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THE ATTORNEYS AT PALMER KAZANJIAN WOHL HODSON LLP ARE RECOGNIZED EXPERT MEDIATORS AND ARBITRATORS IN VARIOUS EMPLOYMENT LAW MATTERS

THE ATTORNEYS AT PALMER KAZANJIAN WOHL HODSON LLP ARE RECOGNIZED EXPERT MEDIATORS AND ARBITRATORS IN VARIOUS EMPLOYMENT LAW MATTERS

 

 

 

 

 

 

Litigation is not always the most effective practice for resolving complex legal issues. Litigation can be stressful for clients, time-consuming, and costly. When employment issues arise, out-of-court resolution through mediation or arbitration can often optimize case outcomes, while minimizing time and cost, and reducing stress for clients. These processes also allow for flexibility in producing creative solutions.

The Importance of Neutrality

A neutral mediator or arbitrator plays a crucial role in facilitating dispute resolution outside of the courtroom. In order to be completely effective, neutral mediators and arbitrators must evaluate the most appropriate and effective strategies to reach the goals of both parties. A neutral mediator or arbitrator will encourage both parties to voluntarily reach an agreement that meets the needs of both sides. Since mediators and arbitrators play such a key role in shaping the course of a dispute, your choice of an arbitrator or mediator can significantly influence your case.

Choose a Professional with a Strong Legal Background

Arbitration and mediation are complex and continually evolving areas of law; the need for a knowledgeable and fair arbitrator or mediator is paramount. The attorneys at Palmer Kazanjian Wohl Hodson LLP are recognized as expert mediators and arbitrators by NAM (National Arbitration and Mediation).Our attorneys draw on a strong legal background in employment and labor law matters that spans over 30 years. The attorneys at Palmer Kazanjian Wohl Hodson LLP offer a well-rounded perspective; their strong analytical skills give them the ability to overcome complex legal issues and understand the consequences of the issues at hand, to develop reasoned resolutions.

The attorneys at Palmer Kazanjian Wohl Hodson LLP always take a professional approach, which has earned them a respected reputation in the legal community. If you are in need of an expert mediator or arbitrator to resolve an employment dispute, please contact the attorneys at Palmer Kazanjian Wohl Hodson LLP.

 

FIRING OF SON-IN-LAW IS NOT MARITAL STATUS DISCRIMINATION AND DOES NOT TRIGGER AN EMPLOYER’S DUTY TO INVESTIGATE

FIRING OF SON-IN-LAW IS NOT MARITAL STATUS DISCRIMINATION AND DOES NOT TRIGGER AN EMPLOYER’S DUTY TO INVESTIGATE

 

 

 

 

 

 

In Nakai v. Friendship House Association of American Indians, Inc., the California Court of Appeal determined whether, under the Fair Employment and Housing Act (FEHA), marital issues that spill into the workplace implicate marital status protections and an employer’s duty to investigate.

The Facts

For over 20 years, plaintiff Orlando Nakai (Nakai) worked as a counselor at the Friendship House Association of American Indians, Inc. (Friendship House). Friendship House is a drug and alcohol rehabilitation program for Native Americans. While employed at Friendship House, Nakai married the chief executive officer’s (CEO) daughter.  During Nakai and his wife’s employment at Friendship House, Nakai and his wife experienced marital difficulties that created turmoil in the workplace. In May of 2016, Nakai’s wife revealed to her mother, the CEO of the Friendship House that Nakai “had a gun, was angry with the employees at the Friendship House, was dangerous, and had relapsed on drugs.” Nakai’s wife further told her mother that she had obtained a restraining order against her husband. The next morning, the CEO of the Friendship House, Nakai’s mother-in-law, placed him on administrative leave and then, without investigating her daughter’s allegations, terminated Nakai’s employment. Nakai filed an action for wrongful termination, claiming discrimination on the basis of his marital status and failure to conduct a reasonable investigation prior to discharge. Both claims asserted a violation of the FEHA. The trial court granted summary judgment in favor of the Friendship House, determining Nakai had failed to establish a prima facie case of marital status discrimination and had failed to demonstrate that his employer had an obligation to investigate.

