HR’s Dual Role: Protecting a Company’s Best Interests

October 2018
HR’s Dual Role: Protecting a Company’s Best Interests
by Jessica Mulholland, Senior Editor, CalChamber
When it comes to trust in companies, the U.S. has the biggest
yearly change of all countries — declining 5 percent from 2017
to 2018, according to the Edelman Trust Barometer, which has
been studying trust in companies, people and institutions for nearly 20
years. Although CEOs’ credibility has increased by 7 percent this year, it’s
still at a mere 44 percent — and when trust is lacking, it’s difficult for HR to
resolve complex workplace situations.
It’s long been known that HR isn’t there to make friends with employees.
“The biggest role HR plays at a company is ensuring compliance,
minimizing risk and avoiding any sort of legal exposure arising from that
company’s workforce,” says Matt Charney, chief content officer and global
thought leadership lead for Allegis Global Solutions.
Peter Cappelli, professor of management at The Wharton School at the
University of Pennsylvania and director of the Center for Human Resources,
echoed that sentiment. “HR works for the organization and does what the
leaders of the organization want,” he said.
But in the current #MeToo climate, employers and their HR departments
are in the spotlight.
California Employer Update
Your guide to trends and court decisions impacting the California workplace
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2 |
“Employers are under pressure to do something about behavior that may be legal but still is
challenging for employees, as well as to demonstrate that they are addressing sexual harassment
and doing so seriously,” Cappelli said.
And ultimately, it’s important that HR protect the interests of both company and its employees. After
all, a company won’t accomplish much without the work its many employees complete each day. But
is doing so even possible?
HR Serves as ‘Offensive Lineman’
A lot of HR’s work is administrative, Charney said, and includes such things as tracking time and
attendance, managing performance reviews, and overseeing employee handbooks and related
company policies.
While this is, in fact, beginning to change, he noted
that most of HR remains tactical, process-oriented
and behind-the-scenes work that most employees
never notice, but is highly essential to a company’s
short-term operations and long-term viability,
particularly guarding what’s considered to be a
company’s “greatest asset” — the people.
“HR typically plays a similar role to an offensive lineman in football; most of their work, while integral
to company success, goes unnoticed,” Charney said. “No one really thinks about who selects
things like benefits or health plans for a company; similarly, no one realizes that there’s a lot of work
involved in ensuring the payroll clears in time for workers to get paid.”
There appears to be a disconnect, however, between the acknowledgment that people are a
company’s greatest asset and how HR is expected to handle certain situations.
Follow the Leader(s)
“In the modern business world, employees are not seen as stakeholders whose interests, per se,
should be advanced,” Cappelli noted. “Unless it is in the business’ interest, most companies won’t
take it up.”
While leaders certainly understand that employees matter, he said, they don’t see that any particular
practice matters. “What they don’t see,” he added, “is the connection between any specific action
they take and performance outcomes.”
HR executives who make the case for striking a balance, Cappelli says, risk losing their jobs. The one
thing that might get their attention? “Show them what a class action lawsuit looks like,” he said.
While Charney says he isn’t 100 percent sure that the #MeToo movement has made a tremendous
difference in the way HR operates, he does note that the entire function of HR is tasked primarily
with minimizing risk, ensuring compliance and dealing with employee relations issues.
“#MeToo, if anything, has shown that we have a pretty endemic and widely entrenched problem with
sexual harassment,” he said, adding that almost every single company has had sexual harassment
training as a mandatory part of their employee onboarding for well over a decade. “So, sadly,
awareness and internal education don’t seem to have preempted these issues.”
In the current #MeToo
climate, employers and
their HR departments are
in the spotlight.

