California’s Fair Employment and Housing Act

california fair housing and employment actCalifornia’s Fair Employment and Housing Act (FEHA) lays out the duty of employers toward their employees, as well as prohibited actions in the workplace. These policies address discrimination against individuals with disabilities, as well as other protected groups, including:

  • Age;
  • Military status;
  • Race;
  • Religion;
  • National origin or ancestry;
  • Marital status;
  • Physical or mental disability;
  • Gender, sexual expression, or sexual orientation.

Anti-discrimination rules have been on the books for years. Revisions to these policies in recent times are worth noting:

Sex Discrimination and the California Fair Employment and Housing Act

The law protects individuals from any form of discrimination on the basis of sex. This applies to both males and females and expressly covers gender identity and expression and transgender identification.

Fair Employment and Housing Act on Volunteers, Interns, and Other Unpaid Individuals

California’s Fair Employment and Housing Act protects unpaid persons from discrimination, just as paid workers are. In fact, for the purposes of a harassment claim, they are considered employees.

Discrimination on the Basis of Religion

Religion may not be a factor in hiring and firing decisions. Reasonable accommodations must be made to address a worker’s religious tenets. An employer may not isolate a worker from fellow employees or from customers due to religious beliefs or attire, unless it is something that is requested by the employee.

Pregnancy

Employees are entitled to as much as four months of unpaid leave in association with a pregnancy. It is not necessary to for the time to be taken in one continuous break. Furthermore, discrimination on the basis of pregnancy, breastfeeding, or other conditions associated with childbirth is not permitted.

Discrimination on the Basis of National Origin

The California Fair Employment and Housing Act does not permit employers to require employees to demonstrate that they have a driver’s license except under particular circumstances:

  • State or federal law requires it for the position;
  • It is a mandatory item for the type of work required;
  • There is a legitimate business reason for the requirement, and all employees are held to the same standard.

Training for Anti-Bullying

Employers who employ 50 or more workers are required to provide training that encompasses key topics:

  • Definitions of “abusive conduct;”
  • Impacts of such conduct on both victims and employers;
  • Steps the company will take to rectify harassing behaviors, such as the policy for investigating complaints and responsive actions;
  • Obligations of supervisors to document claims of discrimination, harassment, and/or retaliation.

Employers must document attendance at these trainings with sign-in sheets and must keep training materials on hand.

Support Animals in the Workplace

Support dogs or other animals that are required to assist with vision issues, cognitive problems, or emotional support must be accommodated in the workplace. [Read more…]

Employee Lawsuits: Why and How

Employee LawsuitsEmployee lawsuits happen. Employees sue their employers for a number of issues, generally centered around discrimination complaints. The complaint may be against managers, co-workers, or even individuals who are not a part of the organization. A local Santa Rosa labor attorney can help you fight back. What types of discrimination might warrant legal charges?

  • Age: Individuals over age 40 are protected in the workplace;
  • Disability: Physical and emotional limits must be accommodated;
  • Pregnancy: The same accommodations given to any injured employee must be given to pregnant women;
  • Race/national origin: Hiring/firing, promotions, training and so forth may not be based on race;
  • Religion: Reasonable accommodations for an employees’ religions beliefs must be made;
  • Sexual Harassment: Harassment directed toward an employee based on gender, sexual preferences, or sexual identification is illegal;
  • Sex: Gender or sexual preference cannot be factored in when considering promotions, training, or hiring and firing;
  • Genetic information: Genetic predispositions toward disease that may incur insurance costs cannot be a factor in employment decisions;
  • Retaliation: Employees who report problems must not be retaliated against.

Employee Lawsuits – Filing Charges

Employees may file charges for discrimination with the US Equal Employment Opportunity Commission (EEOC) or with local agencies here in California. Your attorney will know the best route to proceed.

