Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Patrick Kitchin’

Thousands of Piece Rate Workers in California’s Salon Industry Are Likely Owed Unpaid Wages

Thursday, April 20th, 2017

Salon owners in California who pay employees on commission are subject to liability for failing to pay all wages due.  Under California law, “commissions” are a form of wages applicable only to an employee who sells a product or service, not to an employee who makes a product or provides a service to the employer’s customers.  Keyes Motors v. DLSE 197 Cal.App.3d 557 (1987). Salon employees in California whose job is to cut and/or color hair, must therefore be paid on an hourly basis, a piece rate basis, or a combination of those.  Salon technicians who have been paid on a typical net commission basis are likely due unpaid wages and statutory penalties.

Piece Rate Wages for Hair Stylists and Colorists

California Assembly Bill 1513 (AB 1513) went into law on January 1, 2016, adding section 226.2 to the California Labor Code to address compensation for piece rate work.  Piece rate workers are paid according to the number of units they complete.  Piece rate units might be defined by the numbers of widgets assembled by a factory worker, the number of cars washed by a car washer or the number of haircuts given by a barber or cosmetologist.

AB 1513 did not create new wage obligations, but instead codified the legal obligations described in two important appellate decisions that addressed the wages of piece rate workers back in 2013: Gonzales v. Downtown LA Motors, 215 Cal. App. 4th 36 (2013) and Bluford v. Safeway, Inc., 216 Cal. App. 4th 864 (2013).

In Gonzales, the court held that mechanics who worked on a piece rate basis must be paid for their non-productive time (time during a shift when the worker was not actively engaged in compensable work). An employer, the court explained, cannot average the wages worked by an employee to show that the employee received at least minimum wage for all hours she was under the employer’s control.  The employer must pay no less than the applicable minimum wage for every minute an employee is under its control, including time when no compensable work is being performed under a piece rate system.

In Bluford, the court held that piece rate workers must also be paid separately for rest periods because rest periods under California law are deemed on-the-clock, compensable work time.  If a piece rate worker is only paid by the unit, then she is not being compensated for rest periods in accordance with California law.

So, although AB 1513 did not modify the duties described in the Gonzales and Bluford cases, it provided employers a “safe-harbor” period during which the employer could take steps to limit its liability to certain types of claims or lawsuits arising out of its misclassification of technicians as commissioned employees.  To take advantage of the safe harbor protections, however, the employer was required to:  (1) notify the California Department of Industrial Relations no later than July 1, 2016 that it would pay wages due to employees who had not been compensated for non-productive time or rest periods (back to July 1, 2012); and (2) make the wage payments no later than December 15, 2016.  Many piece rate employers failed to take advantage of these safeguards. A list of employers who notified the DIR of their intention to participate in the safe harbor provision can be found at the DIR website.

Labor Code § 226.2, the product of AB 1513, places specific duties on employers of piece rate workers including:

(a) For employees compensated on a piece-rate basis during a pay period, the following shall apply for that pay period:

(1) Employees shall be compensated for rest and recovery periods and other nonproductive time separate from any piece-rate compensation.

(2) The itemized statement required by subdivision (a) of Section 226 shall, in addition to the other items specified in that subdivision, separately state the following, to which the provisions of Section 226 shall also be applicable:

(A) The total hours of compensable rest and recovery periods, the rate of compensation, and the gross wages paid for those periods during the pay period.

(B) Except for employers paying compensation for other nonproductive time in accordance with paragraph (7), the total hours of other nonproductive time, as determined under paragraph (5), the rate of compensation, and the gross wages paid for that time during the pay period.

(3)          (A) Employees: shall be compensated for rest and recovery periods at a regular hourly rate that is no less than the higher of

(i) An average hourly rate determined by dividing the total compensation for the workweek, exclusive of compensation for rest and recovery periods and any premium compensation for overtime, by the total hours worked during the workweek, exclusive of rest and recovery periods.

(ii) The applicable minimum wage.

