Lactation in the workplace

Set of restroom, nursing room, lactation room placard sign. easy to modify

This week’s question comes from Ana in San Francisco, who writes:

Q: I am ending my maternity leave next week. I would like to send an email to my manager to ask about my employer’s policy on lactation breaks and request a private room where I can express milk for my baby. However, I am worried that I may be asking for too much since the company is small (only 25 employees in my office, but approximately 75 in the Bay Area) and I already took a lot of time off after giving birth for my recovery and for baby bonding. I do not have my own office and I do not want to pump in a bathroom stall, as I am worried that it would be unsanitary. I heard San Francisco has extra protections for nursing mothers. What are my rights?

A: Thank you for your question, Ana, and congratulations on your baby. I am glad you were able to take sufficient time after giving birth for your own recovery and for baby bonding. You are correct: San Francisco increased protections for nursing mothers and expanded the existing requirements for San Francisco employers under federal and California law beginning Jan. 1, 2018.

Under the Federal Fair Labor Standards Act (which applies to business of 50 or more employees), employers must provide reasonable break time for an employee to express breast milk for one year following the birth of a child in a private location other than a bathroom that is shielded from view and free from intrusion from co-workers and the public.

California Labor Code requires employers to provide a reasonable amount of break time to accommodate employees who want to express milk for their baby and to make reasonable efforts to provide the employee with a room, other than a toilet stall, in close proximity to the employee’s work area.

Under San Francisco’s Lactation in the Workplace Ordinance (which applies to nearly all San Francisco employers, as there are no minimum employee threshold that may exempt smaller employers from coverage) the lactation location must also:

– Be available as needed

– Be safe, clean and free of toxic hazardous materials

– Have a place to sit, a table or desk or surface on which to place a breast pump and other personal items

– Have access to electricity, a sink with running water and a refrigerator

The lactation location may be designated for other purposes, but employees must be notified that lactation use takes priority over other uses for the room.

Moreover, the employer must maintain a written lactation accommodation policy that includes a statement of the right to request a lactation accommodation and the process for requesting accommodation. It must also state that, if in response to a request for accommodation, the employer does not provide the accommodation, the employer must provide a written response that identifies the basis for denial of the request and a notice that retaliation in response to a request is prohibited.

This policy must be distributed upon hire, included in any employee policy handbook and must be provided to any employee who asks about or requests pregnancy or parental leave.

Reporting sexual harassment in the gig economy

Employers, gig or otherwise, can be sued for economic, non-economic, or punitive damages in the millions of dollars.

This week’s question comes from K, who asks:

Q:“I am female and I work at events that are staffed by Instawork, Wonolo and other gig agencies. We get gigs through these companies to work at various events. One of these events was being catered by a very famous gourmet company [name withheld]. The catering companies contact Instawork and Wonolo to send workers to provide bartender and waitstaff. Some of the gig workers provided by these companies are sexually harassing myself and other female workers by pawing into us. They usually walk up behind me and put their hands on the flat of my back, or down lower towards my butt. One grabbed my arm from behind. Some give you a pat on the back right where your bra is fastened. Sometimes, they brush against me in ways that are unwanted and inappropriate. This is happening not only to me, it is also happening to other women. It is sexually suggestive and doesn’t happen to the men.
I have reported this to the catering company. They say it is not their problem and that I need to contact Instawork. I have tried to make an anonymous complaint to Instawork but couldn’t get through without giving my name. I am afraid if I tell them they won’t send me to gigs anymore.
There is no clear reporting mechanism, a lack of sufficient training on harassment and discrimination, and little or no supervision by the companies who send you the jobs or the companies where you work. I have been putting up with this for years, and I am fed up. Can you write in your column what the law is so I can send it to the companies?”

A: Dear K, the emergence of the gig economy has led to an upswing of complaints such as yours. These companies believe that they owe their “gig labor force” none of the protections which cover full-time employees. Sometimes this is the result of ignorance, sometimes it is the result of the gig employers just not giving a damn about their labor force.

