E-Blasts

Non-Disclosure Agreements: Perpetuating a Culture of Silence?

By: Jizell Lopez

As we previously reported here, we are conducting a mini-series of posts that will explore and examine some of the most important and interesting aspects of sexual harassment in wake of the Harvey Weinstein scandal that has not only dominated the news network and everyday conversation, but has also created a domino effect of sexual harassment and sexual abuse complaints against many prominent figures in the entertainment industry and in politics.

Pursuant to the National Football League’s (“NFL”) collective bargaining agreement (“CBA”), the NFL commissioner has the authority to both issue discipline and hear the appeal or designate the arbitrator who will do so.  On August 11, 2017, after a yearlong investigation into allegations of domestic abuse, NFL Commissioner Roger Goodell suspended Dallas Cowboys Running Back Ezekiel Elliot for six games after finding that there was “credible evidence” that Elliot had violated the NFL’s personal conduct policy. The NFL Players Association (“NFLPA”) appealed the decision to a Goodell-appointed arbitrator who upheld the decision to suspend Elliot. After the NFL filed a motion in Federal court to confirm the arbitrator’s decision, the NFLPA has been pulling out all the stops to delay and potentially overturn Elliot’s suspension.

Hollywood is currently facing a controversy decades in the making involving a rising storm of allegations of sexual assault and harassment against some of the titans of the movie industry.  A deluge of complaints against uber-producer Harvey Weinstein quickly resulted in his ouster from the Weinstein Company, a company he founded and ran until he was removed by its Board of Directors. The numerous complaints have not only decimated his personal image, but also are threatening the company’s continued existence.  More recently, allegations of decades-old sexual abuse against actor Kevin Spacey resulted in Netflix halting production on the final season of its hit show House of Cards. 

The Fair Employment and Housing Council (“FEHC”) recently voted to submit an emergency rule change to the Office of Administrative Law (“OAL”) to align their regulations with Cal/OSHA and the Department of Industrial Relations (“DIR”) regarding signage for single-user non-flush toilets. As you may know, Assembly Bill 1732, effective March 1, 2017, requires that all single-user restroom facilities be identified as “all-gender” restrooms. 

Following the AB 1732’s passage, there was uncertainty in the agricultural industry as to what was required in the field, as AB 1732 appeared to directly conflict with a Cal/OSHA regulation, which requires separate toilets in the field for each gender. On March 20, 2017, the DIR released a FAQ that aligned with Cal/OSHA’s requirements and clarified that AB 1732 only applies to single-user restrooms with “flush” toilets, meaning that non-flush toilets (i.e. “porta-potties”) which are commonly used in the field are not subject to AB 1732’s “all-gender” decal requirement.

The FEHC’s proposed regulation to OAL seeks to eliminate the apparent conflict with both Cal/OSHA and the DIR’s guidance. FEHC’s current law states that single-user facilities shall use gender-neutral signage. The proposed regulation seeks to add that the FEHC’s current law does not apply to certain industries with single-user, non-water “disposal facilities” (i.e. “porta-potties”), including but not limited to, agricultural operations and construction. Once submitted, the proposed rule will undergo a five day public comment and OAL review. If approved, the rule will become effective for 180 days to give the agency time to make the regulation permanent through the normal rule making process.

COUNSEL TO MANAGEMENT

This proposed emergency rule basically codifies the DIR’s FAQ guidance and brings all of the rules from all of the agencies into sync. Nonetheless, it is a welcome change to the rules so that there is no confusion as to employers’ requirements regarding single-use facilities. We still would like to remind you that agricultural employers with single-user bathrooms with flush toilets in their facilities are subject to AB 1732 and must ensure that those single-user bathrooms are properly identified as “all-gender.”  Additionally, we continue to recommend that employers allow employees to use whichever restroom corresponds with the gender with which they identify. If you have any questions regarding bathroom-related requirements, please contact the experts at The Saqui Law Group.

Over the weekend, the Governor Brown added to the growing list of new employment laws to go into effect, including AB 1008, which is commonly referred to as the “ban the box bill.” AB 1008 prohibits employers with five or more employees from asking about a job applicant’s criminal history until a conditional offer of employment has been made. AB 1008 also makes it unlawful to consider or provide information about arrests not resulting in a conviction, referral to or participation in a diversion program, or convictions that have been sealed, dismissed, expunged, or eradicated by statute when conducting a criminal background check in connection with an application for employment.

In a recent decision, the Ninth Circuit refused to enforce an employer’s arbitration agreement, denying the employer’s request to force its former employee to arbitrate her claims against it. The plaintiff filed a lawsuit in the district court alleging that her employer, The Finish Line, violated the law by failing to provide reasonable accommodations of her pregnancy-related disabilities, and terminating her for requesting and taking pregnancy leave. The Finish Line asked the district court to order the parties to arbitrate the case pursuant to the arbitration agreement the plaintiff signed.   

Despite the existence of a signed arbitration agreement, the district court denied The Finish Line’s request.  The Employer appealed the decision to the Ninth Circuit, which upheld the district court’s order refusing to compel arbitration.

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