California Law Requiring Anti-Bullying Training in the Workplace Goes Into Effect in the New Year

TiUnderfoottle VII of the Civil Rights Act of 1964 prohibits harassment in the workplace, but only when the harassment is based on a protected characteristic, such as race or gender. But what if someone torments you because they don’t like your personality? Or you have a boss who constantly screams at you and everyone else in the office?

This type of bullying behavior is unfortunately not uncommon in the workplace. But there’s no federal law that makes it illegal or gives employees the right to hold their employers responsible for allowing it to take place. In the last decade, over 25 states have considered passing laws that protect employees from bullying in the workplace, regardless of whether the conduct is motivated by the person’s race, gender, or other protected characteristic. These efforts have been unsuccessful for the most part, until recently.

This year, California became the first state to pass a law that addresses workplace bullying in the private sector. Under the new law, which goes into effect on January 1, 2015, any employer who is required to provide sexual harassment training by law (those with 50 or more employees) must include a segment that addresses workplace bullying. Specifically, employers must train managers and supervisors on how to prevent “abusive conduct” in the workplace. Abusive conduct includes any verbal or physical conduct that the average person would find offensive, humiliating, intimidating, or an obstacle to performing his or her job. In general, there must be multiple instances of this type of behavior to qualify as abusive. However, a single act could qualify as abusive if it is especially severe or appalling.

While the California law takes an important step towards eliminating workplace bullying, it doesn’t go as far as some had hoped. Most notably, the law does not give employees the right to hold their employers responsible for workplace bullying. For example, if an employee was fired or quit because of workplace bullying, he or she would have no right to file a lawsuit or administrative claim against the employer.

In light of this new requirement, employers with 50 or more employees should make sure that their sexual harassment trainings include a discussion of what workplace bullying is and how managers and supervisors should respond to it. Given the effect that workplace bullying can have on productivity and employee morale, employers of all sizes should consider including policies in their Employee Handbooks to address and prevent workplace bullying. However, as of right now, this is not required by law.

Supreme Court: Officers Don’t Need to Know (all) the Law

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Ignorance of the law is no defense. You may have heard of this legal maxim, which is meant to convey that, in most instances, doing something illegal is—well, illegal—even if you didn’t know it was illegal. In essence, you’re credited with knowing the law, whether or not you do.

But what about the other side of the coin? What if an officer believes some act violates the law when it really doesn’t, and detains you due to that mistaken belief?

Obviously, the government can’t convict you of the crime that’s the basis of the detention—because it isn’t really a crime. The more tricky question is whether the detention (“seizure”) is itself illegal. It’s a particularly important question where the seizure gives way to a search that turns up incriminating evidence.

The United States Supreme Court, through Chief Justice John Roberts, laid down the relevant Fourth Amendment law on Monday, December 15. Voting 8-1, it held that an officer’s reasonable mistake of law can provide the reasonable suspicion that’s necessary for a detention. (Heien v. North Carolina, 574 U. S. ____ (2014).)

Light Out

On an April morning in 2009, a Sherriff’s Sergeant in Dobson, North Carolina, sat, waiting in his patrol car. As he watched the cars on Interstate 77 pass by, he came to focus on one. The driver of the Ford Escort in question struck Sergeant Matt Darisse as “very stiff and nervous.” Sergeant Darisse hopped onto the interstate and followed the Escort. Shortly thereafter, Darisse saw the Escort brake. Only the left brake light worked. He pulled the car over.

A man named Vasquez had been the driver. When Sergeant Darisse approached the car and looked in, a fellow named Heien was lying across the back seat. The Sergeant ran Vazquez’s license and registration; nothing of note came up. He gave Vazquez a warning ticket for the faulty brake light, but had grown increasingly suspicious during the encounter. Darisse experienced Vazquez as nervous, and he thought it strange that Heien never sat up. Darisse apparently asked the two men where they were going; he would later call their replies inconsistent.

