• Home
  • Offices
  • About Us
    • Our Firm
    • Client Testimonials
    • Extraordinary Successes
    • Legal Guides
    • Legal Definitions
    • Press Center
    • Referrals
    • Scholarship
    • Staff
  • Attorneys
  • Cases
    • Car, Bike & Motorcycle Crashes
    • Civil Rights Attorney
    • Elder Abuse & Neglect Attorney
    • Employment Attorney
    • San Francisco Personal Injury Attorney | Dolan Law Firm, PC
    • Uber Accidents & Lyft Crashes
    • California Fire Law
  • Blog
  • COVID-19 Guide
  • Espanol
  • Contact Us
Free Case Review415-421-2800

January

Home
/
2019
/
January

California starts year with laws targeting sexual harassment

Around this time every year, I write a series of articles on California’s new laws: laws which were passed through the legislature and signed by the Governor Jerry Brown last year, but did not come in to effect until Jan. 1, 2019. This week, I will focus on a bevy of new sexual harassment laws which owe their origins, in part, to the #MeToo movement. In response to the recent exposure of rampant sexual harassment in politics, the entertainment industry, and business, California has continued to demonstrate an aggressive and progressive agenda with the passage of major legislation supported by several key individual rights organizations, including the Consumer Attorneys of California and the California Employment Lawyers Association.

The first of these bills, Senate Bill 1300, sponsored by state Sen. Hanne Beth Jackson from the 19th Senate District, amended the Fair Employment and Housing Act (FEHA), the state statute already providing anti-discrimination and harassment protections for employees in the workplace. FEHA continues to hold employers, labor organizations, employment agencies, apprenticeship training programs, and other training programs leading to employment responsible for harassment of an employee or contractor by a supervisor or agent of the employer based on any protected classification, including race, sex, age, religious affiliation, disability, sexual orientation, or gender identity or expression. FEHA also continues holds employers responsible for harassment of employees based on protected classifications by any non-supervisory employee if the employer, its agents, or supervisors knew or should have known of the misconduct and failed to take immediate and appropriate corrective action.

However, up until now, FEHA has held an employer responsible for only sexual harassment, but not other forms of unlawful harassment based on other protected classifications, of employees by non-employees, again in circumstances where the employer, its agents, or supervisors knew or should have known of the conduct and failed to take immediate and appropriate corrective action. SB 1300 now extends the scope of protection from non-employee misconduct to include not only sexual harassment, but any form of unlawful harassment, i.e. based on age, race, national origin, religious affiliation, disability, sexual orientation, or gender identity or expression. The amended law further expands the pool of workers protected against non-employee harassment to interns, volunteers and contractors. An employer who fails to put a stop to such harassment that it knew of or should have known about can be sued and held liable for both financial losses and other personal harms caused to the harassed, such as anxiety, fear, and humiliation.

SB 1300 has also cracked the code of secrecy: in every case I’ve settled, whether before or after trial, in my 25 years of employment law practice, the defendant employer has demanded a “confidentiality clause” to make it a “secret settlement,” often imposing significant financial penalties for any disclosure of terms. With SB 1300 in effect, it is now illegal to condition new employment, continued employment, raises or bonuses on an employee releasing of any claim or right under FEHA, including by signing a non-disparagement agreement or other document that would deny the employee their right to disclose information about unlawful acts in the workplace.

Next, SB 224, also sponsored by state Sen. Jackson, amends the California Civil Code to expand the reach of sexual harassment claims to cover non-employment relationships. These amendments allow a plaintiff to prove a cause of action for sexual harassment against a defendant who held themself out as being able to help the plaintiff establish a business, service, or professional relationship. The class of potential defendants under SB 224 include investors, elected officials, lobbyists, directors, and producers …. can you say Harvey Weinstein?

Finally, SB 1343, introduced by state Sen. Holly Mitchell, expands anti-harassment training requirements to cover both smaller businesses and non-supervisory employees. Previously, FEHA has required employers with 50 or more employees to provide at least two hours of prescribed training and education regarding sexual harassment, abusive conduct, and harassment based upon gender to all supervisory employees within six months of their assumption of a supervisory position and then once every two years. Upon implementation of SB 134, all employers of five or more employees must now provide at least two hours of sexual harassment training to all supervisory employees, as well as at least one hour of sexual harassment training to all nonsupervisory employees, by Jan. 1, 2020 and then once every two years thereafter.

read more

Defending the right to vote

This week’s question comes from Chris F. in Bernal Heights, who writes:

Q:“I worked for a design and development firm until November 2018. I was working on a project in the Martinez/Vallejo area and we had a really tight schedule requiring lots of overtime. I wanted to vote in the election and, a week before Election Day, I told my supervisor that I wanted to come in a few hours late so I could vote. My boss, who is really conservative, told me that I couldn’t take time off, which would be a good thing since there would be one less “lefty liberal” voting in San Francisco. I went to my polling station first thing on Election Day and learned I wasn’t the only one who thought it would be a good idea to vote before work. I waited for about 20 minutes, voted, and then fought traffic to get to work. Given our overtime, had I not voted in the morning I probably wouldn’t have had a chance to vote. I got to work an hour and a half late. My boss was really pissed and yelled at me. When I said I was voting to “make America great again” he told me I was fired for being a no-show. Can he do this? I thought that I had a right to vote.”

A: Chris, it’s amazing how some people want to “make America great” by taking away voters’ rights. Your gut instinct is correct: you should not be disciplined or fired for exercising the right to vote, one of your most fundamental rights. California Elections Code § 14000 provides employees with the right to take reasonable time off to vote, without loss of pay, if a voter does not have sufficient time outside of working hours to vote in a statewide election. The law requires that the voter be allowed to take off enough working time that, when added to the voting time available outside of working hours, will enable the voter to vote, limited to two hours. The allowed time off for voting must be at the beginning or end of the regular working shift, whichever maximizes time for voting and minimizes time off from the regular working shift, unless otherwise mutually agreed. Section 14000(c) states that if a worker knows, or believes, on the third working day prior to the election, that time off will be necessary to be able to vote on election day, the employee must give the employer at least two working days notice. Collective bargaining agreement provisions, such as those contained within union labor contracts, intended to waive an employee’s right to pay for time taken off to vote have been held by the courts to be against public policy, contrary to express provision of law and invalid.

Your employer should not only have known and followed this law, he was also required to provide notice to all employees of their right to take paid time off to vote. California Elections Code § 14001 requires employers to, no later than 10 days before a statewide election, “keep posted conspicuously at the place of work, if practicable, or elsewhere where it can be seen as employees come or go to their place of work, a notice setting forth the provisions of Section 14000.”

It appears that you met the law’s requirements and, therefore, the conduct directed towards you was unlawfully retaliatory. An employer who terminates an employee for exercising their right to vote has engaged in “wrongful termination in violation of public policy.” A wrongfully terminated employee is entitled to recovery of economic damages such as lost wages and benefits, non-economic losses such as stress and emotional distress and, if the denial was the decision of an officer, director or “managing agent” of the employer, punitive damages.

Regarding your boss calling you a “lefty liberal,” indicating that he didn’t want you to vote because of your political leanings, that too is illegal. California Labor Code § 1101 states that no employer shall adopt or enforce any rule or policy forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. Likewise, it prohibits employers from controlling or directing, or tending to control or direct the political activities or affiliations of its employees. This prohibition not only covers which political party you vote for, but also other causes related to matters of public concern. Much of the recent case law on § 1101 arises out of the history of Proposition 8 and the fight for marriage equality for the LGBTQ community. His reference to you being a “lefty” demonstrates that he took prohibited action against you based on your political leanings.

Chris, I suggest that you contact a trial lawyer with knowledge of employment laws to discuss your case.

read more

How to Spot Human Trafficking

This weeks question comes from Lydia in San Francisco, who writes:

Q: I am originally from Jamaica. I learned of an opportunity to work in San Francisco as a hotel housekeeper. He told me that if I paid him he would get me a job in the United States. I was told I would earn $2,000 a month plus overtime. When I arrived in San Francisco, things were different. I was employed by an agency that contracted with hotels and worked 70 hours a week. The agency took my passport for “safekeeping” for the money they charged me to come here and for rent in crowded company housing. No matter how many hours I worked, I didn’t get overtime, and the fees they charged continued to rise. I could never break even. Eventually, I collapsed at work and was taken to a hospital where I met a social worker. She told me that it sounded like I was a victim of human trafficking.

Could I be a victim of Human Trafficking?

A: Thank you for your question, Lydia. What a horrific series of events to go through. I am sorry that this happened to you. Based on the information you provided, it is possible that you have been the victim of Human Trafficking under California law. Human trafficking can take many forms and is not limited to the sexual exploitation we hear so much about and see in movies. In fact, human trafficking can and does occur in legal and legitimate businesses such as restaurants, hotels and manufacturing plants.