California Laws on Employee Lawsuits

In California, lawsuits against employers are 46% higher than the national average. The reason for this is that state laws are more stringent than federal laws or than many other state laws in the nation. Some of the issues addressed in California state law that are less strict in federal law include:

  • Credit checks: Employment decisions may not be made based on an individual’s credit history;
  • Pregnancy accommodation: Unless the business would suffer a significant hardship by accommodating the needs of pregnant employees, they must adapt the job requirements for these women;
  • Criminal Record: Job applications may not ask whether or not applicants have been convicted of a crime.

Employee Lawsuits and Issues With Retaliation

The number of lawsuits that charge retaliation is astounding; nationwide, 45.9% of charges include this claim. Victims assert that they are passed over for promotions, training opportunities, and raises because they have become a thorn in the side of management. Even if the accused harasser is dealt with effectively, businesses are at risk of retaliation lawsuits if those who report discrimination are held back after their complaints are filed.

Nationally, nearly one in four lawsuits result in payouts based on discrimination, averaging $160,000 for each case. Most of these lawsuits are resolved in less than one year. [Read more…]

When Employers Claim Employees are Independent Contractors

independent contractorsFor some companies, labeling employees as independent contractors has not turned out to be such a great money-saving idea after all. Some companies will do anything to save themselves a buck, even if it harms workers and violates state and/or federal law. This appears to have been the case for CMI Transportation, K&R Transportation California, and Cal Cartage Transportation Express, all subsidiaries of NFI Industries,

Claims in the Case

According to court documents regarding these port-trucking companies,workers were classified as independent contractors, and were then hired to get products transported. This saved the companies a boatload of money, but how?  

The Cost of Doing Business

The Bureau of Labor Statistics determined that wages account for roughly 70% of employee compensation, while benefits take up the additional 30%. So, if employers can avoid benefits that are mandated by law, such as Social Security, unemployment insurance, workers’ compensation, and Medicare, they can really make out well. Additionally, they never have to go to the bargaining table to discuss issues like vacation pay, sick pay, pensions, paid leave, and the like.

Employees or Independent Contractors?

With the huge savings associated with hiring independent contractors, why does every business not label workers that way? The fact is that making such determinations is not a matter of personal choice. There are legal questions to consider. Answering yes to one or more of these questions likely means workers are employees, deserving of all benefits the law dictates:

  • Is the business reliant on the work in order to do business? Someone who lays carpet in a department store is not essential to daily business operations, whereas clerks and warehouse workers are.
  • Is termination without cause a right of the employer? If so, the worker is not an independent contractor who can only be terminated only if the terms of the contract are violated.
  • Is the worker considered to be semi-skilled or unskilled? If so, they are the target audience for protections by the California Unemployment Insurance Appeals Board.
  • Did the employer train the worker? Independent contractors usually provide a service for which they are already certified.
  • Is the worker expected to provide his or her own supplies for the job? Employers do not generally provide tools and such to independent contractors.

Independent Contractors and the Consequences of Misclassification

In California, there is a big price to pay when employers intentionally misclassify their workers. In one case, a judgment for $13 million was won when janitors were misclassified as independent contractors by a couple of companies. What will happen in the trucking lawsuit remains to be seen. [Read more…]

California Firefighter Responds to Sexual Orientation Discrimination with Legal Action

sexual orientation discriminationSexual orientation discrimination lawsuit. The demands on firefighters are difficult to imagine. They put their lives on the line in a myriad of situations on a regular basis, in the interest of serving the public. So, when they suffer discrimination and harassment back at the station or during training sessions, it is especially alarming. Legal support may be the best option in such instances.

Sexual Orientation Discrimination – Attacks

When Captain Dru Snider was harassed mercilessly at a fire camp in California, he says it impacted him so severely that he considered committing suicide. Instead, he decided to fight back, and filed a complaint with the department.

A report provided by Cal Fire determined that the environment was, indeed, disruptive, and that some workers were actually physically ill as a response to the leadership there. Reporting issues and requesting intervention resulted only in shunning the victim, who was reproached for  “flaunting” his homosexuality, and told “his kind” was not welcome at the camp. Ultimately, Snider filed a lawsuit against Cal Fire, alleging discrimination.

