Sexual harassment in the workplace has been front and center in California this year. In April, we wrote about the landscape of employer liability under California’s FEHA for a supervisor’s sexual harassment after a California Court of Appeals decision seemingly limited the bounds of liability. Earlier this week, the California Court of Appeals issued two new decisions related to sexual harassment in the workplace.
Argueta v. Worldwide Flight Services, Inc.
On September 30, 2023, California Governor Newsom signed SB 553 – a sweeping new law addressing Workplace Violence Prevention in virtually all California workplaces. California employers (unless they fall under one of the limited exemptions) will be required by July 1, 2024, to:
Establish, implement, and maintain an effective workplace violence prevention planThese requirements may seem straightforward; however, compliance pitfalls await employers who fail to delve into them deeply, and responses to workplace violence incidents may expose employers to legal claims in other areas of the law. To that end, Conn Maciel Carey’s California Practice has created several options to assist employers with compliance.
We are pleased to offer a flat fee turnkey Workplace Violence Prevention Program which will include the following materials and services: Continue reading
On Tuesday, November 21, 2023, Ashley D. Mitchell and Darius Rohani-Shukla presented a webinar regarding The Impacts of Artificial Intelligence in the Workplace in 2023 and Beyond.
In May 2022, the Equal Employment Opportunity Commission “EEOC” issued a Technical Assistance (“TA”) document entitled, “The Americans with Disabilities Act (“ADA”) and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees” focused on providing “clarity to the public regarding existing requirements” under the ADA and agency policy. This is the first guidance document the EEOC has issued regarding the use of Artificial Intelligence (“AI”) in employment decision-making since announcing its Al Initiative in October 2021.
It is no secret that more employers have turned to AI to enhance their work processes over the years. An estimated 83% of employers have engaged AI or algorithmic tools to Continue reading
From Your Friends at Conn Maciel Carey
As we reflect on all that we are thankful for this Thanksgiving, we want to express our genuine appreciation for your continued support. It is clients like you who make it all worthwhile. Thank you for being a part of our CMC family! Wishing you a joyous and peaceful holiday.
On Tuesday, November 21, 2023, at 1 p.m. EST, join Ashley D. Mitchell and Darius Rohani-Shukla for a webinar regarding The Impacts of Artificial Intelligence in the Workplace in 2023 and Beyond.
In May 2022, the Equal Employment Opportunity Commission “EEOC” issued a Technical Assistance (“TA”) document entitled, “The Americans with Disabilities Act (“ADA”) and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees” focused on providing “clarity to the public regarding existing requirements” under the ADA and agency policy. This is the first guidance document the EEOC has issued regarding the use of Artificial Intelligence (“AI”) in employment decision-making since announcing its Al Initiative in October 2021.
It is no secret that more employers have turned to AI to enhance their work processes over the years. An estimated 83% of employers have engaged AI or algorithmic tools to screen or assess applicants and workers, and some have even adopted a broad framework applicable to everything from resume scanners and “virtual assistants” or chatbots to video interviewing software and testing software that assess personality, aptitude, skills and perceived “cultural fit.” However, if employers are not careful, these tools could result in disability discrimination violating the ADA.
The content of this presentation includes Continue reading
By Kara Maciel and Andrea Chavez
On October 26, 2023, the National Labor Relations Board (NLRB) issued its Final Rule (Final Rule) for determining joint-employer status under the National Labor Relations Act (NLRA). The Final Rule expands the scope of when an entity can be deemed a joint employer to when it “possesses the authority to control (whether directly, indirectly, or both), or to exercise the power to control (whether directly, indirectly, or both), one or more of the employee’s essential terms and conditions of employment.” 
Joint employers may have a duty to bargain with unions and may be exposed to what would otherwise be unlawful secondary union activity (e.g., picketing during labor disputes) as well as unfair labor practice liability, both jointly and individually. This change significantly increases potential liability for any entity that contracts with contractors, temporary workers, vendors, franchisees, and others. The rule goes into effect on December 26, 2023.
The new rule repeals and replaces the current rule, promulgated in 2020 by the Trump-era Board. The 2020 rule requires an entity to “possess and exercise such substantial direct and immediate control over one or more essential terms or conditions of their employment” to be deemed a joint employer, and only considers evidence of indirect and reserved control to the extent that such control “supplements and reinforces” evidence of direct and immediate control.
