Are courts changing their tune on arbitration agreement enforceability?

Daily Journal, Aug. 30, 2016

Zach Cantor is a principal in Cantor Law.

When bosses get out of line and make your life hell, most workers assume they can sue or even join a class action – not realizing that the deck was stacked against them the day they accepted the job. That’s because the U.S. Supreme Court has favored increasingly common arbitration agreements where employees sign away some of their basic rights as a condition of employment.

But the tide may be turning. The U.S. Supreme Court likely will tackle the issue of pre-employment arbitration contracts following recent decisions by the 9th U.S. Circuit Court of Appeals and the 7th U.S. Circuit Court of Appeals.

Last Monday, the 9th Circuit in Morris v. Ernst & Young LLP, 2016 DJDR 8732, held that workers have a substantive right to bring collective actions against their employer, therefore individual arbitration cannot be mandated by the employer. That’s a position long-held by the National Labor Relations Board. But that decision contradicts interpretations made in similar cases in the 2nd, 5th and 8th Circuits that the Federal Arbitration Act allows employers to force individual arbitration.

Prepare for a showdown.

For about a decade arbitration agreements have been the focus of a lot of surprising appellate opinions weighted in favor of arbitration. Courts have gone off the deep end with consent. In one noteworthy California appellate case, it was decided that an employee who never received an arbitration contract, let alone sign one, had consented to arbitration – and waived his right to a jury trial – merely by having been sent one in the mail and continuing to work for the company after he was hired. Craig v. Brown & Root, Inc., 84 Cal. App. 4th 41 (2000). In any other contractual arrangement, that decision would seem insane.

But recent headlines from across the country indicate that the tide is slowly starting to turn against sloppy one-size-fits-all arbitration agreements. A spate of recent decisions considered these questions: Can an employer’s arbitration agreement reserve for themselves the right to terminate the contract without giving advance notice to employees? Must the agreement make crystal clear the individual is signing away his or her right to a jury trial? Can a mentally disabled employee be considered of sound mind when told he must sign the contract in order to work?

The common sense of fundamental contract law seems to be the common thread in successfully arguing against imposition of arbitration agreements.

In March, the 5th U.S. Circuit Court of Appeals found in Nelson v. Watchhouse Int’l LLC (15-10531) that the Dallas employer’s arbitration agreement was unenforceable because it was written in a way that gave the employer the exclusive right to change or terminate the contract at any time without giving employees any advance notice of the changes.

The paragraph in question read: “This agreement is issued with the authority of the Company and is binding on the Company. This Agreement may not be altered except by consent of the Company and shall be immediately effective upon notice to Applicant/Employee of its terms, regardless of whether it is signed by either Agreeing Party. Any change to this Agreement will only be effective upon notice to Applicant/Employee and shall only apply prospectively.”

The court found that language rendered mandatory arbitration unenforceable: “Watch House’s retention of this unilateral power to terminate the (Arbitration Plan) without advance notice renders the Plan illusory … Therefore, Nelson is not bound by the Plan, and Watch House may not compel arbitration based on the Plan.”

In July the New Jersey Appellate Division held in Anthony v. Eleison Pharmaceuticals LLC (A-932-15T4) that the company’s arbitration contract was obligated to make it clear that the employee was waiving his right to pursue a civil trial by signing. It was the latest in a string of decisions denying forced arbitration due to missing or imprecise language in an arbitration agreement.

The court concluded, “The arbitration clause included no reference to a waiver of plaintiff’s statutory rights or a jury trial. Consequently, it did not constitute a valid waiver of plaintiff’s right to have his claims decided in a judicial forum.”

In the New Jersey case, the employee was a vice president of a pharmaceutical company who originally filed suit for breach of contract.

But what if the employee signing a mandatory arbitration agreement is unsophisticated? Can a mentally disabled employee, hired in accordance with the Americans with Disabilities Act, be forced into arbitration?

I’ve handled cases where a disability discrimination complaint was allowed to proceed in superior court, despite a mentally handicapped client signing an arbitration agreement. Because there’s no precedent in federal or California law as to a mental incapacity argument in regards to arbitration agreements, a piecemeal approach is necessary.

California probate code, known as the Due Process in Competence Determinance Act (DPCDA), governs the legal standards and tests for mental incapacity. By extrapolating the fundamentals of contract law, and piecing together old contract precedents from marriage disputes (In re Marriage of Greenway, 217 Cal. App. 4th 628, 642-43 (2013)), wills and trusts (Sterling v. Sterling, 242 Cal. App.4th 185 (2015)), a successful argument was made that someone with a third-grade reading level was not able to understand the details of an arbitration agreement.

All the court decisions in favor of arbitration become irrelevant because the ways of measuring mental capacity have been the standard for decades.

These cases can give enterprising California legislators an issue to sink their teeth into. Who can object to putting employees back on an even footing with employers when it comes to arbitration agreements? First, consider a bill to allow prospective employees opt out of signing these agreements as a condition of employment. Second, have one standard state-issued arbitration form that applies to every employee and company, where it says in bold letters that neither side needs to consent to the agreement and that it is not mandatory.

I’m not saying companies cannot have these kinds of agreements, but they need to be considered at arm’s length, where everyone knows what’s going on, free of coercion or duress.

Those, too, are fundamentals of contract law.

Sexual Harassment and “Me Too” Evidence

Former Fox News Chairman and CEO Roger Ailes.

 SANTA MONICA MIRROR

   AUG. 6, 2016, 12:31 PM

   By Zach Cantor

   Principal, Cantor Law

Former Fox News Chairman and CEO Roger Ailes

When Fox News Chairman and CEO Roger Ailes resigned last month, his decision came after a retaliation and sexual harassment and discrimination lawsuit was filed by longtime anchor Gretchen Carlson. Her claim alone wasn’t enough to budge Ailes from the network’s most powerful position.

Ailes’ departure happened after similar claims against the 76-year-old were made by a half dozen other women saying they also faced the same kinds of sexual harassment Carlson says happened to her.

Their stories, known as “me too” evidence, apparently pried one of the most powerful men in the media business from the top spot at a major network, which he held for 20 years.