(B) For employers who pay on a semimonthly basis, employees shall be compensated at least at the applicable minimum wage rate for the rest and recovery periods together with other wages for the payroll period during which the rest and recovery periods occurred. Any additional compensation required for those employees pursuant to clause (i) of subparagraph (A) is payable no later than the payday for the next regular payroll period.

These statutory mandates codify the wage rights set out in Gonzales and Bluford.  Given the common salon industry practice of paying stylists and colorists as commissioned employee, it is likely that thousands of salon employees in California have been underpaid during the past four years.

Salon Class Action

In early 2016 Kitchin Legal filed a class action lawsuit (on behalf of 231 employees) against five jointly-owned Northern California hair salons.  The case is based on the salons’ alleged failure to abide by a wide range of California employment laws, including Labor Code § 226.2.  After months of negotiations and the exchange of thousands of lines of employee data, our clients entered into a proposed class-wide settlement valued at over $1 million.  We are now in the process of seeking court approval for the class action settlement.

Top Rated San Francisco Salon

In late 2016 Kitchin Legal filed an individual lawsuit on behalf of a stylist against one of the top ranked hair salons in San Francisco. [The lawsuit is based on the salon’s alleged violations of several California wage and hour laws, including Labor Code § 226.2.]  The salon owner, who either was ignorant of the law, or chose to ignore his legal duties, is facing a six-figure wage claim, one of the largest components of which is based on the allegation that our client was improperly paid as a commissioned employee.

Risk and Consequences

For Salon Owners

Nearly every year California passes new legislation or enacts new regulations pertaining to the duties of employers to their workers. Employers who do not have a sophisticated human resources professional on staff or a competent employment attorney on retainer to help them keep abreast of these changes can become particularly vulnerable to employment-related claims.

An employer who decides to risk non-compliance with any aspect of California’s employment laws can face significant financial consequences, including a class action lawsuit by a group of employees.  The worst decision a salon owner can make is to remain ignorant of California labor laws or to ignore its legal obligations hoping its employees will not challenge its illegal practices through a lawsuit.

The best decision a salon owner can make at any time is to have a skilled California employment attorney review its policies and practices for compliance with California labor laws, including in particular, Labor Code § 226.2.

For Salon Employees

The biggest risk facing an employee whose compensation rights have been violated is delay.  All of these claims are governed by specific statutes of limitations.  Employees can generally seek recovery of unpaid wages for up to four years (under California’s unfair completion laws).  Once the statute of limitations runs on a claim, it is gone forever, however.   Salon employees who have been paid as commissioned employees and who have not been paid separately for non-productive time and rest periods should talk with an employment attorney right away.

Patrick R. Kitchin is the founder of Kitchin Legal APC, a San Francisco, California employment law firm. He has represented tens of thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere.

Crossing the Line: The Ninth Circuit’s Guidelines for Flirting at Work

Friday, September 17th, 2010

Patrick KitchinAfter months of complaining that a female co-worker had repeatedly harassed him to have sex with her, Rudolpho Lamas’s boss offered a suggestion.  Maybe, the boss said, Rudolpho should try walking around the office singing, “I’m too sexy for my shirt.”  Everyone at work thought the situation was hilarious:  a widower turning down the explicit sexual advances of an attractive woman.  But Rudolpho Lamas and his lawyers are not laughing.

When does flirting at work cross the line and become sexual harassment under Title VII of the Civil Rights Act, Lamas’s lawyers asked.  And, does Title VII impose different standards on men and women in sexual harassment cases?  Finally, do gender stereotypes have a place in the jurisprudence of Title VII?

Earlier this month the Ninth Circuit Court of Appeals in San Francisco answered Rudolpho’s attorneys’ questions in a case involving a man who alleged he had been sexually harassed by a female co-worker in direct violation of Title VII.  (E.E.O.C. v. Prospect Airport Services (9th Cir. 9/3/2010).) The Court’s decision is interesting, not so much for its ultimate finding—that Title VII indeed provides equal protection to male and female victims of sexual harassment is well established—but for the way the Court considers socio-cultural stereotypes about gender in the context of a Title VII claim.

