By: Ric C. Ottaiano, Keith R. Dobyns, and Patrick J. Kirby

This is Part Two in a Four Part series dedicated to informing California employers , and helping employers to address and prevent discrimination, harassment, and retaliation in the workplace.  To read an overview of the series, click here.  To read Part One, click here.

In the context of employment litigation, California employers are most frequently faced with employees or former employees claiming violations of California’s Fair Employment and Housing Act’s prohibitions on discrimination, harassment, and/or retaliation.  This post will tackle the most frequent scenarios under which plaintiffs claim FEHA violations, as well as address some common defenses employers can rely upon in defending against such claims by employees.

DISCRIMINATION

Under the FEHA, California employers are prohibited from discriminating in any way in the hiring, employment, or termination of individuals based on that individual’s “protected class.”  For example, employers may not discriminate against or in favor of persons on the basis of: 

-Race

-Religion

-Skin color

-National origin

-Ancestry

-Physical or mental disability

-Medical condition

-Marital status

-Gender

-Gender orientation or identification

-Age

-Sexual orientation

In order for an individual to assert a claim of discrimination under the FEHA, all that person needs to allege at the outset is that he or she belongs to a “protected class” covered by the law (see above list), and that he or she experienced some adverse employment action as a result of that “protected class,” such as not being hired, being given less desirable job assignments or pay or benefits, or being terminated, just to list a few possibilities.  Because the bar for an individual to file a lawsuit claiming discrimination is set so low, employers must be extremely diligent to ensure that they take every opportunity to prevent such claims, and effectively prepare themselves in advance to defend against such claims when they arise.

An employer can protect itself from groundless claims by consistently, thoroughly, and properly documenting legitimate, non-discriminatory reasons for taking any action against an employee.  It is generally accepted that employers are allowed to terminate employees (or take other adverse employment actions) for a good reason, no reason, or even a bad reason, so long as it is not a discriminatory reason.  Thus, an employee who violates company policy, is not performing competently, or is simply not a good fit for the company can be lawfully disciplined or terminated. 

The most common use of legitimate, non-discriminatory reasons revolves around employee performance.  Examples of sufficient, legitimate reasons for disciplining an employee include mishandling telephone messages, taking extended vacation during busy times, and insubordination.  The important issue that often arises in litigation, however, is how well such reasons were documented by the employer prior to terminating the employee.  Often the key difference between a simple, straightforward defense to a discrimination lawsuit, and one which is much more drawn out and complex turns simply on how well-documented the reasons for termination were.  For this reason, the number one thing employers can do to protect themselves from claims such as this is to ensure prompt, thorough, and consistent written documentation of any and all personnel issues.

HARASSMENT

In addition to prohibiting discrimination in employment decisions based on the protected classes addressed above, the FEHA also forbids employers from harassing or permitting the harassment of employees based on any of the protected categories listed previously.  Compared to discrimination, harassment consists of a type of conduct not necessary for performance of a supervisory job.  Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.  

Beyond providing a basis for a civil lawsuit arising out of unlawful harassment, the FEHA also requires that California employers post certain information notifying employees that harassment is unlawful, and mandates bi-annual training for all management or supervisorial employees under certain circumstances.

Under the FEHA, an employer can be held liable for harassment when a plaintiff is able to show that he or she was harassed as the result of their “protected class” (addressed above), and that the harassment was committed by a supervisor or manager, or by any other co-worker if the employer “knew or should have known” that the harassment was occurring and failed to take immediate and appropriate corrective action.  Importantly, under the FEHA, in addition to the potential liability of the employer, supervisors or managers can be held individually liable for their own harassing conduct.

There are certain defenses employers can invoke to protect themselves from harassment claims filed by employees.  The most common are:

Neither Severe Nor Pervasive  To be actionable, a harassing environment must be severe enough or sufficiently pervasive (continuous) to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees.  Whether conduct creates a hostile work environment is determined by looking at the surrounding circumstances, including the frequency of the conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.  Thus, conduct that is either extremely severe (such as an offensive touching) or minor but nevertheless continuous (such as ongoing comments and remarks directed at an individual) can create a “hostile work environment” that may give rise to liability.  However, it is widely understood that workplaces are rarely tranquil sanctuaries and the laws on discrimination and harassment are not meant to create a civility code for workplaces. 

Not Unwelcome  Whether conduct constitutes harassment requires both an objectively hostile environment and also the victim’s subjective perception that the environment is abusive.  Accordingly, an employee that actively participates in questionable or offensive conduct in one instance cannot be said to have been offended by other, similar conduct on a different occasion.  Evidence of an employee’s penchant for engaging in questionable conduct is oftentimes gleaned from talking with the employee’s co-workers or reviewing email history to determine if the employee ever participated in any similar conduct of which he or she is now complaining.

