not make the September 15, 2017 cutoff. Therefore, many proposed bills did not make it to Brown’s desk. It is highly anticipated that these bills will be considered in the next legislative session. Look forward to hearing more about AB5, AB1099, AB1565, and SB 562.

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Legislature Takes a Recess—Human Resources CANNOT

California’s Legislature will soon be taking a recess. There have been several votes on employment bills and many have cleared to go on for further vote.

Some of the bills are:

● Prohibit employers from inquiring about salary history during the hiring process (AB 168);
● Require larger employers to collect and publish information concerning gender pay differences for exempt employees (AB 1209);
● Preclude employers from inquiring about criminal convictions until after a conditional offer of employment and impose new limitations upon and disclosure requirements for considering criminal convictions (AB 1008);
● Require employers with more than 20 employees to provide up to 12 workweeks of parental leave (SB 63);
● Prohibit employers from responding to federal immigration agency requests or assisting with “immigration worksite enforcement actions” unless certain conditions are met (AB 450); and
● Expand the Labor Commissioner’s powers when investigating retaliation complaints, including allowing pre-determination injunctive relief (i.e., TRO’s) (SB 306).

As mentioned in previous publications there is no rest for Human Resources when it comes to complying with all of the municipal employment laws. For employers, that have offices throughout the state this can be a complicated endeavor. For instance, San Francisco increased its minimum wage (to $14 an hour), expanded its Parental Leave Ordinance, and enacting its own workplace lactation rules. The City of Emeryville’s Fair Workweek Ordinance also took effect on July 1, even though it is still considering regulations regarding this new law. Los Angeles’ minimum wage increased to $12.00 per hour for employers with 26 or more employees and to $10.50 for employers with 25 or fewer employees.

For organizations that operate throughout the State of California, for continuity within an organization, it may be beneficial to take the strictest regulations and encompass them throughout the organization (contact your organization’s labor attorney to get legal advice before implementing new policies).

Safety and Wellness Regulations Heat is Upon Us

The Southern California weather has experienced some record-breaking heat and there does not appear to be a break in the heat wave in the near future. For this reason, now is the time to conduct Heat Illness Prevention training and ensure you are supplying water, rest, and shade.

Under OSHA law, employers are responsible for providing workplaces free of known safety hazards. This includes protecting workers from extreme heat. Provide workers with water, rest and shade.

  • Allow new or returning workers to gradually increase workloads and take breaks that are more frequent as they acclimatize, or build a tolerance for working in the heat.
  • Plan for emergencies and train workers on prevention.
  • Monitor workers for signs of illness.
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First Quarter Report

 

First Quarter Report

Human Resource professionals have made it through the first quarter of 2017, and we have seen many new labor laws and updates to existing regulations. There are many new regulations in front of us. We also wait in anticipation for the final ruling of the Department of Labor (FLSA) overtime rule, which was to take effect December 1, 2016 and blocked by a Texas federal Judge.

The ruling would extend mandatory overtime pay to more than 4 million salaried workers and would have doubled salaries to $47,500; the maximum salary a worker can earn and still be eligible for mandatory overtime pay.  The court was careful to state it was not ruling on the legality of the salary-level test itself—but only that the DOL was not authorized to utilize the salary-level test as amended under the final rule. Human Resource Departments should not assume, however, that the overtime rule will be permanently barred. HR should still have a plan to move forward if necessary in the future. For now, we wait to see if it will be implemented later down the road.

It may seem to be too early to look into the horizon, but without planning and supporting or opposing future regulation we will be at the mercy of legislators. Looking ahead, all bills have until April 28, 2017 to pass the policy committees and until June 2, 2017 to pass the original house of origin, so many amendments are possible and particularly for the “spot bills.” SHRM has taken a stance to support the following bill:

Veterans’ Hiring Preference for Private Employers (AB 353 and AB 1477) are similar bills that attempt to address the higher-than-normal unemployment rate for returning veterans. Hence, new Government Code section 12958 would authorize employers to extend a preference during hiring decisions to honorably discharged veterans.

AB 353 unanimously passed the Assembly’s Veterans Affairs Committee and has been referred to the Labor and Employment Committee to be heard on April 19, 2017.  AB 1477 has been referred to the Assembly’s Veterans Affairs and Labor and Employment Committees but no hearings have been scheduled yet.

The House of Representatives passed the Small Business Health Fairness Act (H.R. 1101) on March 22, a bill that would make it easier for small businesses—those that could purchase coverage in the small group market—to band together and offer employee coverage through association health plans (AHPs).

IE SHRM will be present at the CalSHRM Employment Law & Legislative Conference and we will keep you updated on the “2017 California Employment Law & Legislative Forecast.”

 

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Think Outside the Box

As a recruiter, have you ever had the perfect applicant apply for a position and he/she was dispositioned as “not qualified” because of a conviction or prior arrest record? If you and/or the hiring manager were not aware of the applicant’s record, would you be in a different mindset?

