Orange County Employment Lawyers Blog

Legal Pitfalls for Employers Using Artificial Intelligence in Hiring Process

November 22, 2019 | by Nassiri Law

Hiring is an integral but time-consuming, expensive and often tedious process with which every company must contend. In looking for ways to cut down on exhausting searches, an increasing number of companies are turning to artificial intelligence (AI) systems to help more quickly identify qualified candidates. This can prove especially beneficial for firms that need to cut through a huge influx of potential applications.

However, there is growing concern that such AI application systems may be perpetuating some forms of discrimination, particularly age, gender and race. This is in spite of tech companies insisting that their systems are designed to root out long-existing human biases.

Last year, Amazon tested integrated machine-learning techniques on its recruiting platform. This was supposed to be a “smart tool” that could help managers pick ideal job candidates faster. However, after being fed a decade’s worth of resumes, the system began showing a clear bias toward male candidates. In troubleshooting, engineers with the company figured out that because most of the resumes were coming from male candidates, it made the “artificial intelligence” leap that male candidates were more desirable, and thus downgraded the ratings of female applicants. Engineers addressed this by editing the programs so that they included more gender neutral terms. However, that doesn’t mean these systems won’t still prove discriminatory – now and in the future. (Amazon decided to ax the project before fully launching it, perhaps realizing the potential legal liability landmine.)

It’s no leap to surmise similar discriminatory patterns could soon emerge.

If, for instance, a firm has a general tendency to hire fresh-out-of-college candidates, these systems could easily begin trending toward a younger workforce bias. Continue Reading ›

U.S. Supreme Court Likely Divided on LGBT Employment Protections

November 20, 2019 | by Nassiri Law

The U.S. Supreme Court appeared sharply divided over the question of whether landmark civil rights law prohibiting gender discrimination on-the-job also extends to gay, lesbian and transgender workers.

Reuters reports the deciding vote could be Justice Neil Gorsuch, a conservative who has, on occasion, proven a swing vote.

Los Angeles LGBT employment discrimination attorneys and advocates have been following the case developments closely. The high court has never before ruled on transgender rights – employment or otherwise. In order for the case to be decided in favor of the employee plaintiffs at least one conservative justice would need to join the liberal minority.

Over two hours of oral testimony, three workers (one transgender and two gay) sought to convince justices they were entitled to the same protected status as other workers discriminated against on the basis of their biological gender – a protection expressly extended under the Title VII of the Civil Rights Act of 1964. (That law also prohibits discrimination on the basis of color, race, religion and national origin.) Continue Reading ›

McDonald’s Accused of “Pervasive” Sexual Harassment Culture

November 18, 2019 | by Nassiri Law

Little more than one week after McDonald’s Corp. fired its chief executive officer for reportedly having a romantic relationship with a subordinate, a former employee is suing the fast food chain, alleging sexual assault by a manager is part of a larger culture of sexual harassment in the company. The former CEO could get a payout of an estimated $70 million.

The class action sexual harassment lawsuit filed in a Michigan state court as hundreds of workers for the company in that state prepared to strike in protest of the company’s handling of such claims. Workers for the firm are demanding the protection of a labor union. The company is facing more than 50 complaints from employees and former employees who allege the work environment at the restaurant chain is sexually hostile.

In the recent Michigan lawsuit, The New York Times reports plaintiff was subjected to sexual harassment and sexual assault repeatedly over the course of two years working for the company. The manager allegedly groped her, called her by offensive names and once placed his genitals in her hand while they worked beside one another in the kitchen. These incidents, she says, were a daily occurrence, and she was in constant fear of losing her job. She reportedly filed numerous complaints with her general managers, but the complaints were ignored, she said. Continue Reading ›

SB 688: California Employers Will Be Held Accountable for Failure to Pay “Contract Wages”

November 15, 2019 | by Nassiri Law

An employer’s failure to pay wages in accordance with an employment contract – even if what’s paid is in excess of the minimum wage – can now be penalized with fines and restitution orders by the California Labor Commissioner.

That’s thanks to SB 688, a newly-passed measure that amends California Labor Code Ch. 723 s. 1197.1, which goes into effect next month.

“Contract wages,” as explained in the bill/statute, are wages based upon an agreement between a company and a worker for regular, non-overtime hours that is in excess of the applicable minimum wage.

Los Angeles labor law attorneys can explain that under existing law, employers (or those acting as officers/agents) who fail to pay a worker less than minimum wage can be subject to citation and penalties from the Labor Commissioner. However, that power of enforcement does not extend when workers are paid in excess of minimum wage – yet should be paid more according to their employment contract. Continue Reading ›

FEHA Employment Discrimination Claims Against “Contracting Employer” May Be Valid

November 13, 2019 | by Nassiri Law

Independent contractors are entitled to far fewer rights under California employment law than employees or in some cases even job applicants. In filing an employment lawsuit against a company, one must establish they are an employee or prospective employee.

But as our Los Angeles employment attorneys know well, misclassification of employees as independent contractors is rampant. It’s often left to the court’s to decide.

Recently, a California appellate court ordered a new trial in the case of a worker who was technically a temp agency employee, but who took on a supervisory position for five years at the shoe care manufacturing company with which the temp agency contracted. Although the temp agency cut her checks, it was the manufacturer that had the direction and control of her day-to-day work. This, the court ruled, made her an employee for purposes of relief for alleged discrimination and wrongful termination under California’s Fair Employment and Housing Act.