3 |
One thing that’s interesting to note
about HR’s role in the #MeToo
movement is that the function
is predominantly female, which
makes it somewhat unique in
business, Charney said, adding
that HR has long complained
about not getting respect from
executive leaders or a “seat at
the table,” figuratively speaking
— a group that’s predominantly
male, statistically speaking.
“The function has a definite self
interest in protecting individual
employees, particularly women,
even if that conflicts with the
company’s best interests,”
Charney said. “However, the fact
that so little has changed leads
me to believe that HR largely
feels powerless or intimidated
to advocate for any tangible
change, formal or informal, that
would mitigate these issues.”
He said he thinks this is
something of a microcosm of the
#MeToo movement.
“And it’s really quite sad, since
the ostensible advocates for
change have largely been
responsible for creating the
status quo.”
Intertwined Interests
From Charney’s perspective,
HR is ideally positioned to help
individual employees understand
how they fit in, how they’re
making an impact and what they
can do to best advance not only
the company’s interests, but also
their own careers.
“When a company’s vision and
mission align with those of the
workers, then HR’s role becomes
much, much easier,” he said.
“Ensuring that alignment should be one of the critical roles of any HR function. If HR protects its
employees, it’s also essentially fulfilling its mandate of protecting the company.”
Apps Gain Employee Trust
Employees, who might have previously been leery about interacting with HR,
are now no longer going to HR at all — they’re turning to apps and services
where coworkers at various companies can share information and ultimately
protect themselves, oftentimes anonymously.
There certainly is a benefit to this method of communication making its way into
your workplace, says Matt Charney, chief content officer and global thought
leadership lead for Allegis Global Solutions — namely that employees who feel
like they’re being heard and that their voices matter are going to be happier at
work, regardless of whether any real changes are made.
“So being asked an opinion is more important than acting on it, sociologically
speaking,” he said. “If employees have an outlet that they trust and makes them
feel empowered, this can really only be a good thing.”
The con, however, is that no black and white situations exist in talent
management or career development, Charney added. “And in a world of
gray, these apps aren’t great at situational ambiguity or factoring for variances
between stuff like company culture, or divergent written policies or unwritten
politics that make every situation unique rather than uniform,” he said. “HR, to
their credit, understand these dynamics and how individual workers fit in better
than anyone.”
Another thing to consider, says Peter Cappelli, professor of management at The
Wharton School at the University of Pennsylvania and director of the Center for
Human Resources, is that employers don’t want to lose control over the process
and have their employees immediately head to lawyers.
“They also don’t want to be sued,” he added. “Employees can’t avoid telling
employers about the complaint or they risk losing in the legal arena: The first
question will always be, ‘Did you give your employer a chance to address it?’”
Also keep in mind that one size fits all never really fits anyone, Charney
said, and to “beware the wisdom of crowdsourcing.” No matter how leery an
employee may be, the individual should be reminded that HR can be trusted
much more than any algorithm or online platform.
“It’s unlikely that these technologies are going to fix anything; only individual
interactions and interpersonal relationships can do that,” he added. “It’s not
about FaceTime, it’s about face time — and high touch beats high tech any day
of the week.”

4 |
Ultimately, Charney added, the most important thing HR can do within the limited scope of its
responsibilities is create a culture that’s not about protecting the company vs. the employee, but rather,
“ensuring that companies and employees understand that their interests are, ultimately, inexorably
intertwined.”
And this is something that many HR professionals likely feel they’re already doing.
HR, he said, shouldn’t be responsible for protecting the interests of either side. “Their job is to bring
them together around shared interests, instead,” he said. “People and profits, ultimately, aren’t
mutually exclusive, but rather inherently interdependent.”
Tips for Achieving a Balance
As for HR not getting respect from executive leaders or a “seat at the table,” Charney’s advice is to
stop worrying about this and start reinventing what this concept means.
“HR is in the unique position of being able to define their roles and responsibilities,” he continued.
“Instead of protecting the status quo, advancing and advocating for employees’ best interests —
effectively representing the ‘voice of the employee’ — will open all sorts of doors.”
But the foundation of achieving this balance is trust, Charney said, and unfortunately, HR has a lot of
work to do to build this trust with both the company and its employees.
And if company leaders seem uninterested in the welfare of their employees, what might help HR to
convince them otherwise?
For starters, payroll is always the largest line item on any profit and loss statement, Charney said,
and around 20 percent of corporate expenditures go to directly to talent management.
“It’s up to HR leaders to build a data-driven business case for leaders as to the actual costs — and
opportunity costs — represented by employee engagement and retention,” he continued. “There
are a lot of metrics, but it’s really easy to align talent initiatives with business results and improved
outcomes. Because at the end of the day, the bottom line is always top of mind.”
And that, Charney added, is why it’s important for HR to help tell the story that not only are people
the single biggest expense for businesses, but they’re also the single biggest driver of overall
business performance.
“What’s good for GM [General Motors] might have been good for America,” he said, “but what’s
good for your employees, inevitably, is good for your business.”
“
People and profits, ultimately, aren’t mutually exclusive,
but rather inherently interdependent.
— Matt Charney, chief content officer and global thought leadership lead, Allegis Global Solutions

5 |
With California’s unemployment rate at an all-time low of 4.2 percent, according to the Bureau
of Labor Statistics, and a stronger-than-ever economy, attracting and retaining high-quality
employees is tough.
To entice and keep solid workers on the payroll, employers and recruiters have turned to more trendy
offerings like unlimited paid time off, professional development opportunities and tuition reimbursement.
But it turns out that the tried and true 401(k) is still seen as valuable to younger employees.
In fact, 67 percent of respondents to the Betterment for Business Customer Survey 2018 said that when
evaluating a job offer, a good 401(k) plan was important or very important in their consideration, while
only 9 percent said it had no impact on their decision to take a job. Below is a quick look at additional
survey findings.
Maximize Your 401(k) to Attract, Retain Top Talent
by CalChamber Editorial Staff
BETTERMENTFORBUSINESSCUSTOMERSURVEY2018