If you live in a city or county that has adopted “Ban the Box” or the “Fair Chance” ordinance, then your applicant pool has probably grown exponentially. If you do not live in an area that has imposed this ordinance, you may want to prepare your organization for the California statewide ban the box regulation.  On February 16, 2017, five California assembly members introduced Assembly Bill 1008, which proposes to add a section to the Fair Employment and Housing Act (FEHA) containing new state-wide restrictions on an employer’s ability to make pre-hire and other employment decisions based on an applicant or employee’s criminal records, including a ban the box component. Ban the box refers to a grassroots effort to remove the check box on job applications that asks if a candidate has ever been convicted of a crime.

California’s Department of Fair Employment and Housing (DFEH) recently enacted regulations that impose new regulations when conducting criminal background checks in employment decisions.  The new regulations are expected to go into effect on July 1, 2017.  The new regulations apply state-wide and, ultimately, will make it difficult for any employer in California to maintain no-hire policies for people with criminal convictions.

An employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Ban the box, which is based on longstanding court decisions and existing guidance documents that the U.S. Equal Employment Opportunity Commission (Commission or EEOC) issued over twenty years ago. The Guidance focuses on employment discrimination based on race and national origin.

President Obama signed ban the box which directed federal agencies to delay inquiries into job applicants’ records until later in the hiring process. Public employers have incorporated the 2012 U.S. Equal Employment Opportunity Commission guidelines that advise employers to make individualized assessments instead of using blanket exclusions. Employers should consider the time passed since the offense and its relevance to the job. And because background-check results may contain errors, candidates should be given an opportunity to review the results.

The point of ban the box law is not to enforce hiring convicts; it is meant to give applicants a fair chance in the hiring process. The process calls for conducting a job interview first to see if the applicant is qualified. If the candidate moves through the process in the same steps as other candidates and is selected as one of the final candidates, then the employer can conduct the background investigation and then analyze the results to determine whether a conviction is job-related. The hiring decision is then based on qualifications, not the candidates’ criminal record.

In addition to federal and local governments that have implemented ban the box, there are currently 150 cities and 26 states that have executed ban the box. This affects a population of 211 million people or two-thirds of the U.S. population. Cities that have already implemented ban the box in California include Alameda County, Berkeley, Carson, Compton, East Palo Alto, Los Angeles, Oakland, Pasadena, Richmond, Sacramento, San Francisco, and Santa Clara County.

When government implements new policies, it is a natural progression for states and local governments to follow. If you conduct business in any of the above mentioned cities it is recommended that your company adhere to the policies, immediately. Companies in other areas should prepare for July 1, 2017.  Failure to follow local and state regulations can result in complicated and costly law suits.

California Ban-the-Box Bill

California Assembly Bill 218 (2013) (applies to public employment) Signed on October 10, 2013 by Governor Edmond “Jerry” Brown (D), AB 218 removes questions about convictions from state agency, city, county, and special district job applications and postpones such inquiries until later in the hiring process. The bill was initially introduced in 2012 as AB 1831, which applied to only cities and counties. After the first effort stalled in the senate, AB 218 was introduced in 2013. Sponsoring organizations included the National Employment Law Project, Legal Services for Prisoners with Children, All of Us or None, and PICO California. More than 100 organizations—spanning labor, interfaith, reentry, civil rights, employment, criminal justice, and others groups— formed a coalition that strongly supported the bill. The statute became effective on July 1, 2014.

 

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Never Ending Changes

It is that time again. July 1 marks the mid-year point, and as is customary in California, it is time to update your Labor Posters, Employee Handbook, Hiring Policies, and Pay codes.

The new regulations listed below all take effect on July 1, 2017.

Ban-the Box. Regulations under the Fair Employment and Housing Act (FEHA) goes into effect where employers may face liability for considering criminal history in making employment decisions such as hiring, promotion, training, discipline, layoff, and termination. The amended regulations largely adopt the guidance set forth by the U.S. Equal Employment Opportunity Commission (EEOC).

Transgender Identity and Expression. The California Department of Fair Employment and Housing (DFEH) approved new regulations regarding transgender identity and expression in the workplace. This regulation includes restrooms, preferred name, transitioning, dress codes, or requiring documentation on sex, gender, gender identity, or gender expression as a condition of employment.

Victims of Domestic Violence, Sexual Assault, or Stalking. Existing California law provides employees who are victims of domestic violence, sexual assault, and/or stalking the right to take time off from work in specified circumstances. AB 2337 requires employers, with 25 or more employees, to give new employees written notice of these rights upon hire and to provide notice to current employees upon request. The form that must be given to employees can be found at:   https://www.dir.ca.gov/dlse/Victims_of_Domestic_Violence_Leave_Notice.pdf

Minimum Wage Increases. Several cities in the Southern California region have changes to the minimum wage. Employers with 25 or more employers must pay employees $12.00 an hour in Los Angeles County, City of Los Angeles, Malibu, and Pasadena. Please check your local area for other municipalities that may enact MWOs.
Note: The above list is not intended to be an all-inclusive list of all regulations that take effect on July 1. Please contact your legal counsel for any regulations that may affect your organization.