Before turning to the drama of E.E.O.C. v. Prospect Airport Services, a few words about the stage on which Rudolpho Lamas’s story is now playing out.

It is illegal to discriminate in the terms and conditions of employment based on the gender of a person under Title VII of the Civil Right Act.  Under Title VII, sexual harassment is considered to be a form of sex discrimination.

A Title VII sex harassment claim can be based on two theories of liability:  (1) economic quid pro quo; or (2) hostile environment.

In a typical case of quid pro quo sexual harassment, “a supervisor relies upon his [or her] apparent or actual authority to extort sexual consideration from an employee.”  Hensen v. City of Dundee 682 F.2d 897 (11th Cir. 1982). “Have sex with me,” says the supervisor, “and you’ll get that promotion.”

In a hostile work environment Title VII case, a co-worker or a supervisor’s gender-biased conduct is so severe or pervasive that the employee’s work environment is severely impacted.  “[W]hen a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor “discriminate[s]” on the basis of sex.”  Meritor Savings Bank, FSB v. Vinson, 477 US 57 (1986). And, of course, that is what Title VII’s gender provisions guard against:  discrimination based on sex.

This month’s Ninth Circuit case was based on the second of these two Title VII liability theories.  To maintain a gender-based, hostile environment case, a worker must show that:

(1) he or she was subjected to verbal or physical conduct of a sexual nature

(2) the conduct was unwelcome, and

(3) the conduct was “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir.1991)

Element 1:  Conduct of a sexual nature

Lamas presented evidence that a female co-worker repeatedly asked him to go out with her and on several occasions made explicit references to her desire to have sex with him.  She wrote to him, “I’ve been thinking of you a lot lately. I’ve been having crazy dreams about us in the bath tub yeah in the bath tub… Seriously, I do want you sexually and romantically!”

The Court had no trouble finding that the conduct was sexual.  “She performed gestures simulating fellatio, and gave him a photograph of herself emphasizing her breasts and possibly without clothes on.  Her proposition was for sex, not a cup of coffee together.”

Having established the conduct was of a sexual nature, the Court went on to consider whether Lamas might have welcomed the conduct.

Element 2:  Welcomeness

The Court next considered how the welcomeness element of the three-part prima facie case must be proved in a case involving a male victim and female harasser.  What evidence does a male victim of sexual harassment need to present to establish that the sexual advances of a co-worker were unwelcome?  The short answer is, the same evidence a woman needs to present.

Lamas’s employer apparently argued in the lower court that men are more likely than women to welcome the sexual advances of a co-worker.  Even Lamas admitted that “most men in his circumstances” would have welcomed the invitations.  So, what did the Ninth Circuit think about this digression into cultural stereotypes?  Not much.

The Court was quick to point out that suppositions about what most men wanted at work was itself a stereotype and, thus, was not evidence of anything.  “[W]elcomeness is inherently subjective, (since the interest two individuals might have in a romantic relationship is inherently individual to them), so it does not matter to welcomeness whether other men might have welcomed Munoz’s sexual propositions.”

“Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons.”  Though the reference to Marilyn Monroe is a bit old school, the message is clear and contemporary.  Men, like woman, have lots of reasons to reject sexual advances by co-workers, including religious beliefs, fear of sexual harassment lawsuits, fear of complications in the workplace, fear of pregnancy or, as the Court explained, fears about facing two decades of child support payments.  Or, the Court explained, “[Lamas] might feel that something was mentally off about a woman that sexually aggressive toward him. Some men might feel that chivalry obligates a man to say yes, but the law does not.”

While the Court focused on the subjectivities of welcomeness, it observed that welcomeness has an objective component as well.  To hold the employer liable under Title VII, the unwelcomeness must be communicated. The employer must be told about the harassment so it can evaluate and respond to the allegations.  “Sometimes the past conduct of the individuals and the surrounding circumstances may suggest that conduct claimed to be unwelcome was merely part of a continuing course of conduct that had been welcomed warmly until some promotion was denied or employment was terminated. That is a credibility issue.”