The Court of Appeal’s Analysis

Nakai alleged that he was discharged from the Friendship House “solely because of his status as the spouse of the complaining employee.” Although the FEHA prohibits marital status discrimination, the California Court of Appeal affirmed the trial court’s decision that Nakai could not establish a prima facie case for marital status discrimination. According to the Court, marital status discrimination laws are supposed to “prevent discrimination against classes of people.” For example, employers cannot refuse to hire single people because they are single. On the other hand, the FEHA discrimination laws are not set out to protect people based on their “status of being married to a particular person.”  Since Nakai claimed he was terminated because of his marriage to the CEO’s daughter, not on the basis of being married itself, the Court determined that there was “not a marital discrimination problem.” The Court found that the Friendship House had valid, nondiscriminatory reasons for terminating Nakai; his wife reported that he owned a gun, was allegedly angry at their employees, and was using drugs. The Court determined that because Friendship House had concerns of violence, it had legitimate reasons for firing Nakai.

Next, the Court reviewed Friendship House’s failure to investigate the claims made by Nakai’s wife before firing him. The Court of Appeal explained that Nakai was an at-will employee; therefore, the Friendship House owed him no duty to investigate the wife’s charges before firing him. The Court further explained that absent a contractual or statutory provision to the contrary, employers considering the issue of an employee accused of misconduct “may act peremptorily, arbitrarily, or inconsistently, without providing specific protections such as prior warning, fair procedures, objective evaluation, or preferential reassignment.”  Nakai did not produce a contract or even argue the presence of an implied agreement that required “good cause” for termination. Consequently, the Court of Appeal rejected Nakai’s argument that he had a contractual right to have his employer investigate his wife’s complaints.

The Court of Appeal concluded by considering whether, under the FEHA, employers are under an obligation to investigate the legitimacy of complaints made against alleged perpetrators of crimes. Although the FEHA requires an investigation when a third party accuses an employee of sexual harassment, this was not the charge here. Further, the duty to investigate runs in favor of the victim, not the perpetrator of harassment. Thus, the court determined that the FEHA does not impose a duty to investigate in regards to alleged threats of workplace violence.

Practical Tips for Employers

●This case highlights the conflicts of interest and related issues that can arise when spouses work for the same company, which is not entirely uncommon.

●This case provides guidance to employers on the meaning of marital status discrimination under the FEHA. Additionally, its ruling provides some perspective regarding an employers’ express statutory and contractual duty to investigate misconduct complaints. Unless mandated by contract or statute, there is no express legal duty to investigate.

●However, prudent employers will still consider investigating complaints before disciplining or terminating employees, as this will, among other things, ensure a reasoned decision, prevent future lawsuits, and prevent additional hostility among employees.

●Employers should work closely with expert legal counsel when determining whether to conduct a workplace investigation before disciplining or terminating an employee. If you have questions about workplace investigations or your duty to investigate, please contact the attorneys at Palmer Kazanjian Wohl Hodson LLP.

June 15, 2017 Employment and Immigration Law Basics for Business Owners

Date: June 15, 2017

Time: Presentation: 8:30AM to 10:30AM

Location: 2277 Fair Oaks Blvd., Suite 455
Sacramento, CA 95825

Palmer Kazanjian will be providing a seminar on Employment and Immigration Law Basics for Business Owners seminar in partnership with Wilner & O’Reilly, APLC.   The session will be presented by Treaver Hodson, partner at Palmer Kazanjian Wohl Hodson LLP and Michael Wang, Managing Attorney at Wilner & O’Reilly, APLC.

