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December

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December

Avoiding Discrimination and Harassment at Holiday Parties

Every year, my firm receives multiple phone calls from people who have been the victim of some form of harassment or discrimination at company-sponsored holiday parties. Once again, the holiday season is upon us and we hope that, if everyone thinks ahead, many of the potential pitfalls can be averted so that everyone can enjoy the parties.

End-of-year holiday parties have a particular potential for sexual, religious, and other forms of harassment because a number of unique factors are at play at these types of functions. First, holiday parties often take place at a location away from the worksite. This factor alone can lead to the relaxing of the behaviors people tend to understand as “workplace appropriate.” The fact that people are interacting in much more social environment than usual also adds to the tendency for people to stray from workplace norms, a tendency often exacerbated by the often accepted use of alcohol at these events. This combination can be recipe for bad things to happen.

It is important to remember that, in addition to any individual offending employees, employers can also be held liable (1) if they have failed to take steps to prevent discrimination and harassment, (2) if they know or should know about the conduct and fail to promptly and sufficiently put a stop to the conduct, or (3) if when the harassment is done by an owner, officer, director, manager or supervisor. In addition to continuing to follow all ordinary legal requirements to inform and train employees regarding their rights and responsibilities regarding improper discrimination and harassment, employers seeking to avoid liability for victims’ potential economic losses, emotional recovery, and even punitive damages should be especially mindful to ensure professional boundaries are maintained throughout holiday festivities.

The good news is that there are many steps employers can take to minimize the dangers of harassment. Invitations and announcements for work-sponsored holiday events, for example, can and should provide explicit guidance that all harassment and discrimination policies in place at work are applicable to holiday parties as well. Supervisors can remind staff that although co-workers will be interacting socially, they must treat each other with the respect they do in the workplace and set clear guidelines for what is expected. Archaic traditions, such as kissing under the mistletoe, that serve to legitimize and trivialize sexual harassment need to be left in the past.

If the employer is hosting the bar, a limitation on the number of drinks can keep people from overindulging. No good has ever come from a person overdrinking at a holiday party. Another crucial step to mitigate potential problems can be making sure, in advance, that everyone has a safe way to get home from holiday parties. This simple proactive gesture might save an employee from getting a DUI and, equally important, ensure that an intoxicated worker is not harrassed or coerced to accept a ride home from someone with ill intent.

Another area of concern at holiday parties can be religious discrimination and harassment. Not everyone celebrates Christmas. People of other faiths should not feel pressure to participate in a religious-based holiday, or to have to explain why they choose not to. Most religions have a mid-winter holiday, so holding ecumenical festivities can be a way of respecting all employees’ cultural traditions while celebrating the end of the year together.

Finally, if the employer hosts a gift exchange or “secret santa” game at the holiday party, a clear understanding of what types of gifts are acceptable is imperative. Sexualized gifts may seem funny to some, but can be offensive and traumatic to others given their particular history of sexual harassment or abuse. Non-sexual joke gifts, too, can cross the line into illegal harassment. Just last year, my office proudly represented an African-American woman who was singled out to receive a particular gift at the holiday party: a purse with a confederate flag containing pictures of the employer dressed as President Trump with a sign indicated the south would “rise again.” Employers should take responsibility for ensuring that all holiday gifts are given in good will and with the same respect and sensitivity expected in the workplace.

When employers make expectations clear and plan ahead for the well-being of all their employees, it allows everyone to safely celebrate winter festivities together and ring in a new year of successful employee relations. Each employee can also help. Make sure you have a plan to get safely home. Don’t encourage overindulgence in alcohol. Think about how the gift you are giving may be received. Act with dignity and respect toward your co-workers.

 

Enjoy the party. Hopefully, this year Dolan Law Firm will not receive one of those unfortunate calls.

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Picking a scooter company

This week’s question comes from Quinton in San Francisco, who asks:

Q: “I have been reading your columns on the electric scooters being rented in San Francisco. Is there one scooter company which, from a legal perspective, you believe is better to rent from?”

A: Quinton, based upon my review of the terms and conditions set forth by Skip and Scoot, I do have an opinion: Scoot is the way to go. Not only does it provide you with a free helmet if you request one after signing up, Scoot Networks’ user contract binds the company to provide you with insurance benefits in the event of an accident with a third party or the theft of a scooter. Skip provides neither of these amenities. While both Skip and Scoot are required to maintain insurance with the San Francisco Metropolitan Transportation Authority, it is not clear from the permit language that those regulations require insurance for the benefit of the rider, in addition to the company.

Unfortunately, if you are injured in a collision with another vehicle, whether it’s your fault, the fault of another, or because of a defective product or a defective roadway, no scooter provider will offer you any insurance coverage for your medical bills, lost wages or personal injuries, so you should make sure you have good health insurance before you go riding. If you are harmed by the fault of another then contact an experienced trial lawyer, like myself, for a consultation on your rights.

However, Scoot’s terms of service require the company to provide ”third-party” liability coverage, up to $2,000,000, for damages arising from a rider’s non-negligent use. Third-party liability is implicated when someone, not a party to the agreement between the rider and Scoot or its insurance company, is injured by the rider. Additionally, If a scooter is stolen during the rental period through no fault of the rider, the customer will only be liable up to the deductible amount. You should make sure to follow all required procedures to close out your ride so that you are not deemed negligent and held fully financially responsible for the theft. By using their service, you also give the company the right to bring an action in your name (termed subrogation) against any third party which it believes may be responsible for any incident.

