This may be hard to believe, but in three weeks, we will be living in the year 2020.  I find this fact particularly surprising, as I often refer to events of the mid-90’s as incidents that occurred “a few years ago.”

Whether we acknowledge it or not, though, time marches on.  Annually in California, employers in the public and private sector must ready themselves for a new wave of laws that will take effect just after the ball drops to ring in the new year.  Is your agency ready?

This article recaps a handful of significant laws that will take effect in 2020.  Unless otherwise noted, these will take effect on January 1, 2020.  Yes, that’s still just three weeks away.

Laws to Watch for in 2020 (and Beyond)

  • A + B + C = Independent Contractor

Looking Ahead in 2020

AB 5 codifies the elements to establish that someone performing work is an independent contractor, rather than an employee.  While the law states it is confirming existing law, rather than creating new law, employers need to ensure their practices comply with AB 5’s rules.  The legislation amends the California Labor Code and Unemployment Insurance Code to confirm the impacts of 2018’s California Supreme Court case Dynamex Operations West, Inc. v. Superior Court.   For an in-depth analysis of AB 5, visit here.  Here are the key points for California employers:

  • AB 5 confirms that the following standard test applies to establish that an individual is an independent contractor and not an employee:
    • (A) The hiring entity does not control how the individual performs the work; AND
    • (B) The individual’s work is outside the usual course of the hiring entity’s business; AND
    • (C) The individual customarily works in an independently established trade, occupation, or business performing the same work performed for the hiring entity.
  • Like all laws, AB 5 includes notable exceptions. First, the applicability for public agencies is relatively limited.  Some, but not all, provisions of the Labor Code apply to public agencies (such as paid sick leave and the ability to use part of annual accrued sick leave to care for certain family).  Second, AB 5 exempts several categories of professions, referral services, and vendors from the ABC test –if they meet a series of criteria.  Finally, if the ABC test does not apply to a particular situation, the more flexible, multi-factor test established by the California Supreme Court in 1989’s Borello case will determine whether an individual is an independent contractor or an employee.   

How Can We Prepare?

Consider having legal counsel review policies, procedures, and contracts to confirm that: (1) The agency is applying the appropriate test for independent contractors; and (2) The agency is applying that test correctly.   Contact legal counsel if any questions arise – it’s important to address potential classification issues as quickly and effectively as possible.

  • Expanded Requirements for Lactation Accommodations

Looking Ahead in 2020

SB 142 amends the Labor Code to expand protections for employees to express breast milk at work.  Employers have already been required to provide a private location – other than a bathroom – for an employee to express breast milk during their break time.  Click here for a detailed review of SB 142.  SB 142 expands most employers’ obligations as follows:

  • The employer must provide a private lactation room in “close proximity” to the employee’s workspace, which is shielded from view and free from intrusion from others while the employee expresses milk.
  • The lactation room must have a place for the employee to sit, and have access to electricity or alternative devices (such as extension cords or charging stations)
  • The employer must provide a sink with running water and a refrigerator or other cooling device for storing milk in close proximity to the employee’s workspace.
  • The employer must develop, implement, and make available a policy regarding employees’ lactation accommodations.

How Can We Prepare?

Review your agency’s policies and practices regarding lactation accommodations for employees.  Does the current lactation accommodation meet SB 142’s requirements?  If not, it is time to develop a strategy to implement the required changes.  If the agency does not already have a policy, now is the time to act to develop and implement one.  If a policy exists, does it meet SB 142’s requirements?  Consider consulting legal counsel for assistance to assess your agency’s compliance and develop a strategy to implement any required changes.  As with any potential changes to workplace conditions, the agency should be mindful of potential labor relations implications.

  • Expanded Protections Against Discrimination Based on Traits Historically Associated with Race

Looking Ahead in 2020

SB 188 amends the Fair Employment and Housing Act and Education Code to expand protections against discrimination based on race to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”  Click here for more details about SB 188.   “Protective hairstyles” include, but are not limited to, braids, locks, and twists.  SB 188 is designed to address the concern that workplace dress codes and grooming policies that prohibit natural hair (including afros, braids, twists, and locks) “are more likely to deter Black applicants and burden or punish Black employees than any other group.”  Accordingly, SB 188 prohibits discrimination based on traits that are historically associated with race.

