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July 1 Deadline Looms for Cannabis Operators to Maintain and Renew Their Licenses by Entering into Labor Peace Agreements

Employment

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July 17, 2024

July 1 Deadline Looms for Cannabis Operators to Maintain and Renew Their Licenses by Entering into Labor Peace Agreements

California’s Medicinal and Adult-Use Cannabis Regulation and Safety Act (“MAUCRSA”) requires commercial cannabis entities to obtain a license from California’s Department of Cannabis Control (“DCC”) to cultivate, distribute, transport, store, manufacture, process, and sell cannabis in the state of California. Since its enactment, MAUCRSA required licensees with 20 or more employees to enter into Labor Peace Agreements (“LPAs”) with “bona fide” labor organizations to receive and renew a license from the DCC, as previously outlined here. LPAs require commercial cannabis licensees and labor organizations to agree to not engage in conduct that would disrupt or interfere with the other’s dealings. In 2022, AB 195 reduced the employee threshold requirement by half, effective July 1, 2024. That means, effective July 1, 2024, all license applicants with 10 or more employees must comply with the LPA requirement to obtain a license, and all current licensees with 10 or more employees must so comply to renew their license.

MAUCRSA, defines an LPA as “an agreement between a licensee and any bona fide labor organization that, at a minimum, protects the state’s proprietary interests by prohibiting labor organizations and members from engaging in picketing, work stoppages, boycotts, and any other economic interference with the applicant’s business. This agreement means that the applicant has agreed not to disrupt efforts by the bona fide labor organization to communicate with, and attempt to organize and represent, the applicant’s employees. The agreement shall provide a bona fide labor organization access at reasonable times to areas in which the applicant’s employees work, for the purpose of meeting with employees to discuss their right to representation, employment rights under state law, and terms and conditions of employment. This type of agreement shall not mandate a particular method of election or certification of the bona fide labor organization.” Cal. Bus. & Prof. Code § 26001(ab).

MAUCRSA defines a “labor organization” as “any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists, in whole or in part, for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work for employees.” Cal. Bus. & Prof. Code § 26051.5(a)(5)(E)(ii).

Although the July 1 deadline is just around the corner, there has been no significant uptick in the number of LPAs on file with the DCC. Per the DCC, there are 9,123 active cannabis licenses[1] (5,945 annual licenses, 3,172 provisional licenses,[2] and 5 interim licenses). Yet only about 7% of all the active licensees have LPAs on file, per DCC lists (only 652 LPAs). Indeed, the number of LPAs on file has actually decreased since we previously wrote about a related issue in May 2024. And in the next 30 days, approximately 810 now-active licenses will expire, some of which will occur on or after July 1. If any of these licensees have 10 or more employees, they must have an LPA with a bona fide labor organization to renew their license.

Enforcing the LPA Requirement

The DCC issues cannabis licenses through its Licensing Division. Its Compliance Division, together with its Enforcement Division, support and enforce regulatory compliance and investigate unlicensed activity. The DCC tracks compliance actions for licensees, and information identifying the DCC’s license denials, citations, and disciplinary actions can be accessed here. Out of the DCC’s 216 license actions,[3] the DCC suspended only one license, on January 9, 2024, for failure to comply with the LPA requirement.

Enforcement, however, is not limited to actions initiated by the DCC, because any member of the public can file an anonymous complaint against a licensed or unlicensed cannabis business through the DCC’s website. Similarly, complaints specific to LPAs can be submitted by any current or former employee of a cannabis licensee and/or any labor organization, by sending an email to the DCC or filing a complaint with the Agricultural Labor Relations Board (ALRB), which is the agency charged with enforcement of the Agricultural Labor Relations Act (ALRA).

Pertinent here, the ALRB is responsible for determining whether an entity that has entered into an LPA with a cannabis licensee is a “bona fide labor organization” as required by statute.[4] If it is not, the ALRB can declare the LPA null and void. In 2023, the ALRB issued its first two such decisions, and both decisions were based on complaints made by third party labor organizations to the ALRB.[5] The ALRB found that each purported labor organization was a sham organization for the purpose of satisfying licensing requirements, that the entities were not bona fide labor organizations, and that all LPAs with these entities were null and void. After the ALRB decisions, the DCC notified all licensees, who had LPAs with the sham organizations, of the determination, and required those licensees to enter into a new LPA with a bona fide labor organization within a reasonable time.

