When an employment situation sours and an employee pursues his rights, usually at some point there is talk of settlement. Almost routinely, employers include a no-rehire provision in any settlement agreement which prohibits the former employee from seeking reemployment with the employer. While this may not seem like a big deal if you work for a small company and have no intention of seeking reemployment with the same people who wronged you in the first place, for individuals who work for large employers, the no-hire provision can create significant hardship. For example, if you work for a major retailer with numerous locations and you are terminated, a no-rehire provision might prevent you from working for that company ever again, in any capacity. That means, even if you wanted to work for a store 100 miles away, you would be barred from doing so. This is particularly problematic for long-term employees who have deep knowledge of the employer’s policies and practices and have been successful in their positions for years- they know the job, and have done it well, and now they are unable to apply for any future job at the company where their skills are a perfect match. This is also a significant problem for people who work for a utility; it may be that there is really only one employer in the area you can work for and a ban on working for that company will prevent you from working, period. The no-rehire provision would require you to either move to a new location or develop skills for an entirely different field. It seems, to many employees, like a final act of retaliation by their former employer.

Starting January 1, 2020, employment dispute settlement agreements cannot contain a no-rehire provision and such provisions are void as a matter of law and public policy. There is an exception, undoubtedly inspired by the #MeToo and #TimesUp movements- if an employer has made a good faith determination that the terminated employee engaged in sexual harassment or sexual assault, the employer may prohibit or restrict the terminated employee from obtaining future employment with the employer.

The new prohibition on no-rehire provisions eliminates a punitive and sometimes career-ending tool that employers routinely employ and is a victory for workers in California. As employee-advocates we are thrilled with this new law; employees who stand up for their rights no longer have to give up potential future employment just because they did so.

Jean Krasilnikoff

The California Fair Employment and Housing Act (“FEHA”) prohibits discrimination, harassment, and retaliation against California employees on a variety of bases. The FEHA provides some of the best employment protections in the country, and has been expanded several times over the years to afford additional protections in the workplace. However, one of the greatest hurdles to employees is the statute of limitations. In California, an employee has one year from the date of the unlawful practice to file a charge with the Department of Fair Employment and Housing (“DFEH”). Failure to file a charge within the limitations period waives an employee’s rights to any claims she has under the FEHA. Further complicating matters is that the intake process at the DFEH has several steps and it has been unclear to employees as to when their charge was actually filed, and thus, whether they filed within the one-year period.

On Thursday, Governor Newsom signed AB 9 which extends the one year period to three years starting on January 1, 2020. The bill also specifies filing a complaint means filing an intake form with the DFEH and the operative date of the verified complaint relates back to the filing of the intake form- clarifying what has been a confusing issue for employees over the years. This new statute triples the time an employee has to file their charge, which is particularly valuable for those employees who feel they cannot come forward soon after the adverse employment action.

However, it is important to note that the bill specifically says it will not “be interpreted to revived lapsed claims.” So, if your statute of limitations has already passed, this new extension will not give you any relief. However, if you suffer an adverse employment action (for example, if you are fired) in or after January 2020, the new statute of limitations will apply. The stickier issue is what happens to claims that arose this year, or will arise between now and the end of the year? If you were fired on March 1, 2019, and believe it was due to your gender, you would have until February 2020 to file your charge. But what happens now? Do you have until February 2022 to file your claim? Or, do you still need to file by February 2020?

Normally, when a statute of limitations is increased, it applies prospectively to pending cases. In analyzing the bill, the Senate Judiciary Committee noted: “Applying these rules to this bill, it would automatically extend the time to file for incidents that occurred before the effective date of the change in the law, but for which the limitations period had not yet expired on the date of the enactment.” However, because the law does not make this point entirely clear, we strongly advise that you file as soon as possible to preserve any rights that you may have so that there is no argument that you have failed to file within the statute of limitations period. There are other good reasons to file sooner rather than later too- memories fade, key witnesses move out of state, documents go missing – so if you are considering filing a charge, don’t count on that three year statute just yet.

If you believe you have claim for work place discrimination, harassment, and/or retaliation and would like to discuss your options, contact Siegel LeWitter Malkani at (510)452-5000.

Jean Krasilnikoff

As we watch the re-trial of the famous Bill Cosby for his sexual assault of Andrea Constand, we have to wonder why he wasn’t convicted the first time (i.e., why did the case result in a mistrial?) and, given the ascent of the #metoo movement, with the accompanying consciousness raising, whether justice will be done in the retrial. The jury hasn’t yet started to deliberate but some lessons can already be learned.

First, of course, the burden of proof is simply higher in a criminal case than in a civil case, and there are good policy reasons for that. We want to be very sure when we put someone behind bars. Second, the jury pretty much never has the entire story. In the first trial, the judge only allowed one other victim to testify, and in the re-trial, 5 victims have testified. In all cases, for reasons both right and wrong, not all evidence is heard by the jury. And lastly, it is unusual for a civil case involving incidents so far into the distant past to proceed, which does provide reasons to sow reasonable doubt, and to question witnesses’ and victims’ memories and motives, in this criminal case.