How Can We Prepare?

Review your practices and policies related to hiring, harassment and discrimination prevention, dress codes, and grooming standards.  Does your policy (or practice) prohibit or limit individuals from choosing afros, braids, locks, or twists?  If so, it’s time to update the policy and change the practice.  Do your supervisors understand the new law, and the fact that they should not write someone up for a dress code violation based on hair texture of protective hairstyles?  If not, it’s the perfect time to train them on the new laws, and on the compliance procedures your agency is putting into place for the new year.

… Which brings us to another important reminder for 2020:

  • Harassment Prevention Training for Non-Supervisors

Looking Ahead in 2020

SB 778 clarifies that employers are required to provide at least 1 hour of training on harassment, discrimination, and retaliation for non-supervisors by the end of 2020.  Employers have long been required to provide 2 hours of harassment prevention training for supervisory employees – within six months of the person taking on the lead or supervisory role, and every two years thereafter.  In 2019, legislation required employers to extend training to non-supervisory employees, every two years.  SB 778 (which took effect in August 2019 as emergency legislation) clarified that employers have the 2020 calendar year to meet the training requirement.  If your agency was ahead of the curve and trained non-supervisors in 2019, they will be due for updates in 2021.

How Can we Prepare?

Employers can meet the training requirement in many ways: Trainings conducted by outside experts; trainings conducted by internal agency experts; or online tools.  The Department of Fair Employment and Housing will have online resources available for employers.  Additionally, LCW offers flexible options to meet employers’ needs and interests.  Visit https://www.lcwlegal.com/harassment-prevention-training-services to find the right training option for your agency.

  • Where Can I Learn More?

Kick off the New Year with a great learning and professional development opportunity! Consider sending your agency’s human resources professionals, managers, and attorneys to LCW’s 2020 Public Sector Employment Law Annual Conference, January 22-24, 2020, in San Francisco.

For more information about our training services, publications, consortiums, and other services we offer, please visit lcwlegal.com.

We wish you a happy and healthy holiday season, and look forward to an exciting future in 2020 and beyond!

An important part of the litigation practice is appellate law.  One side can win in the trial court – by a motion to dismiss, on summary judgment, or after a jury trial – only to have the result overturned on appeal.  The court of appeal can send the parties back for an entirely new trial, or in some circumstance, it can decide that the party who lost at trial should actually win the case altogether.  Also, the court of appeal can publish its decision, meaning that the decision will serve as binding law for future cases raising the same issues.  Thus, a published appellate decision can have far-reaching effects for the industry or administrative area involved.  In addition, published appellate decisions often draw media attention, thus further raising the stakes.

In appeals, a party’s written briefing can serve as its sole opportunity to present arguments to the court and influence the court’s decision.  The parties present the appeal to a panel of three justices.  These three individuals decide the matter based only on the paper record from the trial court to determine if the court committed any errors that had a sufficient likelihood of affecting the result.  They do not hear any witness testimony, and they do not accept any additional evidence.  The court of appeal does often hold an oral argument, which is a hearing where the attorneys can argue the appeal in person.  But the hearings tend to be relatively short and are often taken up with the attorneys responding to questions from the justices (and responding to the questions may or may not serves as means for the attorneys to convey their key arguments).

This all shows the importance of effective appellate briefs.  Below are six tips lawyers follow for preparing briefs on appeal.