Element 3:  Severe or Pervasive

Title VII is not a “general civility code” either.  It is not meant to protect workers against “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.”  Faragher v. Boca Raton, 524 US 775 (1998).

Title VII is designed to provide legal remedies to those employees who have been subjected to significant gender-based harassment and discrimination.  In other words, it protects employees who have been subjected to sexual conduct that is severe or pervasive.

Some conduct, such as a sexual assault of a co-worker, is severe enough to provide an immediate remedy to a worker under Title VII.  A sexual assault immediately creates an abusive working environment.

Less egregious conduct can provide grounds for a Title VII claim, as well, if:  (1) it happens often; and (2) it is of such nature that it is offensive to both the victim and a reasonable person in the victim’s circumstances.

Having a co-worker flash a nude picture of himself (or herself) to you one time at a holiday party might be offensive. The one-time, alcohol-driven transgression of a co-worker would not provide grounds for a Title VII claim, however.  But what if a co-worker (male or female) constantly displayed pornography on his (or her) computer in a cubicle shared with another worker?  What if this conduct was part of an attitude that permeated the workplace with gender bias?  If the cubicle mate’s objections and complaints were ignored by the employer, and the conduct continued, it might become pervasive enough to alter the conditions of the workplace in violation of Title VII.

Most Title VII claims involve a series of such increasingly troublesome events, none of which alone would support a strong Title VII lawsuit.  But taken together, they often do.  So, on a behavioral scale ranging from off-color jokes to things you only see on Mad Men episodes, the case law teaches that the more outrageous the conduct, the fewer times it must occur to be actionable, and vice versa.  The courts treat it as a classic inverse relationship.

Putting It All Together

By looking at the all of the circumstances of the workplace in Prospect Airport Services, the Ninth Circuit found sufficient evidence of unlawful sexual harassment to send the case back to the trial court for further proceedings.   The female employee’s conduct obviously was sexual.  And Lamas made it clear that he wanted the conduct to stop.  The conduct was pervasive and had a serious negative impact on conditions at work.  Lamas’s job performance suffered.  When the harasser told her co-workers about her efforts to seduce the victim, they mocked Lamas and questioned his sexuality.  Lamas complained several times to his supervisors about the harassment, but nothing was done.

If Rudolpho Lamas can convince a jury that all of this is true, then he will have proved all of the elements of a Title VII sex harassment case.

Guidelines for Flirting at Work?

In its decision earlier this month, the Ninth Circuit made it clear it does not consider all romantic overtures, or even all sexual propositions, to constitute unlawful sexual harassment

People spend most of their waking hours with other people at their workplaces, so that is where many meet and begin social relationships, and someone has to make the first overture. Some people have more social finesse than others, and many might suggest coffee or a trip to an art exhibition rather than sex, but mere awkwardness is insufficient to establish the “severe or pervasive” element.

Directly propositioning a co-worker to have sex might be incredibly cheeky and against company policy (it could get a person fired), but it does not violate Title VII.  “Had Munoz merely asked Lamas to go out on a date, or to see whether they might have a romantic relationship, or straightforwardly propositioned him for sex, and then quit when he clearly told her no, the EEOC would not have shown enough evidence to survive summary judgment.”

Does this mean that acting like a normal, socio-sexual human being at work is legal under federal law?  Undoubtedly so; but the definition of normal remains as subject to context, credibility and the uncertainties of the civil litigation system as ever before.

Has the Ninth Circuit now established federal guidelines for flirting at work that are applicable to men and women across the country?  Not really.  But, what the Court has done is to restate well established principles of law: men and women have identical employment rights, as well as identical burdens of proof, in sexual harassment cases brought under the Civil Rights Act.

About the Author: Patrick Kitchin is a labor rights attorney with offices in San Francisco and Alameda, California. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere. For more information about his practice you can visit his website here.