Independent Contractor v. Employee

There is no set definition of the term “independent contractor,” which is why courts and enforcement agencies are often asked to consider the fact pattern of each case where employment status is a possible issue. The Division of Labor Standards Enforcement begins with the presumption that a worker is an employee, but it is one that can be rebutted by the employer. Continue Reading ›

California Racial Discrimination Claims by Applicants Must be Filed Under FEHA

November 11, 2019 | by Nassiri Law

There are many federal and California laws that protect employees from discrimination and retaliatory action. It’s important when pursuing your claim to file under the proper cause of action to ensure the greatest change of success. That’s why it’s so important to choose an Orange County employment attorney with a wealth of experience and a verifiable track record of success.

Recently in Sacramento, a man sued a local baseball club for racial discrimination, alleging the club refused to hire him on the basis of his race. His complaint alleged common tort law violations under the Unruh and Ralph Civil Rights Acts, and further committed unfair business practices as outlined under Business and Professions Code section 17200.

The trial court dismissed his claim after finding that while failure or refusal to hire a prospective employee on the basis of race is a violation of public policy (including both the state Constitution as well as the General Code), the proper remedy through the California Fair Employment and Housing Act (FEHA). Were he an employee, he might have found resolution in a common law tort, but as an applicant, the claim needed be filed under FEHA. The California Court of Appeal, Third Appellate District affirmed.

It might seem a ridiculous technicality, but claims must be properly stated at the outset in order for courts to properly consider them. A slight misunderstanding of California’s employment statutes and case law could end up costing you valuable time. Improperly state your claim and you might run the risk of being forever barred from continuing to pursue it if you’re too late to file again before the statute of limitations runs out. Continue Reading ›

Fail to Pay Wages in California? Prepare for Higher Penalties.

November 9, 2019 | by Nassiri Law

California employees have the right to be paid – in full and on time. Yet wage theft is still a prime source of labor law violations in this state.

That’s why lawmakers enacted AB 673, amending Chapter 716, Section 210 of the Labor Code.

Existing law provides for a civil penalty – both additionally and entirely independent from all other fines or penalties – on anyone who fails to pay the wages of every employee. The law also includes a provision that bars differential pay or pay schedules on the basis of gender. It allows for the state Labor Commissioner to recover that penalty as part of the hearing that’s held to recover any unpaid wages/penalties or independent from the civil action. A portion of those penalties go to a specific fund in the Labor and Workforce Development Agency for the express purpose of educating workers about state labor laws. The rest goes to the State Treasury/General Fund.

AB 673 allows for the workers who have been affected to bring an action to recover certain penalties against employers who failed to pay them. Continue Reading ›

California Employment Discrimination Statute of Limitations Extended Under New Law

November 7, 2019 | by Nassiri Law

Starting Jan. 1, 2020, workers will have three times as long to file claims alleging California employment discrimination, harassment and retaliation. Now, instead of just 1 year, complainants will have a full 3 years under the Fair Employment and Housing Act (FEHA).

Orange County employment attorneys expect the impact to employers and employees alike to be substantial. The new statute of limitations, enacted in October as AB 9, establishes an amendment to Chapter 709, Sections 12960 and 12965 of California Code.

The measure comes after many years of plaintiff’s union and bar groups pushing for a longer statute of limitations on such claims. Previous efforts had been shunned by former Governor Jerry Brown, who insisted the one-year statute of limitations was necessary to encourage prompt reporting of labor law violations by employers. What ultimately led to change was the wave of the #MeToo movement, the goal being to allow victims of sexual harassment and assault more time to pursue such claims. However, the law is broadly applied to all forms of harassment, retaliation and discrimination. Continue Reading ›

California State University Professor Wins Retaliation Employment Lawsuit

November 4, 2019 | by Nassiri Law

A California State University professor was wrongly denied a promotion to an associate professorship and lifetime tenure as a result of retaliation for reporting a hostile work environment to women and people of color. That was the finding of California’s First Appellate District, Division Three, which affirmed the trial court’s damage award of more than $965,000 in damages, plus attorney’s fees.

The professor had also claimed discrimination, but the court found no liability on that particular claim.

The appellate court rejected the university’s argument that plaintiff needed to show that she was clearly superior to a comparative professor who was granted tenure, but who had not filed a complaint.

As our Orange County employment attorneys can explain, workers are protected from discrimination and retaliation under a series of California Labor Code provisions, overseen by the California Department of Industrial Relations. Continue Reading ›

Facebook Accused of Facilitating Gender, Age Discrimination by Banks, Insurers, Investors

October 31, 2019 | by Nassiri Law

A proposed class action lawsuit alleges banks, insurance companies, investment firms and loan officers were able to discriminate against older, female prospective new hires and customers using Facebook Inc.’s targeted ad platforms. The complaint, filed in San Francisco federal court, insists the company allowed financial service and other advertisers target their ads to certain consumers on the basis of age and gender – even though the company has already been taken to task for similar discriminatory ad practices.

If it’s proven that this violated civil rights and employment rights laws, Facebook could be vulnerable to paying billions in damages to users across the country.

An attorney for the plaintiffs told Reuters the relative novelty of the internet doesn’t usurp the civil rights and employment law protections that Americans enjoy. A spokeswoman for Facebook said the company is taking the time to review the complaint, and expressed pride with the gains the social media giant has made on this front over the last few years. Continue Reading ›