  1. Be accurate: The appellate brief’s citations to the trial court record, and to applicable legal authorities must be exact.  Accuracy is a requirement for all legal briefs in any court, but for appeals, the stakes can be higher.  If the brief contains an accidental mis-statement, the other side can easily make accusations that the party that presented the brief has tried to mislead the court, create confusion, or lacks credibility.  The appellate court may agree with these contentions and respond accordingly.  Even if it does not, a lawyer’s need to respond to such contentions puts his or her side on the defensive.
  2. Be complete: It is important to make all available arguments that have a sufficient chance of success on appeal.  If the party’s first brief does not make a particular legal argument, the appellate court can consider it waived.  It will be difficult to make the argument for the first time at oral argument before the court of appeal, in subsequent briefing, or to a higher court like the California Supreme Court.
  3. Be clear and guide the court through the decision making sought: This applies both to sentence and paragraph structure and the overall organization of the brief.  Briefs should set forth, in a logical and clear way, the legal structure the court must assess, and how the facts presented in the record fit into that structure.  Briefs will be organized under separate point headings (different items in the table of contents) so as to make it absolutely clear which elements of law apply to which items of evidence.  What about addressing the other side’s arguments?  The brief can group the arguments at the end of the analysis section to which they relate and then restate and refute them in sequence, with typically one argument per paragraph.  This systematic approach constitutes the same approach the court takes preparing its decision, and can provide the court with an analysis it can more or less adopt if it sees fit.
  4.  Apply case themes:  In preparing a brief, attorneys often find that a particular fact, legal principle, or perspective will actually refute many of the other side’s arguments.  The attorneys will develop this into a case theme, something carefully crafted to be repeated in various ways throughout the briefing to keep it at the forefront of the justices’ perceptions.  Often, for consistency, it makes sense for the appeal brief  to include the same case themes as in the trial court.  On appeal, however, lawyers usually add themes that have a more technical dimension, meant to draw on the justices’ interest in accurately applying and developing the law rather than relying on themes based on more general concerns intended to persuade a jury.  Either way, a case theme on appeal can demonstrate to the court of appeal that it can resolve the whole matter by relying on one or two core principles or by making a few key rulings.
  5. Temper your invective: Lawyers sometimes fill their briefs with harsh, accusatory language against the other side or the other side’s lawyers.  They may label arguments made by their opposing counsel “ridiculous,” “bad faith,” “ignorant,” or the like.  But this type of invective is well-known to irritate courts, and even terms like “frivolous” or “bad faith” are thought to have the same effect if they sound perfunctory, and made without any effort actually to single out for the court arguments or conduct by the other side that are particularly outrageous.  Indeed, some appellate attorneys – in appropriate cases – choose to have their briefing not say anything particularly negative about the other side.  Instead, the briefing will simply explain cogently why, under applicable law and the evidence in the record, the other side cannot win the case.  This makes the brief appear more objective and appellate justices may find it easier to rule in favor of the side that takes a more measured tone.
  6. Tell the client’s story: Often both sides experienced the trial court litigation as an emotional saga that took a heavy toll.  It may turn out that the appeal, however, involves only a few more technical issues (e.g., jurisdiction, sufficiency of the evidence on monetary damages, evidentiary rulings on expert witnesses, etc.).  In such cases, the parties may well expect their lawyers nevertheless to write briefs that contain the whole narrative, an emphatic description of why the other side’s conduct was wrongful, and a impassioned explanation of why their side behaved properly and deserves vindication.  It does not help for briefs to include substantial matter irrelevant to issues on appeal.  At the same time, it is common for a brief to offer the court of appeal a context for the decision the court will make.  It is best to find a way to present this context in the appellate briefing, and tell the client’s story succinctly in the process.  This may mean that the brief will include notifications to the court that parts of the discussion serve as this kind of background.  Such matter can have some emotional impact, draw on a sense of fairness, and influence the court.

We will continue to prepare updates on appellate law, and on litigation in general.

This Special Bulletin was written by Heather DeBlanc and Amit Katzir.

Notice 2019-63 extends the deadline under the Affordable Care Act for applicable large employers to furnish individuals with a Form 1095-C for 2019.  The new due date is March 2, 2020, but the IRS will not consider further extensions.  The new March 2 deadline also applies to small employers sponsoring self-insured coverage that furnish individuals with 2019 Forms 1095-B.  A failure to timely furnish the requisite forms may subject employers to penalties.

