Published on:

SexesCalifornia employment law prohibits discrimination against employees and job applicants on the basis of sex or gender. In the Northern California tech industry, gender discrimination has been a subject of numerous recent allegations and complaints. Last fall, a group of women employed by Google filed a class action alleging disparities in wages based on sex. Ellis, et al. v. Google, Inc., No. CGC-17-561299, complaint (Cal. Super. Ct., San Francisco Cty., Sep. 14, 2017). The company is also facing another discrimination lawsuit with a different, but related, angle. This lawsuit, filed in January 2018 by a male former employee, alleges discrimination on the basis of sex and political viewpoint. Damore, et al. v. Google, LLC, No. 18CV321529, complaint (Cal. Super. Ct., Santa Clara Cty., Jan. 8, 2018). California is one of the few states with an employment discrimination statute that addresses employees’ “political activities or affiliations.” Cal. Lab. Code § 1101 et seq. The plaintiff alleges that he experienced California employment discrimination as a male employee with politically conservative views.

The California Fair Employment and Housing Act (FEHA) generally prohibits discrimination on the basis of sex, gender, and other factors. Cal. Gov’t Code § 12940(a). The California Equal Pay Act (EPA) more specifically prohibits disparities in pay based on gender when the work, working conditions, and qualifications are “substantially similar.” Cal. Lab. Code § 1197.5(a). The statute makes exceptions when a pay disparity is based on certain “bona fide factor[s] other than sex,” including merit- or seniority-based systems and systems that base pay on “quantity or quality of production.” Id.

The statute dealing with employees’ political views prohibits employers from “[c]ontrolling or directing…the political activities or affiliations of employees,” id. at § 1101(b); and from using the “threat of discharge or loss of employment” to compel an employee to follow, or not follow, “any particular course or line of political action or political activity,” id. at § 1102. The California Supreme Court ruled that this statute allows private civil actions for alleged violations in Lockheed Aircraft Corp. v. Superior Court, 28 Cal.2d 481 (1946). The court later affirmed a claim of political viewpoint discrimination based on employees’ advocacy for “the struggle of the homosexual community for equal rights,” when claims of sexual orientation discrimination were not tenable under state law. Gay Law Students Assn. v. Pacific Tel. & Tel. Co., 24 Cal.3d 458, 488 (1979).

Published on:

churchA plaintiff must establish that the court in which they are filing suit has jurisdiction over their claims. Questions of jurisdiction can quickly become complicated, especially when a lawsuit cites multiple sources of law. The Alien Tort Statute (ATS) gives foreign citizens the right to file suit in U.S. district courts for certain tort claims. U.S. courts have allowed claims against individuals. The U.S. Supreme Court is now considering whether the ATS allows claims against foreign corporations in Jesner v. Arab Bank, PLC. While the case is not likely to have much effect on California business litigation, it offers a useful look at how U.S. courts can exercise jurisdiction over international business disputes.

The Judiciary Act of 1789, one of Congress’ very first laws, created the ATS. The statute gives federal district courts jurisdiction over “causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.” 1 Stat. 77 (1789), 28 U.S.C. § 1350. It does not define “alien.” Federal law defines that term elsewhere as “any person not a citizen or national of the United States.” 8 U.S.C. § 1101(a)(3). The term “law of nations” refers to international law, which mostly consists of treaties, conventions, and other agreements.

The ATS was largely forgotten until 1980, when the Second Circuit ruled on a claim by the parents of a teenager who had been “kidnapped and tortured to death” in 1976 by the defendant, who was the “Inspector General of Police in Asuncion, Paraguay” at the time. Filártiga v. Peña-Irala, 630 F.2d 876, 878 (2d Cir. 1980). After the defendant moved to New York in 1978, the plaintiffs filed suit against him under the ATS for violations of the United Nations Charter, the Universal Declaration on Human Rights, and other sources of international law. The Second Circuit affirmed the verdict in favor of the plaintiff, which included a damages award of $10.4 million.

Published on:

Golden Gate BridgeCalifornia sexual harassment has gained unprecedented attention in recent months, starting in Hollywood and expanding to include nearly every type of employer in the country. Sexual harassment is considered a form of sex discrimination under both federal and state laws. It can take two main forms. Quid pro quo sexual harassment occurs when a supervisor or manager makes sexual conduct of some sort a condition of employment, such as when an employee will receive better shift assignments if they date the boss. A hostile work environment occurs when the sexually inappropriate conduct of one or more other people in the workplace interferes with the ability to do one’s job. Federal and state laws require proof that the allegedly offensive conduct was “pervasive or severe.” See Cal. Civ. Code § 51.9(a)(2). A California state senator held a hearing in January 2018 to consider whether this standard is too stringent, looking at New York City’s employment statute for possible revisions to state law that could affect many California employers.