Sexual Orientation Discrimination and Sexism

In a separate case, firefighter LisaMarie Mason claims she has suffered through years of sexist remarks from her bosses and has been passed over for training opportunities that her male counterparts received simply because she is a woman. In addition to comments about women belonging in the home, and “jokes” calling her Homeplate, because everybody scores, Mason claims to have experienced physical assaults. Her grievances regarding department sexism resulted only in further harassment, so she ultimately decided a lawsuit was her only vehicle for justice.

Mason’s complaints are currently being investigated, and all parties are mum to the press. The complaint alleges a hostile environment in which sexism is rampant, along with discrimination, retaliation, and assault.

More Discrimination in San Francisco

Yet another claim of sexism involves a romantic relationship between Sam Romero, the Battalion Chief, and a female firefighter under his command. It seems the relationship was problematic for other firefighters, who claim Romero gave the woman preferential treatment and interfered with training and supervision by other senior employees. This, in turn, led to an abusive, hostile environment, putting the safety of employees at risk. As morale declined, the woman claims to have been the target of cruel attacks, such as individuals urinating in her bed.

Ultimately, eight firefighters were transferred to other stations, causing shame and an examination into their personal integrity. They responded by filing a legal suit alleging sexism, retribution, and a hostile work environment. [Read more…]

Wage Disputes in California

wage disputesWage disputes are avoidable. Employers are required to pay employees their due on time. It just makes sense, and the principle is supported in both state and federal law. Nonetheless, wage disputes are not uncommon in California. If you find yourself fighting for earnings to which you are legally entitled, a local employment attorney may be worth visiting.

Wage Disputes – When is Pay Due?

Every employer has their own systematic pay schedule for salaried, hourly, and commissioned employees. Whatever schedule has been agreed to should be adhered to, including agreements regarding bonuses, vacation pay, and/or benefits.

As a general rule, hourly employees are paid twice monthly, or, in particular situations, once monthly.

Work periods should be paid for on paydays immediately following the work period.  For example, work done from the first to the 15th of a month should be paid for within the following ten days.  If a particular payday happens to fall on a holiday or a Sunday, paychecks should be available on the following business day. Any payments that are later than this could evoke stiff penalties.

Administrative Pay

For administrators, executives, and other professionals who are paid on a monthly basis, paychecks for a given month of work must be available no later than the 26th day of the month.

Agricultural Workers

Agricultural workers must be paid within one week following work. For work performed between the 1st and 15th of the month, payment must be made no later than the 22nd of the month.

Garment Workers

When garment workers (those employees participating in any aspect of garment or accessory production) are not paid earned wages, they may pursue payment from either the employer or the contracting company as per California Labor Code 2673.1.

Subcontractors

Similar to garment workers, subcontractors’ employees may be able to receive payment from a general contractor if the subcontractor is unlicensed.

Temporary Agencies

Employees put to work by a temporary service are to be paid on a weekly basis, unless the job assignment is merely day-to-day work. In that case, wages should be paid at the day’s end.

Wage Disputes Over Wages After Being Discharged

Unless an employee resigns while under a contract for a defined time period, an employee who quits without notice is entitled to owed wages within 72 hours. For workers who provide 72 or more hours’ notice, payment may be expected at the close of the final workday.

Penalties for Employer Who do Not Pay on Time

Employers could get stuck with much more than the original wage due if they lose a wage dispute.  

  • They could pay an additional 30 days of wages;
  • They could be responsible for interest on late wages;
  • The court could assign them all attorney’s fees and court costs;
  • The manager or an agent of the company could be fined $1,000;
  • That manager or agent could face six months of imprisonment.