Sexual harassment claims frequently hinge on sworn statements from other victims for one simple reason – harassment most often happens behind closed doors, where there aren’t any witnesses. That presents a “he said, she said”scenario that’s difficult to prove in court.

In a statement, Ailes’ attorneys said Carlson’s allegations are false, as are the other women’s claims, which stretch back to the 1960s.

Although 50 years separate Carlson’s allegation from one of the earliest “me too” claims, rather than undermining Carlson’s argument, the time span, in theory, can actually lend credence by demonstrating a longstanding pattern of sexual harassment.

As in any case, the more witnesses who can confirm your allegations, the better. Because of the secretive nature of sexual harassment, there are generally only two ways for victims to substantiate their claims: to document what happened in writing, and to see if it has happened to anyone else.

Witness declarations saying the same thing happened with the same person can be just as damning to the defendant, even though the witness didn’t see the specific conduct the complainant experienced. “Me too” witness testimony is especially strong if it shows a pattern and practice of bad behavior.

Failure to consider “me too” evidence in 2009 resulted in a lower court’s summary decision being reversed by the California Court of Appeal in the case of Johnson v. United Cerebral Palsy Spastic Children Foundation of Los Angeles and Ventura Counties.

In that case, an employee was told she was being fired for poor job performance. This happened the day she returned to work, with her doctor’s permission, following a medically troubled pregnancy. She stated that she’d never been told her performance was lacking.

Other former employees came forward with “me too” declarations, saying they also were fired by the same supervisor after they became pregnant, that they knew someone else fired for being pregnant, or they resigned because the supervisor made the workplace hostile after they told her they were trying to become pregnant.

While United Cerebral Palsy presented a legitimate reason for firing the employee – asserting she falsified her timecard – the lower court should also have considered the considerable amount of “me too” testimony as admissible evidence of discrimination and “a triable issue of material fact regarding the true reason she was fired.

Employees have an expectation to be allowed to do their jobs without being harassed or discriminated against by their supervisors. Even so, there were 26,396 charges of workplace sexual discrimination investigated by the federal Equal Employment Opportunity Commission in 2015.

Employers should pay attention to the Ailes case because it has a few lessons that can be learned.

It’s always wise to have sound policies and procedures in place to ensure that complaints are thoroughly and objectively investigated. Encourage people to come forward without fear of retaliation, so you can protect yourself from these things happening in the future and you maintain a healthy work environment for employees.

Pay special attention to multiple complaints and the circumstances surrounding them, especially if similar complaints span a length of time. Ask yourself: how can similar complaints be made against the same person by people who don’t even know each other?

Take remedial and substantial corrective action promptly. If a business has multiple complaints about the same person, it better be pretty leery about keeping that person around.

That’s also how you can limit the damage done to all sides. If everything he’s being accused of is true, Ailes is a total disaster for Fox because the problem could have been nipped in the bud years ago.

Zachary Cantor is principal attorney of Cantor Law in Santa Monica and Santa Barbara: info@cantorlawyers.com or 213.674.0325.

Legal View: The Intricate Art of Tipping

Where Your Tips Should Go

  SANTA MONICA MIRROR     JUL. 28, 2016, 12:07 PM

By Zachary Cantor, Principal, Cantor Law 

The next time you go out to eat, the most complicated part of your meal may be how to figure out the tip.

For several years, restaurant owners and employees have tangled over low wages, medical coverage and whether to divvy up tips. To diners, that’s left a confusing puzzle of arithmetic at the bottom of the bill, which can include a 3 percent medical insurance surcharge, a tacked-on 20 percent service charge – and sometimes even a line after that seeking a tip.

It’s enough to make you start cooking at home again.

A ruling from the 9th Circuit U.S. Court of Appeals in March made tipping more complicated for everybody in the restaurant industry. There are hundreds of restaurants in Santa Monica; about 300 belong to the Chamber of Commerce. So it’s easy to see how the ruling affects many people and their families.

The question for the court seemed simple: could restaurant employees in the “chain of service,” such as servers and busboys, be required – or even allowed – to share their tips with back of the house staff such as chefs, line cooks and dishwashers. The Court’s decision: Tips belong to those in the chain of service. Thus, restaurants using a tip pool will need to ensure that none of their back-of-the-house staff – line cooks, dishwashers, expeditors, or any other staff that may not fall within definition of “customarily and regularly tipped employees” – partake in sharing the tip pool.

Called “tip-pooling,” the practice is, at its best, intended to share the benefits of good service with the team of people who directly contributed to a diner’s experience. At worst, it’s slyly used to ease the increasing costs of doing business—and to make up for the increasing minimum wage – for employees who may not be entitled to participate in the tip-pool.

The 9th Circuit’s decision is still open for revision or appeal. Just to be clear, some tip pooling is permissible, but not to the extent that some restaurateurs are pushing it. Some Los Angeles restaurant owners have tried to redistribute as much as 50 percent or more of waiters’ tips to other staff to reduce their own out-of-pocket costs. Aside from strict limits on who can participate in a tip-pool, what little law that exists on a reasonable amount to be distributed to back-staff at least makes clear that anything close to 50 percent is illegal.

California doesn’t let restaurants pay wait staff less than minimum wage. Some states do, and consider tip income as part of meeting the minimum wage requirement.

That’s why California law does not explicitly prohibit tip pooling, only requiring that an employee’s contribution to the tip pool must be reasonable, fair and equitable. The state’s labor code does not currently contain any statute that directly resolves the question of what counts as reasonable, fair or equitable. However, an opinion letter from the Labor Commissioner in 2005 set some parameters, stating that a “tipping pool policy was permissible where it provided that employees receiving the tips contribute 15 percent of the actual tips to the tip pool.”

A California Appeals Court justice in 2009 also provided guidance on what’s considered a reasonable and fair tip pool percentage, reasoning that a tip reflects the efforts of everyone who contributed to the dining experience; and, therefore, employers could force wait staff to contribute to a mandatory tip pool. The case, Etheridge v. Reins International, involved a restaurant employer who based tip pool requirements on the restaurant’s gross sales. The plaintiff in Etheridge was forced to pay half of his tips into the restaurant’s involuntary tip pool. The appeals court justice expressly opined that a 50 percent requirement “would appear to be an amount well in excess of any common industry practice for tip pool contributions.”

