preventing sexual harassment lawsuits

2008-04-24T12:44:00.000-07:00

ELI KANTOR INTERVIEWED IN BUSINESSWEEK
Eli Kantor was recently interviewed and quoted in Business Week in an article regarding the termination of employees for viewing pornography on the internet at work. The links to the article are: http://www.businessweek.com/managing/content/apr2008/ca20080422 537933.htm
and http://www.businessweek.com/managing/content/apr2008/ca20080422 537933 page 2.htm

2008-03-23T20:32:00.000-07:00

STARBUCKS $100 MILLION DOLLAR VERDICT LIKELY TO SPUR ADDITIONAL LITIGATION.

The recent $105 million dollar verdict issued by a San Diego Superior Court Judge, will likely spur additional litigation regarding unlawful tip pooling at other restaurants. Employers would be well advised to have competent employment law counsel review their tip pooling policies to make certain that they do not violated California law.

2008-03-23T20:29:00.000-07:00

UNLAWFUL PRACTICES AT CARWASHES EXPOSED.

Today's LA Times exposed a pattern of unlawful wage and hour practices at local car washes, including failure to pay minimum wage, overtime pay violations and forcing of some workers to work for tips only.

2008-03-23T20:26:00.000-07:00

A San Diego Superior Court Judge ordered Starbucks to pay $105 million dollars to current and foremer baristas for unlawfully splitting their tips with managers and shift supervisors. Statbucks stated that it intends to appeal the Court's ruling.

2008-03-08T21:09:00.000-08:00

The California State Supreme Court changed the playing field in artist/manager disputes in its Marathon Entertainment decision. It held that the doctrine of severablity can be applied to artist/manager disputes. Significantly, before this decision if a business manager procured employment even one time for an artist, the artist could void the entire agreement. However, Marathon Entertainment held that the unlawful procurement of employment could be severed from the rest of the agreement. Therefore, the business manager would only be prevented from collecting commissions for that transaction only, while the rest of the agreement would remain valid. It is unclear how the courts and the Labor Commissioner will apply this decision

2008-03-06T14:12:00.000-08:00

SEVEN SECRETS FOR KEEPING YOUR COMPANY OUT OF COURT IN 2008 - HOW TO AVOID SEXUAL HARASSMENT LAWSUITS, by Eli M. Kantor

Recently, there has been a huge upsurge in the number of sexual harassment lawsuits. It all started with Anita Hill 's televised testimony at the Clarence Thomas Senate Confirmation hearing to become a Supreme Court Justice in 1991. Then Paula Jones' lawsuit against President Clinton and several multimillion dollar verdicts have caused a wave of litigation.

In 1998 the U.S. Supreme Court handed down two important decisions that put the ball in the employer 's court in sexual harassment cases. Basically, they gave employers an "affirmative defense", provided that they have a policy that makes it clear that the company does not tolerate sexual harassment. This article will briefly summarize 7 secrets to keeping your company out of court in 2008.

#1 Have a Written Sexual Harassment Policy All employers should have a written sexual harassment policy, which at a minimum provides: what sexual harassment is; sets forth a mechanism for reporting it; states that all complaints will be promptly and thoroughly investigated; that there will be no retaliation for making the complaint; and that if a violation is found, that prompt and effective remedial action will be taken.

#2 Communicate Your Sexual Harassment Policy to All of Your Employees It does no good to merely have a sexual harassment policy that is sitting gathering dust in the Human Resources department or in an employee handbook, the policy must be communicated to all of your employees. It should be distributed to employees at the time of hire, explained to them, and have them sign acknowledging receipt and agreeing to abide by it. It should be posted on the wall and where appropriate, translated into Spanish. It should be discussed at employee meetings.

#3 Implement Your Sexual Harassment Policy Most importantly, your policy must be enforced and taken seriously, so that employees feel comfortable using it. It is not enough to have a policy and communicate it, if you don't implement it.