The U.S. Supreme Court has defined the “severe or pervasive” standard for hostile work environment claims under federal law as requiring evidence of “an environment that a reasonable person would find hostile or abusive.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). California courts apply the same standard for hostile work environment claims under the California Fair Employment and Housing Act (FEHA). See, e.g., Hughes v. Pair, 46 Cal.4th 1035, 1048 (2009). Determining whether the alleged offensive conduct was “severe or pervasive” has both a subjective and an objective component. It requires consideration of “a constellation of surrounding circumstances, expectations, and relationships,” rather than “a simple recitation of the words used or the physical acts performed.” Lyle v. Warner Bros. Television Prod., 42 Cal.Rptr.3d 2, 16 (2006).

A dissenting appellate court justice in the Hughes case cited above criticized the “severe or pervasive” standard, noting that the statute that uses that language, the Unruh Civil Rights Act (UCRA), “is not an employment discrimination statute,” and nothing indicates that the state legislature intended to mix this statute and the FEHA. Hughes v. Pair, 65 Cal. Rptr. 3d 619, 632 (Cal. App., 2d Dist. 2007) (Armstrong, Acting P.J., dissenting). The justice advocated for an “interpret[ation] based on the plain and ordinary meaning of the words” in the statute. Id. at 633. Other critics of the “severe or pervasive” standard point to the reportedly high percentage of sexual harassment complaints dismissed by the courts, arguing that the standard imposes too high a burden on complainants.

Published on:

common areaCalifornia real estate law allows the creation of homeowner associations (HOAs) to govern certain types of properties, known as “common interest developments” (CIDs). An HOA is responsible for maintaining a CID’s common areas, and it has the authority to collect fees from homeowners to pay for maintenance. When an HOA negligently fails to maintain a common area, the HOA may be liable for injuries that occur as a result. A recent appellate court decision from New Jersey addressed HOAs’ duty of care to residents and others. It is worth revisiting California law on this issue.

Determining a property owner’s liability for an injury occurring on their premises involves two important distinctions:

– First, did the injured person have permission to be on the property? A property owner owes a minimal duty of care to a trespasser, meaning someone who enters their property without permission.

Published on:

justice statueIn order to sustain a California consumer lawsuit, a plaintiff must be able to demonstrate that they have standing to sue. “Standing” refers to the legal capacity to bring a claim in a particular capacity. Statutes that permit civil lawsuits to recover damages for violations often establish criteria for standing, and the courts have identified general rules for determining whether a plaintiff has standing, including the requirement of an “injury-in-fact.” See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). A case arising in California under the Fair Credit Reporting Act (FCRA) resulted in a question about the “injury-in-fact” requirement. The Ninth Circuit ruled that the plaintiff had established standing, Robins v. Spokeo, Inc. (“Spokeo I”), 742 F.3d 409 (9th Cir. 2014), but the Supreme Court vacated this ruling and remanded the case. Spokeo, Inc. v. Robins (“Spokeo II”), 578 U.S. ___ (2016). Earlier this year, the Ninth Circuit again ruled in the plaintiff’s favor. Robins v. Spokeo, Inc. (“Spokeo II”), 867 F.3d 1108 (9th Cir. 2017).

The FCRA regulates the collection, use, and distribution of consumer information related to matters like “credit worthiness,…character, general reputation, [and] personal characteristics.” 15 U.S.C. § 1681a(d)(1). This type of information regularly appears in credit reports, which are used not only in credit and lease applications but also by potential employers. The statute requires “consumer reporting agencies” (CRAs), defined as businesses that collect consumer information and package it in reports for a fee, to “follow reasonable procedures to assure maximum possible accuracy” of the reports they produce. Id. at § 1681e(b). It allows consumers to seek damages in court for violations, with additional penalties for willful or knowing noncompliance. Id. at §§ 1681n, 1681o.