One way restaurateurs are trying to escape the tipping dilemma is by eliminating tipping and adding a 20 percent service fee to a diner’s bill. This is legitimate, and puts the employer in control of that money, which is taxable; and it can be passed along to all staff by whatever percentages the owner decides. But, it may not incentivize the best service or leave the customer feeling validated.

Moving forward, diners may take more interest in how much their server receives from the tip. More importantly, restaurant owners should review their tip policies — particularly if they have a tip-pool arrangement — and make sure they are complying with recent changes in the law. And restaurant employees should also be aware of their rights, and make sure that they are being treated fairly and legally for their hard work.

Zachary Cantor is principal attorney of Cantor Law of Santa Monica: info@cantorlawyers.com or 213.674.0325.

 

Too Much Rope: When A Social Media Post Is Career Suicide

Law360, New York (July 5, 2016, 11:29 AM ET) — Give them enough rope, and they’ll hang themselves, as the saying goes.

Zachary Cantor %>
Zachary Cantor

Social media has provided more than enough rope for public figures, giving them the uncanny ability to destroy even the most sterling of personas with little if any outside help.

Seemingly no one is immune — we’ve witnessed judges, movie stars, CEOs, and politicians trip themselves up time and time again, despite endless examples of how any Tweet, post or text can end up splashed across the front page of The Times, or as an exhibit at trial.

All it takes is a moment of anger, inebriation or poor judgment to commit digital suicide, instantly undoing years of professional reputation building. One would think that media pros such as Wendy Bell would avoid postings they might later regret. But that’s not always the case.

Bell, a newscaster at WTAE in Pittsburgh, was fired in March for Facebook remarks responding to a shooting that claimed six lives — including an eight months’ pregnant woman and her unborn child. Bell wrote:

You needn’t be a criminal profiler to draw a mental sketch of the killers who broke so many hearts. They are young black men, likely in their teens or in their early 20s. They have multiple siblings from multiple fathers and their mothers work multiple jobs. These boys have been in the system before. They’ve grown up there. They know the police. They’ve been arrested.

The shooting took place in Wilkinsburg, a poor, predominantly black suburb of Pittsburgh. However, at the time, police had not released any names or descriptions of the suspects, nor had they made any arrests.

Bell’s post went viral, with many calling out her comments as racist. WTAE first suspended Bell, and then ultimately fired her nine days after she posted the comments. WTAE gave a statement deeming her comments as racially insensitive and stating that they were, “inconsistent with the company’s ethics and journalistic standards.”

Bell sued WTAE-TV (a division of Hearst) in federal district court for wrongful termination, citing “racial discrimination” as the basis of her suit. Bell’s lawyer, Sam Cordes, has publicly stated that if Bell were black, she would not have been fired for the comments she made. He also stated that because the Facebook page was sponsored by WTAE, they had the ability and discretion to edit or remove the comments at any time.

Bell is seeking back pay, damages, attorney fees, reinstatement in her old position, and a permanent injunction against Hearst from future discrimination or retaliation against her.

Bell alleges that her comments were motivated by her concern for the African American community in the wake of the shooting, and that WTAE encouraged her to use social media to engage with viewers. After her firing, she shared with AP that she was incensed that the media was focusing on her firing, rather than the inner-city problems to which she was trying to draw attention.

“What matters is what’s going on in America, and it is the death of black people in this country,” Bell said. “I live next to three war-torn communities in the city of Pittsburgh, that I love dearly. My stories, they struck a nerve. They touched people, but it’s not enough. More needs to be done. The problem needs to be addressed.”

Her lawsuit says that WTAE’s claim of violation of station ethical and journalistic standards lacks merit, given that two other WTAE employees committed similar actions without being fired. Also in her favor is that Bell was so readily terminated rather than just being given a warning, even though she was not on probation or in any trouble in her job at the time. That seems extreme, especially considering that Bell had been with the station since 1998, winning 21 Emmys.

In order to dismiss the claims in Bell’s lawsuit, WTAE carries the burden of showing that Bell was made aware of the company’s policy regarding comments on social media and that she violated that policy. That might be tough for them, given that, at the time Bell made her comments, WTAE did not have a clear-cut policy governing their employees’ conduct on social media. Without a policy in place, the station was unable to place Bell on notice that her conduct could potentially serve as grounds for termination.

While we wait for WTAE’s answer and the rest of the case to shake out, lessons can be learned on both sides.

Employers place themselves at risk if they lack a crystal clear, written policy governing their employees’ actions on social media that states what behavior is acceptable — or grounds for termination. This is especially important if you have employees who, like Bell, are public figures who are the face of the company. Many businesses, like WTAE, now see the benefit in using social media to promote themselves and their employees, and engage with their constituents. Although this practice makes them more accessible and provides them with valuable exposure and information, it also opens a Pandora’s box of liability if there are not strict rules governing these interactions.

Also, employees, especially those that are the public face of their employer, place themselves at risk whenever they post on social media. Bell’s roll as a newscaster places her in the position of representing the station when engaging with the public, whether at a real-life event or with commenters on social media. Despite claiming she had the best of intentions, the public’s interpretation of her comments as racist ultimately set off a chain of events that resulted in termination. You cannot control what happens downstream, so to speak. Keeping this in mind, employees, even when engaging on social media in a personal capacity, should err on the side of caution.

As an attorney specializing in employment law, I’ve often seen employers use social media posts, text messages and tweets as excuses to fire employees, or at least censure them. For example, a seemingly innocent “having the time of my life” Facebook photo post can be used to discredit an employee — especially if, say, the employee called in sick that day or is on disability leave.

People frequently disclose too much about themselves on social media, and often at the wrong time. That is why I instruct clients not to post anything on social media while a case is pending.

Employees may contend they have a right of privacy, at least as to their own social media. But this stopped being the case with the California Court of Appeal decision in Moreno v. Hanford Sentinel Inc. (2009) 172 Cal.App.4th 1125. The court found that by posting on Myspace.com, the material on the plaintiff’s profile was provided “to the public at large. Her potential audience was vast.” The court reasoned that Myspace.com is “a hugely popular internet site,” and that “no reasonable person would have had an expectation of privacy” regarding postings on the site. Despite whatever privacy settings an employee may have in place, social-networking sites are not private, because profiles are available for so many to see.