Takeaways

Employers that have 10 or more employees should understand their obligations to comply with MAUCRSA, and evaluate those obligations in light of the July 1, 2024 LPA requirements. DCC’s enforcement position, beginning on July 1, 2024, with respect to the LPA requirements are not yet known. Employers, with 10 or more employees, should be aware that the DCC’s actions need not be limited to those discussed above because the statutory provisions at issue specifically state that the DCC’s authority to revoke or suspend a license for violation of the LPA requirements is not limited by those provisions. See Cal. Bus. & Prof. Code §26051.5 (a)(5)(A)(iv).

FOOTNOTES

[1] Based on data for active licenses, accessed on June 18, 2024 (https://cannabis.ca.gov/resources/data-dashboard/license-report/).

[2] Provisional licenses are being phased out, and January 1, 2026, is the last day any provisional license can be in effect. See Cal. Bus. & Prof. Code §§ 26050.2(o)&(p).

[3] Based on data accessed on June 18, 2024.

[4] See Cal. Bus. & Prof. Code § 26051.5(a)(5)(D).

[5] The ALRB found that the Pro-Tech 33 and the National Agricultural Workers Union were not “bona fide labor organizations” even though both had signed over 20 LPAs with cannabis licensees. Both entities were found to be sham organizations when, among other things, they did not respond to basic inquiries about their LPAs and did not provide information about any members and officers in California.

Remote PPC Manager at SEO Sherpa

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July 17, 2024

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We seek the PPC Manager of our dreams to join our outstanding paid advertising department.

As a PPC manager at SEO Sherpa, you will execute Google Ads campaigns across multiple channels (Search, Display, YouTube, and Shopping), including strategy, planning, campaign builds, tracking/measurement, reporting, analysis, and optimization.

You will make recommendations and suggest opportunities to maximize campaign performance using big data analysis (pro-level Google Analytics and Tag Manager knowledge is a must).

You will unlock new opportunities for clients and save hours of valuable time through automation and machine learning and by leveraging PPC management platforms.

You will help build PPC processes and best practices across the business (including training requirements). Support and develop media, publisher, and third-party partnerships (e.g. work with Google reps)

You’ll create and test ad copy and landing pages to ensure that customers have the most relevant experience and drive optimal results for your clients.

You will develop processes and mechanisms to meet our ambitious objectives and will be primarily responsible for your designated clients.

This is a full-time, remote role.

We are looking for an advanced-level Google Ads PPC Specialist who can deliver strategy, ad copywriting, landing page analysis, and campaign optimizations to the highest standards for our client including fast-growth startups and world-leading brands. Experience with Meta Advertising is not a must-have but a plus

This role would best suit PPC specialists within time zones of up to 4-hours +/- of Dubai, United Arab Emirates. You will require a reliable high-speed internet connection and a modern computer or laptop.

Is This Role Right For You?If you answer “YES” to all these we’ll be a great fit….

You start with the customer and work backward from there. It shines through your analysis of client performance, managing large data sets across multiple channels to maximize your clients’ dollars. Automation is your friend.
You eat, sleep, and breathe PPC but you’re not stuck in a silo. You love rubbing shoulders with the SEO and Dev teams to improve results and grow your clients’ bottom line.
You’re results-oriented. Your laser-focus attention to the details allows you to thoroughly analyze data across disparate data sources, extracting valuable insights for your clients.
You thrive on a challenge. You enjoy rolling up your sleeves to take risks with innovation and testing.
Your passion for SEM stretches beyond industry blogs, articles, and case studies. You use your knowledge to elevate your clients, colleagues, and industry peers through 1:1s and training.
Your A+ time management skills allow you to juggle several projects at once without missing a beat. When faced with a challenge, you rise to the occasion. You’re no stranger to working under pressure and you always find a way to meet deadlines.

Proven successful track record of advanced level Google Ads Optimization. (Proof required).

Cool stuff you’ll get:

The opportunity to work with a talented team on an important mission.
Above market salary + incentives.
Unlimited (paid) personal time off for vacation, sick, and wellness days.
Flexible-hours.
Radical transparency across business metrics and information (we call this “open for business”).
100% company-paid health insurance.
When the company does well, so will you. 8-15% of the net profit gets shared amongst the team members you included.
Regular training, professional workshops, and book purchases are covered by us.
Team retreats and meet-ups that bring together our remote-first workforce.
A fun work culture where we value your work and our client’s business.