6 |
What do Uber and Lyft drivers, temp receptionists, seasonal retail
and customer service associates, lifeguards, Grubhub and
Postmates delivery drivers, seasonal school photographers,
and temp office assistants have in common? They all fall under the non-
traditional or alternative employment relationship umbrella — and they
therefore have different rules and guidelines than the traditional employer-
employee relationship.
In fact, when most people hear the term, “employment relationship,” they
immediately think of that traditional arrangement, which is what many of
California’s labor laws focus on.
But as the holidays approach — and the gig economy (in which short-
term contracts and freelance work reign supreme) continues to pick up
steam — it’s worth looking at some of the advantages and disadvantages
of entering into these alternative employment relationships.
Non-Direct Hires and Use of Staffing Agencies
It’s common for some companies to use temporary, staffing or professional employer organization
agencies to hire workers, whether on a temporary, seasonal or long-term basis. When a company
contracts out for services, a contractual arrangement typically exists between that company and the
staffing agency.
Making the Most of Alternative Employment Relationships
by Bianca N. Saad, J.D.; Employment Law Subject Matter Expert
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PHOTOCOURTESYOFLYFT

7 |
While staffing agencies do handle much of the responsibility that the law imposes on employers,
such as payroll and other human resource functions, a company that leases employees can lose
much of the control necessary to avoid employment-related litigation.
While contracting out for services can
have its advantages due to the lessened
administrative burden, there are still
significant responsibilities and risks involved
that employers need to be aware of. A
common issue that arises is the question of
joint-employer liability — which is essentially
when two business entities share control and
supervision of an employee’s activities —
and whether a company who contracts out
for services should be held responsible by
enforcement agencies and courts for wage
and hour and other labor violations.
In California, different tests may be applied
to determine if there is a joint-employer
relationship for the purposes of wage and hour liability, sexual harassment, or coverage and
responsibilities under the Family Medical Leave Act and the California Family Rights Act.
The Industrial Welfare Commission and the California Supreme Court adopted a broad definition
of “joint employer” that focuses on the employer’s exercise of control over wages, hours or working
conditions. However, California businesses also may be held strictly liable for wage and hour
violations regardless of who exercises control over the workers. California Labor Code section
2810.3 holds companies accountable for wage and hour violations when they use staffing agencies
or other labor contractors to supply workers.
Under Labor Code section 2810.3, California companies can be held legally accountable for
workers supplied by labor contractors for the payment of wages, failure to secure valid workers’
compensation coverage and violation of specified whistleblower protections in the Labor Code. A
“labor contractor” is defined as any individual or entity that supplies a client employer with workers
to perform labor within the client employer’s usual course of business. “Usual course of business” is
defined as the “regular and customary work of a business, performed within or upon the premises or
worksite of the client employer.”
The California Division of Labor Standards Enforcement (DLSE) recently announced that it cited a
California restaurant chain for underpaying 559 subcontracted janitorial workers, fining the chain
more than $4.57 million in damages and penalties. The restaurant chain’s janitorial contractor
subcontracted work to another cleaning agency.
Investigators found that janitorial workers didn’t receive proper meal and rest breaks, and weren’t
released from their shifts until restaurant kitchen managers conducted walkthroughs — which often
led to additional tasks being assigned to the workers that had to be completed before they were
released. This resulted in up to 10 hours of unpaid overtime each week. The restaurant was held
liable for the janitorial contractors’ violations under Labor Code section 2810.3.
A unique fact about this case is the DLSE’s assertion that the restaurant employer was liable for
workers provided under a janitorial services contract, which is not the typical temporary employee
scenario. For this reason, the restaurant employer has appealed the DLSE’s decision.
A California restaurant chain was cited
more than $4.57 million in damages
and penalties for underpaying 559
subcontracted janitorial workers.