[Read more…]

Suing Your Employer

suing your employerSuing your employer? If you have had your fill of the treatment you are getting at work, perhaps you have considered a lawsuit. If so, gear up: It is going to be a battle, and you need to prepare for what is ahead. After all, chances are your employer is not going to roll over and admit to wrongdoing. Here is how to prepare:

Evaluate Your Circumstances Before Suing Your Employer

You and an attorney experienced in employment law need to sit down to look over your claim:  Do you have a valid complaint? Has your employer violated protected rights under state or federal law? Are you dealing with harassment, wrongful termination, or discrimination? These and other issues may be worth pursuing in court. What legal theory will you proceed under?  Developing a strong rationale is central to success. Additionally, it is important to know whether or not you are within the statute of limitations. If the time to file suit has expired, you are most likely out of luck.

Consider the Evidence Supporting Your Case Before Suing Your Employer

What kind of documentation do you have to prove that your employer has acted outside the law?  Assemble any records, photographs, recordings, and other pieces of evidence that support your claim. Make a list of potential witnesses to the violations, as well. They may be asked to testify in order to verify your complaint.

Consider Your Emotional and Physical Stamina

There is nothing easy about a lawsuit, in all frankness. Before proceeding, you need to feel sure that you want to go forward. It will take time and energy. It may wear on your psyche, and may strain relationships. Sometimes suits are quickly settled, but they often take months or even years to resolve.

Think About Backlash

Is there a possibility of a countersuit? It is not uncommon for those under attack to seek revenge in the form of a defamation suit, for example. Beyond that, it is entirely possible that a lawsuit will cause discomfort or outright resentment among some colleagues. You must plan for the possibility of feeling ostracized, or worse.

Consider the Outcome of Suing Your Employer

Are you suing as a matter of principle? Do you want to teach someone a lesson? Would you like an apology? Is public shaming a desired outcome? Are you interested in improving things for the next person who works for that employer? Is it financial gains you are interested in? You may be entitled to satisfaction on all counts. Be sure you know exactly what you would like to have happen at the conclusion of the suit. It can clarify your attorney’s approach, and determine whether or not settlement discussions are worth pursuing. [Read more…]

Avoiding a Legal Crisis

legal crisisLawsuits are every business owner’s worst nightmare of a legal crisis. Contemplating the hours and dollars that become lost to legal challenges can set a CEO’s head spinning. The truth of the matter is that many lawsuits and the associated headaches can be avoided with some smart moves early on.  For those lawsuits that simply cannot be sidestepped, there are ways to protect personal finances if you just make some informed choices from the get-go.

Avoid a Legal Crisis by Choosing the Right Business Setup

Bankruptcy is a real possibility for anyone who sets up a business as an individual or a partnership. Avoid this disaster by incorporating and/or creating a limited liability company (LLC). This simple step protects your personal assets from claims made against the company and other debt.

Respect Your Employees

When you treat people as valued members of the work community, you are less likely to create the feelings of resentment that often precede the filing of a lawsuit. While nothing can ensure protection from being sued, dealing respectfully with others, even in the face of necessary discipline or bad news, can only increase the chance that you are admired and respected in return.

Discrimination Will Lead to a Legal Crisis

Make sure the message is strong and clear from the top down: Discrimination will not be tolerated. That applies to race, culture, gender, sexual orientation, religion, and any other category you can name. Managers who hate piercings need to keep their opinions to themselves; chauvinists must set a cordial tone at work. As the business owner, you set the culture of the workplace. Let it be known that every member of the team is to be treated fairly at all times.

Put Policies in Writing

If everyone knows the expectations in the workplace, you are much more likely to get compliance. Beyond that, your written policy backs you up in the event discipline is required.

Comply with Accessibility Laws

The most common lawsuits filed against California businesses deal with ADA compliance issues. The Americans With Disabilities Act was written to protect individuals and to provide equal access and opportunity. If you have questions about whether or not there are accessibility problems, have an evaluation of the property done and get a written legal opinion as to the acceptability of the premises to ADA regulations.

Document Employee Discipline and/or Termination

When an employee feels wrongfully terminated, the best way to save yourself from an ensuing legal crisis /retaliation is to have a well-documented paper trail proving that you proceeded through the termination process with due diligence.