Darisse continued to ask questions. He asked for and received Vasquez’s consent to a search of the car. Vazquez identified Heien as the owner, and Heien consented, too.

Darisse and a responding officer then hunted for evidence. They eventually found cocaine in the side compartment of a duffle bag.

State prosecutors charged Heien with attempted cocaine trafficking. Heien moved to suppress the evidence gathered by the officers on the grounds that the stop was illegal. (An illegal stop usually means an ensuing search is unlawful, too.)

A North Carolina appeals court sided with Heien. It determined that driving with only one functioning brake light wasn’t illegal in North Carolina. The vehicle code statute in question referred to “stop lamp” in the singular. So, the court reasoned, a driver needs only one working brake light. Because the officer’s misinterpretation of the law was the only basis for the stop, the detention and the search were illegal.

The North Carolina Supreme Court then weighed in. It disagreed with the appeals court, holding that the officer could have reasonably—even if wrongly—read the vehicle code to require two working brake lights. Because the mistake of law was reasonable, the state high court held, the stop and search were, too.

“You’re Mistaken”

Officers need probable cause to make a warrantless arrest. But they need only reasonable suspicion of criminal behavior to detain someone. The idea is that the officer observes some set of circumstances that is objectively suspicious. In the area of traffic stops, reasonable suspicion often consists of an officer noticing a driver doing something illegal—for instance, speeding. The officer sees the driver travelling too fast; he has reasonable suspicion and may therefore stop the vehicle.

Courts have long held that detentions are valid even where the detaining officer is reasonably mistaken about the facts at hand. Suppose an officer reasonably misjudges the length of a crack in the windshield of a car on the road. She knows that cracks of a certain length are illegal; motorists must fix them before driving. She stops the driver with the fissure. After stopping the driver—or perhaps when the case gets to court—she learns that the crack fell just short of the illegal length. If the officer had issued a ticket for the crack, it would be invalid. But most courts would hold that the stop was lawful as based on a reasonable “mistake of fact.” Any evidence the officer were to have discovered as a result of the stop would likely be admissible in court. (See Traffic Stops Based on Officer Mistakes.)

At least until Monday, courts seemed to differentiate between mistakes of fact (the crack’s length) and mistakes of law (whether drivers need two operational brake lights). Even if an officer’s misunderstanding of the law is reasonable, these courts would say, it cannot serve as a legitimate basis for a detention.

The End—or Not

In the Heien case, the Supreme Court considered the officer’s confusion around North Carolina braking-light law reasonable. In essence, the Court found that references to “rear lamps” in the state vehicle code made understandable Sergeant Darisse’s belief that drivers need two working brake lights. The Court noted that North Carolina courts hadn’t previously construed the “stop lamp” section, meaning that Darisse didn’t have any notice that his reading of the law was wrong.

Critics of the decision contend that the Court has just encouraged officers to remain willfully blind of the law. To them, the Supremes are saying, “Don’t bother reading up on that law there, lest you should realize it doesn’t allow you to detain someone when you think it does.” Chief Justice Roberts tried to swat that argument away, emphasizing that “[t]he Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable.”

The bottom line: Because Sergeant Darisse’s mistake about the law was reasonable, the stop was constitutional. The effect: the cocaine was legally admissible. Police officers throughout the country rejoice (or at least grin).

But the story may not be completely over. The U.S. Supreme Court’s opinion is the law of the land—when it comes to the federal constitution. The Heien decision deals with the Fourth Amendment to the U.S. Constitution. States, though, have their own constitutions, and they’re free to expand individual liberties with them. So, interpreting its own constitution to invalidate mistake-of-law-induced detentions, a state court could plausibly thumb its nose at SCOTUS.

Oh No, Now We Have to Worry About Hackers Stealing Funds Wired for Home Purchases?

Devil with piggybankWhen making what’s widely referred to as the biggest purchase of one’s life, the last thing you want to worry about is whether some criminal could divert your money elsewhere. In fact, the whole existence of the escrow process is so that you can safely park your money with a neutral, professional third party before releasing it to the home seller. (Learn more about this in Nolo’s articles on “Escrow and Closing.”)