8 |
One question to be addressed is whether a janitorial contractor who provides services to a
restaurant is providing workers to engage in the restaurant’s “usual course of business.” However,
the DLSE’s finding of liability may also have been based on the fact that the restaurant exercised
“control” over the janitorial employees’ wages, hours and working conditions. So even without liability
under Labor Code section 2810.3, the factual allegations of this particular case may give rise to a
claim for joint-employer liability under the common law “control” theory.
Independent Contractors
There can be many benefits to using an accurately classified independent contractor for labor. For
instance, independent contractors don’t need to be covered by workers’ compensation, don’t have
employment taxes deducted from their earnings by an employer, have no rights to employee benefits,
are not covered by state and federal wage and hour laws, and are not entitled to unemployment
insurance benefits from your account — to name just a few. An independent contractor arrangement is
also beneficial to the worker, as it provides more flexibility and freedom to work on his/her own terms.
On the flip side, however, there
can be serious consequences
to misclassifying a worker as
an independent contractor, and
companies must exercise caution
when designating a worker as
such.
There’s no set definition of the
term “independent contractor”
that applies for all purposes,
and it’s not uncommon for an
individual to be considered
an employee for purposes of
one law and an independent
contractor under another.
For example, for workers’
compensation and
unemployment compensation
law purposes, the difference is
largely in the degree of control
over the person performing the
services and the multitude of
obligations an employer has
to an employee that aren’t part
of the independent contractor
relationship.
On the other hand, a recent
California Supreme Court case
made it much more difficult for a worker to be properly classified as an independent contractor for
purposes of California’s Wage Orders (Dynamex Operations West, Inc. v. Superior Court of Los
Angeles, 4 Cal. 5th 903 (2018)). While variations of the ABC test are applied in other jurisdictions,
we’re unaware of any other state that has adopted such a rigid ABC test for wage and hour
purposes or done so through judicial opinion. Other tests have been adopted by way of legislation.
Independent Contractor Coalition Works to Put Dynamex
Application on Pause
Given the increased growth of the “gig economy” and the large number
of individuals choosing to work as freelancers as opposed to employees,
the California Supreme Court’s decision in Dynamex Operations West,
Inc. v. Superior Court of Los Angeles — applying what may be the most
rigid ABC test in the nation — has caused a great deal of concern for
businesses and individuals alike.
In response to the significant implications of the “ABC test” — not just
for employers, but for individuals who intentionally perform and enjoy
the flexibility of freelance work — CalChamber led the I’m Independent
Coalition. The coalition was aimed to, at a minimum, delay the litigation
impacts of Dynamex for a year so that the Legislature could take
testimony from all affected businesses and workers to fashion a law that
not only protects workers, but also gives them the freedom to pursue their
own schedules.
In August of this year, hundreds of independent contractors gathered
at the State Capitol to urge policymakers to protect the ability to work
independently or freelance. Unfortunately, organized labor was strongly
opposed to an approach that would modify the court decision.
Given the issue’s complexity and the short amount of time
before the legislative session’s end, an immediate solution was
not feasible.
CalChamber will continue to work
with and build a coalition of affected
workers and businesses over the
legislative recess with the hope of
having legislation to introduce in the
new, post-election session.

9 |
California’s Wage Orders govern items like overtime, meal and rest breaks, and other basic working
conditions of California employees, and the California Supreme Court has adopted what is known as
the “ABC test” to determine whether an individual is an employee or an independent contractor.
This new “ABC test” sets forth the requirements
for a worker to be labeled an independent
contractor — and is much more restrictive than
the long-standing “right to control” or “common
law” test. What’s more, it requires that the
company prove all of the following to establish a
worker’s independent contractor status:
1. That the worker is free from control and
direction of the hiring entity in connection
with the performance of the work, both under
the contract for the performance of the work
and in actually performing the work;
2. That the worker performs work that is
outside the usual course of the hiring entity’s
business; and
3. That the worker is customarily engaged in an independently established trade, occupation or
business of the same nature as the work performed.
If the hiring entity fails to show that an individual satisfies each of the three criteria, the worker is treated
as an employee, not an independent contractor.
And there are consequences to misclassification. Mislabeling a worker as an independent contractor
creates potential liability for employment taxes and penalties, and liability for failure to fulfill the many
legal obligations owed to an employee, such as wage and hour requirements.
“Willful misclassification,” defined as “avoiding employee status for an individual by voluntarily and
knowingly misclassifying that individual as an independent contractor,” is also explicitly prohibited by
the law and carries significant penalties, ranging from $5,000 to $25,000 for each violation. In addition
to civil penalties, misclassification can put a company at serious risk for legal claims for wage and hour
violations — including on a class-wide basis or under the Private Attorneys General Act — which can
require the expenditure of significant time and resources.
It is the company’s responsibility to
prove all three items in the ABC test
to establish a worker’s independent
contractor status.

