Articles Posted in employment attorney

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Across the country, at all levels of government and industry, artificial intelligence (AI) is the source of intense focus as the machine learning technology has advanced leaps and bounds in just a couple of years. AI uses specialized tech to write and learn algorithms. It’s more than just a single program, and its uses are vast, with applications in everything from writing essays to self-driving big rig trucks to criminal case sentencing. Obviously, this has MANY implications for employers and employees. One that has captured the attention of government regulators and anti-discrimination lawyers is the use of algorithms in hiring. California algorithmic discrimination

Creators and proponents of AI will tell you that this sort of technology used in hiring helps eliminate the pitfalls of innate human biases to actually reduce instances of employment discrimination. But as our Los Angeles employment discrimination lawyers can explain, that doesn’t tell the whole story.

Because AI technology relies on machine learning, what is put into it will dictate the results it outputs. So if the information going in is even slightly coded for biases in gender, race, nationality, ethnicity, religion, etc., the results are going to perpetuate those biases – and possibly even compound them. This can be intentional, but from what we’ve seen, it’s largely unintentional. But good intentions don’t change the adverse impact.

And this issue now has a name: Algorithmic Discrimination.

Just last year, the Equal Employment Opportunity Commission issued guidance workplace algorithmic discrimination and promised to be proactive in getting ahead of the issue so that workplace policies can keep place with the technology. It’s called the Artificial Intelligence and Algorithmic Fairness Initiative, and it encourages industry self-regulation for companies using AI for recruiting and hiring.

Are There Any Algorithmic Discrimination Laws?

Continue Reading ›

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Employers in California can’t be held legally responsible if workers contract COVID-19 on-the-job and then spread it to people they live with.covid workplace illness

In the case of Kuciemba v. Victory Woodworks, Inc., the California Supreme Court ruled that while take-home COVID claims filed by employee spouses aren’t barred by the exclusivity provisions of workers’ compensation law, employers owe no duty of care to non-employees.

Workers’ compensation claims are predicated upon injury suffered by an employee. An employee who files a workers’ compensation claim can’t also file a lawsuit against their employer, due to the exclusivity rules. But the spouse isn’t entitled to workers’ compensation if they get sick. And the claim here wasn’t based on the employee’s injury, but the spouse’s.

However, claims rooted in negligence must first establish that the defendant owed the plaintiff a duty of care. Employers, the Court ruled, don’t have a special relationship with the spouse’s of employees such that it establishes a legal responsibility to use reasonable care in preventing harm to them. The Court noted that while it’s foreseeable that negligence in employer policies and practices would increase the likelihood of spreading a highly contagious disease to employee household members, to recognize an employer duty of care to non-employees would “impose an intolerable burden on employers and society” that would be in contrast to public policy.

Of course, the bones of this case are more in the realm of injury/tort law rather than California employment law (which is our focus at Nassiri Law Group). But it’s still worth pausing to review, given how substantially COVID-19 upended so many workplace procedures, policies, and practices. So much of this was uncharted territory for the modern world. As such, California courts are still getting around to resolving workplace conflicts – direct and ancillary – that cropped up in the midst of the pandemic and its aftermath. Continue Reading ›

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As longtime advocates for fairness in the workplace, our Los Angeles employment attorneys primarily devote our energies to representing employees on the receiving end of inequity on-the-job. But there’s also value in explaining to employers how they can sidestep some of the most common issues that lead to California employment lawsuits.California workplace retaliation

Unlawful workplace retaliation is one of the most common sources of legal claims. It’s also potentially one of the costliest for employers. In a single recent years, nearly 6 in 10 claims filed with the U.S. Equal Employment Opportunity Commission (EEOC) alleged retaliation, often in conjunction with other claims. It is the No. 1 type of employment discrimination alleged nationally.

What is Retaliation in an Employment Setting?

The term “retaliation” can have a few different meanings in an employment context, but it’s only illegal when it crosses the boundaries of state and federal fair employment laws.

In this context, retaliation occurs when an employer initiates a materially adverse action because an applicant or employee asserts or engages in rights that are protected under equal employment opportunity statutes. Such rights are referred to as “protected activities.”

Examples of protected activities would be things like:

  • Refusing to comply with a directive the employee believes to be discriminatory. (This requires only a good faith belief by the employee that the conduct in question is unlawful or could become unlawful if repeated. They don’t have to prove the underlying act was, in fact, discrimination.)
  • Filing a complaint of workplace discrimination (or indicating an intention to do so) regarding one’s self or other employees.
  • Refusing sexually-charged advances at work or intervening to protect others at work.
  • Requesting reasonable accommodations, as allowed by law, for one’s disability or religion.
  • Filing a complaint with management about equal employment disparities.
  • Gathering evidence in support of or preparation for a potential equal employment opportunity claim.