While this advice has existed for quite some time in one form or another, social media has created novel problems for both employees and employers when it comes to expressing personal views. The rapid speed at which information moves across different social media platforms and the digital trail left in its wake have changed the game. Posts can quickly go viral, being shared by users, bloggers and news outlets on multiple platforms hundreds or thousands of times over the course of a few hours. This makes it almost impossible to get ahead of and manage any negative or problematic interactions employees and businesses have with the public. Thus, it is important that users understand the full impact of their actions online and their employer’s expectations for their behavior before posting their views on social media.

So, before you post to social media, think twice about the possible ripple effects. As Wendy Bell learned the hard way, a post aimed at drawing attention to an unfortunate economic statistic can turn you into one.

—By Zachary Cantor, Cantor Law

Zachary Cantor is a principal at Cantor Law in Santa Monica, California.

Legal View: Transgender community still faces more legal discrimination than many realize

By Zachary Cantor, Principal, Cantor Law
By Zachary Cantor
Principal, Cantor Law

JUN. 10, 2016, 1:48 PM Santa Monica Mirror  As the LGBT community in Los Angeles gets ready to celebrate nearly half a century of civil rights progress during this weekend’s Pride Festival, most states across the country do not provide any protection for their LGBT residents in critical areas of life, such as employment, housing and qualification for loans.

As a transsexual, you might now have the right to marry your partner and choose whichever bathroom suits you at work; but in most states, you can still get fired or evicted for your gender identity or sexual orientation.

For example, in Arkansas, if your landlord found out about your sexual orientation or gender identity, you could be evicted and then denied credit. Under federal law, this discrimination is legal.

Sexual orientation isn’t specifically covered in Title VII of the 1964 Civil Rights Act, which prohibits discrimination based on sex, age, race, gender, religion, national origin, and disability. Fortunately, California has its own additional protections under the Fair Employment and Housing Act.

Yet, in the 29 states that do not have their own statutes, it’s legal for employers, landlords and loan officers to discriminate. Legal discrimination is given extra strength in three Bible-belt states – Arkansas, Tennessee and North Carolina – which prevent passage or enforcement of local nondiscrimination laws.

Even so, California’s LGBT community continues to face workplace discrimination. A recent case out of El Monte shows how fortunate Californians are to have anti-discrimination laws in place.

Wells Fargo was sued for discrimination and harassment last July, and settled last month, after firing a transgender employee. Wells Fargo – coincidentally, a major sponsor for this weekend’s Pride Festival – was sued by a former employee who said she was fired after she began to transition from a man to a woman.

The settlement demonstrates the legal weight behind the protections that California employees are afforded. But in most of the country, that woman would just be out of luck – and without recourse.

Unfortunately, Congress has yet to pass the Employment Non-Discrimination Act (ENDA), which would provide the gay and transgender workforce crucial protections against workplace discrimination based on a person’s real or perceived sexual orientation or gender identity.

Until Congress passes ENDA, or an amendment explicitly including sexual orientation under Title VII, or unless someone files a discrimination suit that makes its way to the Supreme Court for a broad ruling, the only hope for change is from the states themselves.

Still, the Equal Employment Opportunity Commission (EEOC) has taken steps in recent decisions to expand the definition of sex discrimination under Title VII to include sexual orientation and gender identity. While not recognizing any new Title VII protections, it has applied existing precedents to sex discrimination claims raised by LGBT individuals.

Take the case of Mia Macy, of Phoenix, who in 2010, presenting as a man, completed a telephone job interview with the federal Bureau of Alcohol, Tobacco and Firearms and was told the job was hers. While her background check was under way, she informed the ATF that she was transitioning into a woman. Five days later she was told the job went to someone else.

The EEOC held that because a person’s gender identity, by definition, is based on sex, intentional discrimination against a transgender individual violated Title VII. Last year, in a complaint against the U.S. Army, the EEOC held that an employer’s restrictions on a transgender woman’s ability to use a common female restroom facility also constitutes disparate treatment.

But many federal courts remain hesitant to apply the EEOC’s expanded sex discrimination definition to private employers.

Meanwhile, it’s important for Californians to know their rights, and the steps to take, if they suspect they are being discriminated against because of their sexual orientation or identity.

As an employment attorney, I advise my clients to first follow the company’s policies and procedures in filing a formal complaint in writing (preferably email), and document, also in writing, disparate treatment and harassment. If you’ve tried working within your company to remedy the hostility and are still fired, demoted, or retaliated against, then it’s time to call an attorney.

Zachary Cantor is an employment attorney and principal of Cantor Law of Santa Monica. He can be reached at info@cantorlawyers.com or 213.674.0325.

Supreme Court Free Speech Ruling Bolsters Employee Rights

Law360, New York (May 5, 2016, 11:52 AM ET)

Zachary Cantor %>
Zachary Cantor

For employees, exercising one’s right to free speech can be a slippery slope, especially when the boss doesn’t like the message. But thanks to the U.S. Supreme Court’s new decision in the case of demoted Paterson, New Jersey, police detective Jeffrey Heffernan, that right just got a little stronger.

Heffernan, a 20-year veteran of the force, was promoted to detective in 2005 and given a choice assignment in the police chief’s office. During the 2006 mayoral campaign, a yard sign was stolen from in front of his mother’s house, and she asked Heffernan to get her a replacement. The sign happened to support the mayor’s opponent.

While off duty, Heffernan went to the challenger’s campaign office, where he was spotted holding a sign and chatting with campaign workers. Word spread quickly back at the police chief’s office, where the chief assumed — wrongly — that Heffernan was actively supporting the mayor’s opponent.

Heffernan was forced back to walking the beat, a demotion that cost him money and weekends off. After he retired and sued, complaining his First Amendment rights were violated, a jury awarded him $105,000 in damages. But an appellate court subsequently set the judgment aside, concluding that, because Heffernan was not in fact campaigning for the mayor’s opponent, he was not exercising any free speech right.

On April 26, the Supreme Court disagreed. It held that, regardless of whether Heffernan was doing what his employers thought he was doing or what he claimed he was doing, his employer’s intent was clearly to restrain protected speech. The justices therefore restored Heffernan’s standing to sue.