Sexual harassment can include verbal statements, comments, jokes, written comments, emails, “dick pics,” touching, inappropriate physical presence (sitting on a desk with crotch inches from the face, blocking freedom of movement, etc.) and other unwanted conduct. The key is that the conduct is unwanted and has its basis in sexual connotation or abuse of power.

Under California Government Code Section 12940(a) conduct arises to the level of sexual harassment “when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being.” It suffices to prove that a reasonable person subjected to the discriminatory conduct would find that the harassment altered working conditions so much as to make it more difficult to do the job.

Section (b) of 12940 states that even a single incident of severe harassing conduct is enough to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment. “The existence of a hostile work environment depends upon the totality of the circumstances . . . and the legal standard for sexual harassment should not vary by type of workplace.” 12940(c)&(d).

Pursuant to Section (j)(1), “harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employer . . . shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”

A person “providing services pursuant to a contract” means a person who meets all of the following criteria: (A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance. (B) The person is customarily engaged in an independently established business. (C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer’s work.

Employers, gig or otherwise, can be sued for economic, non-economic, or punitive damages in the millions of dollars. It is also illegal to retaliate against anyone making a complaint. Our firm has recovered hundreds of millions in discrimination, harassment and retaliation cases.

Send both the “gig” employer and the catering company a copy of this letter and hopefully they will take appropriate action. Make a paper trial so you can prove it was delivered. If they continue to ignore your rights, contact a good trial lawyer to take action on your behalf.

There are two types of hydroplaning: viscous hydroplaning, associated with lower speeds on roads with little to no texture, and dynamic hydroplaning, which can cause total lack of control over steeting and braking.

Go slow in the rain

This week’s question comes from Holly H. in Berkeley, who asks:

Q:“My wife was traveling on a roadway which has a 45 mile an hour limit. It had been raining very heavily for several days but the weather had cleared for at least 4 hours. She was driving about 30 and everything was fine. As she came around a bend, there was an a huge lake of water in her lane. Her car lost traction, she couldn’t break or steer, and she crossed into the other lane colliding with another car. Thank God no one was seriously injured but someone could have been killed. After the collision a nearby neighbor came out and said that there was a storm drain which had been backing up there all year and despite calls to the Public Works Department nothing had been done and this was the third accident there this year. What rights do people have when the drains are not being maintained and they are harmed?”

A: Holly, according to the National Highway Traffic Safety Administration, the second greatest factor in causing collisions (2 percent) is environmental conditions such as rain, snow, etc.(The greatest factor, 94 percent, is human error.)

What you describe is the phenomena known as “hydroplaning.” On wet or flooded pavement hydrodynamic pressure increases as the speed of the vehicle increases eventually leading to the tire losing contact with the roadway. There are two types of hydroplaning: 1) viscous hydroplaning or 2) dynamic hydroplaning. Viscous hydroplaning is a problem associated with low speed operation on pavements with little or no texture. We see this frequently in rear end collisions during or following rainy conditions. Dynamic hydroplaning occurs in situations with a more significant depth of water as a water wedge is driven between a moving tire and the pavement surface causing a complete separation of tire and roadway. What you describe is full dynamic hydroplaning, a serious life and safety hazard, causing a total lack of control over steering and braking.

Under California Law a government entity: city, county, or state, can be held liable for a dangerous condition of public property if they fail to maintain the roadways, and drainage, in a reasonably safe condition. The condition must cause more than a trivial risk of harm of the type that was suffered and the entity needs to have actual or constructive knowledge of the condition with sufficient time to remedy it and have failed to do so.

Actual knowledge is when they know about the condition by seeing it themselves, being informed by others, or when they themselves cause the condition to exist. Constructive notice is when the condition, and its dangerousness, should be apparent to them by a reasonable inspection system or, perhaps, in this situation if they have had to come clean this drain numerous times or they are aware of numerous accidents happening under the same conditions.