#4 Provide Training for All of Your Supervisors Under a new law, AB 1825, California now requires all employers with 50 or more employees to provide a minimum of 2 hours of training to all of their supervisors. Connecticut has a similar law and other states are expected to follow. While it isn't required for employers with less than 50 employees, it still is an excellent idea, since it improves employee morale by preventing problems in the first place; teaches supervisors how to nip the problem in the bud; and if an employer is ever sued the first question that they will be asked is: "what have you done to train your supervisors about sexual harassment prevention?" The employer can respond by providing the attendance sign-in sheet from the training seminar.

#5 Investigate All Complaints Promptly and Thoroughly As soon as an employer receives a complaint, it must immediately start investigating, even if it isn't a formal written complaint. Remember, there is no such thing as an "off the record complaint". Once a supervisor finds out about a complaint, the employer is deemed to be put on notice and must start its investigation. All relevant witnesses should be interviewed and the alleged harasser should be given an opportunity to respond to the allegations made Action.

#6 Take Prompt and Effective Remedial Once the employer completes its investigation, it should take prompt and effective remedial action. What that is depends upon the facts of the specific case and could range from a written warning, to a suspension, to termination, depending upon the circumstances. In making its determination, the employer should consider the severity of the alleged conduct, and the prior work history of the alleged harasser. The results of the investigation should always be well documented and communicated to both the complaining party and to the alleged harasser.

#7 Follow-up with the Complainant

After the investigation has been completed and remedial action, if any, taken, the employer should always follow-up with the complainant within two weeks, to make sure that the situation has been satisfactorily resolved. Don't wait for the employee to come to you to tell you that the problem has not gone away or that they are now being retaliated against for complaining, by then you may already have been sued.

2008-03-05T14:30:00.000-08:00

SPONSOR YOUR EMPLOYEES FOR H-1B VISAS BY APRIL 1, 2008!, Feb. 28, 2008
By Eli M. Kantor

The number of new H-1Bs issued each year in the United States is subject to an annual congressionally-mandated quota. Each H-1B quota applies to a particular Fiscal Year, which begins on October 1. Applications for the upcoming Fiscal Year are accepted beginning on the preceding April 1 (or the first working day after that date).

All employers who are thinking about filing for an H-1B visa, for fiscal year 2009, must do so as early as April 1, 2008; otherwise, they are taking the chance that the quota will run out for 2009. In 2007, The U.S. Citizenship and Immigration Services ("USCIS") received approximately 120,000 petitions, and the quota of 65,000 petitions (which were randomly selected) was filled on the first date filing was permitted, April 1.

In addition to the 65,000 quota, there is a separate allocation of 20,000 additional H-1B visas for those with a Masters degree or higher, earned at a U.S. university. For the fiscal year 2007, this allocation was filled approximately four weeks after the first permissible date of filing.

The H-1B is the most frequently obtained temporary work visa under the non-immigrant visa category in the United States under the Immigration & Nationality Act, section 101(a)(15)(H), and is available for full-time employment.

The H-1B classification is for "specialty occupations" only, which requires theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor's degree or its equivalent as a minimum.

If the occupation requires a license to perform the duties of the job, the alien must have that license prior to the approval of the H-1B petition. H-1B work-authorization is strictly limited to employment by the sponsoring employer.

Only "new employment" is covered under the 65,000 H-1B quota. Someone who has received an H-1B within the last six years and applies for another H-1B with a different employer is not subject to the quota. H-1B extensions as well as H-1B petitions by institutions of higher education or related or affiliated nonprofit entities, or nonprofit research organizations, or governmental research organizations are also not counted against the quota.

Below is a list of common errors that cause an H-1B petition to be rejected:

1. Incorrect fees: It is suggested to submit fees in separate checks. This lessens the likelihood of unintentional math errors when calculating the total fees due.

2. Inconsistent and incorrect answers on form I-129 and supplements. Double check the petition for consistency.

3. If your worker is or has been a J-1 worker, note that Part C, #4 of I-129 H-1B Data collection Supplement does not refer to all Js with a waiver of 2 year foreign residency rule (212e). Do not check "yes" unless your worker is a doctor who has been granted a Conrade 30 waiver to work in a medically underserved area.