This is where a new door has opened. It is now clear that the intent of the employer is more important than the intent of the employee in determining whether an employer’s policies illegally chilled protected speech. For employees, this is great news although, in this day and age, these issues are much more likely to arise from a social media posting than a yard sign.

If Heffernan had posted negative comments about the mayor on Facebook, the city would still have been on shaky ground in demoting him. That’s because the mayor is at once a political figure and also essentially his employer — and in the chain of supervisors.

The National Labor Relations Act Section 8(a)(1) (29 U.S.C. Section 158(a)(1)) protects employees’ rights to engage in “protected concerted activities.” Specifically, it makes it an unfair labor practice to violate Section 7 rights. Most people associate protected concerted activities with union activity. And in most cases, such an association is accurate. But Section 7 broadly defines “concerted” activity. Section 7 says, “Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection …” Thus, Section 8(a)(1) may also protect concerted activity that is not specifically union oriented.

Although the NLRA is primarily concerned with union organization, the “concerted” requirement of Section 7 for “other mutual aid and protection” is not literally construed to provide protection solely to employee activity involving union organization. Some examples of such activities include: two or more employees addressing their employer about improving their working conditions and pay; one employee speaking to his or her employer on behalf of him or herself and one or more co-workers about improving workplace conditions; and two or more employees discussing pay or other work-related issues with each other. In determining whether an employee’s activity is concerted, the board has looked to the purpose and effect of the employee’s actions.

Essentially, the NLRA protects one employee speaking to another — a co-worker or workers employed elsewhere — seeking to enlist support on a matter of shared employee concern. And it should make no difference that the communication is made face-to-face or electronically.

For example, when the National Labor Relations Board‘s Hartford, Connecticut, office filed a complaint against American Medical Response of Connecticut Inc. (AMR), alleging that the ambulance service illegally terminated an employee for her postings on Facebook, AMR’s policy was deemed illegal. The employee posted a negative remark about the supervisor on her personal Facebook page, from her home computer. Her remarks drew supportive responses from her co-workers. And these comments set off a further spate of negative comments about the supervisor from the employee.

Significantly, the company’s Internet policy barred employees from making disparaging remarks when discussing the company or supervisors. Consequently, the employee was fired three weeks later. The NLRB’s complaint alleged, among other things, that the company “maintained and enforced an overly broad blogging and Internet posting policy.” AMR’s Facebook rule improperly limited employees’ rights to discuss working conditions among themselves. The main problem was that the policy prohibited employees from making “disparaging” or “discriminatory” “comments when discussing the company or the employee’s superiors” and “co-workers.”

Whether it takes place on Facebook or at the water cooler, employees have a right to discuss working conditions — in this case, their supervisor’s conduct.

Still, whether Section 7 protects such remarks may depend on with whom the employee communicated. If a worker lashes out in a post against a supervisor but is not communicating with co-workers, that type of comment might not be protected. If the Facebook conversation involves several co-workers, however, it is far more likely to be viewed as “concerted protected activity.” But employees might cross into unprotected territory if they disparage supervisors over something unrelated to work — for instance, a supervisor’s libido — or if their statements are patently fallacious.

Rather than creating ineffective, overly broad policies forbidding any online mentions of the workplace, employers will have to manage online employee speech like they already handle offline speech: carefully. For instance, it is likely safe to proscribe speech that shows poor judgment, undermines the employer in public or creates a hostile work environment. But it is a thin line between “protected concerted activities” and other employee communications.

A recent NLRB advice memorandum may provide some additional guidance for a sound social media policy. There, the NLRB challenged Sears’ social media policy, which forbade “disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy and business prospects” on social networks. The NLRB determined that the policy was an acceptable one, since employees were still able to talk among themselves in a private Yahoo group.

The Sears company rule appeared in a list of plainly egregious conduct, such as employee conversations involving the employer’s proprietary information, explicit sexual references, disparagement of race or religion, obscenity or profanity, and references to illegal drugs. The policy preamble further explained that it was designed to protect the employer and its employees rather than to “restrict the flow of useful and appropriate information.” Because no complaint was issued, the question did not reach the board for adjudication. But the board did advise that, taken as a whole, the policy contained sufficient examples and explanation of purpose for a reasonable employee to understand that it did not prohibit Section 7 protected complaints about the employer or working conditions. Rather, it prohibited the online sharing of confidential intellectual property or egregiously inappropriate language.

The NLRB opined that the appropriate inquiry is whether the rule in question would “reasonably tend to chill employees in the exercise of their Section 7 rights.” The NLRB analyzed the issue under the framework set forth in Lutheran Heritage Village – Livonia, 343 NLRB 646 (2004), a case that dealt with a rule prohibiting certain types of interactions in the workplace.

The union in that case argued that workplace rules prohibiting “abusive and profane language,” “harassment,” and “verbal, mental and physical abuse” unlawfully chilled union activity. The board announced a three-part test to determine the validity of rules that do not explicitly forbid activity protected by Section 7 of the NLRA. Under that test, a rule is only unlawful if: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” The board in Lutheran Heritage Village found that the test was not met, so the rules prohibiting “abusive and profane language,” “harassment” and “verbal, mental and physical abuse” were lawful.

The Supreme Court in the Heffernan case has expanded the definition of protected speech for employees, and has squarely shifted the onus to employers to prove their policies and procedures are not intended to chill protected discourse.

In view of this, all employers should be explicit and as detailed as possible when crafting their social media policy.

And employees should be mindful about whether their social media posts are related to working conditions, pay or political speech. An employer’s policy must convey that the purpose is not to inhibit protected employee communications, such as those concerning workers’ rights, working conditions or harassment. Rather, it should explain that while employees are encouraged to voice their grievances, the company also has a duty to maintain a safe, harassment- and discrimination-free workplace.

Employers should even provide examples of specific instances of prohibited and protected speech. Moreover, employees should sign off on the fact that they have read, understood and had an opportunity to inquire about any confusion regarding the policy.

—By Zachary Cantor, Cantor Law

Zachary Cantor is a principal at Cantor Law in Santa Monica, California.

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Do Schools Need Schooling On Sexual Harassment?