I have handled many similar cases as the one you present here. Most involve known flooding areas, improperly constructed roadways and/or blocked or broken drains. Unfortunately, these conditions can often prove deadly.

It appears that the entity had actual notice based on the neighbor’s complaints. Additional evidence of notice can be obtained by obtaining DPW documents pertaining to the drainage at that site.

A usual defense is that the driver was traveling too fast for the conditions (Veh. Code 22350). Given the break in the rain, your wife’s reduced speed, and the fact that the pool of water was around a corner, this defense could probably be surmounted.

My best advice to everyone, check your tread depth (it should be at least 4/32 in the front and 2/32 in the rear ), properly inflate your tires and as my daughter says “avoid the pain, go slow in the rain.”

This week’s question comes from Shawn J., in Novato, who writes:

Q: “I read your column every week. I was heading home from an appointment [earlier this month] in the East Bay and got stuck for hours when the Richmond Bridge was shut down because of falling concrete. While I was sitting there, I was wondering who would be responsible for any injuries caused if the concrete crashed through a windshield, or caused someone to swerve, leading to injury? Later it turned out that only a car was damaged, thank God, but the question still lingers in my mind.”

A: Shawn, first of all, thank you for being a loyal reader. It feels good to know people actually read this column! Believe it or not, sometimes it takes up to three hours to research and write as I strive to provide substantive responses with citations to California statutes and case law.

The Richmond-San Rafael Bridge, connecting Marin and Richmond along Highway 580, opened in 1956. It is a 5.5 mile long cantilever and truss bridge with a steel structure and a concrete deck, different from the Bay and Golden Gate Bridges, which are suspension bridges. It was originally three lanes but, in 1977 it was narrowed to two to accommodate a massive water pipe feeding water from the East Bay to Marin during a drought that left Marin with no other reliable water source. In 1978, when the pipe was removed, the third lanes were not reopened to traffic. In 2018, given a double-digit increase in traffic volume, a third lane was opened on the westbound lower-deck during rush hour. The third lane on the upper deck is slated to become a pedestrian/bike way.

As the bridge reached its originally projected useful life, a $762,000,000.00 retrofit project was completed in 2005 by Tudor Saliba, a major highway and civil engineering firm, under contract with CalTrans. The work included retrofitting and reconstruction of the decking’s concrete and expansion joints. This is the ultimate source of the concrete’s failure and Thursday was not the first time since then that concrete has fallen onto the lower deck. In early 2006, just months after the retrofit was complete, concrete chunks fell from holes in the upper deck, leading to another $25,000,000.00 in retrofit costs.

The bridge is under constant physical stress, and not only from its substantial traffic flows. The bridge connects land sitting on the Rodgers Creek Fault, running through Marin and Sonoma, with land on the Hayward Fault, which runs through the western part of Alameda, and tremors regularly test the bridge’s retrofitting, designed to withstand a 7.4 magnitude quake on the east and an 8.3 quake on the west. The bridge is also subject to high winds that put lateral stress on the structure and cause bridge closures from time to time. The most recent structural failures appear to be occurring in the expansion joints, which look like zippers connecting stretches of concrete and allow the roadway to expand and contract under various loads, temperatures, tremors, and wind conditions. CalTrans claims to have inspected the joints last August and found no problems.

Under California Code of Civil Procedure Section 337.15, which sets a ten year statute of limitations for “latent” property defects not apparent on reasonable inspection, the contractors, designers, and engineers who retrofitted the bridge in 2005 are most likely free and clear of any responsibility. However, CalTrans may be responsible under Government Code Section 830, which prohibits maintaining a “dangerous condition of public property,” defined as a non-trivial defect that creates a substantial risk to people using the property with due care. Govt. Code Section 835 provides for governmental liability if “the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and . . . either: (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. Actual notice occurs when someone is actually aware of a defect as a result of inspection, observation, or report. Constructive notice exists when there was, or should have been, an inspection program to evaluate safety hazards (if funds and means existed for such a program) and a condition had existed long enough that a reasonable inspection should have led to the discovery of the condition and its dangerous character.