“But I Signed An Independent Contractor Agreement…”

Wednesday, August 18th, 2010

Patrick KitchinThe Ninth Circuit Court of Appeals Weighs In On Workforce Classification Under California Law

Every time I review an independent contractor agreement I find myself humming George and Ira Gershwin’s song, It Ain’t Necessarily So from Porgy and Bess. In California, at least, such agreements do not prove that a worker is an independent contractor. (“The label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced.” SG Borello & Sons v. Dept. of Industrial Relations)

Were it otherwise, of course, companies and individuals who hire workers would have an incentive always to require workers to sign independent contractor agreements so they might avoid the costs associated with maintaining a workforce made up of employees. Complying with minimum and overtime wage requirements, paying workers’ compensation insurance premiums, and making rest and meal breaks available are significantly more burdensome and expensive than maintaining a workforce made up of independent contractors. Further, because independent contractors generally are not protected by federal or state anti-discrimination laws, maintaining a workforce comprised of independent contractors can shield companies from civil rights lawsuits.

California’s Multi-Factor Approach

Under California law the existence of an independent contractor agreement is only one of over a dozen factors used by the courts to evaluate whether a worker has been properly classified under the law. The most important factor is the “right to discharge at will, without cause.” In a state where employment is “at will,” but where contracts often include specific provisions pertaining to the termination of the contractor’s services, the right to fire a worker without apparent consequence is a prime indicator of an employment relationship. As the California Supreme Court ruled back in 1989, other factors crucial to the classification determination are:
• whether the one performing services is engaged in a distinct occupation or business;
• the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
• the skill required in the particular occupation;
• whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work;
• the length of time for which the services are to be performed;
• the method of payment, whether by the time or by the job;
• whether or not the work is a part of the regular business of the principal;
• whether or not the parties believe they are creating the relationship of employer-employee;
• the alleged employee’s opportunity for profit or loss depending on his managerial skill;
• the alleged employee’s investment in equipment or materials required for his task, or his employment of helpers;
• the degree of permanence of the working relationship; and
• whether the service rendered is an integral part of the alleged employer’s business.

California courts are required to evaluate the specific terms of engagement carefully and analyze the conditions under which a person works for another before reaching a classification determination in a wage and hour or discrimination lawsuit. Further, under California law, one who works for another is presumed to be an employee, unless the employing party proves otherwise. The burden of proving the existence of an independent contractor relationship shifts to the “employer” to demonstrate its classification is proper once a worker presents sufficient evidence that he or she performed work for the company. Robinson v. George. This burden shifting is set out in the California Labor Code at section 2750.50.

While determining the proper classification of a worker is extremely fact intensive, and not every factor always points in the same direction, California appellate courts have been consistent in their use of the multi-factor approach set out more than 20 years ago by the California Supreme Court.

The Ninth Circuit Court of Appeals Weighs In

On August 5, 2010, the federal Ninth Circuit Court of Appeals analyzed California’s employment classification law in a lawsuit brought by “independent contractors” of a freight pick-up and delivery service who claimed they had been misclassified as independent contractors.

In Narayan v. EGL, Inc. the Ninth Circuit rejected the defendant’s contention that because its workforce signed independent contractor agreements, the court was compelled as a matter of law to find that its workers were properly classified as such.  The court applied the appropriate California classification test to the facts of the case and ruled that the relationship between the drivers and the freight-handling company was one of employment.  The independent contractor agreement was only one of several factors the court considered in coming to its Porgy and Bess conclusion:  Call it what you may, It Ain’t Necessarily So.

Evaluating the many factors deemed relevant to the determination of the nature of the relationship between the drivers and the company, the Court found, among other indices of an employment relationship, that EGL:
• trained the workers;
• provided them some tools of the trade;
• required them to wear company uniforms;
• required them to paint their vehicles in company colors;
• assigned them routes;
• required them to attend company meetings;
• required them to arrive at a company facility at a set time each day; and
• required them to apply for vacation time;

Based on its analysis of all of these characteristics of the relationship between the drivers and EGL, the Ninth Circuit determined that the lower court’s dismissal of the worker’s employment-based claims was contrary to California law. Though the drivers had signed independent contractor agreements with EGL, the facts demonstrated the workers were employees from start to finish.