Law360, New York (April 5, 2016, 10:57 AM ET)

Zachary Cantor %>
Zachary Cantor

If you want to learn how sexual harassment laws are supposed to work, don’t go to school.

Or at least, check the place out first because, judging by some recent media articles, some schools have had more than their fair share of sexual harassment complaints, with the handling of the cases being so disparate they could make even a seasoned employment lawyer briefly struggle to remember where the lines are drawn.

  • At the California Institute of Technology in Pasadena, California, there was a true “Big Bang Theory” dilemma when bright young astrophysics professor Christian Ott confided in one graduate student that he had feelings for another graduate student who had since been fired from a similar position. Even though he never laid a hand on either woman or was unfaithful to his wife, once the confidante betrayed Ott’s confidence, Ott found himself moved off campus permanently and suspended without pay for a year;
  • The Los Angeles Times reported last week that a university provost at University of California, Berkeley allowed the dean of the Berkeley Law School to remain in his post after he repeatedly kissed and fondled a student in an unwelcome manner. The provost, Claude Steele, ordered a 10 percent cut in Dean Sujit Choudhry’s $415,000 annual salary, and required him to attend counseling and to apologize to the assistant. Did the dean get off easy because of administration politics? The disciplining provost was being vetted for a law school faculty appointment just as he was supposedly investigating and disciplining the dean for alleged sexual harassment;
  • In Florida, a female student who playfully pinched a male student’s butt was arrested and charged with misdemeanor battery. Okay, finally some tough love. Problem is, the offending student is 12 years old; and
  • In Alabama — the state with the highest recorded rate of trysts between teachers and students — lawmakers are considering a bill that would require all teachers to take training in how not to have sex with their students. In the month since the bill was first introduced, at least one Alabama school worker was either arrested or convicted each week for having sex with a student.

Shouldn’t established law guide these schools to avoid such wide discrepancies in corrective action? Subtle differences between student/teacher vs. employee/supervisor may be one reason for the diversity; and subtle differences between federal and California law may be another. Another reason also may be that in one scenario, the instances of inappropriate conduct were not severe or pervasive enough to be illegal (albeit still inappropriate).

California’s Fair Employment and Housing Act (FEHA) declares it to be “the public policy of the state to protect the rights of all persons to seek and hold employment without discrimination on account of sex or other protected classifications.” In State Department of Health Services v. Superior Court, the California Court of Appeal pointed out that California’s FEHA differs from Title VII in that the FEHA “explicitly mentions harassment as an unlawful employment practice” whereas Title VII does not.

While Title VII requires a tangible employment action, California courts have held that employers are strictly and vicariously liable for sexual harassment of an employee by a supervisor under the FEHA, whether the harassment culminated in a tangible employment action or not. California courts have simply referred to this kind of employer liability as “strict liability” or “vicarious liability”.

The 2003 Ninth Circuit Court of Appeal case of Holly D. v. California Institute of Technology is instructive. Plaintiff Holly D., a 47-year-old woman, claimed that in order to keep her job at Caltech, she was forced to engage in sexual relations with the professor for whom she worked. Although she was never told that she would be fired, demoted or otherwise penalized if she refused, Holly D. claimed there was an implication that her continued employment depended on her complying with the professor’s unwelcome sexual advances. Holly D. alleges that she did, in fact, engage in unwanted sexual acts, and that the sexual liaison continued over more than a year.

She did not contend, however, that the professor used physical force to coerce sex, or that he explicitly threatened her with job-related consequences if she did not have sex with him. For example, the first encounter occurred when the professor asked what “turned her on.” Holly D. replied, “When people talk dirty.” The professor then asked, “Well, will you suck my dick?” Holly D. replied, “Yes.”

Nevertheless, Holly D. relied on what she believed to be indications that her job depended on her sexual submission. She stated that, after the sexual relationship had begun, there were times when she rebuffed his advances and the professor became “supercritical” of her work performance; but she could “neutralize” it by giving in to his sexual demands.” Because Holly D. concluded that she could mitigate what she characterized as unreasonable and potentially job-threatening criticism by performing sexual acts, she asserted that she was able to establish that she was forced to commence and maintain the sexual relationship in order to keep her employment.

She later filed a lawsuit against both the university and the professor, asserting claims under Title VII as well as a claim of sexual harassment under California’s FEHA.

The Ninth Circuit held that she produced no evidence whatsoever connecting any discussion of her job duties with the professor’s requests that she engage in sexual acts with him. Nor was there any evidence that the professor ever mentioned any potential change in her employment status, or indeed any job-related matters or problems, during any discussion regarding her participation in sexual acts with him, or while actually engaged in such acts. The employee presented no evidence that would cause a reasonable woman in her position to believe that the professor suggested, directly or indirectly, the existence of a connection between her job security and his requests for sex.

Still, the court held that although her allegations against the university properly would have supported a claim under the hostile environment prong of Title VII, and while she presented sufficient evidence to establish a prima facie case of such harassment, the university established the affirmative reasonable care defense. Interestingly, the Ninth Circuit dismissed her Title VII claims, but remanded the case to state court to adjudicate the plaintiff’s claims under the FEHA “because of the particular facts and procedural history of the case.”

Under Title IX of Education Amendments of 1972, 20 U.S.C. § 1681 et seq., private right of action may lie against a recipient of Title IX funding, such as a school board, in cases of “student-on-student” harassment when (1) the recipient acts with deliberate indifference to known acts of harassment in its programs or activities, (2) the harasser is under school’s disciplinary authority, and (3) the harassment is so severe, pervasive and objectively offensive that it effectively bars the victim’s access to educational opportunity or benefit.

The 1998 case of Gebser v. Lago Vista Independent School District held that the standard of liability for teacher-to-student sexual harassment in the schools is intentional discrimination. To meet the standard, the student must show that the school district knew of the harassment, failed to take action to correct it, and that the failure amounted to deliberate indifference to the discrimination.

For example, in Oden v. Northern Marianas College (2002), the Ninth Circuit Court of Appeal held a student’s action under Title IX was properly dismissed on summary judgment, because the college was not deliberately indifferent. When the college became aware of alleged sexual harassment by a teacher, the college: provided the student with counselors to assist her in documenting and presenting her case before the school’s committee on sexual harassment; provided her with one-on-one counseling sessions; instructed the teacher against whom the harassment was alleged to avoid contact with the student alleging harassment; conducted a hearing; concluded that the teacher had sexually harassed the student; and imposed a number of disciplinary sanctions on the teacher.