Importantly, the notice does not extend the February 28, 2020 deadline for paper filing Forms 1094-B, 1095-B, 1094-C, or 1095-C with the IRS, or the March 31, 2020 deadline to e-file.

Notice 2019-63 provides additional relief to self-insured small employers.  Instead of furnishing individuals with a 2019 Form 1095-B, the small employer may: 1) post a notice prominently on its website stating that responsible individuals may receive a copy of their 2019 Form 1095-B upon request, accompanied by certain contact information, and 2) furnish a 2019 Form 1095-B within 30 days of such a request.   A small employer who provides self-insured coverage will not be penalized for failure to furnish Form 1095-B to individuals if it meets both of these requirements.

In addition, as in past years, the notice provides relief from penalties for incorrect or incomplete reporting to the IRS, provided that the reporting entity can show that it made a good-faith effort to comply with the ACA’s information-reporting requirements.  However, this relief does not apply where a reporting entity fails altogether to make the requisite filings.

It is no secret that Generations Y and Z do not often see eye-to-eye with the Baby Boomer generation on a number of complex cultural, social, and political issues.  Baby Boomers criticize Millennials (Generation Y, born between 1981 and 1996) and Gen Zers (Generation Z, born between 1997 and 2010) as “entitled” and “narcissistic.”  In turn, Millennials and Gen Zers criticize Baby Boomers as “hypocritical” and “oblivious.”  Baby Boomers fault Millennials and Gen Zers for expecting “participation trophies,” and, in turn, Millennials and Gen Zers fault their Baby Boomer parents and grandparents for coming up with and handing out “participation trophies” in the first place.  (Indeed, Millennials, who by and large are children of Baby Boomers, are often referred to as “Echo Boomers.”)

As the inter-generational conflict raged on, the term “snowflake” was coined to capture the perceived overly sensitive and selfish attitudes Baby Boomers often attributed to Millennials and Gen Zers.  Until 2019, however, there was no term directed to Baby Boomers the way “snowflake” was to Millennials and Gen Zers.  Then, “OK, Boomer” happened.

“OK, Boomer” is the “clapback” heard around the world – or, at the very least, around all of social media.  The phrase was coined to provide a short, sharp rebuke to comments or ideas perceived to be narrow-minded or based on outdated notions, which Millennials and Gen Zers often attributed to Baby Boomers.  The term became prevalent in both traditional and social media, and in numerous articles, memes, and tweets.

“OK, Boomer” does not mean “OK, old person,” much like “snowflake” does not mean “young person.”  Rather, “OK, Boomer” simply conveys Millennials’ and Gen Zers’ disagreements with Baby Boomers’ cultural, social, and political stances, much like “snowflake” conveys Baby Boomers’ disagreements with those of Millennials and Gen Zers.  Simply stated, neither term has anything to do with chronological age.

Whatever its place in popular culture – or in the inter-generational conflict – may be, it is abundantly clear that in light of federal and state anti-discrimination laws, “OK, Boomer” has no place in office e-mails, meetings, banter, or other interactions.  That is because the phrase, by its language (although not by its meaning) is intrinsically tied to age.  “Boomer” is firmly rooted in “Baby Boomer.”  In turn, the Baby Boomer generation is defined (like all generations) by the time period within which its members were born – specifically, 1944-1964.  This means that the youngest Baby Boomers are 55 years old, while the oldest members of the generation are in their mid-70s.  As such, all Baby Boomers are covered by the anti-discrimination and harassment protections both California and federal law provide for workers over the age of 40.  The phrase “OK, Boomer” may therefore by interpreted to suggest bias against older workers, and expose employers to liability under laws such as the Fair Employment and Housing Act and the Age Discrimination in Employment Act.

Training can play a significant part in reducing such exposure.  Millennials are currently between the ages of 38 and 23, and already make up a majority of the country’s workforce.  Some research suggests that by 2020, Millennials will make up half of the workforce, and Gen Zers one third.  In other words, Millennials and Gen Zers, together, will make up the vast majority of the working population.  Because Millennials and Gen Zers do not use the phrase “OK, Boomer” to refer to chronological age, they may innocently use it at the office, unaware of its potential implications.  Training can serve as a reminder that even such use of a popular social media quip can have serious consequences.  It can thereby reduce the likelihood that the phrase will find its way into the workplace.