ADA challenge to wellness incentives stays alive: Employment & Labor Insider

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July 17, 2024

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ADA challenge to wellness incentives stays alive: Employment & Labor Insider

A federal judge in Illinois refused this week to dismiss a class action lawsuit brought under the Americans with Disabilities Act based on a “voluntary” wellness program.

**“DID YOU SAY ‘CLASS ACTION? UGH, I DON’T FEEL SO GOOD . . .'”**

Employers should review their wellness programs and determine whether any monetary incentives for participation are so sweet that employees may feel they have no choice but to participate. If so, then the program may not be “voluntary,” and any requests for medical information in connection with the program could run afoul of the ADA.

ADA review

In addition to prohibiting discrimination based on disabilities and requiring reasonable accommodations, the ADA has some significant provisions relating to employees’ medical information. Those provisions apply to all employees, not just employees with disabilities.

Here is the quick and dirty:

An employer cannot request medical information from an applicant before a conditional offer of employment has been made. Period.

After a conditional offer of employment has been made, the employer can require the offeree to have a medical examination or fill out a medical questionnaire as long as it does the same for all offerees in the same job category. And, of course, with limited exceptions the medical information obtained cannot be used against the offeree.

Once the offeree becomes an “employee,” the employer can request medical information only if the request is “job-related and consistent with business necessity.”

BUT . . . if the employer has a voluntary wellness program, it can ask for employee medical information in that connection without violating the ADA. This could include tons of information that is not “job-related and consistent with business necessity,” such as routine blood work, weigh-ins, BMI measurements, blood pressure readings, and the like.

Any medical information obtained from an employee must be kept confidential and separate from the employee’s personnel file.

Again, these rules apply to everybody — employees with disabilities, and employees without disabilities.

The wellness incentive lawsuit

A Wisconsin-based employer and its Illinois subsidiary had a wellness program that it (they?) considered to be “voluntary.” No one was fired for refusing to participate. No one, as far as we can tell, was denied a promotion or subjected to unfair terms and conditions of employment because they refused to participate.

That sounds pretty “voluntary” to me, Robin!

Me too. Except for one thing. According to the lawsuit, participants in the wellness program got a nice financial “discount” on their health insurance premiums. Non-participants, including the plaintiffs, were not eligible for the discount.

The additional cost of health insurance coverage for one of the plaintiffs, who had family coverage, was more than $1,800 a year ($34.81 per week).

To many people, $1,800 a year is a lot of money. It may even be enough to “incentivize” them to participate in an employer wellness program and submit to biometric and health screening when they’d really prefer not to.

In other words, the plaintiffs argue that the discount for participation is so significant that it makes participation in the wellness program “not voluntary.” And if participation is not voluntary, then requesting the information is a violation of the ADA.

The employer tried to get the lawsuit dismissed, arguing that it wasn’t “penalizing” employees for non-participation but only “incentivizing” participation. Therefore, the employer argued, the program was voluntary, and the lawsuit had no merit.

But the plaintiffs argued that the lack of incentives for non-participants was, in effect, a penalty for non-participation.

The judge ruled this week that the lawsuit could proceed based on what the plaintiffs had alleged.

And did I mention that it’s a putative class action?

Much more to come!

The court was ruling on a motion to dismiss for failure to state a claim for which relief may be granted (also known as Rule 12(b)(6) of the Federal Rules of Civil Procedure). Motions to dismiss are generally heard at the very earliest stages of the litigation, and the court is required to assume that the facts alleged in the complaint are true. If, with that assumption, the lawsuit states a valid legal claim, then the judge has to let the case move forward. The parties will then engage in discovery and file appropriate motions later, based on the evidence in the case.

So, it is possible that this employer will prevail later on. Even if the class is certified, maybe it will turn out that the employees all make $1 million a year, in which case the $1,800 annual hit on health insurance may not be a big deal. Or maybe the plaintiffs’ figures on the discount are not accurate, and the incentive is really only 34 cents a month, not $34.81 a week.

But litigation is expensive, and class litigation significantly more so. Employers who offer incentives for participation in wellness programs should determine whether any changes should be made to minimize their litigation risks.

