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San Francisco Education Law Blog

Survey of corporate counsel predicts increased litigation in 2020

The 2019 Litigation Trends Annual Survey from the law firm Norton Rose Fulbright came out recently. This is a survey of corporate counsel on topics such as litigation risks and the most effective ways to reduce them. 

The big takeaway from the survey is that corporate counsel generally expect the number of disputes to rise in 2020. Thirty-five percent of those surveyed predicted a rise in disputes, up from 27% last year and 25% in 2017. At the same time, 64% tied an increase in litigation volume to economic downturns.

Will California's ban on mandatory arbitration hold up in court?

Assembly Bill 51, which goes into effect on Jan. 1, prohibits employers from requiring, as a condition of employment, that their employees agree to arbitrate all disputes. Companies and employees can still voluntarily enter into arbitration agreements, but employees can't be required to sign them. When they choose not to sign, the employer cannot retaliate. The law does not invalidate existing arbitration agreements.

Now, the U.S. Chamber of Commerce and a number of other business groups have filed a federal lawsuit to block the law. They claim that the law is an attempt to "undermine the Federal Arbitration Act" and that it is preempted by that Act. Moreover, they claim that it could flood the courts with litigation.

A boy's desk placed over a toilet raises discrimination concerns

A middle school in Washington state recently made headlines for setting up a school restroom as a learning environment for a student with special needs. The 11-year-old’s mother asked the school to provide her son, who has autism, a quiet place to do his schoolwork. The school responded by putting a desk over a toilet and laying a camping mat on the bathroom floor for naps.

Media reports pointed out how traumatizing this was for the boy, and how this could have had severe effects on his health. In addition to having autism, the boy has an autoimmune disorder called pediatric autoimmune neuropsychiatric disorder associated with streptococcus (PANDAS). This means that exposure to strep bacteria can trigger debilitating reactions, such as intense anxiety, severe mood swings, obsessive compulsive-like issues and/or tics.

Would AB 5 prevent truckers from being independent contractors?

When Assembly Bill 5 was signed into law in September, it codified the California Supreme Court's decision in Dynamex Operations West v. Superior Court of Los Angeles County. That decision made it much more difficult to classify workers as independent contractors rather than employees.

Under Dynamex, the court announced a new, three-part test for whether a worker is a contractor and presumes that most workers are employees. To support a classification as a contractor, an employer would have to demonstrate these three things:

  • That the worker is contractually and factually free from the control and direction of the hiring entity in regard to the performance of the work
  • That the work performed is outside the usual course of the hiring entity's business
  • That the worker is customarily engaged in an independently established occupation of the same nature of the work being performed

Did a chicken company discriminate against black farmers?

In the U.S., most chicken is raised by farms contracting with a handful of large companies. It's a tight market with little competition. The chicken companies have enormous control over the operations of the farmers. The companies typically own the flocks, while the farmers own the land and equipment and do the work.

Currently, African-Americans make up about 1.3% of the nation's farmers. The Department of Agriculture reports that they tend to have significantly poorer, smaller farms than whites. That shouldn't be the case, as African-American farmers are entitled to equal treatment under the law.

It's likely that the ADA requires websites to be accessible

Title III of the Americans With Disabilities Act (ADA) protects the rights of people with disabilities to have access to the market. Recently, the U.S. Supreme Court let stand a Ninth Circuit ruling that the ADA requires companies to make their websites and mobile apps accessible to people with disabilities. That means companies should assume that the ADA covers websites and mobile apps.

That said, the ADA doesn't contain any language that specifically relates to websites and mobile apps. This is likely because the law was passed in 1990, before most people had access to the internet and long before mobile apps were invented.

Survey: 25.9% of undergrad women experience sexual assault

According to a recent survey by the Association of American Universities (AAU), more than a quarter of undergraduate women say that they have been sexually assaulted since starting college. That is, they were sexually touched or penetrated without their consent, either by force or because they were unable to consent.

The survey also found that 6.8% of male undergrads said they had experienced sexual assault. And, about 19% of students at the schools surveyed said they had experienced sexual harassment that either interfered with their academic pursuits or created a hostile educational environment.

This October, support National Bullying Prevention Month

October is National Bullying Prevention Month, and we should all work together to end bullying in school. When bullying is allowed to continue at school, it can be a civil rights issue and can also create significant suffering for victims. Moreover, bullying is not a healthy activity for the bully, and intervention can be a positive experience for all involved.

According to PACER's National Bullying Prevention Center one out of every five students, on average, reports being bullied in school, at school-related activities, or by schoolmates online or after hours.

Supreme Court to say whether federal law protects LGBTQI people

About half of the states, including California, have state laws that protect people from job discrimination based on sexual orientation and, in many cases, transgender status. But in the rest, the LGBTQI community is not protected from workplace discrimination by state law.

That said, many experts have long argued that federal law prohibits job discrimination against the LGBTQI community. In fact, it is the position of the Equal Employment Opportunity Commission (EEOC) that Title VI of the Civil Rights Act of 1964 protects people from workplace discrimination based on sexual orientation, gender identity and gender expression.

EEOC rules that some targeted advertising is discriminatory

In a recent set of rulings, the Equal Employment Opportunity Commission (EEOC) said there was "reasonable cause" to find that at least seven employers violated federal anti-discrimination laws. These employers allegedly used Facebook's ad targeting system to exclude women and older workers from even seeing job ads from their companies.

The laws in question are Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA). The ADEA, for example, prohibits employers from refusing to recruit or hire people because they are 40 or over. It also prohibits employment agencies from refusing to refer people for employment because they are 40 or older. Other anti-discrimination laws, such as those covering disability, also prohibit discrimination during the recruitment and hiring process.

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