With Thanksgiving just around the corner, we would like to take a moment to appreciate all of the wonderful people in our lives that we have the pleasure of working with every day. At LCW, we are thankful to do the work that we love within the communities that we love. Our clients are a constant reminder of why we do what we do, and we are grateful to be able to serve them. This Thanksgiving, we are thankful for the trust and continued support of our friends, clients, and family.

What else are we thankful for this Thanksgiving? Here are a few highlights from members of the LCW family:

“I am thankful for working with an amazing group of talented people (both co-workers and clients). I am also thankful for my amazing wife Linda and all three of my kids who have given me such joy and happiness, Sarah, Ben and Andrew.” – Peter Brown, Partner in the Los Angeles Office

“I am thankful for my wife Andrea and son John Paul, for all my family, friends and work colleagues, and for being given the wonderful opportunity as a career to provide advice and counsel to help guide my clients on labor and employment law issues.” – Gage Dungy, Partner in the Sacramento Office

“I am thankful to work with so many educators and staff members at colleges throughout the state who inspire me and those they serve.”  – Pilar Morin, Partner in Los Angeles Office

“I am thankful to be doing good, meaningful work surrounded by clients and co-workers I care deeply about.  I’m also thankful to be part of a well-run law firm committed to our clients’ best interests and providing service at the highest level.” – Eileen O’Hare Anderson, Partner in Fresno Office

“I am thankful for the attorneys and staff at our San Francisco office in voting to name one of our conference rooms “The Whitmore Room” and doing it while I am still alive.” – Dick Whitmore, Partner in San Francisco Office

“I am thankful to practice law on behalf of clients whose core mission is to serve their communities.  I am doubly thankful to do so with talented colleagues who are passionate about serving LCW’s public and non-profit clients and who make work fun.  Happy Thanksgiving!” – Scott Tiedemann, Managing Partner of LCW

From our team to yours, we wish you a Happy Thanksgiving!

Liebert Cassidy Whitmore

There are two ways an FLSA covered employer may pay a nonexempt employee a fixed salary: the employer may pay a salary for a specific number of hours each week or the employer may pay a salary for whatever number of hours are worked in the week.  Payment of a fixed salary for fluctuating hours of work – referred to as a Fluctuating Workweek – is permitted by existing Department of Labor (DOL) guidelines at 29 CFR section 778.114, subject to certain conditions, including a mutual understanding of the parties regarding the compensation arrangement.

Importantly, under a valid Fluctuating Workweek, the employer need only pay one half (0.5) the regular rate for each hour worked in excess of forty per week, instead of time and one half (1.5) the regular rate.  (For more on the regular rate, click here.)   The halftime premium for overtime hours would be paid in addition to the fixed salary.  Referred to as the Fluctuating Workweek Method of Calculating Overtime, this arrangement benefits employees by providing them with a fixed salary despite fluctuating hours of work and benefits employers by reducing overtime costs.

Despite its benefits, the Fluctuating Workweek Method has been challenged in courts and its application is unclear.  For this reason, on November 4, 2019, the DOL proposed new guidelines on the requirements of the Fluctuating Workweek Method of Calculating Overtime.  The new guidelines are expressly intended to make it easier for employers to apply this method in the modern workplace.  To read the proposed rulemaking, click here.

The main thrust of the DOL’s proposed rule is that additional pay of any kind on top of the fixed salary is compatible with the Fluctuating Workweek Method.  Presently, courts have issued conflicting decisions on whether add-on pay disqualifies employees from the Fluctuating Workweek Method.  Under the DOL’s proposed rule, employees would be eligible for the Fluctuating Workweek method regardless of whether they receive bonuses, additional hourly pay, additional lump sum pays, premiums, shift differentials, and/or incentive-related sums.

