California Law Regarding Employee Access To Personnel Files

by Sayema Hameed

As of January 1, 2013, California Labor Code Section 1198.5 has been amended to give employees new rights to access their personnel files.  The amended statute explicitly gives former employees the same right as current employees to inspect and obtain a copy of their personnel records.  In addition, the current or former employee can authorize in writing a representative to inspect or receive a copy of the employee’s personnel file.

Read on to learn what you need to know about employer rights and responsibilities under this statute.

File Drawer

Photo Credit: Pixabay

Sanchez v. Swissport, Inc.: Pregnant Employee Who Was Fired After Exhausting Pregnancy Disability Leave Stated A Claim For FEHA Employment Discrimination

by Sayema Hameed

What happens when a pregnant employee who exhausts all of her vacation time and pregnancy disability leave cannot return to work because she is disabled by a high risk pregnancy?  In the case of Ana G. Fuentes Sanchez, she was fired by her employer, Swissport, Inc., due to her failure to return to work.

Ms. Fuentes Sanchez filed suit against Swissport, alleging pregnancy discrimination under California’s Fair Employment and Housing Act (“FEHA”), Government Code Section 12900 et seq.  The trial court concluded that she failed to state a claim under FEHA because her employer had given her the maximum leave allowed under the Pregnancy Disability Leave Law, Government Code Section 12945.  The Court of Appeal, however, reversed the trial court, concluding that the plaintiff sufficiently stated a cause of action under FEHA for employment discrimination.  Sanchez v. Swissport, Inc. (filed February 21, 2013, Second District, Div. Four, Case No. B237761).

California Supreme Court Rules On Mixed Motive Defense in FEHA Employment Discrimination Case: Harris v. City of Santa Monica

by Sayema Hameed

The California Supreme Court has issued an important decision on the use of the “mixed motive” defense in employment discrimination cases brought under California’s Fair Employment and Housing Act (“FEHA”), ruling that employers will not be liable for damages such as back pay in employment discrimination cases where the employee would have been fired for legitimate business reasons in the absence of the discrimination.

FEHA prohibits employment discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation.  In order to prove employment discrimination, a plaintiff must show that the unlawful discrimination was a “motivating factor” or reason for the employer’s adverse employment action (such as termination, demotion, etc.) against the employee.

Employers commonly assert the “mixed motive” defense to defeat employment discrimination claims.  Under the mixed motive defense, if the employer can prove that it would have made the same adverse employment decision based on a legitimate reason, standing alone, even if no discrimination was present, then the employer will not be liable under FEHA.

In Harris v. City of Santa Monica (Cal. Sup. Ct. Case No. S181004, filed February 7, 2013), the California Supreme Court was asked to determine whether FEHA allows the “mixed motive” defense.  The Supreme Court held as follows:

We hold that under the FEHA, when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, backpay, or an order of reinstatement. In light of FEHA’s express purpose of not only redressing but also preventing and deterring unlawful discrimination in the workplace, the plaintiff in this circumstance could still be awarded, where appropriate, declaratory relief or injunctive relief to stop discriminatory practices.  In addition, the plaintiff may be eligible for reasonable attorney’s fees and costs.

California Assembly Bill 1964 – Workplace Religious Freedom Act of 2012 – In Effect January 1, 2013

by Sayema Hameed

On January 1, 2013, California bill AB 1964, the “Workplace Religious Freedom Act of 2012,” went into effect.  AB 1964, signed into law by California Governor Jerry Grown, amends California’s Fair Employment and Housing Act (“FEHA”) to explicitly state that religious dress and grooming practices are covered by FEHA’s protections against religious discrimination.

California’s New Pregnancy Disability Leave (PDL) Regulations

by Sayema Hameed

California’s new Pregnancy Disability Leave regulations took effect on December 30, 2012. The new regulations, which can be found in Title 2 of the California Code of Regulations, Sections 7291.2 through 7291.18, were adopted to provide clarity and guidance to employers and employees regarding their respective rights and responsibilities concerning pregnancy, childbirth and related medical conditions under California’s Fair Employment and Housing Act, California Government Code Sections 12940-12951 (“FEHA”).

Francisco Cabada Discusses Pending Disability Discrimination Case in The Press-Enterprise

Cabada & Hameed partner Francisco Cabada discusses the pending case of disability discrimination by his client, a breast cancer survivor, against Los Angeles World Airports in the following article, published by The Press-Enterprise on January 7, 2013: “LA World Airports is sued by former consultant on Ontario International.

California Becomes Third State To Ban Employers From Requesting Employee Social Media Passwords

by Sayema Hameed

On September 27, 2012, California Governor Jerry Brown signed into law A.B. 1844 and S.B. 1349, two bills which protect the privacy of employee and student social media, respectively.  On the enactment of these two bills, Governor Brown said:

The Golden State is pioneering the social media revolution and these laws will protect all Californians from unwarranted invasions of their personal social media accounts.

S.B. 1349, entitled “Social media privacy: postsecondary education” (codified at Education Code Sections 99120-99122), prohibits public and private higher educational institutions from requiring a student, prospective student, or student group to disclose personal social media usernames, passwords, or content.  The new law also prohibits the educational institutions from suspending, expelling, disciplining, or threatening to take any of those actions, for refusing to comply with such a demand.  California is the second state to pass a law protecting the social media information of students, following Delaware.

A.B. 1844, entitled “Employer Use of Social Media” and codified at Labor Code Section 980, prohibits employers from requiring an employee or job applicant to disclose his or her social media username or password.  This new law also prohibits an employer from “shoulder surfing,” i.e. requiring an employee or job applicant to access a personal social media account in the employer’s presence.

The new law also prohibits an employer from discharging, disciplining, threatening or otherwise retaliating against an employee or job applicant for not complying with the employer’s demand. The law does permit an employer to obtain passwords or other information needed to access employer-issued electronic devices.