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Google didn’t violate labor laws by firing engineer James Damore for his controversial memo criticizing its diversity policies and “politically correct monoculture”, according to the US National Labor Relations Board.

As mentioned in Boomberg, the statements in James Damore’s 3,000-word memo “regarding biological differences between the sexes were so harmful, discriminatory, and disruptive” that they fell outside protections for collective action in the workplace, an associate general counsel for the National Labor Relations Board concluded.

When Damore was dismissed in August, he accused Google of violating the employee right to engage in “concerted activity” to address workplace issues, a category which the labor board has found can include forms of activism ranging from lawsuits to strikes to social media posts.

Most of Damore’s memo was probably protected under the law, the labor board’s attorney, Jayme Sophir, stated in a memo. But Sophir went on to find that Google discharged Damore only for his “discriminatory statements,” which aren’t shielded by labor law.

San Francisco’s “Lactation in the Workplace” Ordinance has increased protections for nursing mothers in San Francisco.

While the California Labor Code and the federal Fair Labor Standards Act already require most employers to make reasonable efforts to provide lactation breaks and locations to nursing mothers, this Ordinance goes further than existing law in:

• requiring an employer to provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s child, and
• providing specific requirements for lactation areas, employer policies, and record keeping.

The Ordinance applies to all employers in San Francisco unless they can establish that compliance would impose an undue hardship.

The Ordinance requires employers to provide a lactation area for a nursing mother that is clean and free of hazardous materials, contains a chair and surface space for a breast pump (e.g., a table or counter), and has access to electricity. The lactation area may be available for non-lactation uses, but:

• an employee’s lactation breaks must take precedence over other uses
• the employer must provide notice to other employees of the room’s primary function

Employers in multi-tenant buildings that cannot accommodate the employee within the employer’s workspace may also meet the lactation location requirements by designating a room or space that is shared with other tenants in the building.

If your employer is not providing lactation accommodation in the workplace, please contact the attorneys at the California Employment Legal Group today for a consultation with an experienced employment lawyer who will clearly explain your rights and options under the law.

Governor Jerry Brown signed SB 621 into law, which modifies portions of California Labor Code Section 515.8 to facilitate the implementation of the salary test used to determine the exempt employee status of private school teachers.

The SB 621 law does three things:

• Establishes a pro-rated salary threshold for part-time teachers. Effective January 1, 2018, part-time private school teachers can be deemed exempt employees if – in addition to satisfying all other requirements of Labor Code Section 515.8 – they meet a pro-rated minimum salary threshold.
• Permits private school administrators to use public school data from the prior year to calculate the salary threshold determinations. Private schools typically execute contracts with teachers in advance of a new school year, and school administrators must create budgets well before making such commitments. During the budgeting process it may be difficult – and in some cases, impossible – to obtain public school teacher salary data for a coming school year. To cut private school administrators some needed slack, SB 621 permits salary data in effect “for up to 12 months prior to the start of the school year,” to be used when making the necessary calculations.
• Clarifies that the word “county” in the subsection of Labor Code Section 515.8 dealing with the calculation of the minimum salary threshold, refers to county offices of education.

If you think your work rights have been violated, please contact the attorneys at the California Employment Legal Group today for a consultation with an experienced employment lawyer who will clearly explain your rights and options under the law.

California’s “Immigrant Worker Protection Act”(AB 450), which went into effect on January 1, 2018, adds a new section to the California Government Code (§7285.1) prohibiting employers from voluntarily agreeing to allow an immigration enforcement agent to enter any non-public areas of the workplace unless otherwise required to under federal law.

The new law removes an employer’s ability to “voluntarily consent” to ICE access. Instead, employers will have to insist that the ICE agent provide a warrant in order to obtain access to the non-public areas of the workplace.

In addition to the foregoing, the new law also prohibits an employer from granting voluntary access to the employer’s employee records without a subpoena or judicial warrant. This excludes access to I-9 forms and other documents for which a Notice of Inspection has been provided to the employer.

If your employer admitted federal immigration agency inspectors into the workplace without a warrant, please contact the attorneys at the California Employment Legal Group today for a consultation with an experienced employment lawyer who will clearly explain your rights and options under the law.

Under existing law, the Labor Commissioner has the authority to seek any appropriate relief (including injunctive relief) in retaliation cases, after it has investigated a claim and determined that unlawful retaliation has occurred. “Injunctive relief” refers to a court-ordered remedy that requires an employer to specifically do something – in this case, presumably put an employee back to work following termination or other disciplinary action.

SB 306 provides that the Labor Commissioner may petition the court for such relief “during the course of an investigation,”which means that now employers may be forced to put an employee back to work pending the two or three years it can take to litigate a claim that the employee was subject to unlawful retaliation.

SB 306 also dramatically reduces the burden of proof for such injunctive relief. Currently, the general standard for a temporary restraining order or a permanent injunction requires the individual to establish  irreparable harm if the injunctive relief is not granted, likelihood of success on the merits of the claim, and that these interests outweigh the harm that the defendant will suffer from granting the injunctive relief. However, under SB 306, relief shall be granted by showing that “reasonable cause” exists to believe the employee has been unlawfully discharged or subjected to adverse action.

SB 306 also authorizes the Labor Commissioner, “with or without receiving a complaint,” to commence an investigation into alleged retaliation. Currently, the Labor Commissioner is authorized to conduct such investigations only after an employee complaint.