The defendant in Spokeo “operates a website that provides users with information about other individuals.” Spokeo I, 742 F.3d at 410. This may include contact information, economic and work history, and other personal details. The plaintiff filed suit under the FCRA for allegedly failing to confirm the accuracy of the information provided about him by the website. The district court dismissed the lawsuit for lack of standing, finding that he had failed to demonstrate an injury-in-fact. He had not, according to the court, alleged that the information on the website had actually caused him an injury, but instead that the presence of allegedly inaccurate information only created the risk of future harm.

Published on:

Wheelchair rampAny business that operates a “brick and mortar” location that is open to the public is subject to laws that address accessibility for people with disabilities. The Americans with Disabilities Act (ADA) of 1990 established rules and guidelines for businesses in California and around the country. The statute prohibits any business operating a “public accommodation” from discriminating against individuals on the basis of a disability. Failing to provide reasonable accommodations to people with disabilities can result in administrative penalties and civil liability to aggrieved individuals. A bill currently pending in the U.S. Congress, however, could limit individuals’ ability to bring suit under the ADA. H.R. 620, also known as the ADA Education and Reform Act (AERA) of 2017, would require complainants to provide notice to business owners about “architectural barriers to access,” and it would only allow a California discrimination lawsuit if the business fails to respond adequately.

The ADA defines “public accommodation” broadly, including hotels and other lodging facilities, restaurants and bars, theaters and exhibition spaces, auditoriums and other event spaces, retail establishments, service establishments like laundromats and gas stations, public transportation depots, parks and other recreational areas, schools, shelters and other social service establishments, and exercise or recreational facilities like gyms or bowling alleys. 42 U.S.C. § 12181(7). In short, any business that is open to the general public is likely to meet the ADA’s definition of a public accommodation.

Businesses that operate public accommodations may not discriminate “in the full and equal enjoyment” of whichever goods or services the business provides because of a customer’s disability. Id. at § 12182(a). This means that businesses cannot deny service to a person because of a disability, much as they cannot discriminate on the basis of race or religion. It also means that businesses, whenever practicable, must remove architectural barriers that prevent access by people with disabilities, and they must provide facilities that allow such access. Id. at § 12183; 28 C.F.R. §§ 36.304, 36.401.

Published on:

workers holding placardsFederal law protects the right of workers to organize for the purpose of collective bargaining with their employers, more commonly known as unionizing. The National Labor Relations Act (NLRA) outlines these rights and prohibits employers from interfering with employees engaging in protected activities. The National Labor Relations Board (NLRB) investigates alleged violations of workers’ rights and, in some cases, pursues legal claims on behalf of aggrieved workers. Throughout 2017, employees of Tesla, a Northern California technology company that designs, manufactures, and sells electric cars, have been involved in efforts to form a union. Multiple workers filed complaints with the NLRB. In August, the NLRB consolidated five of these California employment cases into a single complaint, which alleges various acts of coercion and restraint against employees involved in union organizing. Tesla, Inc. and Sanchez, et al., Nos. 32-CA-197020, 197058, 197091, 197197, 200530, cons. complaint (NLRB Reg. 32, Aug, 31, 2017).

The NLRA provides broad protections for employees’ “right to self-organization,” which includes “form[ing], join[ing], or assist[ing] labor organizations.” 29 U.S.C. § 157. It also protects employees’ “right to refrain from any or all of such activities” if they choose. Id. The statute prohibits “unfair labor practices,” including any “interfere[nce] with, restrain[t], or coerc[ion of] employees” in relation to their rights. Id. at § 158(a)(1). Unions are subject to similar prohibitions against coercing or restraining employees, such as in situations regarding their right not to participate in protected activities.

A recurring dispute with regard to unions involves the question of whether employees who do not wish to join a union may still be required to pay fees to unions that represent them. Some states allow employees to opt out of union membership through “right to work” laws. California is not a “right to work” state. Opponents of right to work laws note that collective bargaining agreements usually apply to all employees, regardless of whether they are dues-paying members of the union. Supporters tend to argue that employees should have the choice of whether to join and pay fees to a union.

Published on:

San Pablo BayReal property owners can grant rights to others to use portions of their property for certain purposes, commonly known as easements. In certain situations, however, a California real estate owner might unwittingly allow others to acquire rights to the use of their property. The California Legislature has set strict limits on the circumstances in which this might occur. Earlier this year, the California Supreme Court rejected a claim that the repeated use of someone else’s private property created an easement for the plaintiffs.