The contours of the actual notice requirement under Title IX remain unclear. The U.S. district courts favor actual notice of a “substantial risk” as the appropriate standard, although some courts have held that this standard means actual notice of current abuse or such a strong likelihood of abuse that the abuse is almost certain to occur. The actual notice and deliberate indifference standards are intended to provide students with some means of protection and redress from teacher-to-student and peer sexual harassment, while providing school districts with notice and opportunity to take action to avoid liability.

Back to the recent UC Berkeley harassment case: It is clear that remedial measures were inadequate. Moreover, that a more objective committee did not oversee the investigation further highlights the university’s failure. Indeed, a coalition of 13 Berkeley law journals issued a joint statement rightly condemning the entire affair: “Too often, the safety of women is subordinated to the career interests of men,” the statement said. “Until there is a real threat of serious sanctions, up to and including termination, we can only expect sexual harassment and assault to recur.” I would contend that gender does not play as large of a role as does the powerful vs. the powerless. But, I agree that the consequences for the UC provost were too lenient.

And, based on the facts laid out about the Caltech professor, the punishment may have been appropriate. There was no alleged touching. But, because of the allegation that he fired the assistant “because of his feelings” (which Ott denies), the school needed to firmly educate and sanction the professor.

In Florida, however, I have to concur with the girl’s father, who told reporters, “Kids can’t even be kids” these days.

Too often, the administrators whose job is supposedly to protect the student or worker are really looking out for themselves and the company or school, which can result in very uneven outcomes. Luckily, there are state and federal administrative agencies, and the civil court system, to enforce the law.

So what does this mean? It means employees and students alike should document and notify employers and schools of inappropriate behavior. Always.

At the same time, school administrators and employers should thoroughly investigate all allegations of sexual harassment and document all measures taken to remedy the situation so as not to be seen as indifferent.

—By Zachary Cantor, Cantor Law

Zachary Cantor is a principal at Cantor Law in Santa Monica, California.

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Legal View

Santa Monica Mirror

By Zachary Cantor, Principal, Cantor Law

By Zachary Cantor, Principal, Cantor Law
 POSTED JUN. 10, 2016, 1:48 PM MIRROR STAFF

As the LGBT community in Los Angeles gets ready to celebrate nearly half a century of civil rights progress during this weekend’s Pride Festival, most states across the country do not provide any protection for their LGBT residents in critical areas of life, such as employment, housing and qualification for loans.

As a transsexual, you might now have the right to marry your partner and choose whichever bathroom suits you at work; but in most states, you can still get fired or evicted for your gender identity or sexual orientation.

For example, in Arkansas, if your landlord found out about your sexual orientation or gender identity, you could be evicted and then denied credit. Under federal law, this discrimination is legal.

Sexual orientation isn’t specifically covered in Title VII of the 1964 Civil Rights Act, which prohibits discrimination based on sex, age, race, gender, religion, national origin, and disability. Fortunately, California has its own additional protections under the Fair Employment and Housing Act.

Yet, in the 29 states that do not have their own statutes, it’s legal for employers, landlords and loan officers to discriminate. Legal discrimination is given extra strength in three Bible-belt states – Arkansas, Tennessee and North Carolina – which prevent passage or enforcement of local nondiscrimination laws.

Even so, California’s LGBT community continues to face workplace discrimination. A recent case out of El Monte shows how fortunate Californians are to have anti-discrimination laws in place.

Wells Fargo was sued for discrimination and harassment last July, and settled last month, after firing a transgender employee. Wells Fargo – coincidentally, a major sponsor for this weekend’s Pride Festival – was sued by a former employee who said she was fired after she began to transition from a man to a woman.

The settlement demonstrates the legal weight behind the protections that California employees are afforded. But in most of the country, that woman would just be out of luck – and without recourse.

Unfortunately, Congress has yet to pass the Employment Non-Discrimination Act (ENDA), which would provide the gay and transgender workforce crucial protections against workplace discrimination based on a person’s real or perceived sexual orientation or gender identity.

Until Congress passes ENDA, or an amendment explicitly including sexual orientation under Title VII, or unless someone files a discrimination suit that makes its way to the Supreme Court for a broad ruling, the only hope for change is from the states themselves.

Still, the Equal Employment Opportunity Commission (EEOC) has taken steps in recent decisions to expand the definition of sex discrimination under Title VII to include sexual orientation and gender identity. While not recognizing any new Title VII protections, it has applied existing precedents to sex discrimination claims raised by LGBT individuals.

Take the case of Mia Macy, of Phoenix, who in 2010, presenting as a man, completed a telephone job interview with the federal Bureau of Alcohol, Tobacco and Firearms and was told the job was hers. While her background check was under way, she informed the ATF that she was transitioning into a woman. Five days later she was told the job went to someone else.

The EEOC held that because a person’s gender identity, by definition, is based on sex, intentional discrimination against a transgender individual violated Title VII. Last year, in a complaint against the U.S. Army, the EEOC held that an employer’s restrictions on a transgender woman’s ability to use a common female restroom facility also constitutes disparate treatment.

But many federal courts remain hesitant to apply the EEOC’s expanded sex discrimination definition to private employers.

Meanwhile, it’s important for Californians to know their rights, and the steps to take, if they suspect they are being discriminated against because of their sexual orientation or identity.

As an employment attorney, I advise my clients to first follow the company’s policies and procedures in filing a formal complaint in writing (preferably email), and document, also in writing, disparate treatment and harassment. If you’ve tried working within your company to remedy the hostility and are still fired, demoted, or retaliated against, then it’s time to call an attorney.

Zachary Cantor is an employment attorney and principal of Cantor Law of Santa Monica. He can be reached at info@cantorlawyers.com or 213.674.0325.

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How to Avoid Getting Canned For Taking a Naked Selfie

(LawNewz.com)

by | 11:11 am, March 14th, 2016

Zachary Cantor is an employment attorney and  principal of Cantor Law of Santa Monica, Calif.