10 |
Latest CalChamber Advocacy News
Here’s a sampling of election and legislative news of interest to employers. For more on the latest hot issues,
along with CalChamber positions and call to action requests, visit calchamber.com/advocacy.
Now that the Legislature is out for
interim and all request letters
have been signed or vetoed by
the governor, many think it’s R&R time
for lobbyists and government affairs.
While there certainly is a little of that,
now is the time to determine legislative
priorities and lobbying strategy for the
next session.
With a new administration and
several open seats in the Legislature
will come new political and policy
challenges in 2019. A few to keep in
mind are:
1. The new Governor-elect will
determine a significant change
in decision-makers, not only for
the Governor’s Office of Legislative
Affairs, but also at important state
agencies. Though the Legislature
passes laws, agencies have
authority to promulgate regulations
that can significantly impact
California employers.
2. Both the Assembly and Senate
have open seats for 2019, and
while these seats’ outcome certainly
won’t change California’s majority
party, it could impact whether
Democrats get a supermajority
in both houses and whether the
incoming members are more
moderate or liberal regarding policy.
3. The Legislature left several
things unresolved when they left
that will absolutely be a priority in
2019, including the independent
contractors vs. employees policy
debate; the consumer data privacy
bill that included some unintended
consequences, such as clarifying
the definition of consumer so it
doesn’t include an employee;
the huge shortage of affordable
housing in the state; and the
growing cost of unfunded liability
for public employees’ pensions and
health benefits.
Next Legislative Session Will Bring Big Changes

11 |
Summer has come and gone, and Fall is officially upon us. With
the cooler weather and changing of the leaves comes one
particular ghoulish holiday: Halloween. And this year, spending
around Halloween is expected to surge — to an estimated $9 billion
on costumes, candy, decorations and greeting cards, according to a
National Retail Federation (NRF) report, down slightly from the $9.1 billion
estimate in 2017 and the estimated $8.4 billion in 2016.
With workplace Halloween festivities come potential “HR demons,”
such as inappropriate costumes and religious belief insensitivity. While
no magic potion can eliminate all potential issues, here are some
things for employers to keep in mind while planning for Halloween
happenings.
Costumes: Alter Ego in the Office
What is Halloween without costumes? Whether employees dress as
witches, superheroes or horror movie characters, research shows that
donning a Halloween costume at the office helps boost work productivity.
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Training
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members and nonmembers to
purchase)
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12 |
The survey, conducted by engagement firm O.C. Tanner in 2017, reported that 73 percent of
employees say they’re “highly motivated to contribute to the success of the organization they work
for” if they can dress up at work. The survey also showed that 68 percent of those who can dress
up at work “are proud to tell others they work for their organization.” In other words, allowing your
employees to dress up on the clock can boost morale and mood in the workplace.
If employees are allowed to dress up, remind them to abide by the office dress code, and relay
any Halloween-related dress policies. A reminder about what is and is not permitted is helpful to
employees as some costumes may be seen as offensive to others in the company. Poor costume
choices could lead to a discrimination or harassment claim. Therefore, a Halloween-specific note
about inappropriate costumes may be in order. Consider telling employees to avoid
potentially inappropriate costumes, such as:
• Culturally insensitive costumes (e.g. portraying someone of a
different race or ethnicity);
• Sexually provocative costumes (e.g. naughty nurses and
shirtless Tarzans);
• Political costumes (e.g. the president or a creative interpretation
of the president);
• Co-workers, supervisors or CEOs of the company; and
• Costumes in poor taste (e.g. Nazis and tragic events).
Should any issues arise related to discrimination or harassment
arise, refer to your company’s Harassment, Discrimination and and
Retaliation Prevention Policy.
More Treats than Tricks at the Office Party
There are plenty of ways to celebrate Halloween in your workplace,
though a 2012 Glassdoor survey reported that 42 percent of employees enjoy decorations
and 40 percent like free candy — followed by 31 percent enjoying a Halloween breakfast or lunch
and, 29 percent preferring a during-business hours party at the office.
Since food is a common theme, consider holding a potluck where employees can sign up to bring
their favorite dishes and desserts, or go a step further and provide the meal and treats. Additionally,
some employers may organize a costume parade throughout the office to liven up the day — or
better yet, why not have a costume contest? The winning costume — whether it’s an individual or
a team — could keep a trophy until next Halloween rolls around. The same could be done for a
decorating contest. Haunted cubicles, anyone?
No matter the festivities should you host something during the workday, remember to observe
California labor laws if the party is mandatory for employees, as nonexempt employees are required
by law to take a 30-minute meal break and two 10-minute rest breaks during the day. Employees
required to attend a lunchtime party and then go straight back to work will have missed their meal
break, even though they weren’t performing any work and were fed lunch.
Remind
employees
that
costumes
must
abide by
the
company’s
dress
code.