The new rule largely marks a return to Continue reading
On Thursday, October 26, 2023, Conn Maciel Carey’s Labor and Employment attorneys presented a webinar regarding ADA Reasonable Accommodations & Managing the Interactive Process.
Understanding the employer’s obligations when responding to an employee’s request for a reasonable accommodation under the Americans with Disabilities Act, including when and how best to engage in the “interactive process” can be particularly challenging as there is rarely an obvious or easy answer. The law does not require an employee to make any reference to the ADA or use specific words, such as ‘disability’ or ‘reasonable accommodation,’ when requesting an accommodation, so employers must recognize the variety of ways in which a request for an accommodation may be articulated.
Unfortunately, far too many employers focus on the outcome—believing the need to find the perfect accommodation—when, in fact, the key to success is found in effectively engaging in the interactive process. When presented with a challenging request for accommodation, however, employers may give up too quickly or fail to appropriately consider and explore alternative options. Others mistakenly assume they have to provide the accommodation sought by their employee or something substantially similar to what was requested. Those employers that figure out the process tend not only to obtain better outcomes but can effectively protect themselves from costly judgments down the road.
Participants in this webinar learned: Continue reading
Conn Maciel Carey LLP, (CMC) a boutique law firm with national practices in Labor and Employment Law, Workplace Safety Law (OSHA and MSHA), and Litigation, is pleased to announce that Andrea O. Chavez has joined the Los Angeles, California office as Senior Counsel in the firm’s Cal/OSHA and California Labor and Employment practices. She is in her seventh year of practice and brings her experience to the firm’s expanding California team.
“I represent employers in state and federal court and before administrative agencies in employment and safety-related disputes. This includes employment discrimination, wage and hour class action, NLRB, Cal/OSHA, and federal OSHA matters,” Ms. Chavez says. “I also focus on counseling employers on all matters related to managing employment relationships.”
CMC welcomes Ms. Chavez to CMC’s Southern California office. She joins the firm’s leadership team on the West Coast, alongside attorneys Megan Shaked and Rachel Conn based in Northern California. Continue reading
The Equal Employment Opportunity Commission (EEOC) has proposed updated guidance for employers on workplace harassment. This article will point out some, but by no means all, of the most significant changes in the proposed guidance. Importantly, these guidance documents, even when final, are not law. Rather, they serve as a roadmap for how the EEOC will enforce the laws it is tasked with enforcing.
The new guidance, which covers a range of topics, incorporates explicit protections for reproductive choices and for LGBTQ+ workers. The guidance includes as sex-based harassment “harassment based on a woman’s reproductive decisions, such as decisions about contraception or abortion.” It also includes as sex-based harassment “…intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.” Continue reading
Last month, Attorney General Brian L. Schwalb issued a new advisory explaining restaurants’ legal obligation to adequately disclose service fees. Under the DC Consumer Protection Procedures Act (CPPA), restaurants are required to disclose fees, including service fees, in a timely, prominent, and adequate manner. This new advisory includes examples of compliant and non-compliant fee disclosures according to the CPPA.
According to AG Schwalb, the new advisory was motivated by diners expressing concerns about being surprised by unexpected fees and surcharges at the end of their meals. As well as that, the advisory indicated that diners have also expressed confusion about how restaurants are using service fees, especially whether restaurants distribute the fees as tips to servers or retain the fees to cover operational expenses.
Service Fee Language
The advisory emphasized that conclusory or general statements indicating service charges or service fees would not comply with the CPPA.
For example, the following statement would not comply with the CPPA:
A 22% service charge is included on every tab and will help to support our staff.
Whereas the following statement would comply with the CPPA:
A 22% service charge is included on every tab. 15% is distributed directly to service workers on top of their base wages, and the remaining 7% is used to help pay for our staff costs, such as base wages, health insurance, etc. You may choose to leave an extra tip.
Timely and Prominent Disclosure
The advisory also clarifies that restaurants must disclose the existence and amount of fees before diners place their orders. In addition, the advisory explains that restaurants cannot bury fees, or make obscure theme in smaller print. The advisory suggests that a good rule of thumb is for restaurants to communicate service fees in the same way that they communicate their prices.
Employer Takeaways
Using this guidance, DC restaurants should evaluate the substance, process, and prominence of their service fee language. Where restaurants are found to be in violation of the CPPA, initial warnings may be issued as a precursor. However, it’s important to note that the Office of the Attorney General retains the authority to pursue remedies that encompass consumer refunds, imposition of penalties, and the enforcement of corrective actions upon these businesses.