Think Twice about Advertising Strategies

Be aware that if you make claims about other companies, and those statements have an adverse impact on their profits, you could be sued. Before you say something you might regret, have an experienced business attorney review the content of your message. [Read more…]

Gender Bias and Discrimination at Paramount?

Gender BiasWhen gender bias rather than qualifications and experience influence workplace decisions, companies will face legal challenges to their practices. If you believe you have been held back due to your gender, an experienced employment attorney may be worth consulting.

The Case at Paramount Pictures

Paramount Pictures is facing a gender bias and discrimination lawsuit. The former head of marketing and distribution, Megan Colligan, claims that a culture of gender bias led to her last days with the corporation.

Plaintiff’s Claims of Gender Bias and Discrimination

The suit alleges that female employees are consistently overlooked for promotions. A case in point involves Brad Grey, who left the company in the spring of 2016 and was replaced by Jim Gianopulos. Since that event, four women have resigned from their executive positions. Colligan believes that systemic discrimination at Paramount must be remedied, and vows to fight for the rights of women until the organization is revamped and the matter is resolved.

Paramount’s Rebuttal to Gender Bias and Discrimination Claims

In the meantime, Paramount has promoted a number of women to prominent positions:

  • Mirelle Soria will head the animation department;
  • Elizabeth Raposo was promoted to be the president of production;
  • Syrinthia Studer will lead acquisitions.

California Law on Gender Bias and Discrimination

Both state and federal law prohibit discrimination in the workplace. In California, the Fair Employment and Housing Act (FEHA) clearly defines the legal requirements for employers with regard to discrimination:

  • It applies to all private and public employers, employment agencies, and labor groups;
  • Companies with five or more employees may not discriminate or retaliate against someone in a protected category;
  • Harassment against such an employee, volunteer, intern or contractor is prohibited.
  • All business practices must be free of discrimination and/or bias, including:
    • Advertising;
    • Applications, job screening, and job interviewing;
    • Hiring, promotions, transfers, separation of workers, or termination;
    • Ability to participate in job training, apprenticeship programs, or other workers’ organizations;
    • Compensation and workplace conditions.

Dealing with Discrimination

When workers do experience discrimination or harassment, they are entitled to file a complaint with the human resources department, or to even sue the company. A number of potential remedies may be attained, including:

  • Remuneration for the differential in pay;
  • Lost past and/or future earnings;
  • Reinstatement after losing a job;
  • Promotions previously denied;
  • Changes in company policy:
  • Training opportunities and fees;
  • Punitive damages;
  • Emotional distress;
  • Court costs and attorney’s fees.

[Read more…]

Immigration Sweeps and California Employers

immigration sweepsCalifornia employers warned to steer clear of immigration sweeps. California’s Attorney General Xavier Becerra has made it clear that employers are not to assist federal ICE agents with illegal immigrant roundups. If they do, he cautioned, they could face fines of as much as $10,000, along with other legal consequences.

Immigration sweeps – California Employers Between a Rock and a Hard Place

Employers in California have been caught in the middle of conflicting state and federal expectations. While Becerra promises prosecutions for violations of state laws, federal immigration agents continue to expect cooperation as they search for undocumented immigrants.  Current acting director of Immigration and Customs Enforcement (ICE), Thomas Homan, has threatened that Californians need to hold on tight, asserting that federal agents are determined to protect local communities in spite of sanctuary laws. The battle between state and federal agencies puts employers in a tough spot when asked for information about and/or access to employees.

Immigration sweeps and California Immigrant Worker Protection Act

California’s governor signed the Immigrant Worker Protection Act into law in January of this year. It spells out the legal requirements of employers toward their workers, irrespective of their immigration status. Essentially, employers are not to assist in any activity that would result in an employee being detained while at work. The specifics of the bill spell out the employer expectations to:

  • Ask to see a warrant before giving ICE agents access to the site;
  • Not give out confidential employee information to ICE agents unless subpoenaed to do so;
  • Not re-verify information on employment forms without federal coercion.