So, if you're an employer looking to sponsor an employee for an H-1B visa, do not delay! Contact experienced legal counsel immediately, since it takes several weeks to translate transcripts and have an equivalency evaluation for college and work experience and to prepare all necessary forms.

File the petition by April 1, 2008, and file it correctly. Incorrect applications will not be accepted, and this may prevent or slow down the process of obtaining the H-1B process considerably.

2008-03-05T14:23:00.000-08:00

MINIMUM WAGES ON THE RISE IN CALIFORNIA, Jan. 21, 2008
by Eli M. Kantor

Attention California Employers: On January 1, 2008, the Minimum Wage rises to $8 per hour from $7.50. So, you will need to make appropriate adjustments to your payroll systems. Further, many employers also are raising their employee's wages that are above the minimum wage in order to retain them.

Other big changes effecting California Employers in 2008 are:

New I-9 Forms, employment verification forms will be required effective December 26, 2007, for all new hires. Expect an increase in work place raids. So, do preventative audits now, and make contingency plans for what to do if you are raided.

Expect a tidal wave of class action wage and hour lawsuits for unpaid overtime, missed meal and rest periods, and working off the clock. The California State Supreme Court ruled this year that the remedy for a missed meal or break period is considered to be a "wage" and not a "penalty".

Therefore, the statute of limitations is now 4 years and not 1 year, creating a huge incentive for class action lawsuits. Accordingly, do a preventative audit now to determine whether you have misclassified any exempt employees or independent contractors. Be sure that employees are taking their 30 minute unpaid meal periods and there 10 minute paid rest breaks and, most importantly, that they are documented.

Expect a flood of Sexual Harassment Lawsuits. Therefore, it is imperative that all employers who have 50 or more employees provide their supervisors with a minimum of 2 hours of sexual harassment prevention training to be in compliance with the law. Further, employers must have written Sexual Harassment Policies. It is not enough just to have them; you must implement them and effectively communicate them to your supervisors and employees.

In addition there are a number of minor changes that are more of a paperwork nuisance for small businesses, such as, AB 650, which requires all employers to notify workers about eligibility requirements to receive the Earned Income Tax Credit, a federal program to aid low-income workers. The notices must go out at the same time or within a week of the IRS W-2 form or 1099 form used for independent contractors.

AB 338, which extends the eligibility time for temporary disability payments.

AB392, which requires employers with at least 25 employees to give workers as many as 10 unpaid days off when a spouse is on leave from military deployment.AB 869, which requires state labor code enforcers to cross-check with payroll records to make sure all employers are providing workers compensation insurance.

2008 is sure to be a busy year on the employment front for California employers. In order to comply with the ever changing requirements of California law, and to stay out of court, you need to consult with competent employment law counsel.

2006-08-06T20:33:00.000-07:00

CALIFORNIA SUPREME COURT ALLOWS EMPLOYERS TO FIRE "AT-WILL" EMPLOYEES WITHOUT REASON. In Dore v. Arnold Worldwide, Inc., the California State Supreme Court held that an employer doesn't need to give a reason for firing an "at-will" employee. In this case, the employee, Dore, had signed an "at-will" employment agreement giving the employer or Dore the right to terminate the relationship at any time. This agreement set forth the presumption that is contained in California Labor Code Section 2922 which presumes that employment is at-will unless otherwise specified, and parties may terminate by giving each other notice. The Court rejected Dore's argument that pre-contract discusssions with his employer reasonably led him to believe that his employment was long-term and that he would be terminated only if he performed poorly. However, the Court refused to allow extrinsic evidence of the alleged verbal assurances of continued employment, since the express written contract was not ambiguous. Accordingly, employers should be certain to include unambiguous "at-will employment" language in their employment applications and in their employee handbooks, and be certain that all employees sign acknowledging receipt.

