Unlawful to Terminate Employee for Political Activities?

You may have heard about the recently filed lawsuit against Google in which it is alleged that Google terminated the employment of an employee for his political viewpoint comments that he made over a company internal communications network. So you might wonder, are or can political comments be protected speech in the workplace environment? The answer is yes, they can be. See below California Labor Code §§1101 and 1102.

However, whether or not a comment or activity constitutes a political comment or activity is a question of fact that depends on the facts of the particular situation, even if the comment or activity qualifies as “political” in nature, again, depending on the facts and circumstances of the particular situation, the comment or activity might still be unprotected based on other factors, and the employer may also have a defense if the termination was because of or justified for some other legally legitimate or permissible reason.

There are relatively few cases that interpret §§1101 and 1102, or what comments or activities are “political” in nature.

Best to you, David Tate, Esq.

For your additional information, California Labor Code §§1101 and 1102 state as follows:

1101. Political activities of employees; prohibition of prevention or control by employer

No employer shall make, adopt, or enforce any rule, regulation, or policy:

(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.

(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.

1102. Coercion or influence of political activities of employees

No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity

* * * * *

Coming Soon – Updated ISO 31000 Risk Management

I’m forwarding along a discussion about the expected update of ISO 31000 Risk Management. Similar to posts that I have been doing for the recently updated COSO ERM framework, I will be adding ISO 31000 to the discussions when the update arrives. 2017 and 2018 are looking like important years for the development and improvement of risk management and ERM for officers, directors (and audit and risk committees), managers, elected representatives, and suppliers, and throughout the entire entity or organization. On this blog you will also find earlier, but recent, posts where I have been discussing the new COSO ERM framework. I particularly like the culture and governance category which was added as the first category for consideration.

Click on the following link for the discussion about the expected update of ISO 31000 https://www.iso.org/news/ref2239.html

Best to you, David Tate, Esq.

From Scott Moritz of Protiviti – Measuring Ethical Culture Tapping Open Secrets

I am forwarding an article by Scott Moritz of Protiviti (click the link below), discussing ethical culture surveys, which are in vogue now, but might not be soon when they are no longer the center of attention. In his short article Mr. Moritz does capture the importance of a well-drafted survey to gather information and to help demonstrate employer interest in the topic. I suggest that the board also sponsor the survey – in my view, as a general matter boards should be more visible on important topics, such as the entity’s culture. “Tone at the top” and “visibility,” you know?

Mr. Moritz’ article doesn’t go into the detail of preparing a well-drafted survey – I would like to see an open discussion, and specific examples, about well-drafted ethical culture surveys so that everyone can get onboard, now and continuing in the future.

Here is the link to Mr. Moritz’s article: https://blog.protiviti.com/2017/12/18/measuring-ethical-culture-tapping-open-secrets/

Best to you, David Tate, Esq.

New Required Workplace Poster Re Transgender Rights – Business Culture & Compliance

I have pasted below copies of the press release from the California Department of Fair Employment & Housing, and the related required workplace poster for transgender rights, which employers are required to post beginning January 1, 2018. Officers, directors, managers, employees, contractors, third parties, etc., should consider transgender rights part of work place culture, in addition to satisfying compliance requirements. Best to you, David Tate, Esq.

 

Workplace Harassment – What Are The Legal Standards – Do People Really Know What They Are Talking About?

Workplace harassment – its in the news, a lot, and it will continue to be in the news. But do people know what they are talking about? Allegations and assertions such as on social media are one thing – legal admissible evidence, causation, proof and damages are different. So . . . as a point of reference, below I have provided some of the legal standards (select California jury instructions) that may apply depending on the facts and circumstances. Best to you, David Tate, Esq.