SB 306 also establishes a new citation process for the enforcement of claims of retaliation and discrimination. SB 306 authorizes the Labor Commissioner to simply issue a citation directing the employer to cease the violation and take actions necessary to remedy the violation. The burden would instead fall on the employer to challenge the citation through an administrative and court appeal.

If you have been retaliated against or discriminated at work, please contact the attorneys at the California Employment Legal Group today for a consultation with an experienced employment lawyer who will clearly explain your rights and options under the law.

The new “Ban-the-Box” law refers to the question on job applications regarding previous criminal records and a box for applicants to respond by checking yes or no, and often with details.

Under AB 1008, consideration of an applicant’s criminal history is permissible only after the employer has made a conditional offer of employment. Once that offer has been made and the criminal history obtained, AB 1008 further provides that the employer cannot deny an applicant a position solely or in part because of conviction history until the employer performs an individualized assessment. This assessment must justify denying the applicant the position by linking relevant conviction history with specific job duties of the position sought.

Once the employer makes a preliminary decision that the applicant’s conviction history is disqualifying, the employer must notify the applicant of this preliminary decision in writing. However, the employer is not required to justify or explain to the applicant its reasoning for making the preliminary decision. But, the employer must:

• Provide the written notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer;
• Include a copy of the conviction history report, if any;
• Provide an explanation that the applicant has the right to respond to the notice within at least five business days, and that the response may include submission of evidence challenging the accuracy of the conviction record, or evidence of rehabilitation, mitigating circumstances, or both.

The employer cannot make any final determination based on conviction history during this five business day period. If the applicant timely notifies the employer in writing that he or she is disputing the conviction history and is taking steps to obtain evidence to support this, the employer must provide five additional business days to respond to the notice. The employer must also consider any additional evidence or documents the applicant provides in response to the notice before making a final decision.

If you are being asked to disclose your criminal history before the employer has made an offer of employment, please contact the attorneys at the California Employment Legal Group today for a consultation with an experienced employment lawyer who will clearly explain your rights and options under the law.

California Governor Jerry Brown signed legislation (S.B. 396) amending the California Fair Employment and Housing Act (FEHA). The new law requires employers with 50 or more employees to include, as a component of that prescribed training and education for supervisors, training inclusive of harassment based on gender identity, gender expression, and sexual orientation.

In addition to the FEHA poster on discrimination in employment, the new law also requires each employer to display a poster developed by the Department of Fair Employment and Housing regarding transgender rights in a prominent and accessible location in the workplace. The new law is effective as of January 1, 2018.

If you were sexually harassed, please contact the attorneys at the California Employment Legal Group today for a consultation with an experienced employment lawyer who will clearly explain your rights and options under the law.

California has passed a new law prohibiting an employer from relying on an applicant’s salary history information as a factor in determining whether to offer the applicant employment or what salary to offer the applicant. The law further prohibits an employer from seeking an applicant’s salary history information, including compensation and benefits, whether the inquiry is made orally, in writing, personally, or through an agent of the employer.

In addition, the new law requires an employer, upon reasonable request, to provide the pay scale for a position to an applicant.

However, the law permits applicants to voluntarily and without prompting disclose salary history information, and does not prohibit an employer from considering or relying on that voluntarily disclosed salary history information in determining salary. Further, the law does not apply to salary history information disclosable to the public pursuant to federal or state law.

If you are being asked by an employer to disclose your salary history, please contact the attorneys at the California Employment Legal Group today for a consultation with an experienced employment lawyer who will clearly explain your rights and options under the law.

California has enacted the New Parent Leave Act, which provides up to 12 weeks of unpaid leave for eligible employees to bond with a new child. While the federal Family and Medical Leave Act and the California Family Rights Act already provide 12 weeks of unpaid protected leave for baby bonding purposes to eligible employees of employers with at least 50 employees, the Act expands the coverage to include employees of smaller employers.

The Act applies to private, state, and municipal employers that employ 20-49 employees within 75 miles of each other. To be eligible to take leave, employees must have over 12 months of service and at least 1,250 hours of service with the covered employer during the 12-month period prior to commencing leave. The Act does not apply to employees who are covered by the Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA).

Employers are prohibited from retaliating or discriminating against an individual for taking parental leave, and from interfering with, restraining, or denying an employee their right to leave under the Act.

If you were discriminated or retaliated against because of your parent leave, please contact the attorneys at the California Employment Legal Group today for a consultation with an experienced employment lawyer who will clearly explain your rights and options under the law.

California Governor Jerry Brown signed legislation (A.B. 1710) amending existing law prohibiting various types of discrimination against an officer or enlisted member of the military or naval forces of the state or the United States. The law is effective as of January 1, 2018.

The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits discrimination in the terms, conditions, or privileges of employment against a person on the basis of past military service, current military obligations, or intent to serve. With Governor Brown’s approval, the new law amends the California Military and Veterans Code to add the language “terms, conditions, or privileges of employment” to conform with the USERRA. Thus, under the amended law, employers are prohibited from:

• Discharging or otherwise discriminating against an employee in the terms, privileges, and conditions of employment because he/she is a member of the state or U.S. military or is ordered to duty or training; or
• Dissuading, preventing, or stopping any person from enlistment or from accepting a warrant or commission in the state military forces by threat or injury to the person with respect to the terms, conditions, or privileges of employment because of enlistment or acceptance of a warrant or commission.

If you were discriminated because you are an officer or enlisted member of the military or naval forces, please contact the attorneys at the California Employment Legal Group today for a consultation with an experienced employment lawyer who will clearly explain your rights and options under the law.