No Actual or Constructive Knowledge  To render the employer liable for coworker hostile environment harassment, the employee must prove the employer knew (actual knowledge) or should have known (constructive knowledge) of the harassment and failed to take prompt remedial action.  The employer owes a duty to investigate whenever it becomes aware of harassment through any means.  It is not essential for the victim of the harassment to lodge a formal or informal complaint.  The requirement for the employer to have actual or constructive knowledge only applies to instances of co-worker harassment.  Where the harassment involves – either directly or indirectly – a supervisor, the law holds the employer strictly liable for the supervisor’s conduct.

Prompt Remedial Action Taken  Once an employer becomes aware that an employee has been subjected to harassing conduct at work, the employer has a duty to take prompt corrective action that is reasonably calculated to end the harassment.  This requires that temporary steps be taken to address the situation while the employer determines whether the complaint is justified and the implementation of remedial or corrective measures to prevent future harassment.  The most significant immediate measure an employer can take in response to a sexual harassment complaint is to launch a prompt and fair investigation to determine whether the complaint is justified.  An employer’s swift and calculated attempts to protect the employee being harassed can insulate it from future liability for failing to prevent the harassment from occurring.  Again, any harassing conduct perpetrated by a supervisor automatically imposes liability on the employer and the employer cannot rely on taking prompt remedial action against the supervisor in order to avoid liability.  However, taking such action can go a long way towards minimizing the exposure an employer faces in such a circumstance.

RETALIATION

One of the most prevalent grounds for lawsuits within the employment context stems from the FEHA’s “anti-retaliation” provisions.  These statutes prohibit an employer from taking any “retaliatory” action against an employee as a result of the employee complaining about their perceptions of discrimination or harassment occurring within the workplace, or assisting or participating in any type of investigation or proceeding into claims of discrimination or harassment.  Under the FEHA, such actions are considered a “protected activity” and an employer cannot take any adverse or negative action against an employee because that individual spoke up about or complained about perceived unlawful discrimination or harassment, even if the employee’s claims are ultimately determined to be meritless.

If this sounds to you like an extremely vague concept, you are not alone.  Claims by an employee and/or former employee of retaliation under the FEHA are among the most complicated and difficult to defend against, in large part because the scope of what constitutes a “protected activity” and what amounts to an “adverse action” are often unclear, and are in a near-constant state of flux.

Some of the most frequent types of actions by an employee that have been found to constitute a “protected activity” that can give rise to a claim of retaliation are:

-Making any oral or written complaint to a manager or human resources of potential discrimination or harassment in the workplace;

- Filing a complaint or charge with the Department of Fair Employment and Housing alleging discrimination or harassment against a fellow employee or the employer;

-Refusing to hire an individual based on past complaints of discrimination or harassment against a prior employer;

-Exercising rights to take disability or other medical leave;

-Requesting accommodations for physical or mental disability;

-Assisting another employee or acting as a witness in an investigation or lawsuit addressing claims of unlawful discrimination or harassment.

This list is by no means exhaustive, and employers should tread lightly in this area, and should often err on the side of caution when evaluating whether an employee has possibly engaged in a “protected activity” that could form the basis of a retaliation lawsuit.

Because an employee must be able to point to some type of negative action taken against them in order to sufficiently claim retaliation, the second important issue in the context of FEHA’s anti-retaliation provisions centers on what constitutes an “adverse employment action.”  Unfortunately, the short answer to this question is “just about everything.”  The following actions either have or could be found to constitute an adverse employment action sufficient to support an employee’s claim of retaliation:

-Employer transfers an employee to a different department within the company that the employee perceives to be less desirable;

-Employer changes the shift worked by an employee;

-Employer demotes the employee to a position with lower pay or benefits, or less responsibility;

-Employer harasses or permits harassment against an employee;

-Employer holds employee who has engaged in a “protected activity” to a higher standard than other comparable employees;

-Employer failing to take corrective action after an employee complains about discrimination or harassment;

-Employer gives employee a negative performance evaluation;

Again, this list is by no means comprehensive, and there are innumerable other actions that could potentially form the basis of an employee’s claim of retaliation.  The importance of this list is that it illustrates how diligent employers must be in adopting and enforcing policies that sufficiently enable employees to be open and forthcoming about potential instances of discrimination or harassment without fear of negative action by managers or supervisors.

As with discrimination, the defenses most commonly applicable to claims of retaliation center on the employer’s legitimate, non-retaliatory reason for taking any action adverse to the employee.  In this regard, courts usually find most persuasive any legitimate reasons that arose before the employee complained or engaged in any other “protected activity.”  For example, if an employer set benchmarks for an employee before the employee engaged in any protected activity, the employer can rely on those benchmarks in taking an adverse action against the employee and assert legitimate reasons in response to a charge of retaliation.  For these reasons, employers are best able to protect their interests by ensuring adequate written documentation and communication of any and all personnel issues.

Be sure to check back next week for Part Three in this ongoing series, as the Lynberg & Watkins Employment Law Blog team lays out a number of practical steps that employers can take to prevent claims of discrimination, harassment, and retaliation in the workplace.

If you have questions about these, or any other employment-related issue, contact Lynberg & Watkins Partner Ric. C.Ottaiano.