Oh, one more thing. Liability under the Genetic Information Nondiscrimination Act is also a possibility. In another case from a couple of years ago, a federal judge refused to dismiss all GINA claims in a lawsuit against the City of Chicago based on similar allegations. In the Chicago case, the City required non-participating employees to pay a monthly penalty of $50. If their covered spouses also declined to participate, the employees had to pay $100 a month. The GINA claims of employees with individual coverage were dismissed because no “genetic information” was sought. But the GINA claims of the employees whose spouses were covered were allowed to proceed. (Under the GINA, information about a spouse’s health is the employee’s “genetic information.” This never made sense to me because spouses are not relatives, but Congress didn’t ask for my opinion.)

Neurodiversity and Workplace Policies | Employment and discrimination blog

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July 17, 2024

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Neurodiversity and Workplace Policies | Employment and discrimination blog

POLONIUS: What do you read, my lord?

HAMLET: Words, words, words.

(Hamlet, Act 2, Scene 2)

Neurodiversity Celebration Week took place between 21 and 27 March. The following week was Autism Acceptance Week, culminating in World Autism Awareness Day on 2 April. This means neurodiversity has featured heavily on social media recently.

During Neurodiversity Celebration Week, I spent some time reflecting on my practice as an employment lawyer. Were there any areas of my work that were not particularly neurodiversity-friendly? Could I improve things for neurodiverse clients? Was it something to consider?

At the time I had received a case file that included around 50 pages of policies on disciplinary, grievance, and harassment at work. The dispute involved a dyslexic member of staff. I perused the densely packed text. “Hardly dyslexia friendly,” I mused to myself, observing the irony.

I tried to imagine being dyslexic and receiving all that text to read as a new employee. How would that make you feel? How would it affect your perception of that employer?

What is neurodiversity?

The term “neurodiversity” (or ND for short) was first coined by the social scientist Judy Singer in the 1990s. It refers to a difference in brain processing that can affect social interaction, learning, attention, sensory processing, and other aspects of interacting with the world and other people.

It has become a collective term for conditions such as autism, ADHD, dyslexia, dyscalculia and dyspraxia. The word was an attempt to reframe the narrative away from the negative connotations that the conditions were pathological disorders needing to be remedied. Consider it as just another aspect of diversity.

I received a diagnosis of autism a couple of years ago. It was a shock at the time. But that was due to my own perceptions of what autism meant, no doubt influenced by the movie Rain Man.

Visual thinking

The American scientist Temple Grandin has written extensively about how her autism is an asset in her specialist field of designing facilities for livestock. One of her theories is that autistic people are more likely to be visual thinkers. She has even written a book entitled Visual Thinking, which describes the way in which she thinks, quite literally, in pictures.

This concept of visual thinking has been commented on by a number of specialists as being a common experience across the ND community. Sir Richard Branson, who is dyslexic, has spoken about how he is able to “see” innovations and business opportunities. He has also written about the way dyslexia shaped his approach to developing products and services at Virgin by focusing on short, concise slogans that resonate immediately. Basically, dyslexia helps him cut out the waffle.

Written policies in the workplace

Some estimates suggest 15% of adults are ND. That translates to one in seven employees. Potentially, a sizeable chunk of your client’s workforce could be alienated by the presence of a text-heavy staff handbook. And if those 15% are more likely to be visual thinkers, preferring diagrams and pictures, how effective is the traditional staff handbook for ensuring information is absorbed?

As an employment lawyer, I realised that most workplace policies are presented as pages on pages of text. Usually they are typed as 10-point Arial or Times New Roman. Each policy laid out in paragraphs. Blocks of text, broken up only by headings and titles.

But is there any legal or technical reason why a staff handbook must be formatted as pages of continuous text? I cannot think of any legal requirement for the contents of a staff handbook to be presented that way. So why do employment lawyers continue churning them out when requested?

Is it convenience (I mean the lawyer’s convenience, not the client’s)? After all, what could be easier than accessing a precedent, replacing the square brackets with the name of the employer, and sending it to the client? And perhaps the client feels reassured. After all, if their lawyer has provided all those documents, it must be to satisfy a compliance obligation of some sort.

Somewhat ironically, there is one particular section of the staff handbook that is always laid-out clearly in bullet point format, with lots of space for the text to breathe: the non-exhaustive list providing examples of gross misconduct that could constitute dismissal. Lawyers always get that bit right.

Alternatives to text

In 2018 I recall seeing a sample subject access request procedure in the form of an infographic. Two pages of boxes, icons, and signpost text explaining how to respond to a data request. It was fantastic. It communicated the necessary information in a clear and concise way. Surely that is the purpose of a workplace policy: to convey essential information that the worker needs to know.

