E-Blasts

The Appellate Court once again reminds Employers who engage farm labor contractors and temp agencies that setting boundaries is an important defense to Fair Employment Housing Act (“FEHA”) claims. In Jimenez v. U.S. Continental Marketing, Inc. (2019), the Court held that a temporary employee working at a contract-employer location could have a viable claim under FEHA against its contract employer if facts establish an employer-employee relationship exists.

For a claimant to be entitled to relief under FEHA for harassment and retaliation claims, the claimant must establish an employment relationship exists with his or her alleged employer.  Plaintiff Jimenez worked for a temporary staffing agency, Ameritemps. Ameritemps placed Jimenez with U.S. Continental Marketing, Inc. (“USCM”) through a contract. Though Ameritemps maintained control over hiring, payments, benefits and timekeeping of Jimenez, USCM also exercised control over certain employment factors of Jimenez. While placed at USCM, Jimenez was subject to its handbook policies, received mandatory in-house training, she was subject to the disciplinary system, reported to a USCM employee as her direct supervisor, and worked in a supervisor role over several company employees.

Last year, the passage of Senate Bill (SB) 1343 cascaded the requirement for sexual harassment training to all California employers with 5 or more employees. Prior to SB 1343, sexual harassment training was only required for California employers with 50 or more employees, and limited to supervisory personnel, requiring two hours of sexual harassment training within six months of hire, then every two years thereafter.

On Monday, the United States Supreme Court (“SCOTUS”) made it more difficult for employers to dismiss federal discrimination lawsuits, ruling that if an employer does not timely raise the affirmative defense that an employee failed to properly file a charge, the employer waives that defense and the discrimination lawsuit can proceed in federal court.

On June 13, 2018, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that it filed seven lawsuits nationwide, charging employers with verbal and/or sexual harassment, including two suits against employers in Southern California.

On Wednesday, a federal jury cleared Chipotle Mexican Grill (“Chipotle”) of any wrongdoing against an assistant manager who claimed she was fired as a result of taking time off after a miscarriage to seek mental health treatment.

The suit was filed on June 29, 2017 in federal court in California’s Central District by Lucia Cortez (“Cortez”) who, at the time, was an assistant store manager and had worked for the Chipotle for eight years. In 2016, Cortez suffered a miscarriage at work after years of trying to get pregnant. As a result, she fell into a deep depression and needed to seek mental health treatment. Cortez requested time off to recover under the Family Medical Leave Act (“FMLA”) and her manager gave her 12 weeks off of unpaid and job-protected leave as required under the FMLA. After 12 weeks, Cortez asked for an additional month off to sort out final doctor’s appointments. Cortez’s manager “only” allowed her to take a week off as a courtesy since she had exhausted her 12 weeks of FMLA.  However, Cortez went behind her manager’s back and elected to call Chipotle’s benefits center to extend her leave another month without any notification to her manager. Chipotle’s benefit center granted her request for the additional month of leave but her manager had not provided his approval.

The California Office of Administrative law recently approved amendments to the California Fair Employment and Housing Act that, in part, clarify several different aspects of “national origin” as the term is used regarding prohibited discrimination in employment. Once formally enacted on July 1, 2018, the definition of “national origin” will be expanded from the individual’s or ancestors’ actual or perceived “place of birth or geographic origin, national origin or ethnicity” to also include the following:

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