By: Patrick J. Kirby

As we reported previously here and here, the long-awaited decision by the California Supreme Court in Brinker Restaurant Corp. v. Superior Court has arrived.  As you may recall, this case is a class-action lawsuit filed by more than 60,000 current and former employees of Brinker Restaurant Corp., which owns the popular Chili’s and Maggiano’s Little Italy restaurant chains, in which the employees sought massive penalties and damages, claiming that the company failed to provide them with proper meal and rest periods during shifts.  The detailed opinion issued by the Court today addresses three key areas of uncertainty in the law surrounding meal and rest period breaks for hourly employees in California:

Providing Meal Breaks to Employees

First, and most importantly, the Court in Brinker determined that an employer is not obligated to ensure that employees take their 30 minute meal break in order to avoid potential liability under California’s wage and hour laws.  Instead, the Supreme Court held that an employer satisfies its obligations to provide a meal period if it “relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.”  Thus, under the Court’s ruling, an employer will not be in violation of the Labor Code if an employee chooses to perform work during their break or takes a break that is less than 30-minutes in length, so long as the employer does not “encourage” employees to do so.

Timing of Meal Breaks

The next issue tackled by the Court addressed the timing of when meal breaks must be given, including whether employers are obligated to provide employees with a 30-minute meal period during every 5-hour period of work.  California law is clear that an employee must be given a 30-minute meal period at or before the fifth hour worked.  However the plaintiffs in Brinker argued that if the meal break was taken early (such as after three hours of work), then that employee would be entitled to another 30-minute break five hours later, before reaching their eighth hour of work.  The Supreme Court rejected this argument, and determined that so long as the employee was provided an opportunity to take a 30-minute meal break on or before the fifth hour of work, that he or she would not be entitled to a second meal break unless and until working a shift of more than 10 hours.

Frequency and Timing of Rest Breaks

Finally, the Brinker Court delved into the issue of when and how often employees are entitled to take 10-minute “rest breaks.”  Typically, California employers have operated under the general rule that employees are entitled to a 10-minute rest period for every four hours worked.  Under this approach, an employee working an eight hour shift would be entitled to one 10-minute rest period during the first four hours, a 30-minute lunch break, and then a second 10-minute rest break during the last four hours of their shift.  However, the Court modified this “general rule” slightly by ruling that employees are entitled to a 10-minute rest period for every four hours worked or “major fraction thereof.”  Thus, under the new rule, “[e]mployees are entitled to 10 minutes rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.”  Thus, under the Court’s holding, an employee working a 6.5 hour shift would now be entitled to two 10-minute rest periods, one during the first four hour period of their shift and one during the second 2.5 hour period of their shift.  With regard to when such breaks must be given, the Court held that rest breaks should be given in the middle of work periods when “practicable,” but that employers “may deviate from that preferred course where practical considerations render [breaks in the middle of the work period] infeasible.”

Practical Tips: Based on the significant changes in the law resulting from the Supreme Court’s decision in this case, all California employers should immediately review and update their meal and rest period policies for all hourly employees.  While the ruling is generally favorable for employers with regard to providing meal periods to employees, it is still vitally important for employers to ensure that supervisors and/or managers do not in any way “discourage” employees from taking full, uninterrupted breaks.  Similarly, it remains extremely important that employees are given an opportunity to take their meal break at or before their fifth hour of work, as any delay could still result in potential liability for violation of the Labor Code.  Finally, in light of the rather significant changes to the timing and frequency of 10-minute rest periods fashioned by the Brinker Court, it will be essential for employers to update their policies and educate any and all supervisors or managers who oversee hourly (non-exempt) employees to ensure that all breaks are being taken in compliance with the Labor Code to avoid potentially costly liability.

If you have questions about how this ruling might affect you as an employer, or for assistance in updating policies and procedures to remain in compliance with this important area of law, contact Ric C. Ottaiano.

To read the full text of the California Supreme Court’s decision in Brinker v. Superior Court, click here: http://www.courtinfo.ca.gov/opinions/documents/S166350.PDF

By: Patrick J. Kirby

More than three long years ago, the California Supreme Court granted review in a key employment case with the potential to drastically affect nearly all California employers.  As you may recall from our prior post on this case, the Supreme Court in Brinker will address whether employers may be held liable for failing to ensure that hourly employees take their meal breaks, or whether employers must simply make such breaks readily available to employees.  In its written decision, the Court is also expected to address other important questions, including when such breaks must be provided, as well as under what circumstances employees may file class action lawsuits arising out of potential violations of California’s wage and hour laws.

After a long delay, the Court is expected to finally decide this issue in an opinion scheduled to be released on April 12, 2012.  The Lynberg & Watkins Employment Law Blog will of course tackle this important decision and provide important practical tips to employers to ensure they have the tools to remain in compliance with California’s complicated and ever-changing system of wage and hour laws.

If you have any questions about these or any other employment-related issues, please feel free to contact Lynberg & Watkins Shareholder Ric C. Ottaiano.