13 |
The solution? Make the party a voluntary event or have employees take their meal period before the
party — just remember it should come before the employee has been clocked in for five hours. If
party attendance is purely voluntary, let employees know this in writing when you invite them. When
attendance is voluntary, the employee can then choose whether to spend their meal break at the party.
Additional benefits of having a party during business hours is that employees will be more mindful of
their behavior with the boss in the room and less likely to engage in inappropriate behaviors.
Halloween and Fall Holidays
Though Halloween is considered a secular holiday
nationwide, not everyone participates — and there are
plenty of other cultural, spiritual and religious celebrations
that occur during the Fall season.
Employers must be sensitive to not only the employees who
don’t take part in Halloween due to religious creed, but also
those who celebrate other cultural or spiritual holidays
or happenings.
“Religious creed” is broadly defined to include all
aspects of religious belief, observance and practice,
including religious dress and grooming practices.
The definition of religion also includes the absence of
religion, which means employers cannot discriminate
against individuals who are atheist or agnostic.
Title VII of the Civil Rights Act of 1964 prohibits
employers from discriminating against an employee on
the basis of religion. The California Government Code
also mandates than an employer cannot deny employment
or any employment benefit to a worker because of his/her
religion. Pagans, wiccans and other alternative religions
are also entitled to legal protections in the workplace.
Furthermore, all California employers must reasonably
accommodate employees’ requests to observe or
practice their religion. This can include time off to celebrate
religious holidays, modifying dress codes to allow religious dress or
attire, as well as altering job responsibilities that may conflict with
religious beliefs.
This lack of discrimination also applies to employees decorating their
workspaces: You must be consistent in establishing and enforcing such policies.
For example, if one employee is allowed to display the Nativity scene on his/her desk, you must
give the same permissions to someone displaying a Dia de los Muertos altar or menorah in their
workspace.
Be
consistent
in establishing
and enforcing
policies
around
employees
decorating
their
workspaces.

14 |
Halloween and Fall holiday festivities are fun and offer team-building opportunities — and may even
improve workplace morale. Just remember to follow these guidelines as you plan so you reduce
liability and ensure everyone feels included.
Spooky Workplace Ghost Stories
So you think your workplace is scary? We’re not talking weird sounds emanating from the kitchen sink or a
dysfunctional copy machine that spits out documents resembling Rorschach inkblot tests. We’re talking actual
haunted offices and worksites. Just in time for Halloween, we rounded up three stories that might make you
rethink working solo in the office after hours.
The first story was posted on a wedding message board, of all places. The author, whose username
is Ellicott, shared that one of the offices where she works is “very haunted, to the point where they have
surveillance camera footage of the swivel chairs turning on their own, things being shoved off desktops, desk
drawers opening and closing, weird, unexplained shadows and flashes of light.”
The microwave has even started by itself, and another time when she and a co-worker were on site late at night,
they heard what sounded like a printer making noise — but neither had printed anything.
“We went into [the] office where the noise was coming from and the printer was unplugged,” Ellicott wrote.
“There weren’t any other printers in that area.”
The second story, submitted to Jezebel by a reader with the username CherryBarGirl, ups the creepiness
factor. CherryBarGirl’s clinical rotation for mental health nursing included a tour of East Louisiana State
Hospital, outside of Jackson, La.
After she and other tour-goers visited the dungeon — a room that previously held what some described as
“violent souls” — they made their way back up the stairs, and upon taking her first step forward, something
grabbed her left shoulder and tried to pull her back into the wall.
“I looked behind me and saw nothing,” she wrote. “I hurried to blend in with the rest of my group. We exited
and stood in the back hall; I grabbed the sleeve of my scrubs expecting to see dirt or water or some physical
explanation of the event. The only thing I saw was a pristinely creased white sleeve. The administrator asked if I
was OK and I said it felt like something had tried to grab me. She said, ‘That happens sometimes. They don’t want
to let you go.’”
The last story, also from the wedding message board, is perhaps the most disturbing. Lbward6 wrote that her
first job working for an architect entailed revamping an old, well-known mansion — with stories about previous
owners’ deaths, a ghost helping a pregnant woman roll over in bed, and dogs jumping out the third story
window to their deaths — into a bed and breakfast.
As they fixed up the mansion, one worker saw a little girl’s ghost and never returned; on a different occasion,
a fire broke out destroying all completed work causing them to start over — but the fire department never
found what started the fire; and during a Halloween party held after the B&B was up and running, guests said
they saw a girl in the corner staring at everyone. Even after all that, Lbward6 still didn’t believe the house was
haunted — until she had her own experience while taking photos for the historical society of the basement-
turned-pub.
“I heard what sounded like a party going on upstairs,” she wrote. “[But] I was the only one in the house at the
time. I heard people laughing and glasses clinking, so I walked upstairs to see if maybe someone had come
into the house. But when I reached the top of the stairs, the temperature dropped to the point I could see my
breath. It wasn’t cold outside and the strangest feeling came over my body, where my heart was racing and
I just sensed that I shouldn’t be in the house. So, I quickly locked up and left the house, refusing to go there
alone again.”