I believe a legal basis exists to hold CalTrans liable. If injury is caused in the future by falling concrete, CalTrans will most certainly be held accountable. Let’s hope it doesn’t come to that.

Recently, I addressed a question posed by a reader who asked who is responsible for damage caused by a tree branch falling from an adjacent yard and crashing through the roof of their house, narrowly missing their child. The article addressed the answer to that question with the assumption that it was a tree owned or maintained by a municipality. This week, I will address trees owned by individual, non-governmental owners.

The reader’s inquiry involved a neighbor’s tree overhanging their property. State law provides that the owner of a tree whose branches overhang an adjoining landowner’s property is liable for damages caused by the overhanging branches. Therefore, if your neighbor’s tree drops a branch and causes injury to a vehicle, person, or structure, they are liable to you for the damages caused.

In general, you are legally allowed to take it upon yourself to cut off any tree branch that overhangs your property from the point where it crosses the boundary. Courts have ruled that shade and debris cast by a neighboring branch, blocking light, clogging gutters, deteriorating a roof, etc., can constitute a nuisance, thereby making the tree owner liable for any and all damages caused. Even insignificant damages will implicate a legal right of action, although the recovery of damages is generally be proportional to the extent of the injuries. Indeed, in the 1952 case of Grandona v. Lovdal, the Supreme Court of California ruled and reasoned as follows: “Trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land. To that extent they are nuisances, and the person over whose land they extend may cut them off, or have his action for damages and an abatement of the nuisance against the owner or occupant of the land on which they grow; but he may not cut down the tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil.”

However, there is a major caveat to this general rule: some jurisdictions, like Sausalito, have specific tree ordinances that may prohibit this kind of self-help. Before altering a tree, it is advisable to look into any such tree ordinance in effect in your jurisdiction. Additionally, even when no local ordinance exists, it would likely be beneficial to first talk to your neighbors before altering a tree rooted on their property; people can get very wound up over trees and it’s never wise to create unnecessarily hostile relationships with your neighbors.

If you have suffered harm from your neighbor’s trees but the neighbor will not consent to altering the tree, you can file an “action for abatement” requesting the court to order your neighbor to remove the trees or, in the alternative, to allow you to cut the branches back to your neighbor’s property line. In Bonde v. Bishop, again in 1952, the California Court of Appeals reasoned with respect to an action by a tree owner against his neighbor who cut back the branches: “The finding that the tree in question was a constant menace to the property of the defendants is sustained by the testimony to the effect that in the past large branches had fallen on the roof and porch of defendants’ house, one of such branches tearing a hole in the roof; that the leaves filled the gutters, and littered the porch and lawn. Clearly, under the testimony appearing in the record here and the findings of the trial court, this tree was ‘an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.’”

In the case presented here, where a tree with previous, known rot damage fell on a house and punched through the roof into a child’s bedroom, there is likely have a strong case for holding your neighbor liable for negligence as well. Actions in negligence hold property owners responsible for failing to take reasonable care to prevent foreseeable damage to others as a result of dangerous conditions on their property. If one is successful in proving that a neighbor negligently maintained their property, one would have the right to recover both economic losses (property damage, cost for clean-up, medical expenses, etc) and non-economic damages such as pain, disfigurement, emotional distress, anxiety, and, in the child’s case, treatment for what sounds like Post Traumatic Stress Disorder.

Homeowner’s insurance covers economic losses caused by falling trees, so you should open a claim with them. They will later seek reimbursement from the neighbor’s insurance. As for claiming negligence and seeking to recover non-economic losses, I would recommend speaking with an experienced trial lawyer to assist in making the case.

