RulesCommunications Highlights 2010 0427

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Honda, Marian From: Pio Roda, Richard Sent: Tuesday, April 27, 2010 12:28 PM To: Handa, Marian; Marshall, Lianne Cc: lus, Angela; Williams, Jayne W Subject: AB 1825 training ("Supervisor" defined...) and frequency of training Marian and Lianne - The training is only required every TWO (2) years, not the annual basis I mentioned earlier. If questions come up regarding the training requirement, as we discussed this morning, the City Attorney believes that a court would define supervisor broadly per the new legislation (AB 1825) and current case law. Courts have ruled it prejudicial error if the scope of "supervisor" is narrowed to simply include the "responsibility to direct." The leading case is Chapman v. Enos {2004), 166 Cal. App. 4th 920. In Chapman, the appeals court panel concluded that it was error to tell the jury that a required element of the definition is "full accountability and responsibility for an employee's performance and work product." The error significantly restricted the class of employees subject to liability for sexual harassment, and was contrary to the provisions of the Fair Employment & Housing Act. There are cases that have relied on Chapman. We believe that a court could interpret this case in light of the new training requirements under AB 1$25. Under Government Code section 12926(r), a "'supervisor' means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them..." Further, Section 12926(d) broadly defines employer to include any "person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except employer does not include religious association or corporation not organized for private profit." Thus, under this analysis, it is the City Attorney's recommendation that the City Council be trained far the new AB 1825 requirements. Please contact me if you have any questions. Thanks! - Rich Richard D. Pio Roda Attorney at Law MEYERS NAVE 575 Market Street, Suite 2600 San Francisco, California 94105 Phone: 415.421.3711 Fax: 415.421.3767 rpioroda@meyersnave.com www.meYersnave.com www.publiclawnews.com CONFIDENTIALITY NOTE: This email may contain material that is confidential, privileged and/or attorney work product for the sole use of the intended recipient. Any review, reliance or distribution by others or forwarding without express permission is strictly prohibited. If you are not the intended recipient, please contact the sender and delete all copies.