(This is not an exhaustive list, but provides a general sense of what might constitute as a protected activity as referenced in retaliation statutes.) Continue Reading ›

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The lawsuit comes as employers have asked the U.S. Equal Employment Opportunity Commission (EEOC) for clearer guidance in how they should be using this technology. The EEOC has said it wants to initiate stronger enforcement of federal antidiscrimination standards to prevent hiring bias perpetuated by AI systems.
The primary plaintiff in the case against Workday  – representing others similarly situated – says he’s over 40, Black, and suffers from anxiety and depression. He has applied for upwards of 100 jobs through Workday’s system since 2018, when he earned a bachelor’s degree in finance and an associates degree in information technology. He’s been denied every single time.
Workday is a hiring screening tool that is used by thousands of employers nationally, according to the complaint. It purportedly allows for preselection of applicants outside of protected categories – with input from algorithms formulated with input from humans who, as we know, have both conscious and unconscious motivations for discrimination. This, plaintiffs say, has resulted in patterns of discriminatory practice. Furthermore, it’s alleged the software developer knew its systems were intentionally discriminating against protected class members in clear violation of the U.S. Age Discrimination in Employment Act (among other federal protections).
Plaintiff in Mobley v. Workday is seeking injunctive relief to reform the AI company’s screening products, policies, procedures, and practices to ensure that workers in state and federally protected classes will be able to compete fairly.
The company denies any wrongdoing, and insists its tools are fair and that the review process has been subject to extensive legal review to ensure compliance with state and federal employment regulations.

EEOC Has a Draft Strategic Enforcement Plan

The EEOC has a draft strategic enforcement plan that would allow its legal team four years to come up with concrete guidance on AI screening tools for employment. The strategic enforcement plan encompasses more than just AI, but the emphasis on this burgeoning tech was clear.

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“The customer is always right.” That’s the longtime adage, anyway. But it’s dead wrong when it comes to workplace harassment. Both California and federal laws protect employees against workplace harassment by customers, as well as colleagues and supervisors.California workplace harassment by customers

This is true whether your clients are high-level investors, bar patrons, retail shoppers, or patients.

You have the right to work in a harassment-free environment. That goes not just for sexual harassment, but harassment on the basis of any protected class – disability, age, religion, race, ethnicity, nationality, military or veteran status, gender, sexual orientation, gender identity, pregnancy or related condition, etc. In California, this right also extends to independent contractors, not just employees. A harassment-free workplace is not a privilege. It’s not up for debate. It is your right.

If your employer has failed to protect you from workplace harassment by customers, you need to get on the phone with a Los Angeles employment lawyer as soon as possible. The company/employer could be held liable for failure to protect you from harassment perpetrated by non-employees, so long as there is evidence they knew or should have known about it and failed to take swift and reasonable steps to stop it.

Depending on the nature of the harassment, you might have only 180 days from the date of the last incident to initiate your complaint (if it’s a federal-level complaint filed with the Equal Employment Opportunity Commission). You probably have longer for state-level claims, but these aren’t “wait and see” situations. Fast action is recommended.

Laws that Protect Employees from Customer Harassment

Both federal and state laws protect against workers being subjected to a hostile work environment as a result of harassment. Continue Reading ›

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It’s common practice for employers accused of discrimination against their workers to try to dig up dirt about the workers’ past – anything that might help bolster their case. But can the evidence acquired after the employee had been disparately treated be used to justify those actions? employment lawyer

“After-acquired evidence” is proof of employee misconduct that an employer discovers after the employee’s been discharged on other grounds (often after an California employment lawsuit has been filed). Courts have debated for years whether such evidence can be used as a defense in employment litigation.

A few years ago, the California Supreme Court significantly limited the use of the defense in employment discrimination cases.

The instructive case our Los Angeles employment lawyers refer to when this question arises is Salas v. Sierra Chemical Co. In this matter, plaintiff sued his former employer under the California Fair Employment and Housing Act, alleging the company failed in its legal obligation to accommodate his physical disability and refused to rehire him in retaliation for filing a workers’ compensation claim.

After this claim was filed, the employer was made aware of information indicating that the plaintiff had used someone else’s Social Security number in order to gain employment in the first place. The employer used this to file a motion for summary judgment in its favor. The trial court initially denied this motion, but than issued an alternative write effectively granting it – an action the appellate court affirmed. The California Supreme Court, however, reversed. Continue Reading ›

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Non-compete clauses (also called California non-compete agreements) affect roughly 25 percent of the U.S. working population – but they aren’t enforceable in California. Meanwhile, they’re a major issue for workers throughout the rest of the country. But that could soon change. Los Angeles employment attorney

For those who may be unfamiliar, a non-compete clause is a type of employment contract that prohibits employees from accepting new job opportunities for a period of time after leaving the employer with whom they have the contract. They’re usually limited to similar lines of work and/or competing businesses within a certain geographic area.

While this is less of an issue for workers whose jobs are highly technical and well-paid, these same provisions can be very tough on lower-paid workers. One analysis showed that more than half of workers who sign non-compete clauses are non-salaried, hourly wage workers – about 15 percent of them earning less than $40,000 annually.