Furthermore, the exclusive authority to enforce state labor laws has been given strictly to the state attorney general and the state labor commissioner, leaving federal authorities with no authority.

Immigration Sweeps – ICE Raids California Businesses

In the span of just five days, 122 businesses were swept up in the federal government’s clampdown on undocumented immigrants. Over 200 arrests took place in Southern California businesses. ICE agents explained that any alien found to be in violation of United States immigration laws was subject to deportation, regardless of other crimes, or the lack thereof.

Immigrations Sweeps – Be Prepared

California employers are urged to be ready for potential interactions with federal agents. Both supervisors and employees need to be aware of their obligations under the Immigrant Worker Protection Act, and should be instructed to ask agents for subpoenas or warrants when required by California law. Furthermore, employers should be prepared to address all pre- and post-inspection requirements. [Read more…]

Workplace Gender Discrimination

workplace gender discriminationWomen in this country face workplace gender discrimination on a regular basis. In fact, over 40% of women report encountering work-place discrimination at some time in their lives. If that is something to which you can relate, the services of an experienced employment attorney may be helpful.

What Workplace Gender Discrimination Looks Like

This is a many-headed monster, impacting women with a bachelor’s degree at much higher levels than women with less education. Those with post-graduate education report discrimination at still greater levels. Overall, women submit that they come head to head with discrimination in a variety of forms:

  • Lower earnings for the same work (25%);
  • Treated as if incompetent (23%);
  • Being slighted repeatedly in the workplace (16%);
  • Not being supported by senior management (15%;
  • Being overlooked for key assignments (10%);
  • Feeling isolated at work (9%);
  • Failing to be promoted (7%);
  • Not getting hired (7%).

Why Workplace Gender Discrimination is so Prevalent

One theory states that stereotypes begin at birth and are nurtured throughout a female’s lifetime, eventually reaching fruition as gender discrimination in workplace situations. This makes sense when you think of pink and blue baby blankets, dolls and Hot Wheels, ballet class and karate class. Gender grooming through advertising, opportunity, and social beliefs feed female employment choice expectations. Research abounds demonstrating the imbalance in focus toward boys in math and sciences and many programs such as debate, sports, and science focus on male participation in secondary schools, while females are encouraged to do volunteer work.  Ultimately, college courses in business and technical fields are dominated by males, whereas females fill courses related to caregiving areas such as education and nursing.

Once women make it into a profession, they often lack female role models and have to fight to make it to the top. Are trends changing? To some degree, yes. Women have taken the lead over their male counterparts when it comes to business startups. Even so, they tend to go into fields customarily viewed as “female” work. Those who do break into a male-dominated field often find themselves battling sex and gender discrimination at surprisingly high rates.

Doing Away With Workplace Gender Discrimination

Without a doubt, women are underrepresented in high-level positions in this country. When it comes to Fortune 500 companies, only 5% of CEOs are female. Females do slightly better attaining executive positions, with 15% of women scoring those jobs. This is troubling when considering the influx of women into the workforce in recent decades. While plenty of organizations have instituted training programs to battle discrimination, the evidence suggests that women still have bias to confront, whether conscious or not.

What is a well-intended CEO to do? Diversity training is a good starting point, but it should not stop there. Other approaches include:

  • Mentoring programs;
  • Diversity committees;
  • A staff position dedicated to diversity;
  • Having joint committees to look at hiring and promotion decisions;
  • Acknowledging bias issues and addressing them publicly.

[Read more…]

Disclaimer

The information on this website should not be considered to be legal advice, nor construed to be the formation of any manner of attorney client relationship. Prior to taking any form of legal action, please consult with an attorney experienced in the appropriate area of law germane to your situation. Case results and testimonials presented on www.californialaborandemploymentlaw.net or any of its related websites are germane to the facts present for each individual case and is not a promise of similar outcomes for any other cases. This website is not intended to solicit clients for matters outside of the State of California.