Is it a problem to have a nude photo of yourself on your cellphone?

It sure turned into one for Leigh Anne Arthur, who was forced to resign her South Carolina high school teaching job of 13 years after a student got a personal photo off her cell phone and circulated it to classmates via text and social media.

Arthur, 33, told police on Feb. 18 that while she stepped out of her classroom, a boy took her unlocked smartphone from her desk, opened the photos app and found a nude selfie she had taken for her husband for Valentine’s Day, the Associated Press reported.

Although the 16-year-old student was charged by authorities with violating the state’s computer crime act and with aggravated voyeurism, should Arthur also have been held accountable— in the loss of her job—for unknowingly exposing her students to an explicit photo?

As an attorney specializing in employment law, I’ve often seen employers use social media posts, text messages and tweets as excuses to fire employees, or at least censure them.  For example, a seemingly innocent “having the time of my life” Facebook photo post can be used to discredit an employee.  People frequently disclose too much about themselves on social media, and often at the wrong time.  That is why I instruct clients not to post anything on social media while a case is pending.

Employees may contend they have a right of privacy, at least as to their own social media.  But this stopped being the case with the California Court of Appeal decision in Moreno v. Hanford Sentinel, Inc.(2009) 172 Cal.App.4th 1125.  The court found that by posting on Myspace.com, the material on the plaintiff profile was provided “to the public at large.  Her potential audience was vast.”  The court reasoned that Myspace.com is “a hugely popular Internet site,” and that “no reasonable person would have had an expectation of privacy” regarding postings on the site.  Despite whatever privacy settings an employee may have in place, social-networking sites are not private, because profiles are available for so many to see.

Your privacy also goes out the window when you’re posting from your employer’s computer.

In Holmes v. Petrovich Development Co., LLC  (2011) 191 Cal.App.4th 1047, 1069, an employee e-mailed her attorney over her company computer with the particulars of a potential sexual harassment claim.

But company policy—of which Holmes was well aware—provided that company computers were to be used only for company business; the company could monitor its computers for compliance with this policy and thus could “inspect all files and messages at any time.”  It also stated that employees “have no right of privacy with respect to that information or message.”  The court declined to uphold attorney-client privilege because Holmes knew third parties could have listened in.

These days, we should be aware of and accustomed to surveillance.  In the age of red light cameras and global positioning satellites, we tend to ignore all of these electronic eyes.  We act as if our tweets, posts and texts are hidden from public view, even when we are using company-issued electronic devices.  But the trend in the law is just the opposite; rather than creating a broad expectation of privacy, theHolmes decision ushered in a new expectation of responsibility.

This is why the onus is wholly on attorneys, employees and employers to use discretion.  We must act as if every tweet, post and text could end up splashed across the front page of the Times, or as an exhibit at trial.

Still, what does this mean for private information on a password-protected phone?

Simply put, if a phone belongs to the employer, a password may not save the employee’s job—though it may limit the passerby from snooping and disseminating intimate photos.

Thus, two questions will determine the outcome of Leigh Anne Arthur’s case: 1) Regardless of whether the phone is hers or her employer’s, what was the employer’s policy about phone use and accessibility?

And 2) Given the open and vulnerable nature of a classroom environment, should she have been expected to lock and encrypt the phone?

It appears that both the teacher and the student were irresponsible.  While Arthur clearly has a privacy interest in her phone’s contents, she is expected as a teacher to be extra vigilant about keeping inappropriate stimuli away from children.  The student, on the other hand, cannot evade responsibility for snooping inside the teachers phone, because even an unlocked device requires additional steps to find and forward a photo.

In this digital age, private space and public domain are usually just a click away.  Ultimately, the lesson from Leigh Anne Arthur’s case and the court decisions above are that responsibility is the only guidepost in navigating between the “real world” and the “digital world.”

So, if you wouldn’t want your grandmother to see it or you wouldn’t want to explain it to a jury, keep it off your phone.  And for heaven’s sake, don’t post it!

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California Disability Discrimination Protection Expanded
Published on May 19, 2016

Zachary Cantor
Principal at Cantor Law
Not only is it illegal for an employer to discriminate against a disabled employee, it is illegal to discriminate against an employee the company perceives to be or treats as disabled or as having a condition that could become disabling. Now, the court of appeal in Castro-Ramirez v. Dependable Highway Express, Inc. (Cal. App. 2d Dist. 2016) 246 Cal. App. 4th 180, has expanded protection to an applicant or employee who was associated with a disabled person.

In Castro-Ramirez v. Dependable Highway Express, Inc., an employee sued his former employer, alleging causes of action for disability discrimination, failure to prevent discrimination, and retaliation under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), as well as wrongful termination in violation of public policy. The employee’s son required daily dialysis, and according to the evidence, the employee had to be the one to administer the dialysis. For several years, the employee’s supervisors scheduled him so that he could be home at night for his son’s dialysis. That schedule accommodation changed when a new supervisor took over and ultimately terminated the employee for refusing to work a shift that did not permit him to be home in time for his son’s dialysis. (Superior Court of Los Angeles County, No. BC511197, Richard L. Fruin, Jr., Judge.)

The Court of Appeal reversed, holding that FEHA creates a duty to provide reasonable accommodations to an applicant or employee who is associated with a disabled person according to the plain language of the act. The employer failed to show it was entitled to summary adjudication of the employee’s disability discrimination cause of action. If the employee could perform the essential functions of his job with reasonable accommodation for his son’s disability, and his son’s disability substantially motivated his termination, then the employer could be liable for associational disability discrimination. The employee’s evidence gave rise to reasonable inferences of discriminatory motive and pretext. The employee had been able to perform satisfactorily for over three years with the accommodations to the schedule that previous supervisors provided, and his termination for refusal to work the shift was a pretext for the desire of the new supervisor, who was responsible for scheduling, to be rid of someone whose disabled associate made the supervisor’s job more difficult. The employee had demonstrated triable issues of material fact on his retaliation cause of action. The trier of fact could reasonably find that his repeated complaints to his former supervisor and to the supervisor about the change in his scheduling, when both knew that he required earlier hours to administer dialysis to his son, constituted opposition to the denial of a reasonable accommodation in his schedule.