The following topics will be covered:

Immigration Law
  • How federal immigration laws apply to employment
  • Immigrant vs. non immigrant employees
  • Government entities involved- USCIS, DHS, ICE, CBP, EEOC, DOL, DOS, OSC, SSA, DFEH, FDNS
  • Visas in the workplace
  • PERM and prevailing wage
General Employment Law
  • Wage and Hour Updates
  • Government Wage and Labor Audits
  • Employment Classification: Independent Contractors/ Exempt Employees
  • Leaves of Absence
  • Disciplinary Action and Termination of Employment
  • Trade Secrets and Confidential Information

Admission is complimentary. Breakfast pastries and beverages will be provided. Seats are limited and will be issued on a first come, first served basis. Please register by June 12th to attend. Limit three attendees per company. REGISTER HERE.  Please direct any inquiries to aclark@pkwhlaw.com.

 

April 5, 2017-Seminar: Employment and Labor Law Updates for 2017

Seminar Hosted by Palmer Kazanjian Wohl Hodson LLPPicture 1 (March)

Date: Wednesday April 5, 2017

Time: Presentation: 8:30AM to 10:30AM;  Registration and Networking: 8:00AM-8:30AM

Location: PWA Insurance Services LLC – Main Conference Room
2377 Gold Meadow Way
Rancho Cordova, CA 95670

Palmer Kazanjian will be providing its second Employment and Labor Law Updates for 2017 seminar in partnership with PWA Insurance Services LLC.  The session will be presented by Treaver Hodson, partner at Palmer Kazanjian Wohl Hodson LLP.

The following topics will be covered:

  • Wage and Hour Updates
  • Government Wage and Labor Audits
  • Employment Classification: Independent Contractors/ Exempt Employees
  • Leaves of Absence
  • Disciplinary Action and Termination of Employment
  • Trade Secrets and Confidential Information

Please register to R.S.V.P.  Seating is limited. Direct any inquiries to jruggiero@pwadmin.com.  Register Here.

March 1, 2017-Seminar: Employment and Labor Law Updates for 2017

Cicotte and Eureka Insurance AnnouncementSeminar Hosted by Palmer Kazanjian Wohl Hodson LLP

Date: Wednesday March 1, 2017

Time: 8:30AM to 10:30AM
Location: Our Office: 2277 Fair Oaks Blvd. Ste. 455, Sacramento, CA 95825

Palmer Kazanjian will be providing its Employment and Labor Law Updates for 2017 seminar in partnership with the Cicotte Law Firm and Eureka Insurance Solutions.  The session will be presented by Treaver Hodson, partner at Palmer Kazanjian Wohl Hodson LLP, George Cicotte, founder of The Cicotte Law Firm PLLC and Ned Schaut, president of Eureka Insurance Solutions.

The following topics will be covered: 
  • Employment and Labor Law Updates for 2017
  • ACA Under the Trump Administration
  • Benefits Law Update for 2017  
Admission is complimentary. Breakfast pastries and beverages will be provided.  Seats are limited and will be issued on a first come, first served basis.  Limit two attendees per company. Please direct any inquiries to aclark@pkwhlaw.com or contact us 916-442-3552.  

Please register by February 20th, 2017 to attend.  Register Here

 

The California Fair Pay Act (SB 358)


On October 6, 2015, Governor Brown signed into law SB 358, the California Fair Pay Act. This act is an amendment to California Labor Code Section 1197.5. The new law is considered to be one of the strictest in the nation.  The previous law under the Labor Code prohibited employers from paying employees at a wage less than the rates paid to employees of the opposite sex in the “same establishment” for equal work on jobs which required the same degree of skill, effort, and responsibility and which were performed under the same conditions.

SB 358 Amends The California Equal Pay Act (EPA) In The Following Ways:
  • Clarifying the employee’s and employer’s burdens of proof under the EPA; (Cal. Lab. Code 1197.5).
  • Ensuring that employees performing substantially equivalent work are paid fairly by requiring equal pay for work “of comparable character” and eliminating the “same establishment” requirement; (Cal. Lab. Code 1197.5(a)).
  • Modifying the poorly defined catch-all affirmative defense of “factors other than sex” to include “bona fide factors other than sex”; (Cal. Lab. Code 1197.5(a)(1) emphasis added).
  • Ensuring that any legitimate, non-sex related factor(s) relied upon are applied reasonably and account for the entire pay differential; (Cal. Lab. Code 1197.5(a)(2)-(3)).
  • Prohibiting retaliation or discrimination against employees who disclose, discuss, or inquire about their own or co-workers’ wages for the purpose of enforcing their rights under the EPA. (Cal. Lab. Code 1197.5(j)(1)-(2)).
What This Means For Employers:

This amendment makes it easier for employees to prevail in litigation because it lowers the standard from equal pay for equal work to equal pay for comparable work. Therefore the new law could lead to employers being burdened with an increase in litigation. Employers sued by workers would have to show that the wage difference are due to factors other than sex, such as merit or seniority, that they are job related, reasonable, and that they are not due to discrimination.

However, due to already existing prohibitions against gender discrimination, found in both federal and state anti-discrimination laws, this law may have minimal practical effect or be duplicative of already existing prohibitions and mandates. Therefore, employers who are already in compliance with existing laws are likely compliant with this new legislation. Regardless, it may be prudent for employers to take this opportunity to conduct an audit of employee pay scales to ensure compliance with the new standards.

Additionally the amendment contains a record keeping requirement for employee wages and wage rates, job classifications, and other terms and conditions of employment to a period of three years. (Cal. Lab. Code § 1197.5(d)). Employer record keeping practices should be reviewed to ensure compliance with this minimum standard.

The National Labor Relations Act Turns 80!

A Look at the Progression of the National Labor Policy


President Franklin Delano Roosevelt signed the National Labor Relations Act (NLRA) into law on July 5, 1935. In the midst of the Great Depression, President Roosevelt’s goal for the NLRA was to bring about “common justice and economic advantage” for all. The purpose of the Act is to serve the public interest by reducing interruptions in commerce caused by industrial strife; the Act accomplishes this by helping to define the rights of employees, and employers, which in turn helps decrease the number of violations.

Although it was enacted with the primary purpose of protecting employees from employers, our national labor policy has recognized that protecting employers may be just as important. Today the NLRA serves the public interest by providing a process to protect the rights of employers and employees alike. The NLRA accomplishes this goal by providing a process to challenge unfair labor practices and ensuring fair union elections.

The History of the Act: The Progression of the National Labor Policy
  • (1918) War Labor Board: The struggle of the workforce reached its pinnacle during World War I, when the labor movement had grown to three million members. The War Labor Board was the first step to managing workforce disputes by providing mediation between labor and management, which led to a decrease in strikes and lockouts. However the Board was ultimately unsuccessful because it lacked enforcement power.
  • (1926) Railway Labor Act: The RLA stressed the importance of collective bargaining to minimize strikes and lockouts on railways. The RLA gave railroad workers the right to select their own bargaining representatives “without interference, influence, or coercion.” This language, protecting the rights of workers, is similar to that found in the NLRA today.
  • (1932) Norris-LaGuardia Act: Curbed the power of the courts to issue injunctions or restraining orders against strikes, absent violence or fraud. Additionally the Norris-LaGuardia Act declared that workers were free to join unions and bargain collectively.
  • (1933) National Industrial Recovery Act (NIRA): Allowed employers within a single industry to set production quotas or fixed prices under “Codes of Fair Competition” in exchange for the establishment of minimum wages, maximum hours and other conditions of employment. The Act also gave employees, in section 7(a), “the right to organize and bargain collectively through representatives of their own choosing.”
  • (1933) National Labor Board: Established to facilitate compliance with section 7(a) of NIRA. The Board’s primary functions were to conduct union representation elections and handle section 7(a) violations. The problem, however, was that the NLB lacked any real enforcement power, which rendered it ineffective in practice.
  • (1935) National Labor Relations Act: Created an independent agency, the National Labor Relations Board (NLRB), to enforce rights rather than mediate disputes. It obligated employers to bargain collectively with the unions selected by a majority of employees in an appropriate bargaining unit.
Employers’ Rights Provided By the NLRA Today:

The NLRA serves two main purposes, to protect against unfair labor practices and conduct union elections without outside interference. The enforcement of the NLRA serves to provide a number of protections to employers.