Example California Civil Jury Instructions Re Harassment – Hostile Work Environment (CACI 2521A, 2523, 2524 and 2505)

Note: the complained of activity must constitute or amount to harassing conduct under the circumstances of the situation; unlawful harassment isn’t just any harassment – the harassment must be based on a protected status; and the harassing conduct must have been severe or pervasive. Also note, although the example jury instruction (CACI 2521A) that I have provided below is based on conduct that is directed specifically at or upon the plaintiff victim, the harassing conduct can be directed at other people if the conduct is otherwise observed or experienced by, or in some other manner affecting the plaintiff. Also note, other related issues can involve, for example, disparate treatment, disparate impact, retaliation, disability discrimination reasonable accommodation and attempt at reasonable accommodation, constructive discharge, battery, available defenses, etc. If you are dealing with issues in these areas, you also need to have a correct understanding of the intent of the law.

 

2521A. Hostile Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employeror Entity Defendant (Gov. Code, § 12940(j))

[__________ Name of plaintiff] claims that [he/she] was subjected to harassment based on [his/her] [describe protected status, e.g., race, gender, or age] at [__________ name of defendant], causing a hostile or abusive work environment. To establish this claim, [__________ name of plaintiff] must prove all of the following:

That [__________ name of plaintiff] was [an employee of/a person providing services under a contract with/an unpaid intern with/a volunteer with] [__________ name of defendant];

That [__________ name of plaintiff] was subjected to unwanted harassing conduct because [he/she] was [protected status, e.g., a woman];

That the harassing conduct was severe or pervasive;

That a reasonable [e.g., woman] in [__________ name of plaintiff]’s circumstances would have considered the work environment to be hostile or abusive;

That [__________ name of plaintiff] considered the work environment to be hostile or abusive;

[Select applicable basis of defendant’s liability:]
[That a supervisor engaged in the conduct;]

[That [___________ name of defendant] [or [his/her/its] supervisors or agents] knew or should have known of the conduct and failed to take immediate and appropriate corrective action;]

7. That [__________ name of plaintiff] was harmed; and

8. That the conduct was a substantial factor in causing [__________ name of plaintiff]’s harm.

 

2523. “Harassing Conduct” Explained

Harassing conduct may include, but is not limited to, [any of the following:]

[a. Verbal harassment, such as obscene language, demeaning comments, slurs, [or] threats [or] [describe other form of verbal harassment];] [or]

[b. Physical harassment, such as unwanted touching, assault, or physical interference with normal work or movement;] [or]

[c. Visual harassment, such as offensive posters, objects, cartoons, or drawings;] [or]

[d. Unwanted sexual advances;] [or]

[e. [Describe other form of harassment if appropriate, e.g., derogatory,
unwanted, or offensive photographs, text messages, Internet postings
].]

 

2524. “Severe or Pervasive” Explained

“Severe or pervasive” means conduct that alters the conditions of employment and creates a hostile or abusive work environment.

In determining whether the conduct was severe or pervasive, you should consider all the circumstances. You may consider any or all of the following:

The nature of the conduct;

How often, and over what period of time, the conduct occurred;

The circumstances under which the conduct occurred;

Whether the conduct was physically threatening or humiliating;

The extent to which the conduct unreasonably interfered with an employee’s work performance.

 

2505. Retaliation—Essential Factual Elements (Gov. Code, §12940(h))

[__________ Name of plaintiff] claims that [__________ name of defendant] retaliated against [him/her] for [describe activity protected by the FEHA]. To establish this claim, [__________ name of plaintiff] must prove all of the following:

That [__________ name of plaintiff] [describe protected activity];

[That [__________ name of defendant] [discharged/demoted/[specify other adverse employment action]] [__________ name of plaintiff];]

[or]

[That [__________ name of defendant] subjected [__________ name of plaintiff] to an adverse employment action;]

[or]

[That [__________ name of plaintiff] was constructively discharged;]

3. That [__________ name of plaintiff]’s [describe protected activity] was a substantial motivating reason for [__________ name of defendant]’s [decision to [discharge/demote/[specify other adverse employment action]]

[__________ name of plaintiff]/conduct];

4. That [__________ name of plaintiff] was harmed; and

5. That [__________ name of defendant]’s decision to [discharge/demote/[specify other adverse employment action]] [__________ name of plaintiff] was a substantial factor in causing [him/her] harm.

