Thursday, October 27, 2011

Governor signs bill ending mandated use of E-Verify for state and municipal projects

It's not often that California passes pro-employer legislation, but on October 9, 2011, California Governor Jerry Brown signed AB 1236 into law, limiting the application of E-Verify in California by prohibiting municipalities from mandating use of E-Verify.

E-Verify is an online program run by the federal government that compares information from an employee's Employment Eligibility Verification Form I-9 to data from U.S. government records. If the information matches, that employee is eligible to work in the United States. If it does not match, E-Verify alerts the employer and the employee must resolve the mismatch within eight working days from the referral date. As an employer, you must allow the employee to continue working while they resolve the problem - and don't assume that the mismatch automatically means the employee is not eligible to work in the US, because the system is reportedly full of errors (even USCIS agrees - read their own 2010 report on the program here). A story doing the rounds in the news media reports that a U.S. citizen and former captain in the U.S. Navy with 34 years of service and high security clearance was flagged by E-Verify as not eligible for employment, with the error taking him and his wife, an attorney, two months to fix.

AB 1236, known as the Employment Acceleration Act of 2011, prohibits state and local government agencies in California from mandating use of E-Verify. Over 15 municipalities had required companies doing business with them to use E-Verify, including Mission Viejo, Temecula, Murrieta, Riverside, Lake Elsinore, Wildomar (for contractors), Lancaster, Palmdale, San Clemente, Escondido, Menifee, Hemet, San Juan Capistrano, Hesperia, Norco, San Bernardino County, Rancho Santa Margarita, and Simi Valley. Locally, Santa Maria requires the use of E-Verify for City employees and was planning to expand the requirement to all companies doing business with the City, and Simi Valley has pledged that they will keep using the system, despite the new law, through January 1, 2011. Santa Barbara and San Luis Obispo were also considering an E-Verify ordinance.

The move to end E-Verify mandates was widely supported, not as a commentary on illegal immigration but because the program is so inaccurate. Indeed, Assemblymember Paul Fong (D-Cupertino), who authored the legislation, said "This bill will protect California's workers and businesses. The U.S. Government Accountability Office reports that the E-Verify system flags eligible U.S. workers as ineligible to work. In these tough economic times, the mandated use of this system would impose a major financial burden on businesses. We need to help businesses grow and protect American jobs, not impose job killing mandates."

Among the supporters of AB 1236 were the California Chamber of Commerce and California Farm Bureau Federation.

This information is provided as a service to my clients and the community, and it is not an advertisement for legal services. Nothing on this blog is intended to create an attorney client relationship or to provide legal advice, and every case is different - a phone call to me is always free.

Tuesday, October 25, 2011

Sexual language in email not enough to show hostile work environment

In the 4th District California Court of Appeal, the Court has ruled in Brennan v. Townsend & O'Leary Enterprises, Inc. that an advertising agency executive director's e-mail referring to a female vice president in derogatory sexual terms was not part of a sufficiently "severe" pattern of sexual harassment to establish a hostile work environment under the Fair Employment and Housing Act (FEHA).

This case is interesting for a number of reasons - first, the lawsuit went all the way through trial and the jury returned special verdicts in favor of the vice president and against her employers on the sexual harassment claim, expressly finding she was subjected to severe or pervasive harassment because she was a woman. Judgment was entered awarding plaintiff $200,000 against the agency and $50,000 against Montgomery.

The trial court judge, Kazuharu Makino, then ruled that there was insufficient evidence at trial to support the jury's verdict. In doing so, he applied a test set forth in Mokler v. County of Orange (2007) 157 Cal.App.4th 121, which governs the factors considered in evaluating the "totality of circumstances upon which hostile work environment determination is based." The factors used to determine whether sexual harassment creates a hostile work environment are:

- nature,
- frequency,
- timing, and
- context of defendants' conduct

In this case, the Court found that the e-mail was sent to the vice president inadvertently, and the author of the email was not the vice president's supervisor. There was not enough evidence to establish other incidents of sexual harassment, and the Court found that evidence that the business owner's inquiries about the vice president's sex life, incidents at agency holiday parties and a meeting after a bachelorettte party did not rise to "pervasive" sexual harrassment needed to make a case of hostile work environment. Bachelorette props, including a bridal veil with a penis on it, and the frequent use of the word "bitch" around the office, didn't tip the scales in favor of the vice president.

Justice Moore filed a dissent to the Appellate Court's ruling, writing of the vice president that "[o]nce she decided she could no longer suffer the belittling, locker room environment quietly and without complaint, her workplace became increasingly hostile until she eventually resigned. When the overtly sex-based acts are combined with the pattern of retaliation that lasted from Brennan's complaint to her departure, those acts constitute sufficient evidence of a hostile work environment."

So, did the employer "win" the lawsuit? Litigation, jury trial and appeal are expensive, time consuming and can have an destructive impact on the workplace. Here, the employer was awarded costs on appeal, and both employee and employer are likely out of pocket.

The takeaway from this case is clear - there is a thin line between sexual harassment and sexual harassment that rises to a hostile work environment, and no employer wants to be either side of a "thin line." Write policy and procedures for your employees to protect yourself from the type of lawsuit that arises out of forwarded email, sexually-charged humor and conversations that are best left in the locker room. Learn the law as it applies to your business, and remember that prevention is always cheaper than cure! If you are interested in model sexual harassment policies for you organization, call me. A phone call is always free.

Nothing in the above information is intended to create an attorney-client relationship with the reader or to provide legal advice. This blog is provided as a service to clients, and is not intended as an advertisement. Every case is different and I always recommend you contact an attorney who will help you apply the facts of your specific case to the law.