2006-08-06T19:00:00.000-07:00

ELI KANTOR INTERVIEWED. Employment Law expert, Eli Kantor, was interviewed and quoted by Todd Henneman in the 07/31/2006 issue of Workforce Management (www.workforce.com) in an article entitled: "After High Court Ruling Firms may want to take a long look at Anti-Harassment Strategies." For further information about Sexual Harassment Prevention Training, see www.sexualharassmentprevention.net

2006-07-30T21:51:00.000-07:00

CALIFORNIA FAIR EMPLOYMENT AND HOUSING COMMISSION ADPOTS MODIFICATIONS TO REGULATIONS FOR SEXUAL HARASSMENT PREVENTION TRAINING. On June 20, 2006, the commission adopted proposed modifications to the regualtions regarding sexual harassment prevention training. Employers wishing to submit comments on the proposed regulations may obtain further information from the commission's Web site, www.fehc.ca.gov.
For further information about the Sexual Harassment Prevention Training Law, see Eli Kantor's web site, www.sexualharassmentprevention.net

2006-07-17T21:31:00.000-07:00

SEVEN SECRETS TO SURVIVING AN IMMIGRATION AUDIT. Recently, there has been a huge upsurge in workplace raids by Immigration in response to growing political pressure. Immigration is aggresively enforcing laws that are already on the books, which prohibit an employer from "knowingly" employing an unauthorized alien. This change was outlined in an April, 2006 memo, setting forth their new workplace enforcement strategy. Consequently, employers need to get ready now, so that they will be prepared when Immigration knocks on the door. Here are seven secrets to surviving an Immigration Audit: #1 Do An Internal I-9 Audit Now. Don't wait for Immigration to raid your workplace or to send you a letter demanding to inspect your I-9 Forms within 72 hours to first review them. Do it now. Compare your payroll with your I-9 forms and make sure that you have an I-9 Form for all employees. Make sure that they all have been filled out correctly and completely. #2 Centralize the I-9 Process. Train 1 or 2 employees in the technical process of filling out I-9 forms. Then have them always be in charge of completing the I-9's , instead of random supervisors, who may or may not be familiar with the process. #3 Do Not Put the I-9's in the Employee's Personnel file. Keep the I-9 forms in a separate file. You don't want to have to turn over your employee's personnel files to Immigration, since they contain privileged information. (You can put a copy of the I-9 in the employee's personnel file, if you want, but keep the originals separate.) #4 Always Examine the Original Documents - Not Copies. It is critical that you examine the original document, "green card", drivers license or social security card, not a copy. #5 Copy the Front and Back of All Documents that were Examined, and Attach to the I-9. Although employers are not legally required to make a photocopy of the documents that they examined, doing so, demonstrates the employer's good faith, and if questioned, the employer can point to what documents they relied upon, even if they ultimately prove to be fraudulent. #6 Establish a Written Policy that Fraud in the Employment Application Process, Will be Grounds for Termination. By doing so, the employer will clearly have the right to terminate an employee if it later discovers that he submitted fraudulent documents to obtain employment. #7 If you Receive a Social Security Mismatch Letter, Contact Your Attorney First, Before Responding. The Social Security Administration is sending thousands of Social Security Mismatch Letters to Employers, informing them that there is a "mismatch" in the names and social security numbers of some of the employer's employees. There may be serious legal consequences for the employer in this regard. Therefore, immediately contact experienced legal counsel before responding.

2006-07-16T15:56:00.000-07:00

ELI KANTOR WAS INTERVIEWED FOR ARTICLE. Employment law expert, Eli Kantor was recently interviewed by Ellen Lemel for an article in the October issue of Landscape Management, regarding employment issues facing LandscapeContractors.

2006-07-01T15:15:00.000-07:00

House is playing politics with Immigration Reform. Rather, than enter into serious negotiations to attempt to forge a compromise on Comprehensive Immigration Reform, the House Republican leadership has decided to make Immigration an issue for the Fall 2006 elections. Thus, rather than holding conference committee hearings with the Senate, there will be a series of public hearing in July and August in Washington D.C. and throughout the country on various issues concerning Immigration reform. Thereafter, they may hold a joint conference committee with the Senate. However, the closer that we get to the Fall elections, the more likely it is that nothing will be accomplished until next year, if at all. There is one possible compromise being floated in Congress: a two-step solution - first "border security" and "increased workplace enforcement", together with the creation of an electronic employment authorization verification system; and then after the Secretary of Homeland Security can certify to the Congress that the border has been secured and that a workable electronic employment authorization verification system has been established, the second phase of Immigration reform would begin - the "guest worker program" and the "legalization program" for the estimated 12 million undocumented workers in the US. Stay tuned for further developments.