There might be circumstances where a text-heavy policy is required, which is fine. But if not, do lawyers have a responsibility to consider alternatives, such as using flowcharts, graphics or process maps? They are likely to be more inclusive towards the 15% of your client’s staff who are ND. Do we, as employment lawyers, ever mention this to a client?

I might be wrong, but I suspect there is a fear that turning workplace procedures into infographics would appear unprofessional. Style over substance. A workplace policy is a legal matter which should not involve a graphic designer.

It could also make the policy look childish. There is a counter to that: Steve Jobs (himself dyslexic) instructed his designers at Apple to make the iPad so easy to use that a small child could pick it up and start using it immediately.

Consider the last time you bought a gadget or piece of tech like a smart-TV. Usually, it comes with some form of “quick start guide”. Is it ten pages of unbroken formatted text? More likely it is a series of numbered graphics and text boxes explaining how to set-up and use the device.

There is a reason why they have been designed in that format. They are aiming to communicate essential information to a diverse range of people. Does that remind you of anything?

Remote Mid-Level Marketing Programs Manager at Spider Strategies

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July 17, 2024

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Time zones: EST (UTC -5), CST (UTC -6), MST (UTC -7), PST (UTC -8), AKST (UTC -9), HST (UTC -10)

We are seeking a dynamic and results-driven Marketing Programs Manager to join our team. The ideal candidate will have a minimum of 8 years of relevant experience in marketing, with a strong focus on marketing communications, execution and analytical skills. This role requires proven expertise in customer acquisition programs, reseller channel support, and the writing and development of sales cycle support and thought leadership content and tools. The candidate must be hands-on, capable of managing their own workload to deadlines, managing external resources, and ensuring that the Marketing budget is set and tightly managed. Collaboration and effective communication within the company are key components of this role.

Develop and execute Marketing programs: Design and implement measurable marketing programs aimed at customer acquisition and retention. Utilize a test and learn process to refine, mix, and expand efforts based on success metrics. Programs may include:
Digital and social: Create and manage digital and social media marketing campaigns, including LinkedIn campaigns, Google Ads, SEO, email marketing, webinars, review sites such as Capterra, and association marketing.
LinkedIn campaigns: Work with an agency to develop targeted LinkedIn campaigns to engage potential customers and drive lead generation.
Google ads: Work with an agency to plan and execute effective Google Ads campaigns to increase visibility and attract high-quality leads.
SEO: Manage agency to effectively deploy SEO strategies to improve organic search rankings and drive website traffic.
Email marketing: Create and manage email marketing campaigns to nurture leads and convert them into qualified leads and customers. Identify email lists and/or work with partners to leverage their relationships.
Webinars: Work with sales team and partners to organize and host webinars to identify and educate prospective customers.
Association marketing: Partner with strategy and vertical associations to promote our solutions and leverage relationships with their constituents to further establish our credibility while driving new leads.
Influencer programs: Identify and engage with industry influencers to amplify the company’s message and drive customer acquisition.
Support reseller channels: Create and manage marketing initiatives to acquire new resellers and support and enhance the performance of existing and future resellers.
Execute content marketing strategy and supporting Sales tools: Develop and maintain thought leadership and sales support content and tools to assist the Sales team throughout the sales cycle, to improve win ratios and accelerate the sales process.
Oversee Content Generation: Work with external writers to research information to include in marketing content, establish outlines for the content, and edit the content from external writers.
Analyze Marketing performance: Use data-driven insights to measure the effectiveness of marketing campaigns and adjust strategies and initiatives accordingly.
Manage external resources: Identify and oversee external vendors, including copywriters, designers, SEO and digital agency, and other contractors, ensuring high-quality deliverables.
Budget management: Effectively manage marketing budgets to plan, ensuring optimal allocation of resources to achieve revenue objectives.
Collaborate cross-functionally: Work closely with various internal stakeholders to align efforts to key goals.

Experience: At least 8 years of relevant marketing experience, preferably within a B2B SaaS environment, preferably marketing to executive leaders in strategy, finance, or operations.

Skills:

Strong execution and analytical skills.
Proficiency in customer acquisition programs and reseller channel support.
Expertise in building and managing customer-facing content and sales support tools.
Demonstrated success in digital and social marketing campaigns, including LinkedIn campaigns, Google Ads, SEO, email marketing, webinars, association marketing, and influencer programs.
Experience managing external resources such as agencies, copywriters and designers.
Excellent budget management skills.