15 |
In Fall 2017, the #MeToo campaign exploded into a social media
movement demonstrating sexual harassment’s prevalence in the
workplace.
Because sexual harassment cases often result in “he said, she said”
conflicts, juries must weigh both the accuser’s and the accused’s
credibility in an attempt to determine who’s telling the truth. And leading
up to trials, much of the time is spent deciding which evidence juries can
consider as they make their determination.
A recent case against an auto parts supplier and one of its managers
with a penchant for sending lewd text messages has now clarified the
circumstances under which courts will consider the different types of
evidence that may build a sexual harassment plaintiff’s credibility —
including #MeToo evidence (Meeks v. Autozone, Inc. et al., Cal.App.4th
RIC10019124 (2018)).
Offensive Messages or Just Jokes?
Natasha Meeks and Juan Fajardo both worked for Autozone as managers
of separate stores. Although they never worked in the same store, they
had near-daily contact about inventory matters.
Law in Brief: Using #MeToo Evidence to Support
Plaintiff’s Credibility
by Michelle Galbraith, J.D.; Employment Law Counsel/HR Adviser
HRCalifornia
Sexual Harassment Defined
(CalChamber members
only)
HR Library
Liability for Sexual
Harassment
(CalChamber members
only)
CalChamber Store
Harassment Prevention
Training
(Available for purchase for
CalChamber members and
nonmembers)
Related Resources

16 |
Meeks alleged that Fajardo regularly sexually harassed her by sending her inappropriate text
messages and photos, commenting on her appearance, and even forcibly kissing her. She also
claimed that Fajardo said he was a “favorite” of their mutual supervisor Susan Ledesma, and that
he could help or hurt Meeks’
career depending on her
receptiveness to his advances.
Meeks complained about the
harassment to Ledesma in
October 2009. According to
Meeks’ testimony in court,
Ledesma reported back that
Fajardo had laughed off the
allegations and claimed it was
all a misunderstanding, and
said the text messages were
all just “chain messages” and
jokes. She also told Meeks to
“just squash it.”
A few days later, Meeks’
husband (who was a manager
of another Autozone store)
complained to his own
manager that Ledesma had
failed to report the harassment
to Autozone HR. Meeks
testified that Ledesma told her
to tell any HR investigators that
“everything had been taken
care of,” and that Ledesma
threatened to fire Meeks
and her husband if Meeks
escalated her complaints
further.
Autozone HR finally contacted
Meeks in August 2010 —
10 months after she made
her initial complaint — and
fired Fajardo a month later. According to Autozone, he was terminated for sending a sexual text
message to another female employee — not for any misconduct against Meeks.
Meeks sued Autozone for sexual harassment and hostile work environment. After trial, a jury found
in favor of Autozone. Meeks appealed, claiming that the trial court erred by not admitting certain
evidence that would have helped prove her charges.
#MeToo Evidence
Fajardo admitted that he commented on Meeks’ appearance, but said that he also did so for
all employees. This, he claimed, was a demonstration of familiarity and part of Autozone “family
atmosphere.” He also believed that complimenting employees — male and female — on their
physical appearance could “turn their whole day around” and make them more productive.
Anti-Harassment Basics
California employers must take reasonable steps to prevent harassment
from occurring in the workplace and promptly respond to any harassment
complaints they might receive. At a minimum, all employers must:
• Develop a written Harassment, Discrimination and Retaliation
Prevention Policy.
• Distribute the policy and obtain acknowledgement of receipt from
employees.
• Ensure that all employees can read the policies. If more than
10 percent of your workplace speaks a language other than
English, you must translate the policy into their language.
• Post the required state and federal notices on harassment and
discrimination in prominent locations, and provide all employees
with a pamphlet at the time of hire outlining their rights pertaining
to sexual harassment.
Additionally, employers must ensure that managers and employees actually
understand their anti-harassment and non-discrimination policies. Employers
with 50 or more employees must train supervisors on harassment prevention
every two years. This does not mean that non-supervisorial employees don’t
require training or that smaller employers should ignore training altogether.
Effective anti-harassment training for all employees can prevent claims from
occurring in the first place and can reduce an employer’s liability should a
worker file a lawsuit.