This week’s question comes from Jannette M., who asks:

Q: “During the recent storms, I had a neighbor’s tree fall onto my roof and part of it came into the bedroom where my son was sleeping. Thank God my son suffered only minor physical injuries, which required only an ER visit and a sling, but now he is afraid to sleep alone and has been having nightmares. The tree is out by the sidewalk. I know it’s not on my property because of where it is located on his side of the fence. I also saw on the news where a woman was crushed and killed in her car by a falling tree/branch. What is the law on this kind of thing? This tree has been a sore subject between us as it has been hanging over my yard for years causing lots of leaves, branches and other junk to fall on the roof, clog the gutters, damage my roses and nearly landed on my car. I have spoken with my neighbor about this on several occasions including the last major storms several years ago, when another limb fell on the fence. He repaired the fence, but didn’t do anything to trim the tree or otherwise make it safe. The branch that fell on my house was from the same “crotch” which showed rot after the prior branch came down. The only thing that has been done to the tree is it was cut one time, about a year ago, by the city, because it was blocking a stop sign. When I confronted my neighbor, he said that he didn’t think he owed me anything saying that it’s probably a city tree and even if it wasn’t, it was an “Act of God.” I have reported it to my homeowner’s insurance which stated that it would repair the property but that my insurance did not provide compensation for the personal injuries suffered by my son. Does my son have a right to collect compensation for his physical and emotional injuries and if so, from whom?

A: Dear Jannette, what a terrible and frightening ordeal. Thank God your son was not more seriously injured or killed. I have handled several falling tree death cases in my career and in each instance they were preventable if only the ailing tree had been trimmed or cut down before a storm caused fatal consequences.

Each city has separate ordinances regarding tree maintenance along the roadway/sidewalk. If the tree is very close to the road/sidewalk, then a city ordinance may require the adjacent landowner to maintain the tree. Some trees are exclusively maintained by the city. If this occurred in San Francisco, The City may be liable for failure to maintain the tree. In 2016, the voters passed Proposition E, StreetTreeSF which amended the City Charter to transfer responsibility for the care of the City’s 124,000-plus trees and surrounding sidewalks from property owners to Public Works. The law took effect July 1, 2017 and provides for $19 million to be set-aside annually in the City’s General Fund to fund StreetTreeSF.

The City has prioritized pruning trees based on safety considerations, to correct structural flaws and to gain necessary clearances for overhead wires, traffic signs and signals, adjacent buildings and traffic flow. If you are in San Francisco, the tree trimming around the sign, if it occurred since July 1, 2017, may have been part of the StreetTreeSF priority trimming program.

For the City to remove a tree, unless it creates a dire emergency, the City follows a public notice process before the tree is cut down so citizens can voice their concerns including opposition to the removal of the tree or requesting trimming instead of removal. An individual can still prune their own tree as long as it is undertaken in accordance with the June 27, 2006 CCSF Pruning Standards.

If the City is responsible for maintaining this tree they may be held responsible for the damage caused to your son under the doctrine of Dangerous Condition of Public Property. Under this doctrine a public entity may be responsible for injuries caused by non-trivial defects in public property that create a foreseeable risk of harm, if the City knew, or should have known with reasonable diligence, about the defect with sufficient time to remedy it. Here, as the tree had been trimmed previously by the City, a suggestion of knowledge is raised as they would have been physically present, examined and evaluated the tree, and trimmed it. If the hazard/rot was in existence at that time, and the City did not remedy it, liability may attach. Additionally, if the City arborists did something in trimming the tree that increased the risk of the tree falling on to your house, such as trimming most of the weight from only the street side, they may be held liable under a simple negligence theory.

Next week, I will provide an analysis of the facts assuming the tree was on private property, away from the street right-of-way, where the examination centers on the private landowner’s responsibility.

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.

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.

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.

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,

Lactation in the workplace

Lactation in the workplace