There are several conditions and limitations to Scoot’s insurance coverage. Any independent vehicle insurance you own will be applied first, before Scoot will become financially involved. It is important to note that this coverage requires the user to pay any and all deductible amounts (listed at $500 for the Bay Area) per claim that arises out of a collision. Therefore, if a claim is for less than the deductible, the user will be responsible for paying the entire claim and the third-party insurance does not “kick in.” Scoot also prohibits you from engaging with any other parties to negotiate any outside offer, promise of payment, settlement, waiver, release, indemnity, or admission of liability in relation to a collision.

Scoot provides itself a way out of providing this insurance if you do not strictly comply with all of its terms and conditions of use. Indeed, Scoot clearly states that it “does not cover damage due to User’s breach of the Terms and in such an event User will be responsible for the full cost of such damage.” Scoot’s Terms of Service can be found at scoot.co/legal/united-states/terms-of-service/. You should also familiarize yourself with their Collision and Insurance Policy: scoot.co/legal/united-states/collision-and-insurance-policy/. Those terms include obligations to contact the police and Scoot within one hour, fill out a police report and provide Scoot with a factual description as to how the incident occurred and other details concerning the incident. You will be required to submit the involved license plate numbers, makes and models of involved vehicles, involved drivers’ license numbers and contact information, insurance information, witness information and any information concerning insurance policies you have that may provide you with insurance coverage.

So, if you or someone else is injured and you are on a Scoot scooter make sure to call the police and get a police report. Make sure you get an incident report number, so you can request a copy of the report. If there is only property damage, the police usually will not respond, but you can file a “counter report” at the nearest police station. You can request a copy of the report online at https://sanfranciscopolice.org/traffic-collision-report. This usually takes 10 days to process.

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Scooter companies show no concern for users, pedestrians

Today’s article is a continuation of my open letter to Scoot, Skip and other providers of the electric, app-based, scooters that are littering our cities. For part 1, please visit “Time for scooter companies to be responsible” and stay tuned: I will inevitably need more than these two columns to provide my readers with the “full scoop” on the greedy and cynical way that scooter companies are behaving and endangering us all, riders and non-riders alike.

 

Your products present an unreasonable risk of harm to pedestrians, especially the disabled and visually impaired, who trip and fall over the unattended scooters. Many of the scooters are dark in color and not easily seen on a dark sidewalk. While one manufacturer has some lighting on their boards to make them more visible at night, most don’t. As a result, sidewalk, parking lot, and roadway obstructions often cannot be appreciated until someone gets injured by tripping or falling over a scooter. Unlike electric City Bikes, which must be docked to terminate the ride and end user liability, or Jump bikes, which include a locking mechanism for use only at suitable location, your scooters are not required to be returned to fixed or organized locations. Instead, they are left strewn about the sidewalk in random locations. While you “encourage” riders to park them safely, and San Francisco has an ordinance requiring that they be parked near and between certain objects to reduce tripping hazards, let’s face it: your users largely just get off and drop them wherever they want.

 

California’s basic liability law is contained in California Civil Code 1714 which reads:  “(a) Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” These scooters are YOUR PROPERTY and you are responsible to use care to manage that property. Suggesting that riders park safely does not get you off the hook if you are not taking reasonable steps to manage your property in a safe manner. You should fulfill your legal responsibility by adopting docking stations so that the scooters are left at pre-arranged, well-marked locations in a safe and organized fashion.

 

As a lawyer who represents unfortunate, blameless people who are injured by the “want of ordinary care” in the management of property, whether it be bikes, skateboards, electronically motorized boards, scooters, cars, slippery steps or driveways, collapsing staircases, unsafe balconies, etc., I would have no problem extending my use of the law to sue a scooter company on behalf of anyone who trips or falls over them.

 

Your products are endangering innocent property owners in many locations, such as Richmond, San Francisco, and other cities, where they are held responsible for the maintenance of the sidewalks in front of their buildings. As I previously noted in my April 20, 2017 column for this paper, “San Francisco is Obligated to Inspect Public Sidewalks for Hazards,” California State and Highways Code Section 5610 states that “owners of lots or portions of lots fronting any portion of a public street … shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property.” Likewise, San Francisco Public Works Code Section 706 mandates that “owners must maintain sidewalks surrounding their property in a reasonably safe condition.” If a landowner is aware of an obstruction and fails to remove it, they are exposed to financial liability for injuries sustained as a result of the obstruction. By allowing your customers to arbitrarily drop off scooters on sidewalks, where they sometimes cluster around certain buildings, you may cause landowners to be sued for not removing them.

 

Your terms and conditions are unconscionable and show your lack of concern for users. In your agreements, which you must know most customers fail to read before accepting, you include some of the most unbelievable, self-serving, and, in my opinion, unethical language seeking to shield you from any responsibility for the harms your products cause. It is unfathomable that you seek to escape responsibility from even improper maintenance of scooters, which can and will break and injure or kill people. You go even so far as to require injured riders to waive their rights against scooter manufacturers if the provided vehicle is defective in design or manufacturing.

 

SCOOTER RIDERS READ THIS CAREFULLY: These scooter contracts include provisions stating that users assume all risks of harm, injury and death, and release manufacturers and vendors from all liability caused by the use of their products, even if those companies are at fault for the injuries.

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