But what is similar about the original Cosby trial and the re-trial? The good old-fashioned blame the victim. Cosby’s lawyers are calling the victim, Andrea Constand a “con artist”, who is obsessed with fame and money. They are vilifying her and suggesting she is a liar, who made up a story to get rich and famous. In the re-trial, the judge has ruled that the fact that Cosby paid Constand $3,380,000 to settle the sexual assault civil lawsuit is admissible evidence. The defense is using the payment to support its theory that Constand is greedy. But doesn’t this payment equally support the theory that Cosby is guilty as charged? Even the likes of Bill Cosby doesn’t just hand out $3,380,000 for no reason, especially with 59 other victims possibly waiting in the wings.

There are credibility issues in this case, but the criminal defendant himself is remaining silent. At this moment in the trial, the credibility determination ironically seems to rest on the relative credibility of two women: the victim, and a woman testifying on behalf of the defense. Nice way to move the focus off the bad actor and pit two women against each other.

The defense has put on the testimony of Marguerite Jackson, someone who says she spoke with the victim, to suggest that the victim made the whole thing up. A close read of Marguerite Jackson’s testimony (really a close read of newspaper articles about the testimony!) suggests that Ms. Jackson also has some credibility issues and her story seems like a twist on the truth. Jackson says the two women were watching television and a story came on about a sexual assault by a famous person. According to Jackson, Constand told her that she had been attacked by a famous person but couldn’t prove it. Jackson says she told Constand that she would report it. According to Jackson, Constand asked what the case on tv was about, and Jackson told her it was a civil case and therefore was about money. Then Jackson, not Constand, brought up the issue of money, admitting she said that the case was about money and that, “Money is the best motivator.” After that, Jackson then testified, somewhat bizarrely, that Constand admitted she made the story up. Jackson also testified that Constand, “I could say it did. I could quit that job… I could get that money.” The prosecutor has attacked Ms. Jackson’s credibility, suggesting it was Jackson who was out for fame and fortune.

The prosecution is offering evidence that it was Jackson, not Constand, that was looking for her moment of fame and therefore was offering dishonest testimony. I believe that Constand’s testimony has more integrity than Jackson’s testimony, and is more logically consistent. Of course, I am interpreting this through my own lens, as everyone does. I wait with anxious anticipation to see how the jury interprets this conversation and the rest of the evidence. In some ways this will tell us how far society has come, and whether the #metoo movement has had some influence on the perspective of society. On the other hand, it may just tell us what this jury of 12 people happens to think.

We should be cautious to not make too much of any one jury’s determination of what happened in one of the sixty cases that “coulda shoulda woulda” been brought against a wealthy male celebrity who has abused his lot in life. Regardless of the outcome, let’s keep chipping away at the privileges and biases that allow this behavior to permeate our society.

Jody LeWitter

First, social norms are so well ingrained that we, as a society, often do not question what should be questioned. The line between appropriate behavior and inappropriate but- we-have-to-put-up-with-it behavior is simply blurred. I am grateful beyond belief to those brave souls, those who question the way things are, for shinning a floodlight on these deep dark not-so-secret societal norms.

Second, my own experiences are like an onion. The outer skin protects a lot of interior sections of which I am not always so cognizant. When peeled back, the memories are hazy but powerful. My outer skin is: no, no, lucky me, I am fortunate and have not been subject to sexual harassment. But it isn’t true. I feel this way due to years of denial and a well-honed ability to minimize. It is my denial mechanism that has made me a successful lawyer and advocate. But this ability to minimize, ignore and excuse doesn’t help change society, and change is what we need.

My story is simply the story of my generation of women of my socioeconomic class, race and privilege, growing up in the 60s, wanting to have a career and change the world without a lot of role models. I was white, middle-class and privileged enough. Yes, I experienced sexual harassment, both verbal and physical, especially as a young woman. Young women, women of color, gender non-conforming, gay, lesbian, transgender people, poor people, and all powerless people, are vulnerable to this display of power and the harm that comes with it….. in the workplace, on the streets, where they seek medical care or government services, in their own homes…anywhere and everywhere.

And I also experienced limited expectations with well-defined and rigid goals for what I would and could grow up to be, which were intended to shape (and narrow) my dreams, for myself and for a better society. The confines of this spectrum of expectations (or lack thereof) also made it so that I, and other young women, did not feel empowered to even articulate, much less question, discrimination and harassment when we saw it.

And, in the legal realm, in order to move this movement forward, we must change the standard for bringing sexual harassment claims, other harassment claims, and discrimination claims, in order to change how society operates and stop simply accepting the unacceptable. More on this later.

So, happy new year, and, thanks to #metoo.

Jody LeWitter