Friday, October 21, 2011

New California law limits credit checks on new employees

Credit checks on prospective or current employees are a hot topic these days, and as of January 1, 2012, California employers are going to see a crack down on the use of credit checks in the hiring process. For small businesses that rely on credit checks as part of a comprehensive background check on prospective employees, this new law means a big change in what you can and can't find out about new staff.

AB 22 prohibits most employer or prospective employers from obtaining a consumer credit report for employment purposes. This law might be new to California, but similar versions of the new laws are already in effect in Connecticut, Hawaii, Illinois, Maryland, Oregon and Washington. For once,

Under AB 22, you cannot obtain a consumer credit report on a new or prospective employee unless the information is substantially job-related, meaning that the position of the person for whom the report is sought has access to money, other assets, or confidential information. However, there are some pretty big carve-outs that apply to prospective employees who will handle money.

While AB 22 bans credit checks on most employees, you can still require them for employees that fall into these categories:

- a managerial position;
- a position in the state Department of Justice;
- a sworn peace officer or other law enforcement position;
- a position for which the information contained in the report is required by law to be disclosed or obtained;
- a position that involves regular access to specified personal information (other than the routine solicitation and processing of credit card applications in a store);
- a position in which the employee would be a named signatory on the employer’s bank or credit card account, or authorized to transfer money or enter into financial contracts on the employer’s behalf;
- a position that involves access to confidential or proprietary information; or
- a position that involves regular access to $10,000 or more of cash.

Note that these categories are defined by the new law, and are simplified here. If you are hiring an employee that falls into one or more of these categories,under AB 22 you must also provide written notice informing the employee or prospective employee of the specific reason for obtaining ta consumer credit report.

As always, this information comes with a disclaimer. Nothing in the above is intended to create an attorney-client relationship with the reader or to provide legal advice. This blog is provided as a service to clients, and is not intended as an advertisement. Every case is different and I always recommend you contact an attorney who will help you apply the facts of your specific case to the law.

Wednesday, October 19, 2011

Ninth Circuit makes it easier to put derogatory information in teacher's files

Teachers do not have a due-process-protected property interest entitling them to a hearing before derogatory information is placed in their personnel file, according to an unpublished ruling from the Ninth Circuit (available here).

This interesting case arose out of the legal theory that under some circumstances, government employees have a constitutionally protected "property right" that triggers due process rights when an employer's action threatens their employment. Here, teacher Brian Dougherty sued two of his supervisors for placing derogatory information in his personnel file, and in the lawsuit, argued that he had a due process right to a hearing before the information was put in his file.

For educators employed by the State of California, the procedures for notice of charges relating to unprofessional conduct or unsatisfactory performance are governed by California Education Code § 44938. The Ninth Circuit ruled that the statute guaranteed written notice and an opportunity to correct conduct before being discharged, but did NOT guarantee a hearing.

Here's the statute in full - if you work in California public education and manage or hire/fire educators, you need to be aware of these procedures:

California Education Code § 44938:

(a) The governing board of any school district shall not act upon any charges of unprofessional conduct unless at least 45 calendar days prior to the date of the filing, the board or its authorized representative has given the employee against whom the charge is filed, written notice of the unprofessional conduct, specifying the nature thereof with such specific instances of behavior and with such particularity as to furnish the employee an opportunity to correct his or her faults and overcome the grounds for the charge. The written notice shall include the evaluation made pursuant to Article 11 (commencing with Section 44660) of Chapter 3, if applicable to the employee.

(b) The governing board of any school district shall not act upon any charges of unsatisfactory performance unless it acts in accordance with the provisions of paragraph (1) or (2):
(1) At least 90 calendar days prior to the date of the filing, the board or its authorized representative has given the employee against whom the charge is filed, written notice of the unsatisfactory performance, specifying the nature thereof with such specific instances of behavior and with such particularity as to furnish the employee an opportunity to correct his or her faults and overcome the grounds for the charge. The written notice shall include the evaluation made pursuant to Article 11 (commencing with Section 44660) of Chapter 3, if applicable to the employee.
(2) The governing board may act during the time period composed of the last one-fourth of the schooldays it has scheduled for purposes of computing apportionments in any fiscal year if, prior to the beginning of that time period, the board or its authorized representative has given the employee against whom the charge is filed, written notice of the unsatisfactory performance, specifying the nature thereof with such specific instances of behavior and with such particularity as to furnish the employee an opportunity to correct his or her faults and overcome the grounds for the charge. The written notice shall include the evaluation made pursuant to Article 11 (commencing with Section 44660) of Chapter 3, if applicable to the employee.

(c) “Unsatisfactory performance” as used in this section means, and refers only to, the unsatisfactory performance particularly specified as a cause for dismissal in Section 44932 and does not include any other cause for dismissal specified in Section 44932.

“Unprofessional conduct” as used in this section means, and refers to, the unprofessional conduct particularly specified as a cause for dismissal or suspension in Sections 44932 and 44933 and does not include any other cause for dismissal specified in Section 44932.

The meanings of "unsatisfactory performance" and "unprofessional conduct" have been discussed at length by the Courts - you are probably familiar with news stories about just how hard it is to fire teachers who aren't doing their jobs, and tenured professors who don't show up for work. For an interesting read about a real world situation where California Education Code § 44938 played out, I recommend this series of stories in the Los Angeles Times (available here).

Finally, a disclaimer. Nothing in the above is intended to create an attorney-client relationship with the reader or to provide legal advice. This blog is provided as a service to clients, and is not intended as an advertisement. Every case is different and I always recommend you contact an attorney who will help you apply the facts of your specific case to the law.