While the Ninth Circuit decision in Narayan v. EGL is not earth-shattering or unexpected, the decision is important for California workers whose lawsuits are often transferred (“removed”) from state courts to U.S. District Courts within the Ninth Circuit . The decision re-affirms the Ninth Circuit’s recognition that its District Courts, like California’s Superior Courts, are obliged to use the multi-factor test set out by the California Supreme Court in S.G Borello & Sons v. Department of Industrial Relations many years ago. This is good news for California workers.

About the Author: Patrick Kitchin is a labor rights attorney with offices in San Francisco and Alameda, California. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere.

“Stay Remarks” Showing Discriminatory Attitudes in the Workplace Can Be Important Evidence of Employer Discrimination

Thursday, August 12th, 2010

Patrick KitchinOn August 5, 2010, the California Supreme Court issued a unanimous decision concerning the type of evidence a worker can rely upon to prove an employer discriminated against him or her. The Court’s decision concerns the so-called “stray remarks doctrine.

Justice Sandra Day O’Connor coined the term in a 1989 U.S. Supreme Court decision, writing that “stray remarks” made by “non-decisionmaking coworkers or remarks made by decisionmaking supervisors outside of the decisional process” are insufficient evidence of an employer’s discriminatory attitude. Without additional evidence of discrimination, she wrote, a gender discrimination claim can be and should be dismissed by the court before trial.

In Price Waterhouse v. Hopkins (1989) 490 U.S. 228, the worker presented evidence that a partner of the firm told her to “walk more femininely,” “talk more femininely,” “dress more femininely,” “wear make-up,” “have her hair styled,” and “wear jewelry” to improve her chances for partnership. Justice O’Connor concluded that though such “stray remarks” might constitute evidence of a discriminatory attitude in the workplace, they are not sufficient evidence of discrimination on their own. When combined with more direct kinds of evidence of discrimination, however, stray remarks evidence can tend to support a discrimination claim.

Since 1989, some federal courts have expanded the stay remarks doctrine substantially. In Hill v. Lockheed Martin, for example, the Fourth Circuit Court of Appeals ruled that remarks by non-decisionmakers that the worker was a “useless old lady” “who needed to retire” and was a “troubled old lady,” did not influence the decisional process directly and, therefore, were completely irrelevant to the worker’s discrimination claim.

In its August 5th decision, the California Supreme Court concluded that the wholesale rejection of evidence of stray remarks, as suggested by the Fourth Circuit, is improper. It explained that such evidence can tend to show discriminatory animus or attitudes within the workplace. Under California law, then, stray remarks are relevant and cannot be completely ignored by the trial courts in ruling on pre-trial motions for summary judgment.

While the California Supreme Court’s decision focuses on evidentiary issues and pretrial procedures, the importance of the decision for California workers is significant. Although a racial, sexual or age-based slur might not conclusively demonstrate employment discrimination, such stray remarks combined with other more direct evidence of discrimination (statistics, testimony, emails and the like) can be used to defeat a defendant’s motion for summary judgment before trial.

The California Supreme Court explained that “[T]he stray remarks doctrine contains a major flaw because discriminatory remarks by a non-decisionmaking employee can influence a decision maker.” Thus, stray remarks can constitute evidence of discriminatory animus. The Supreme Court of California found another federal appellate court’s position on the stray remarks doctrine persuasive. In Shager v. Upjohn Co. (7th Cir. 1990) 913 F.2d 398, the Seventh Circuit Court of Appeals wrote: “If [the formal decision maker] acted as the conduit of [an employee‘s] prejudice – his cat‘s paw – the innocence of [the decision maker] would not spare the company from liability.”

Thus, for example, discriminatory comments by a worker capable of influencing the actual decisionmakers can provide admissible evidence of discrimination by the employer.

This is good news for workers in California who often find it difficult to unearth more direct evidence of discrimination. While the California Supreme Court ultimately concluded that, on their own, inappropriate stray remarks by non-decisionmakers do not prove discrimination, its decision will permit workers to present evidence of stray remarks in the context of other discriminatory practices in the workplace.

About the Author: Patrick Kitchin is a labor rights attorney with offices in San Francisco and Alameda, California. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere.

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