Unfortunately, there are many common misconceptions about what human trafficking is, and who has been a victim. For example, human trafficking does not require physical restraint or force. Psychological means of control such as threats or fraud can suffice. In your case, the unreasonable payroll deductions, as well as the holding on to your passport because of your “debt” can meet the “control” requirement of a human trafficking claim.

Many people also confuse human trafficking with human smuggling. While each can take a severe toll on the survivors, they are separate claims. Human trafficking occurs regardless of whether there was any transportation or illegal border crossing. (See Cal. Civ. Code § 52.5 and Cal. Penal Code § 236.1). Smuggling, on the other hand, would require transportation over a border. With hotel workers like you, it is not uncommon, for people to be induced to come to California through misrepresentation of the type of work or amount of pay. Often, a recruiter will work directly with immigration officials to ensure a legal visa is issued.

The California legislature recently took steps to help remedy the misunderstandings and to bring attention to the issue so that victims, or those who may come into contact with them, may more easily recognize human trafficking. In September 2018, two laws were passed requiring certain businesses to post human trafficking notices and trainings.

SB 970 requires training of new employees at hotels and motels. The employer must provide at least 20 minutes of training and education on how to identify, respond to and report human trafficking. After an initial Jan. 1, 2020 deadline for training, each new worker must receive training within six months of being hired and again every 2 years.

AB 2034 requires the posting of notices regarding Human Trafficking in hotels, motels, bus and truck stops, as well as several other business establishments where trafficking is prevalent or may be seen. The notice must be in, English, Spanish, and whichever other language is most widely spoken in that county. The notice must state that if “you or someone you know is forced to engage in any activity and cannot leave — whether it is commercial sex, housework, farm work, construction, factory, retail, restaurant work, or any other activity they may text of call one of the human trafficking hotlines.

AB 2034 also requires certain businesses to conduct employee training regarding:

  • The definition of human trafficking, 
  • Myths and misconceptions,
  • Physical and mental signs that may point to trafficking,
  • Guidance on how to identify at-risk individuals,
  • Guidance on how to report human trafficking, and
  • Protocols for reporting human trafficking when on the job.

The first things you, or any other potential victim of human trafficking, should do is to make sure that you are safe and contact one of the hotlines. If you, or someone you know fits this description, text 233-733 (Be Free) or call the National Human Trafficking Hotline at 1-888-373-7888 or the California Coalition to Abolish Slavery and Trafficking (CAST) at 1-888-KEY-2-FRE(EDOM) or 1-888-539-2373 to access help and services. Then, call an attorney experienced in this area of law, such as the Dolan Law Firm, to help guide you through the process.

read more

Reporting a Dangerous Condition of Public Property

This week’s question comes from a reader in Larkspur, who writes:

Q:“The intersection of Bon Air and Magnolia in Larkspur is very dangerous. There is a lot of construction going on affecting the signage and control of the intersection, especially during rush hour when lots of cars, bikes and kids going to school are present. Someone was already hurt here and the city hasn’t taken action to reduce or eliminate the danger. What can I do?”

A: Being a lawyer who takes on government entities that fail to monitor and correct dangerous conditions, I know what motivates governments to take action: a demand letter from an appropriate stakeholder indicating that a lawsuit will be initiated if the condition is not corrected.

A city can be sued for a dangerous condition of public property, defined in the California Government Code as “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property … is used with due care in a manner in which it is reasonably foreseeable that it will be used.” Courts have held dangerous conditions on public property when the property “is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself.” Bonanno v. Cent. Contra Costa Transit Auth. (2003).

Government Code section 835 makes a public entity, such as the City of Larkspur, liable for injury caused by a dangerous condition of its property if the plaintiff establishes the following:

  • The property was in a dangerous condition at the time of the injury
  • The injury was proximately caused by the dangerous condition
  • The dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred
  • And, the injury was either:
    • Caused by a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment which created the dangerous condition or
    • The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition

Thus, in order to have a viable lawsuit and hold the city accountable in the unfortunate but likely event of future injuries, you have to send the city a letter that puts them in actual notice of the danger.

I have written letters like this before and seen change occur promptly. This, because if someone does get hurt after the actual notice provided in this proposed letter, the City will find it impossible to claim lack of notice. The more letters you and your neighbors send, shut the greater the chance they act with haste.

You should send the letter to the City Attorney and the City Counsel via the City Clerk. The City of Larkspur outsources the City Attorney function to an outside Law Firm. This is not uncommon in small cities.