Non-compete clauses can also ban workers from:

  • Launching their own company in the same or similar industry.
  • Reaching out to former customers.
  • Using the skillsets you acquired on the job.
  • Publicly discussing whistleblower actions.
  • Revealing or making money from the employer’s trade secrets.

While some of these are more reasonable than others (ex-employees revealing trade secrets would be a problem for any employer), others risk stifling free markets.

Recently, the U.S. Federal Trade Commission proposed a new rule that would ban employers from imposing non-compete clauses on workers, calling the practice exploitative. If the rule goes into effect, it could potentially expand job opportunities for some 30 million Americans and increase wages by as much as $300 billion annually. Continue Reading ›

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The surge in remote work arrangements had led to questions about the kinds of expenses for which California employers are responsible and which they aren’t. Los Angeles employment lawyer

The trend of remote work was already climbing before the pandemic hit, with 43 percent of workers saying they worked from home at least some of the time. According to the Pew Research Center, about 60 percent of workers say their jobs can be done from home all or most of the time. Most were already working from home before the pandemic. Currently, more than than half of workers who have a physical job site say they are choosing to work remotely.

Employers have become more open to telework where possible – not the least of which because it saves them all kinds of expenses. Not only are they saving on commercial real estate expenses, there’s increased productivity (fewer distractions and less tardiness and absenteeism), fewer workers’ compensation claims, broader talent pools to choose from, and higher employee retention rates.

But to what extent are employers required to cover in-home office expenses for remote employees? Continue Reading ›

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New protections are now in place for workers who are pregnant or nursing. These federal protections were signed into law as the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). As our Los Angeles employment attorneys can explain, these statutes expand previously-established federal laws that protect both pregnant and nursing employees.Los Angeles pregnancy discrimination lawyer

Let’s start with the PWFA, which technically goes into effect in June 2023. The law says that employers with 15+ employees must provide reasonable accommodations to qualified workers/applicants who have temporary physical and/or mental limitations as a result of conditions like pregnancy or childbirth.

As our Los Angeles pregnancy discrimination lawyers can explain, existing federal law does not consider pregnancy a “disability” that entitles a worker to reasonable accommodations. Employers are only required to extend reasonable accommodations for pregnancy, childbirth, or related conditions when similar accommodations are extended to other workers too. The PWFA changes that.

An employee is deemed “qualified” under the PWFA if they have the ability to perform the core functions of the job with those reasonable accommodations. Even if they can’t form a key function of the job for a temporary period of time due to pregnancy, childbirth, or related condition, they may still be qualified if they’ll be able to perform it at some point in the near future AND their current inability to do so isn’t an undue hardship on the employer (similar to the Americans With Disabilities Act).

Also similar to the ADA is the fact that the PWFA compels an interactive process of good faith between all parties in order to identify which accommodations are “reasonable” given the job and the company. Employers aren’t allowed to require workers to take-it-or-leave-it with an accommodation that wasn’t agreed to as a result of that good faith interactive process. Employers also can’t force workers to take leave (paid or unpaid) if some other reasonable accommodation is possible. Asking for a reasonable accommodation on this basis is not a lawful basis for employer retaliation.

Some examples of what may be considered a “reasonable accommodation” under the new law: Continue Reading ›

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A California law that prohibits employers from forcing workers to resolve major workplace disputes in private arbitration is a violation of federal statute – according to a recent ruling by the U.S. Court of Appeals for the Ninth Circuit.Los Angeles employment lawyer

The 2-1 ruling addresses conflict over California’s AB51, which criminalizes the act of an employer forcing an employee to sign an arbitration agreement that would compel them to resolve serious job conflicts before a private arbiter rather than in court.

As our Los Angeles employment lawyers can explain, this outcome is considered a big win for employers and big businesses – and a serious blow to the average worker.

These so-called “mandatory arbitration agreements” require workers to settle their complaints about things like sexual harassment, discrimination, and retaliation in a closed-door, private session – with an arbitration company paid by the employer – rather than in an open, public court proceeding. Arbitrators don’t even necessarily have to follow the law or due process, the way courts are bound. Such agreements had become extremely common in California and throughout the country in recent years, with many companies forcing workers to sign them as a condition of employment.

Those who support mandatory arbitration to resolve workplace disputes say it’s faster and cheaper than court, and makes the most sense when trying to settle routine points of contention. However, labor advocates say such agreements help to hide systemic abuses and discrimination. Arbitration agreements were shown to be particularly problematic in the midst of the #MeToo movement because workers weren’t able to identify their unfair or unlawful treatment as part of a bigger problem as opposed to an isolated incident that impacted only them.

AB51, which went into effect in 2019, attempted to address these concerns. It was passed along with a clutch of several other bills intended to protect workers from sexual harassment, unlawful wage gaps, and inadequate workplace health and safety protections. Continue Reading ›

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