41st Annual ELU Highlights

SDEA hosted another successful employment law update in no small part due to the contributions of our attorney panel; Chris Olmsted from Ogletree Deakins, Lonny Zilberman from Wilson Turner Kosmo and Dan Eaton from Seltzer Caplan McMahon Vitek; as well as our Keynote speaker, Paul Falcone; and our panel facilitator Gail Heriot.

Chris Olmsted started the two-day program with a California Legislative Update. No surprise, Chris provided a lot of updates related to Covid.  Chris talked about workers’ comp liability related to Covid and mandated Covid reporting.  The Cal-OSHA regulations were broken down and Chris reminded employers and their HR representatives what they need to be doing to be compliant with these ever-changing and rather confusing regulations.  After all of the Covid
updates, Chris shared other legislative updates that employers need to be aware of.  Those included new paid sick leave designation (AB 2017) and expansions to Crime Victim Leave (AB 2992).

One of the biggest updates that Chris addressed were the changes to the California Family Rights Act.  This mandatory job-protected leave now applies to employers with five or more employees and will require changes and updates to company leave policies.  Another big bill that was passed (AB 1693) Child Abuse Mandated Reporters adds human resources employees of businesses that employ minor children (e.g. teenagers) and any adult who supervises minor children as mandated reporters for suspected child abuse or neglect. As part of the bill, training on identifying and reporting child abuse and neglect is required.

SDEA welcomed Dan Eaton to our panel for the first time this year.  Dan talked about some of the top cases for California employers in 2020.  The first case Dan talked about, Frlekin v. Apple, Inc.  Frlekin, an employee of Apple, sued Apple for unpaid wages.  Apple requires employees to comply with a bag search once their shift is over and these employees were not paid for their time.  In short, Apple was required to pay their employees for the time they were under the employer’s “control” for the time to search their bags.  This is especially relevant right now during Covid to make sure that our employees are getting compensated while waiting for temperature checks or answering health questions related to Covid when arriving to work.

Dan also talked about unlimited vacation plans and what was learned from McPherson v. EF Intercultural Found., Inc. and Oliver v. Konica Minolta Business Solutions U.S.A., Inc. where Oliver sued the company for unpaid wages for his commute time (in a company vehicle), the employee claiming that he was under the employer’s control because of the tools and equipment he was required to carry in the truck.

These cases are a solemn reminder that employers, often thinking they are doing the right thing, may be in ignorant bliss but ignorance of the law will never be a valid defense.

Our last attorney on day two, Lonny Zilberman, talked to the attendees about mistakes that employers made in 2020 and how to avoid them in 2021. 
In addition to a couple of wage and hour cases, there was no shortage of discrimination claims.  In EEOC v. Air Systems, Inc., several black employees who alleged (in part) that portable restrooms on a construction site had racist graffiti in them and that they were subject to a hostile work environment were awarded $1.25 million dollars based on race discrimination.  Another case Lonny talked about, Gonzalez v. Swissport SA, the plaintiff, who had worked for Swissport for over 15 years, needed open-heart surgery and took a medical leave of absence.  The company threatened that the employee’s job was in jeopardy if he did not return to work and when he tried, the employee’s doctor instructed him he was limited on lifting, pushing and pulling (all part of his job as a cargo loader) and therefore employee could not return.  Swissport considered the employee’s inability to return back to work a “voluntary resignation”.  Employee sued and was awarded $1.1 million for disability discrimination.

These cases should be a wake-up call for employers AND managers and supervisors who may be making some of these termination decisions.  Training is highly recommended at the manager/supervisory level to help avoid liability.

Day two also included our keynote speaker, Paul Falcone. 
Paul is a renowned expert on effective hiring, performance management, and leadership development.  Paul is currently the Chief Human Resources Officer for the Motion Picture & Television Fund.  Paul is a best-selling author and spent some time with the attendees talking about Workplace Ethics.

The two-day program wrapped up with our ever-popular panel discussion which was moderated by Gail Heriot. Gail is a law professor at the University of San Diego and added a great dynamic to the panel.

If you missed this year’s Annual Employment Law Update, be sure to keep your eyes out for our mid-year update this summer, date is yet to be determined.

Winners for the ELU Drawings:

$50 Amazon gift card from NIFCU – Renee Morales, K2 Insurance Services

2600 Phrases for Setting Effective Performance Goals, Paul Falcone – Renee Loignon Dion, Marquee Staffing

$100 Amazon gift card from Mediexcel – Shannon Carney, Griffen ACE Hardware

$50 Amazon gift card from SDEA – Cheryl Berman, The Brady Companies, LLC

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