Here is a suggested letter:

Larkspur City Attorney,
Sky Woodruff, Meyers Nave, 555 12th St #1500, Oakland, CA 94607
City Counsel, care of
Jamie Kuryllo
City Clerk
400 Magnolia Ave.
Upstairs, City Hall
Larkspur, CA 94939

Gentlepersons,

Please let this letter serve as actual notice of the existence of a dangerous condition at the intersection of Bon Air and Magnolia in Larkspur. The configuration of the intersection, in combination with inadequate traffic control devices, construction, high traffic volumes and other factors creates a non-trivial danger which poses a substantial likelihood of imminent injury or death. The available visibility, signage, signaling and striping is not only inadequate, it gives a false sense of security to pedestrians and cyclists thereby creating a trap for the unwary pedestrian or bicyclist.

This risk is heightened by the fact that there are many children going and coming from school and numerous bicyclists use this intersection as part of their daily commute route.

I am informed and believe that there have already been several serious injuries which have occurred because of the dangerousness of the intersection. As a concerned citizen I implore you to undertake prompt remedial measures to address this hazard. Save lives and taxpayer money by avoiding a tragedy and subsequent lawsuit.

Please forward a copy of this letter to the persons or departments responsible for traffic, pedestrian and bicycle safety as well as those responsible for inspecting, evaluating, maintaining and configuring intersections so they are on notice and can act promptly.

It may be helpful to hold a community town hall on intersection safety.

Please keep a copy of this letter on file with the City Attorney, The City Counsel, the Department of Public works, and Police and Fire Departments.

Please provide me with correspondence indicating receipt of this letter. You may send it by mail to my address _________ and of by email to ___________.

Regards,

read more

Categories

  • Bicycle Accidents (107)
  • Brain Injuries (7)
  • Bus Accidents (17)
  • Car Accidents (202)
  • Case News (11)
  • Civil Rights (75)
  • COVID-19 (44)
  • Dog Bite (1)
  • Elder Abuse (18)
  • Employment Law (96)
  • Fire & Burn Injuries (16)
  • Firm News (88)
  • Free Speech (13)
  • LGBT (12)
  • Motorcycle Accidents (132)
  • MUNI (13)
  • Pedestrian Accidents (116)
  • Personal Injury (87)
  • Police Misconduct (9)
  • Policy (7)
  • Premises Liability (24)
  • Privacy (38)
  • Product Liability (26)
  • Professional Misconduct (16)
  • San Francisco Examiner (16)
  • Self Driving Car (6)
  • Special Needs Students (6)
  • Taxi Cab Crash (3)
  • Tenant/Renter Rights (5)
  • Truck Accidents (18)
  • Uber/Lyft Accidents (24)
  • Uncategorized (15)
  • Whistleblower Law (10)
  • Wrongful Death (21)

Recent Posts

  • Will Bicycle Accidents Increase as E-bikes Get Popular?
  • Johnson v Cedars-Sinai Medical Center: Equal Access to Businesses and Services  
  • Celebrating AAPI Heritage Month
  • April 2022
  • Are My Therapy Records Protected in a Lawsuit?
Subscribe To This Blog's Feed
FindLaw Network
Please, enter #hashtag.

  • Click To Call Us
  • Email Us
  • Our Offices
  • About Us

San Francisco 415-421-2800

Oakland 510-486-2800

Los Angeles213-347-3529

Toll-Free 800-339-0352

Dolan Shield

Dolan Law Firm PC
1438 Market Street
San Francisco, CA 94102

415-421-2800
San Francisco Law Office Map

Dolan Law Firm PC
1498 Alice Street
Oakland, CA 94612
510-486-2800
Oakland Law Office Map

Dolan Law Firm PC
145 S. Spring Street, Suite 800
Los Angeles, CA 90012
213-347-3529
Los Angeles Law Office Map

Dolan Law Firm PC
2614 Artesia Blvd
Redondo Beach, CA 90278
310-504-0915
Redondo Beach Law Office Map

Oakland 510-486-2800

Dolan Shield

Dolan Law Firm PC
1498 Alice Street
Oakland, CA 94612
510-486-2800

Oakland Law Office Map

San Francisco 415-421-2800

Dolan Shield

Dolan Law Firm PC
1438 Market Street
San Francisco, CA 94102

415-421-2800

San Francisco Law Office Map

© 2017 by Dolan Law Firm PC. All rights reserved. Blog | Legal Guides | Disclaimer | Privacy | Site Map