Technological improvements in the money transfer process mean that you at least don’t have to carry the money in a briefcase with an armed guard — but these innovations have simultaneously introduced a new type of risk. Hackers have reportedly found a way to bust into the email accounts of real estate agents and glean just enough information with which to masquerade as escrow officers and then send home buyers instructions on how to wire the funds to the hacker’s account instead of the sellers. (See “HACKERS PERPETRATE WIRE TRANSFER FRAUD IN REAL ESTATE TRANSACTIONS,” by Bob Hunt in RealtyTimes.) 

Uh oh. How will you know the difference? With any luck, these hackers will continue to display the usual lack of professionalism shown in many scam emails, and perhaps tip you off by spelling “escrow” as “esscro.” But hackers seem to be getting smarter lately, which means Internet users must also get smarter.

Thankfully, as Hunt points out, there’s a low-tech solution. When you get the email with the escrow instructions, CALL YOUR ESCROW OFFICER. Confirm that the email truly came from him or her, and ask for the bank account number over the phone. It’s worth those extra few minutes of your time.

U.S. Supreme Court Considers Pregnant Employees’ Rights to Accommodation

US Supreme CourtIn 2006, a female United Parcel Service (UPS) driver named Peggy Young became pregnant with her first child. On her doctor’s orders, she was not to lift more than 20 pounds during her pregnancy. Because Peggy’s shifts usually involved delivering letters and small packages, it didn’t seem like the restriction would have a huge impact on her job. But when Peggy told her supervisor about the 20-pound restriction, she was told that heavy lifting was an essential part of her job and that she couldn’t be accommodated. Peggy was immediately placed on unpaid leave and lost her medical benefits for the remainder of her pregnancy.

The U.S. Supreme Court heard arguments on Wednesday, December 3, as to whether UPS’s failure to accommodate Young was a violation of the Pregnancy Discrimination Act (PDA) of 1978. The PDA is a federal law that prohibits employers of a certain size (those with 15 or more employees) from discriminating against pregnant employees. However, unlike other federal laws such as the Americans with Disabilities Act (ADA), the PDA does not impose an affirmative duty on employers to accommodate pregnant employees. The PDA requires only that employers treat pregnant employees the same as employees who are “similar in their ability or inability to work.”

This quoted text from the PDA is what’s largely at issue in the Young v. UPS case. According to Young, UPS was obligated to treat her in the same manner that it treated other employees who were temporarily unable to perform certain duties, such as heavy lifting. UPS routinely offered light-duty work to those who suffered on-the-job injuries or who qualified as disabled under the Americans with Disabilities Act. (Pregnancy does not qualify as a disability under the ADA). By contrast, UPS argued that its policy was pregnancy-neutral, which is all that the PDA requires. UPS’s policy did not single out pregnant women for less favorable treatment, but it also didn’t single out pregnant women for more favorable treatment. Two lower federal courts in Maryland agreed with UPS.

In recent years, several states have stepped in to offer additional protections to pregnant employees, including the right to light-duty assignments. In response to this increasing trend to accommodate pregnant employees, private employers have been more willing to follow suit, even if they aren’t required to by law. In fact, UPS recently announced that beginning January 1, 2015, it will institute a new policy that allows pregnant women to be reassigned to light-duty work.

Of course, the U.S. Supreme Court’s decision could have a significant impact on pregnant employees nationwide. If the court sides with Young, all employers subject to the PDA will be required to offer light-duty assignments to pregnant women if those assignments are available to non-pregnant employees. The Court’s decision is scheduled to come out sometime next year.

Need to Find Relative Arrested by Immigration? See Online Detainee Locator

Sometimes what’s going in in the headlines becomes all too personal. That’s what happened for me recently, when a friend called to say that her cleaning woman from El Salvador was in a panic, having received word that her sisters had been arrested by immigration authorities after crossing the border into Texas. They’re apparently part of the flood of young people…
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