The DOL’s proposed rule does not, however, clarify exactly what it means for workweek hours to fluctuate sufficiently to qualify for this method of compensation.  But the DOL’s proposed rulemaking document does state that an employee who works a “usual” number of hours may still be paid under the Fluctuating Workweek Method if there is some weekly variation in the number of hours worked.  In this way, the Fluctuating Workweek Method may be most appropriate for employees who are transitioning from exempt to non-exempt status but wish to retain their fixed salary or salaried status.  Employers considering the Fluctuating Workweek Method of Calculating Overtime should consult with legal counsel prior to making any changes to employee compensation.  Change to represented employee compensation is a mandatory subject of bargaining under California’s Meyers-Milias Brown Act.

The DOL has requested comments on these proposed changes.  Comments are due by December 5, 2019.  Those interested can submit their comments online.

LCW will continue to monitor the comment period and will provide further updates as needed.  Please visit our website at www.lcwlegal.com for regular briefings on the FLSA.

Many CalPERS agencies hire CalPERS retirees for limited post-retirement work to help with overflow or special projects.  Often times, these retirees are the agency’s former employees who are familiar with the agency and the work to be performed.  CalPERS can review these arrangements and determine that the retiree was engaging in unlawful post-retirement work either during the retiree’s appointment or years after the retiree’s post-retirement work ended.  If CalPERS determines that there is a violation, then CalPERS will send a letter to both the agency and the retiree of its determination and require that the retiree give back all the pension payments collected during the period of post-retirement work for up to three years of retroactive payments.  We have seen seemingly minor violations result in demands for repayment for hundreds of thousands of dollars!

But Can’t We Employ Retired Annuitants?

Yes, CalPERS agencies can employ CalPERS retired annuitants.  However, the general rule is that a CalPERS retiree needs to be reinstated back into CalPERS membership, i.e., “unretire,” unless they qualify for an exception.  We typically see post-retirement work violations in this context when agencies do not strictly comply with the exception requirements.  For example, a retiree may be paid an hourly rate higher than what was allowed under a publicly available pay schedule for an employee performing similar duties, received benefits in addition to an hourly rate, or performed work that suggests the retiree is filling a vacant position.  For a more detailed on these exceptions, please see our previous blog post here.

But What if the Retiree is an Independent Contractor?

There is nothing that prohibits a CalPERS agency from obtaining the services of an independent contractor who also happens to be a CalPERS retiree.  However, simply labeling someone as an “independent contractor” will not be sufficient to make it so.  CalPERS will look at various factors, such as where the person works physically, whether the person wears a uniform, whether the person has an agency email, etc.  The most important factor, however, is whether the agency controls the manner and means of how the individual performs the services.  In cases where a retiree is misclassified as an “independent contractor,” CalPERS may find a violation of post-retirement work.  For more details on whether an “independent contractor” may be misclassified, please see our previous blog post here. 

What Are the Consequences?

If CalPERS finds a violation of post-retirement work, there are major consequences, for both the retiree and the agency.  CalPERS will retroactively reinstate the retiree back into CalPERS membership as of the effective date of when he or she began the unlawful post-retirement work, with a three-year limit.  Employers will then be liable for employer contributions and possibly employee contributions for any of the wages paid for the unlawful post-retirement work.  In addition, CalPERS can assess administrative penalties against the employer for its efforts to resolve the issue (e.g., accounting or payroll consultants).

For retirees, on the other hand, CalPERS will demand that the retiree pay back up to three years of retirement benefit payments, or the length of the unlawful post-retirement work, whichever is shorter.  So, for example, if a retiree has been engaged in unlawful post-retirement work for three years, CalPERS will demand that the retiree pay back all three years of pension payments.  In addition, CalPERS can assess employee contributions on the unlawful post-retirement work earnings and administrative penalties.  CalPERS can also reduce future pension payments from the retiree in order to recover these “overpayments.”

What Should We do if CalPERS Notifies Us of a Post-Retirement Work Violation?