17 |
To counter Fajardo’s claim that he commented equally on women and men, Meeks sought to present
testimony from four other female Autozone employees who claimed that Fajardo also had sexually
harassed them. The trial court didn’t permit those employees to testify to their own experiences
because Meeks didn’t witness them. They were only permitted to discuss any inappropriate behavior
that Meeks actually saw.
The appellate court disagreed,
noting that courts may consider
#MeToo evidence — that is,
evidence of gender bias against
employees other than the plaintiff.
To be admissible, the #MeToo
evidence must be factually similar
to the plaintiff’s experience and
should help to prove a pattern of
behavior by the accused harasser.
In Meeks’ case, Fajardo
argued that he couldn’t have
committed sexual harassment
or discrimination because he
made lewd comments and
sent inappropriate texts (as
jokes) to both male and female
employees. The court held that
the #MeToo evidence could
prove that Fajardo specifically
targeted female employees with
his harassing conduct and was
therefore admissible.
Not All Evidence Admissible
One of Autozone’s defenses was that Meeks failed to report the alleged harassment for an extended
period of time. Therefore, either no harassment took place or it wasn’t serious enough to warrant
complaint. To counter this argument, Meeks tried to testify that she feared complaining because she
heard that another Autozone employee was fired after complaining about harassment.
In July of 2007, Alaxandreia Olson sued Autozone for retaliation after she complained about
being harassed by her supervisor. Meeks argued that the same district manager — Ledesma —
investigated both instances of harassment and terminated Olson after she complained. So when
Fajardo told Meeks that it’d be in her best interest not to report him to Ledesma, Meeks feared for
her job and delayed her report.
The court said Meeks shouldn’t be permitted to testify about her understanding of Olson’s
termination and how that might have impacted her own response to Fajardo harassing her. The court
reasoned that Meeks didn’t witness any events relating to Olson, but had merely heard about them
secondhand. Because her understanding of the Olson case was essentially rumors, the court found
it wasn’t closely related enough to her own case to warrant evaluation by a jury.
• Make sure employees are informed about your company’s
harassment comlaint procedure and act promptly on any
complaints received.
• Immediately investigate any harassment or discrimination claims,
and document all steps taken as part of the investigation.
• Remind employees that they’re expected to behave professionally
in the workplace, regardless of their off-duty relationships. Even if
they consider their coworkers “family,” they need to follow company
standards of behavior while at work.

18 |
Editor Contributing Editors
Jessica Mulholland Vannessa Maravilla, Mirah Lucas
Information contained within is not intended to serve as legal advice. Readers with specific questions should
consult legal counsel. Opinions expressed are those of the authors and not necessarily those of CalChamber.
California Employer Update (ISSN 1077-968X) is published monthly by CalChamber.
P.O. Box 1736, Sacramento, CA 95812-1736. Order publications at: 1-800-331-8877 or ceu@calchamber.com.
© 2018 California Chamber of Commerce | www.calchamber.com
Text Message Evidence
Meeks’ harassment claim was based in large part on her assertion that Fajardo sent her
pornographic images and videos, including pictures of himself. However, she did not save any of
these texts, nor did Fajardo. Because Meeks could not produce any physical evidence of these
messages, the trial court barred her from testifying “word for word” about their content. She could
testify that she received offensive messages, but could not go into detail about their content.
In contrast, Fajardo was allowed to testify that the messages were “family stuff,” “chain texts” and jokes
that he would send to groups of people including his wife and friends. Fajardo also testified that Meeks
perpetuated the sexual nature of their discussions by bringing up intimate details of her own sex life
and making suggestive remarks about a tattoo below her belly button. The court even permitted Fajardo
to show the jury a photo (not sent directly to him, but instead found on social media) of the tattoo.
The appellate court held that the trial court was wrong to prohibit Meeks from testifying as to her
recollection of the messages (and was further wrong to show the jury the picture of the tattoo, since it
was never sent directly to Fajardo). The court found that testifying about the content of text messages
is not substantially different than testifying about Fajardo’s actions, and ruled that Meeks should have
been allowed to recite “word for word” anything she recalled about the messages. It would then be up
to the jury to decide whether Meeks or Fajardo was telling the truth about those messages’ contents.
Back to Trial
The court noted that sexual harassment trials are often “credibility contests,” with the jury finding in
favor of whichever party presents the more compelling story. Here, denying admission of the #MeToo
evidence and text messaging content — while permitting Fajardo to brush off the text messages as
jokes and show an irrelevant photo of Meeks’ tattoo — impermissibly prevented Meeks from building
credibility with the jury.
The appellate court ordered Meeks’ case back to trial, with a jury permitted to consider this new
evidence.
The appellate court held that the trial court was wrong to prohibit
Meeks from testifying as to her recollection of the messages.

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