  • Employers have the right to freely express their views about unions and unionization, so long as any speech does not interfere with, restrain, or coerce employees in the exercise of their rights granted under the Act.
  • An employer is not required to bargain with a union unless or until the union makes a showing that it represents a majority of the employees through a secret ballot election conducted by the NLRB.
  • Employers have the right to keep union organizers off company property and may forbid union activity during paid, working time.

All of these protections serve to create a workplace free from distraction. The Act allows employees the choice of union involvement without the pressure of recruitment during the workday.

NLRA Protection from Unfair Labor Practices by Unions:

The NLRA protects employers by preventing unions from interfering with, restraining, or coercing employees in anyway. There is a common misconception that unions always act in the best interest of employees, but unfortunately that is not always the case. Misconduct and unfair labor practices are disadvantageous for all parties involved, which is why the NLRA prohibition of unfair labor practices has some benefits for employers as well as employees.

        Examples of Unfair Labor Practices by Unions:

  • Use of violence or threats of violence to coerce employees. This includes violence directed at nonemployees, if employees are present or will hear about it
  • Threats to employees that they will lose their jobs unless they support the union’s activities.
  • Statements to employees who oppose the union that they will lose their jobs if the union wins a majority
  • Accepting recognition from an employer if they do not enjoy the un-coerced support of a majority of the employees they seek to represent.
  • Entering into a collective-bargaining agreement if they do not enjoy the un-coerced support of a majority of the employees they seek to represent.
  • Engaging in picket line misconduct, such as threatening, assaulting, or barring non-strikers from the employer’s premises.
  • Fining or expelling members for crossing a picket line that is unlawful under the Act or that violates a no-strike agreement.
  • Fining employees for crossing a picket line after they resigned from the union.
  • Fining or expelling members for filing unfair labor practice charges with the Board or for participating in an investigation conducted by the Board.
  • Refusing to process a grievance in retaliation against an employee’s criticism of union officers.
The NLRA Guarantees Fair Union Elections:

The NLRA protects employers, as well as employees, from misconduct committed during a union election. The NLRA’s election provisions provide the authority for conducting and certifying results of representation elections. An employer is not required to bargain with a union unless or until the union makes a showing that it represents a majority of the employees in a secret ballot election conducted by the NLRB. This process ensures that the union bargaining on behalf of employees truly represents their interests. It also provides efficiency for employers by ensuring they do not waste time bargaining with a union that may be pushing its own agenda, rather than protecting the interests of employees.

      The Election Process:

A union can request an election if they can make a showing that they represent a majority. A union may prove its majority status in a number of ways; however the most common way is through the use of authorization cards. If the union can authenticate the cards, making a showing of interest for an election, they then petition the NLRB to conduct the election. The NLRB conducts the election by secret-ballot and has a number of policies in place to protect the integrity of the results.

      Employer Protections Throughout the Election Process:

The NLRA provides protections against any conduct that may risk voiding the results of an election. Any conduct that warrants voiding the results of an election, whether or not it constitutes an unfair labor practice, is grounds for challenging an election.

Some union activity that may warrant a challenge is misrepresenting majority status by using authorization cards that were not intended to support the union or signed by employees that no longer work for the company, captive audience speeches, electioneering, or any conduct that threatens the free choice of employees.

If a union engages in any of these prohibited activities, an employer may challenge the results of the election by submitting an objection to the office of the regional director.

The Future of the NLRA:

Although there are many concerns for employers with recent developments in national labor relations policy, the NLRA was enacted during a time of national instability and it allowed workers to come together in a common purpose to raise their voices for a fairer future. Moving forward the goal of maintaining a strong, stable workforce will continue. We hope a fair balance between labor and management rights and privileges can be realized.

January, 2013

  • New Employment Laws Affecting California Employers Effective January 1, 2013

April, 2011

  • Palmer Kazanjian Wohl Hodson – April, 2011 Newsletter