We recommend you contact legal counsel and get advice on how to respond to CalPERS.  The employer has a right to appeal CalPERS’ determination before an Administrative Law Judge (ALJ) with the California Office of Administrative Hearings (OAH).

LCW has a team of experts throughout California who have successfully represented employers against CalPERS before OAH on these matters.  Each case is different, so each must be analyzed on its own facts to determine the best course of action.

If you would like to learn more about this topic, please view our webinars on-demand:

Life After Retirement – Hiring Retired Annuitants and Avoiding Violations 

How to Hire CalPERS Retirees the Right Way

If you are a supervisory employee for a public agency or private school in California, or a member of your employer’s human resources department, you have most likely sat through a 2-hour supervisory training regarding preventing harassment in the workplace.  You may know this training as “AB 1825  Training.”  If you are a non-supervisory employee, don’t feel left out!  Due to recent changes in California law, if you have not already done so, your employer will be requiring you to sit through a 1-hour harassment prevention training by January 1, 2020 (*friendly reminder to all agencies and schools who have not scheduled this training yet*).

Harassment prevention trainings cover a lot of information, including legal standards for harassment under the California Fair Employment and Housing Act (“FEHA”) and its implementing regulations and what types of conduct may constitute harassment.  Additionally, the FEHA now requires that harassment trainings also include instruction on the prevention of “abusive conduct,” what may colloquially be called bullying.  While “abusive conduct” is not illegal, engaging in such conduct will likely violate employer codes of conduct and subject a perpetrator to discipline, up to and including termination.  Harassment, and abusive conduct, include visual conduct, such as the use or display of derogatory or lewd posters, pictures, drawings, and cartoons, and making lewd gestures, as well as verbal conduct, such as epithets, derogatory comments, slurs, jokes, or lewd propositions.  Whether such visual or verbal conduct constitutes unlawful harassment depends on if the conduct was perpetrated because of someone’s membership in a protected classification, including race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or association with someone who is a member of one of these protected classes; if the conduct is unrelated to a person’s protected status, it will not satisfy the legal definition of harassment, but may constitute abusive conduct.

This may all sound familiar to you.  Employers have been investigating and litigating claims of harassment for decades.  Most supervisors have been sitting through harassment prevention trainings for the last 15 years.  But while the overarching legal definition of harassment may not have substantially changed, the types of behavior that may constitute harassment has greatly expanded.  In the age of social media – where people (and not just Millennials and Gen-Z’ers) are choosing to more regularly communicate through emoticons (e.g., :) or ;) ), emojis (e.g.,  😊), memes, and Instagram and Facebook postings and messages – the types of behavior that may expose an employee and employer to allegations of harassment and bullying are expansive.  Images or videos that may constitute evidence of visual harassment may now include emoticons, memes, “snaps” and other images or videos created or posted through social media applications.  Verbal harassment may no longer be as simple making inappropriate jokes or lewd comments in front of or directed to colleagues.  What about “tagging” someone in an inappropriate Instagram or Twitter post?

As social media and image-based communication becomes a regular part of our lexicon and daily interactions, it is important to understand how these types of visual and verbal communications have the potential to implicate claims of harassment and abusive conduct.  Here are some tips for employers, as well as individual employees, for preventing certain types of conduct from being used to establish claims of visual or verbal harassment or abusive conduct:

  • Avoid using emoticons, such as “winky” faces ;), or emojis in communications with colleagues. Given different contexts in which a fellow employee can receive these images, sending a ;) to a colleague may be misconstrued as having a sexual undertone, even though this is not the message the sender intended to convey.  If you are attempting to convey appreciation or another emotion through these means of communication, use your words instead.
  • Consider not “friending” colleagues, and in particular subordinates, on social media, including Instagram, Facebook, Twitter and Snapchat. While the use of a personal social media account off-duty will generally not give rise to actionable claims for workplace harassment, standing alone, the types of statements you make in private could lead to uncomfortable situations with colleagues in the workplace, and may also be used as evidence in support of other allegedly harassing conduct in the workplace.  If you chose not to heed this advice, think twice about who your social media audience includes before posting or sharing personal or private information on social media.  (As a caveat, at the same time, labor relations laws can protect employees’ communications with others on social media concerning their wages, hours, and conditions of employment.)
  • If you are a supervisor, consider making it a personal policy not to accept “friend requests” from subordinates.
  • If you are friends with colleagues on social media, be careful about what posts you “tag” your colleagues. For example, a meme that you consider funny may be considered offensive to others.  Just because you consider a colleague to be your friend does not mean they have the same sense of humor as you.
  • If you work for an educational institution, considering making it your personal policy not to accept “friend requests” from students or otherwise engage with current students via social media.
  • Do not use social media accounts to communicate about work-related matters. For example, many agencies do not provide certain classes of employees with agency email accounts.  This may include front-line utility and recreation & parks employees, as well as volunteers.  Just because your agency does not provide these individuals with email accounts does not mean that those individuals’ supervisors should communicate about work related matters using non-employer approved methods of communication.  Employers should ensure that there are established lines of communications between supervisors and those employees or volunteers without email accounts.  For public sector employees, it is also important to remember that written communications about agency-related matters made through personal email accounts, social media accounts, or phones can be subject to California Public Records Act requests.

As an LCW attorney who conducts harassment prevention trainings for public agency and private school clients, I regularly get looks of concern when I tell training participants that what they perceive as their innocent use of winky faces in an email communication, or a gesture of friendship by “friending” a colleague on social media, comes with the risk exposing them to claims of harassment.  While such behavior may end up being innocuous, those trainings, and this post, should serve as important reminders that the use of social media or other modern means of communication is a new legal frontier with which we are all learning to deal.  The growing use of technology both in and tangential to the workplace comes with the additional responsibility to check your behavior and that of your colleagues to ensure that the means by which they choose to communicate is objectively and subjectively respectful, unbiased, and inclusive.

Once again, the annual look at outlandish employment cases that should make you all think, “It could be worse.”

No Pot of Gold at the End of This Rainbow

The former aide of a state senator (amazingly not California) submitted a complaint to the state’s division of human rights, complaining that the state senator directed him to dress up as a leprechaun for a St. Patrick’s Day parade. According to the former aide, his “basic human rights” were violated and a leprechaun outfit was “not befitting” a grown man.” What is not quite clear here is what protected status might apply in this case: (1) colorful cereal box cartoon leprechaun or (2) terrible acting in the Leprechaun movie (1993). Although leprechauns are known to enjoy a good practical joke, the aide was not amused when he was later terminated from his position for reasons unrelated to leprechaun shenanigans. The takeaway here is for employers to avoid asking employees to dress up as a mythical creature whose principal occupation is mending shoes. It is not befitting.

There’s Some “Dead Wood” Here, And It Ain’t the Acclaimed HBO Series

The obvious and primary definition of dead wood is a branch or part of a tree that is dead. The secondary definition is “people or things that are no longer useful or productive.” A university settled the age discrimination claims brought by two employees after a new supervisor referred to them as dead wood and change-adverse, and commented that dealing with them was like “herding hippos.” The “dead wood” employees were passed over for promotions and essentially forced out of their positions. They received sizeable settlements and an injunction against the university designed to prevent future age discrimination in the workplace.

Firehouse Pranks Alive and Well

In an effort to “lighten the mood and help guys have some fun,” a firefighter thought it would be a good idea to place snap fireworks in the firehouse toilet. Well, as you can imagine, that prank did not go over well when another firefighter’s scrotum was burned by the exploding snap firework. Needless to say, he was not happy with the results of the prank gone awry. He sued the department for his injuries. What happened next, you ask? The court said it could not provide relief because the incident was covered by workers’ compensation. The offending firefighter said the department allowed a “high degree of pranking among on-duty firefighters” and the judge said he did not commit an “intentional wrong.”

Flatulence from Down Under

An engineer in Australia sued his employer alleging his supervisor bullied him by repeatedly farting in his direction. The court, however, dismissed the case noting that flatulence is not bullying. Enough said.