Attributes:

Highly execution-oriented with a hands-on approach.
Independent plus strong collaborative and communication skills.
Ability to work effectively in a fast-paced, dynamic environment.
Proven track record of delivering successful marketing programs.
Adaptability and willingness to learn new marketing technologies and strategies.

Education:

Bachelor’s degree in marketing, business administration, or a related field. An MBA or relevant advanced degree is a plus.

Generous vacation time
Fantastic benefits, including 100% paid medical, dental, and vision insurance for you, and 80% coverage for family members
Life insurance and long-term disability insurance
Simple IRA with matching
All federal holidays off
Trans-inclusive benefits
100% work from home in a remote-first company

Must be a US citizen due to federal contracting requirements
Bachelor’s degree required
Must be available to travel to Washington, DC twice per year (at our expense)
Must be able to pass a criminal background check

How to Document Workplace Discrimination

Employment

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July 17, 2024

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How to Document Workplace Discrimination

Workplace discrimination complaints have surged nearly 9% since 2020, according to the latest data. Whatever form that discrimination takes, documenting instances of it can be vital to:

Proving that workplace discrimination happened
Establishing patterns of behavior or failures to intervene
Helping the targets of workplace discrimination start to turn the tables and take a step to protect themselves.

Remember, every worker has certain rights, and that includes the right to a work environment that’s 100% free of discrimination. With that in mind, here’s a look at what it usually takes to document workplace discrimination effectively.

5 Steps to Document Workplace Discrimination

1. Keep Detailed Records.

Document every instance of discrimination. To do this:

Create a written record: This “journal” can be handwritten and/or digital. Try your best to update it after any incident that feels discriminatory, harassing, or retaliatory in nature.
Record specifics: For every entry, make sure to include the date, time, and location of each incident. Also, write a detailed description of what happened, doing your best to explain what led up to the event, what happened during it, and what you did afterward.
Don’t forget about witnesses: As you create your records, be sure to include the names and positions of anyone who witnessed the event or could corroborate your account. Use direct quotes whenever possible, providing context. If anyone emails you about the incident, include the details of that exchange as part of your records.

2. Save Communications.

Retain copies of all emails, texts, notes, and/or memos that relate to any discriminatory incident. If workplace discrimination occurs over a phone call or in conversation, write a summary of what happened immediately afterward while it’s still fresh.

If your company uses digital communication tools, like Slack, Asana, or Microsoft Teams, consider saving screenshots of any relevant chats or conversations.

3. Review the Company’s Policies.

Read or reread any employee handbooks, guidance from human resources (HR), and/or employer policy books to familiarize yourself with your employer’s anti-discrimination policies and procedures.

Knowing the employer’s policies can highlight how to formally report discrimination within your company. It can also explain what the process involves, so you know what to expect as you proceed.

4. Formally Report the Discrimination.

File a formal complaint with your employer, following their procedures. Often, this involves:

Writing a detailed report and/or completing certain forms provided by the employer
Submitting the documents to the HR department or another designated authority at the company
Sitting down for an interview with HR or another authority to discuss the incident

Keep a copy of any formal complaints you file with an employer, as well as any follow-up documents your employer sends or hands you. If you sit down for an interview with your employer, ask for a copy of the interview notes afterward, so you can keep those in your records too.

5. Find Out About Your Rights & Legal Options.

Filing a formal complaint with your employer may not resolve the issue or provide just outcomes.

By talking to a workplace discrimination attorney, you can get answers from an advocate who can explain your legal options, how to proceed, and what to expect if you do file a workplace discrimination claim. That can be invaluable when it’s time to fight back — and when you only have one chance to seek justice.

An Experienced Workplace Discrimination Lawyer Is Ready to Help You

Workplace discrimination can blindside you, but that doesn’t mean you have to accept it or let the perpetrators get away with their wrongdoings. Consulting with an experienced workplace discrimination lawyer at The Spiggle Law Firm can give you access to essential information about your rights and your best options for justice.

Call (202) 643-5974 or email us for a free, confidential consultation and more answers about a potential workplace discrimination claim.

At The Spiggle Law Firm, our 5-star lawyers represent clients in all types of workplace discrimination claims, providing strategic representation for cases involving pregnancy discrimination, age discrimination, gender discrimination, disability discrimination, race discrimination, and more.