2006-07-01T14:58:00.000-07:00

U.S. SUPREME COURT OPENS FLOODGATES FOR EMPLOYEE RETALIATION LAWSUITS. In a unanimous ruling, 9-0 the Supreme Court held that all but "trivial" actions taken against an employee filing a discrimination claim are unlawful retaliation. The Court adopted a broadly worded and employee-friendly definition of the type of retaliation that is prohibited by the basic federal law against discrimination in employment, Title VII of the 1964 Civil Rights Act. Title VII prohibits discrimination and prohibits employers from retaliating against workers who complain about discrimination. But the statute does not define what constitutes retaliation, leading to various different standards among the circuit courts, and uncertainty for employers and employees alike. Under the standard that had been applied by many courts, it had been very difficult for an employee to win a retaliation claim unless the retaliation had resulted in termination. By contrast, the standard adopted by the Supreme Court in Burlington Northern & Santa Fe Railway Company v. White, in an opinion by Justice Stephen Breyer, any "materially adverse" employment action that "might have dissuaded a reasonable worker" from complaining about discrimination will count as prohibited retaliation. Depending upon the context, retaliation might be found in an unfavorable annual evaluation, an unwelcome schedule change or job transfer, or other action well short of termination.

As a practical matter, employers can expect to see a huge upsurge in the number of retaliation lawsuits. Taken to its extreme, an employee could complain about discrimination on his first day of employment and then anything that ever happened to him thereafter could be claimed to be retaliation for his initial complaint. Of course, the employee must still prove that there was some connection between his complaint and the retaliation, and the more time that has passed the more difficult it will be for him to prove.

According to employment law expert, Eli Kantor, Esq., as a consequence of this decision, employers must redouble their efforts to prevent harassment in the workplace in all forms, sexual, racial etc. They must provide harassment prevention training to their supervisors, and most importantly in the light of the Burlington case, they must investigate all harassment claims promptly and thoroughly, and, if a violation is found, take prompt and effective remedial action. Significantly, they must emphasize to all supervisors that there can be no retaliation taken against the complaining employee whatsoever, because even if the underlying complaint turns out to have not merit, the employee can still bring a retaliation claim.

2006-06-10T20:13:00.000-07:00

EMPLOYERS NEED TO PREPARE FOR IMMIGRATION REFORM NOW. The Bush Administration has proposed two new reforms to insure that employers are employing workers who are authorized to work in the US. First, they have proposed that employers be allowed to keep I-9 employment authorization forms in electronically in digitized form. This would save space and also aid in searching them. Second, they have proposed new procedures for employers setting forth their duties and responsibilites when they receive "Social Security mismatch" letters, indicating that their employees social security numbers and names do not match with their account. The regulations will establish safe habor procedures for employers. However, they will also target employers for enforcement procedures if they repeatedly receive the mismatch letters. Accordingly, employers should be conducting internal I-9 audits at this time to ensure that their employees are authorized to be employed in the US before they are audited by the government. Hopefully, Immigration reform will be approved this year and they will be able to legalize those workers whose documents are not appropriate. However, if a new law creating a temporary worker is not approved, they must be prepared to deal with the increased workplace enforcement which is expected. For further information regarding these matters, contact ELI KANTOR at (310)274-8216; email dreli173@aol.com

2006-06-10T19:55:00.000-07:00

STATE SUPREME COURT HOLDS THAT LAW ALLOWING EMPLOYEES TO SUE THEIR EMPLOYERS FOR SEXUAL HARASSMENT BY CUSTOMERS IS RETROACTIVE. The California State Supreme Court ruled unanimously that the 2003 law allowing employees to sue their employers for sexual harassment by their customers was retroactive, since "the Legislature merely clairfed existing law." Accordingly, Employers must be aware that they have a duty to provide a "harassment free environment" for their employees. This includes harassment by third parties such as customers, vendors and independent contractors in the workplace.

