Joint Employment/Harassment

Question 1

What is the liability when the harasser is a supervisor or above?

Answer 1

Strict Liability. The harasser can be individually liable AND the company can be held liable.

Question 2

What is the liability if the harasser is below the level of supervisor?

Answer 2

The organization is only liable if it knew or should have known and failed to take immediate and appropriate corrective action.

Question 3

What is an employer required to do after it learns of harassment?

Answer 3

The employer is required to take action that’s reasonable calculated to 1) end the current harassment and 2) to deter future harassment.

Question 4

What are the Immediate and appropriate corrective action requirements for harassment when it is done by someone below the level of supervisor?

Answer 4

1. immediate and proper corrective action to…
2. investigate and make findings…
3. take temporary steps to stop current harassment
4. take permanent steps to prevent future harassment

Question 5

What is the most significant immediate measure that an employer can make in a harassment situation?

Answer 5

A prompt and adequate investigation.

Question 6

What makes an investigation a prompt and adequate investigation?

Answer 6

During the investigation, the employer needs to look at all relevant documents, talk to all relevant employee and make a final judgment. It also requires that notice be given to the person who is alleged to have done the wrong doing & he/she must be given adequate time to respond.

Question 7

How must an employer deal with harassment?

Answer 7

1. There needs to be an immediate and appropriate reaction.
   - end the current harassment
   - deter the future harassment
2. Deal with the harassment immediately.
   - separate the two individuals
3. Launch an immediate investigation.
4. Make a conclusive determination on the investigation
5. Respond to the determination.

Question 8

Should someone be fired before a final determination?

Answer 8

No. No one should suffer until you made a final determination based on the investigation.

Question 9

What level of discretion does an employer have in choosing how to minimize contact in a harassment case?

Answer 9

An employer has wide discretion choosing how to minimize contact between two employees, so long as it acts to stop the harassment.

Question 10

How is the reasonableness of an employer’s actions determined?

Answer 10

The reasonableness of an employer’s remedy will depend on its ability to stop harassment by the person who engaged in harassment.

Question 11

How must an employer act during when dealing with harassment in the workplace?

Answer 11

Employer must act in good faith and its conclusions should be supported by substantial evidence.

Question 12

What is substantial evidence with regards to investigating a harassment claim?

Answer 12

Substantial evidence is just enough evidence that a reasonable employer could have reached the conclusion.

Question 13

Can someone be an employee of multiple employers at once?

Answer 13

Yes, a temp back be an employee of both a temp agency and the place for whom they are working for.

Question 14

What is the definition of an employee for FEHA?

Answer 14

any individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.

Question 15

Does the employment relationship need to be direct for FEHA?

Answer 15

No. FEHA requires some connection with employment relationship, but connection need not be direct.

Question 16

For joint employment, what do you have to look for?

Answer 16

Focus on the control the employer exercises over the employee. It is a factual balancing test:

1. Who hired the person.
2. Who set the hours.
3. Who did did the person report to.
4. Who did they get get work assignments from.
5. Who fired the person.

Question 17

How is the right of control tested?

Answer 17

The existence of the right of control is often tested by determining whether, if instructions were given, they would have to be obeyed and whether there was a right to terminate the service at any time.

Question 18

When is an individual considered an employee of the place the person was sent to by a temporary service agency?

Answer 18

An individual compensated by a temporary service agency for work to be performed for an employer contracting with the temporary service agency may be considered an employee of that employer for such terms, conditions and privileges of employment under the control of the temporary service agency.

Question 19

In a joint employment question what should you look for to determine if an entity is can be held liable?

Answer 19

Look at the claim and if the entity controls the terms, conditions, and privileges of employment as it relates to the claim.