[[__________ Name of plaintiff] does not have to prove [discrimination/harassment] in order to be protected from retaliation. If [he/she] [reasonably believed that [__________ name of defendant]’s conduct was unlawful/requested a [disability/religious] accommodation], [he/she] may prevail on a retaliation claim even if [he/she] does not present, or prevail on, a separate claim for [discrimination/harassment/[other]].]

 

Goodell – NFL – I’ll Run It Better For $2 Million A Year . . . Qualifications . . .

I have read that the contract for the NFL Commissioner position is being negotiated, with a salary range of $30,000,000 to $50,000,000 per year, plus perks. I’ll be Commissioner for $2 Million a year, and do a better job. The Commissioner’s position is high profile, but its not good when the Commissioner personally becomes such the focus of public discourse, and a battlefield for control between the owners, players, fans and the public.

For example, the Brady situation could have, and should have been handled very different. See prior blog posts for May 7 and 20, and August 13 and 22, 2015 at http://directorofficernews.com

A summary of my qualifications to be Commissioner:

Experienced lawyer and counselor on complicated matters including legal issues, workplace and employment, governance, litigation, corporate, abuse, directors and officers, etc. I have seen and have been involved in a lot of diverse, difficult situations.

CPA experience, in addition to finance and tax.

Board and audit committee chair leadership experience.

Very good interacting with people from different backgrounds who have different positions in complicated and highly charged and emotional situations, and keeping things from boiling over, while working toward positive resolution.

Experience as a mediator.

No baggage, unlike the current Commissioner.

A good feel for issues involving people, fans, the public, and running a business.

Ego in check.

More . . . .

Best to you, and looking forward to 2018. David Tate

 

 

I have become a member of ProVisors

Just a brief note. I have become a member of ProVisors in their San Mateo 2 group. I’m looking forward to collaborating with members of the group and other members of ProVisors. Onward. Please see links for the Royse Law Firm, and my blogs below, and connect with me through LinkedIn, twitter, etc. (you will find connect links on my blogs).

That’s all for now. I’m David Tate. I’m a California litigation attorney. I also provide advice on a range of legal duty, liability, business and workplace, corporate governance, D&O, risk management, and trust/fiduciary administration issues and situations, and I can put you in touch with an appropriate attorney if your needs are outside of my areas. You do need to consult with an attorney or other appropriate professional about your situation. This blog post or video or audio is not an advertisement or solicitation for services inside or outside of California. Thanks for reading, listening, or viewing.

David Tate, Esq., Royse Law Firm, Menlo Park office, California, with offices in northern and southern California. http://rroyselaw.com

 

See also my blogs at http://californiaestatetrust.com and at https://lawriskgov.com/ (and a prior blog at http://auditcommitteeupdate.com)

Royse Law Firm – Practice Area Overview – San Francisco Bay Area and Los Angeles Basin

  • Corporate and Securities, Financing and Formation
  • Corporate Governance, D&O, Boards and Committees, Audit Committees, Etc.
  • Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  • International
  • Immigration
  • Mergers & Acquisitions
  • Labor and Employment
  • Litigation (I broke out the litigation because this is my primary area of practice)
  •             Business
  •             Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  •             Trade Secrets, NDA, Accounting Issues, Fraud, Lost Income, Royalties, Etc.
  •             Privacy, Internet, Hacking, Speech, Etc.
  •             Labor and Employment
  •             Mergers & Acquisitions
  •             Real Estate
  •             Owner, Founder, Investor, Board & Committee, Shareholder, D&O, Etc.
  •             Insurance Coverage and Bad Faith
  •             Lender/Debtor
  •             Investigations
  •             Trust, Estate, Conservatorship, Elder Abuse, and Contentious Administrations
  • Real Estate
  • Tax (US and International) and Tax Litigation
  • Technology Companies and Transactions Including AgTech, HealthTech, Etc.
  • Wealth and Estate Planning, Trust and Estate Administration, and Disputes and Litigation

Audit Committee 5 Lines of Defense 10222017 David W. Tate, Esq. jpg