EEOC: Lawsuits And Settlements – July 1 To 15, 2024

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July 17, 2024

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EEOC: Lawsuits And Settlements – July 1 To 15, 2024

Each month, the Equal Employment Opportunity Commission (EEOC) files lawsuits and settles cases covering the federal laws they are responsible for enforcing. These federal laws include:

Below is a list of lawsuits and settlements by the EEOC in from July 1 to July 15, 2024.

EEOC Lawsuits

No notifications of EEOC lawsuits during July 1 to 15, 2024

EEOC Settlements

Didlake, Inc. Pays More Than $1 Million in EEOC Disability Discrimination and Retaliation Lawsuit

Disability discrimination

Americans with Disabilities Act (ADA)

District of Columbia, Maryland, and Virginia

According to the lawsuit, Didlake, a nonprofit that employs a significant number of employees with disabilities, failed to provide communications accommodations, including American Sign Language (ASL) interpreters, for deaf and hard-of-hearing employees, and it maintained a policy of terminating employees who requested medical leave but did not qualify for leave under the Family and Medical Leave Act (FMLA).

Beaumont Health to Pay $30,000 in EEOC Race Discrimination Lawsuit

Disability Discrimination; Pregnancy Discrimination

Title VII of the Civil Rights Act of 1964

According to the EEOC’s lawsuit, Beaumont terminated a Black home health aide after an unwitnessed verbal conflict with a white co-worker about a dishwasher. Afterwards, both employees discussed the incident with the director. Despite the existence of a progressive discipline policy, the director fired the Black employee but failed to discipline the white employee for her role in the conflict. The African American employee had successfully worked for Beaumont for over 20 years.

Remote Part-time Product Designer at Contra

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July 17, 2024

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Remote Part-time Product Designer at Contra

We are seeking a part-time product designer to join our team at Contra. The ideal candidate will help craft new user experiences for our platform, focusing on our independent side products. This role is perfect for someone passionate about design and looking to make a significant impact in a flexible work environment.

Court decision on termination clause and punitive damages award

Employment

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July 17, 2024

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Court decision on termination clause and punitive damages award

The recent Court decision in Wilds v. 1959612 Ontario Inc. addresses the enforceability of a termination clause contained in the employment contract, as well as the availability of punitive damages. The Court ruled in favour of the employee on both issues, which should serve as a reminder to employers about the potential liabilities they could face in a wrongful dismissal lawsuit.

Background

The plaintiff Barbara Wilds was employed by the defendant Gibson for approximately 4 1/2 months as an executive assistant. She was 52 years old at the time of termination.

Despite being entitled to one week of notice or termination pay pursuant to the Employment Standards Act, 2000 (the “ESA”), Gibson did not pay Ms. Wilds any amounts upon her termination. She commenced a lawsuit for wrongful dismissal in 2021, and brought a motion for summary judgment returnable November 17, 2023. Among the issues determined in the motion for summary judgment were:

The enforceability of the termination clause contained in her employment contract, which would limit her entitlements upon dismissal to only three weeks of notice (her minimum ESA notice period plus an additional two weeks); and
Her claims for punitive damages arising out of her employer’s failure to provide her with her ESA entitlements and reimbursement for proper business expenses, as well as the late delivery of her record of employment.

The termination clause

A properly drafted termination clause in an employment contract can displace the employee’s entitlement to reasonable notice pursuant to common law. However, where a termination clause is found to violate the ESA, it will be unenforceable.

In recent years, the law on termination clauses has seen substantial movement towards the side of employees, with many termination clauses being found to be unenforceable. When a termination clause in an employment contract is unenforceable, the employee will be entitled to reasonable notice of termination pursuant to common law, rather than being limited to the entitlements specified in the contract.

In the Wilds case, the employee was subject to both a “termination without cause” provision and a “termination with cause” provision, both of which were found to be unenforceable by the Court. The Court’s reasons included the following:

The “termination without cause” provision states that if pay in lieu of notice is provided, Ms. Wilds “will receive only base salary and employment-related health and dental benefits for the applicable period”. This excludes vacation pay, bonus and the other benefits that Ms. Wilds was entitled to, constituting a breach of the ESA;

The “termination without cause” provision requires Ms. Wilds to execute a release in exchange for pay in lieu of notice, including her ESA entitlements. The employer’s obligation to provide ESA entitlements is not contingent on the execution of a release, and requiring such a release constitutes a breach of the ESA; and

The “termination with cause” provision contains categories of just cause for dismissal without notice that fall short of the statutory exemptions to providing minimum notice under the ESA.