2006-06-10T19:45:00.000-07:00

ELI KANTOR TO BE INTERVIEWED FOR ARTICLE REGARDING SEXUAL HARASSMENT PREVENTION TRAINING. Eli Kantor will be interviewed byTodd Henneman of Workforce Management www.workforce.com a print and online magazine for an article regarding sexual harassment prevention training.

2006-05-27T15:25:00.000-07:00

EMPLOYERS NEED TO PREPARE FOR IMMIGRATION REFORM NOW

On Thursday, May 25, 2006, in a historic vote, the U. S. Senate passed the most signifcant immigration reform law in 20 years. This comprehensive immigration reform bill addresses 3 difficult problems: 1) securing our borders; 2) creating a temporary guest worker program to address labor shortages; and 3) what to do with the estimated 12 million undocumented immigrants in the country. (The details of the bill our explained in depth in my May 26th post, infra.)

The bill now goes to the House/Senate conference committee where it must be reconciled with the House bill which was past last December. The House bill only deals with the first issue: "securing our borders". It is "enforcement only". The rationale behind it is that first we need to reassert control over our borders. It proposes to build a 700 mile fence along the border with Mexico, adding 6,000 new border patrol agents, and it makes "unlawful presence in the US" into a felony. It also calls for more "interior enforcement" that is cracking down on employers, who employ undocumented workers. It raises the maximum fine for knowingly employing an undocumented worker from $10,000 to $40,000 and it includes criminal sanctions for repeat violators. The Senate version also calls for stiffer enforcement in the workplace, doubling the penalties for employers from $10,000 to $20,000.

At this time, it is uncertain what the final immigration reform bill will look like or whether it will pass at all this year. However, one thing is certain - there will be more enforcement in the workplace, with or without a new law. Right now, due to all of the political pressure, Immigration has already started to enforce the existing laws more vigorously. Therefore, it is incumbent upon all employers to conduct a "preventative internal I-9 audit" now, before they are audited by the government. Employers are required by law to complete a Form I-9, Employment Verification Form, for all of their employees at the time of hire, certifying that they have reviewed the employees documents and that they are authorized to work in the US. This is required for all employees, even native born US citizens. Further, if an employee's work authorization expires, the employer is required to fill out a new I-9 form with the updated information. Failure to do so may subject the employer to civil and criminal penalties.

2006-05-10T10:08:00.000-07:00

Eli Kantor spoke to an enthusiastic crowd of over 250 people at the United Shoe Retailers Association in Phoenix, Arizona on Monday, May 8th on the need for sexual harassment prevention training in the workplace in a speech entitled: "The Rules of the Game Are Changing". The speech was well received and generated extensive questions and discussion from the audience.

2006-03-30T17:28:00.000-08:00

Today the U.S. Senate is debating a major reform of our immigration laws, which will have a huge impact on all employers. For further information, go to my immigration blog: www.beverlyhillsimmigrationlaw.blogspot.com

2006-03-23T12:32:00.000-08:00

Mr. Kantor was recently interviewed by Los Angeles Times Reporter, Karen Klein, about jury duty and why courts are now allowing fewer excuses for individuals to get out of jury duty. The topic of the article is "Courts Allow Fewer Excuses to Skip Jury Duty." You can view the full article on our website in the publication tab or on the LA Times website.

LA Times

www.latimes.com/business/la-fi-inbox22mar22,1,2429357.column?coll=la-utilities-business&ctrack=1&cset=true

Or

http://www.sexualharassmentprevention.net/juryduty.jsp

2006-03-21T13:24:00.000-08:00

Recently, Mr, Kantor was interviewed by Karen Klein of Businessweek online, on sexual harassment training for supervisors and how it could keep companies out of court and create an affirmative defense to those charges.

View the full article at busineesweek online or MSNBC,

www.businessweek.com/smallbiz/content/mar2006/sb20060308_127215.htm?chan=smallbiz_smallbiz+index+page_karen+e.+klein

or

http://www.msnbc.msn.com/id/11744182/from/ET/

Additionally, Mr. Kantor will be speaking at the United Shoe Retailers Association convention on May 8th 2006 in Phoenix, Arizona.