An easement is a limited interest in real property with no right of possession. It involves permission to use another person’s property for a specific purpose. A public utility easement, for example, gives a city government permission to use a portion of a parcel of land for utility lines, as well as the right to access the property to perform maintenance or repairs.

Easements are usually affirmatively granted by the property owners, but they can also be created as a matter of necessity. If one parcel of land is inaccessible from the road, except by crossing another person’s property, the owner of the otherwise inaccessible land could claim an easement across the neighboring property. The principle of adverse possession, by which someone can claim title to someone else’s property by openly possessing that property for a minimum period of time, could also support an easement claim in some circumstances. A person who routinely crosses another person’s property could claim an easement based on a lengthy period of continuous use. This is the type of situation California has tried to restrict, which the court addressed in Scher.

Published on:

ambiguityCongress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) in 2010. The statute amended existing statutes like the Securities Exchange Act of 1934, and it referenced other major financial reform laws like the Sarbanes-Oxley Act of 2002. Dodd-Frank requires businesses to make a wide variety of disclosures about their financial activities, and it offers incentives to company insiders, or “whistleblowers,” to report violations. It penalizes employers that retaliate against whistleblowers. The Ninth Circuit Court of Appeals recently ruled in favor of a whistleblower in a retaliation claim that is relevant to future California employment cases. Somers v. Digital Realty Trust, Inc., 850 F.3d 1045 (9th Cir. 2017). The case depended on Dodd-Frank’s ambiguous use of the word “whistleblower.” The ruling conflicts with at least one other appellate court’s interpretation of the statute. As a result, the U.S. Supreme Court has agreed to hear the case in November 2017.

Dodd-Frank’s language regarding whistleblower retaliation is ambiguous. It prohibits employers from retaliating against whistleblowers who make reports to the Securities and Exchange Commission (SEC) as required by Dodd-Frank or other statutes, including but not limited to Sarbanes-Oxley. 15 U.S.C. § 78u-6(h)(1)(A). This would seem to include reports to other agencies besides the SEC, as well as internal reports to company management. The ambiguity is due to the word “whistleblower,” which is defined in an earlier subsection specifically as anyone “who provide[s] information relating to a violation of the securities laws to the [SEC].” Id. at § 78u-6(a)(6). The statute does not make it clear whether the anti-retaliation provision refers to the statute’s narrow definition of a whistleblower or uses a broader plain-language meaning.

The SEC’s regulation implementing the anti-retaliation provision, first promulgated in 2011, appears similarly ambiguous by repeating much of the language of the statute. 17 C.F.R. § 240.12F-2. The agency clarified, however, that it did not interpret “whistleblower” broadly to “include[] individuals who report to persons or governmental authorities other than the [SEC].” 76 Fed. Reg. 34299, 34304 (Jun. 13, 2011); see also 80 Fed. Reg. 47829 (Aug. 10, 2015). In court disputes over the ambiguity in the statute, how the court will rule depends on whether it follows the Chevron doctrine, which holds that courts should give deference to agency interpretations of statutes. See Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984).

Published on:

Computer technology and the internet have created countless opportunities for both businesses and consumers. As more and more commercial activity moves online, however, the risks to the integrity of a company’s digital records grow greater. Cybersecurity breaches threaten not only the company’s assets but also stored customer information. Consumer information is often the target of hackers because it may enable further fraudulent activities like identity theft. Companies that collect and store personal information have a duty under California law to protect that information and to notify consumers in the event of a breach. Penalties for noncompliance may include civil liability to consumers and state or federal regulatory actions. Northern California business owners that deal with digital consumer information should make cybersecurity a critical part of their business operations.

hackingCalifornia’s Breach Notification Law (BNL) defines “personal information” as any information that “is capable of being associated with a particular individual,” such as a name, address, date of birth, and social security number or other identification number. Cal. Civ. Code § 1798.80(e). Businesses must “implement and maintain reasonable security procedures and practices” to safeguard customers’ personal information from cybersecurity breaches. Id. at § 1798.81.5(b).

If a breach occurs, the BNL requires businesses to notify individuals who were affected by the breach “in the most expedient time possible and without unreasonable delay.” Id. at § 1798.82(a). If a business intentionally shares customer information, such as for marketing purposes, California’s “Shine the Light” (STL) law requires it to make certain disclosures to customers in advance and to disclose, upon a customer’s request, which information was shared and with whom. Id. at § 1798.83.