Consistent with previous cases, the Court found that a “saving provision” in the contract did not prevent the termination clause from being unenforceable. The saving provision stated the following:

“It is intended that this termination provision includes any entitlements you have pursuant to the Act. In the event that your entitlements pursuant to the Act exceed these contractual provisions, those statutory provisions shall replace these contractual provisions and no further payments are required.”

Accordingly, the Court found that Ms. Wilds was entitled to a reasonable notice period of two months pursuant to common law, and was entitled to her full compensation package during that period, including her benefits and bonus.

Punitive damages

Punitive damages are available to the Court to punish a defendant for reprehensible conduct. Doing so is the exception rather than the rule, and will only be done where the following requirements are met:

The defendant’s conduct was reprehensible, or was “malicious, oppressive and high-handed”;
A punitive damages award is rationally required to punish the defendant and to meet the objectives of retribution, deterrence and denunciation; and
The defendant committed an actionable wrong independent of the underlying claim for damages for wrongful dismissal.

The Court found that the employer’s conduct justified an award of punitive damages, citing the following:

Gibson failed to comply with the ESA by failing to pay Ms. Wilds her one week of termination pay and applicable vacation pay, and failing to provide her with a record of employment in a timely manner;
Gibson failed to reimburse Ms. Wilds for her properly incurred business expenses, without any reasonable basis for denying such reimbursement; and
Gibson alleged that the outstanding payments to Ms. Wilds were not paid “due to clerical error”. However, Gibson failed to make these payments to Ms. Wilds prior to the hearing of the summary judgment motion.

In the circumstances, the Court awarded Ms. Wilds punitive damages in the amount of $10,000.00, in addition to her damages for wrongful dismissal.

Conclusion

This case should serve as a reminder to employers of the potential liabilities they face when dismissing employees.

Employers should not assume that an employee’s damages will be limited by the terms of their employment contract, or that the employee will only be entitled to payment in lieu of reasonable notice. Courts may find termination provisions in employment contracts to be unenforceable, and may award punitive damages or other heads of damages where there is a finding that the employer acted in bad faith.

Rudner Law is a Canadian Employment Law firm. They provide clients with strategic advice regarding all aspects of the employment relationship, negotiate and advocate on their behalf, and represent them before courts, mediators, and tribunals. Blog posts are written by Stuart Rudner, the founder and Managing Partner at Rudner Law, Brittany Taylor, Partner, Nadia Zaman, Senior Associate, Geoffrey Lowe, Associate, Alex Minkin, Associate, and David Gelles, Associate.

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June is Pride Month | California Employment Law

Employment

Educational V.

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July 17, 2024

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June is Pride Month | California Employment Law

I recently attended a superb webinar put on by two Fox Rothschild partners, Colleen McGarry and Brian McGinnis, with an update on LGBTQIA+ issues in the law. I look forward to their webinar each year to understand how the legal landscape is evolving on all types of gender related issues.

One tool that Colleen and Brian have created is a glossary for companies and individuals to use as a resource to help gain fluency in the ever-evolving language relevant to the LGBTQIA+ community. I have been using parts of this glossary in my Sexual Harassment Prevention Trainings, to educate manager and supervisors on what terms mean, and which terms are currently disfavored (and why). I find it super helpful.

One excerpt from the glossary explains the importance of grammar and inclusive language.

“As a matter of fundamental respect, it is important to always use inclusive, respectful, and people-centered language that acknowledges the validity of someone’s identity. For example, the word “transgender” is an adjective (i.e., a person is transgender; they are not “a transgender” or “transgendered,” which are disfavored, harmful terms). This includes using someone’s correct pronouns and asking for someone’s correct pronouns instead of simply assuming what they are. It also includes referring to someone by their correct name. “Deadnaming,” or the act of referring to a transgender person who has changed their name to reflect their identity by their name at birth, is disrespectful and can be harmful.“

In my practice, I often find that well intentioned managers often trip themselves up because of lack of familiarity with inclusive terms or approaches. If your team faces that issue, this glossary may be a helpful tool. I understand it may soon be updated for 2024!

In the meantime, let’s all use Pride Month as an opportunity to put renewed energy into inclusion, to ensure that all identities are not only welcomed but also celebrated in your workplace.