Asian Descent and Discrimination

asian descentWhen fellow police officers made fun of Asian accents and disparaged the Asian culture and community, five law enforcement officers of Asian descent finally had enough. The offended officers, a group of current and former employees of the San Gabriel Police Department, (SGPD) filed a lawsuit against the department. If you are facing a similar dilemma, you deserve strong legal counsel.

Asian Descent – Specific Claims

According to the suit, the discrimination and harassment had been going on for decades, and individuals of Asian descent felt intimidated and unable to report the problem. When two individuals did stand up for themselves, they allegedly experienced retaliation and were rebuffed when they applied for various job assignments. Because the department did not satisfactorily deal with this culture of harassment, a lawsuit became the only way to seek redress.

According to the plaintiffs, inappropriate and, indeed, illegal discrimination and harassment was a daily part of the job. Included in the list of offenses:

  • Joking about physical features of Asian people;
  • Using racial slurs;
  • Making fun of Asian accents;
  • Making flippant remarks related to Asian stereotypes regarding intellect;

Not only did the rank and file participate in this harassment; managers were regular offenders, as well. Furthermore, Asian officers state that their work was scrutinized more closely than their colleagues, and they received harsher disciplinary action than non-Asian peers for similar infractions. This is particularly disturbing considering the fact that the SGPD serves a primarily Asian community; where over 60% of the population is of Asian descent. (The department reports that only 14% of its full-time officers are of Asian descent).

The Roots of Discrimination Towards Those of Asian Descent

Researchers connect discriminatory behavior with perceptions of threats to economic well-being and security. Beyond those kinds of deep-seated fears, media portrayals of Asian Americans are frequently far from favorable, making Asian men appear to be submissive, and even docile.  Asian stereotypes are reinforced, and their human emotion and values are disregarded. Experts link these attitudes to discrimination for Asians in this country, pointing to the fact that Asian Americans have been the target of a rising number of hate crimes in recent years.

Federal Law

The Civil Rights Act of 1964 specifically prohibits discrimination in the workplace on the basis of race or ethnic origin. In the case of the San Gabriel Police Department, the implications go beyond the impacts of discrimination on employees. Some wonder at the impact of such attitudes on the community at large. Surely, it is not inconceivable that problems go far beyond employment issues in this case. [Read more…]

Discrimination Against Pregnant Women Does Not Pay off in the Workplace

pregnantIs your job at risk because you are pregnant? If so, your employer may face some trouble with the law. Only an experienced local employment attorney can say for sure after reviewing the circumstances of your particular case. The fact is, employers have tried to get away with ignoring or even stomping all over women’s rights, and it has not worked out well for them in California.

Jury Award for $185 Million

Consider the case of Rosario Juarez, who sued her employer, AutoZone, after being demoted shortly after giving birth to her son. Juarez states that her boss consistently suggested she step down from her management position due to her pregnancy. When she complained about the prompting and the demotion and filed suit, she was ultimately fired. A jury found that the company had discriminated against her and terminated her in retribution, awarding her nearly $900,000 to compensate her for lost wages and emotional suffering, as well as $185 million in punitive damages. AutoZone was set to appeal the decision, but the two parties came to an agreement for an undisclosed settlement in order to avoid further litigation.

Refusing to Hire Pregnant Applicant Results in Lawsuit

When executive management at Olam Americas, Inc. rescinded a job offer after discovering the applicant was pregnant, the United States Equal Employment Opportunity Commission (EEOC) got involved. They sued the Fresno company in hopes of gaining compensatory and punitive damages on the basis of gender discrimination. The case centered on the Pregnancy Discrimination Act, which prohibits discrimination on the base of gender or pregnancy.  Ultimately, the case was settled for $140,000.

Fired After Giving Birth

A few days after Leah Marshall delivered her infant son, she received a distressing phone call from her manager. Although she had been promised that she could return to her position with Genesco Inc. following the birth of her son, she was now told that there was simply not a spot for her with the San Francisco company. Apparently, company bigwigs did not understand that any discrimination based on pregnancy, childbirth, or problems related to those conditions is illegal under EEOC rules. The EEOC suit sought damages to cover lost wages, emotional suffering, and punitive damages. A federal judge approved a settlement for $5,000 in lost wages and $20,000 for emotional distress. Managers were also ordered to undergo training to avoid future problems with discrimination issues related to pregnancy. [Read more…]

California Employees’ Right to Organize a Union

labor unionUnion organization changed the lives of California workers decades ago. Arguably, it was the work of those early activists that propelled many of the working class into the middle class, providing them with opportunities to own their own homes and earn disposable income. Despite the heroic beginnings of the union movement, only 16% of today’s California workers carry union cards. If you are experiencing illegal employer actions to block your efforts to organize labor, you may wish to seek the counsel of a local labor attorney.

Dreams of Historic Union Organizers

Caesar Chavez famously fought for the rights of farmworkers, and Harry Bridges was on the front lines advocating for longshoremen. They, and others like them, organized strikes and other actions to improve working conditions and wages for American workers. Pat Brown endeavored to eliminate employers’ right to make employment decisions based on skin color. Anna Smith led demonstrations protesting the horrendous conditions during the depression.

Despite these gallant soldiers of the working class, union membership is in serious decline. Likewise, the median income of California workers has experienced a parallel decline, along with a drop in homeownership rates.

Starting a Union

Forming a union is within the rights of every American worker. Employees are allowed to discuss and push an agenda putting forth the ideas surrounding organizing as workers. If you wish to start the wheels turning, here are some important tips worth heeding:

  • Be aware of your rights, and have clear goals;
  • Create an organizing committee and gather information about the workplace structure, employee contact information, and facts about the employer’s union history;
  • Create a platform highlighting the issues you’d like to address;
  • Investigate local unions and determine which one is best for you;
  • Solicit input from a local union organizer;
  • Sign up a majority of workers quickly so elections can be held;
  • Signed cards are required to petition the labor board or the state for the ability to hold an election. This may take some weeks, so keep the fire burning:
  • Negotiate a bargaining contract with the employer.
  • Keep employees organized and motivated.

Employer Resistance to a Union

Despite state and federal laws permitting employees to organize in this fashion, many employers resist such movement. They may put a lot of money into a campaign to destroy organizer’s momentum. While they have every right to defend their position, employers may not:

  • Threaten organizers;
  • Limit free speech during employee breaks;
  • Make employment decisions based on union activity;
  • “Get even” with organizers in any way.

[Read more…]

Limiting Political Discussions in the Workplace

political discussionsLimiting political discussions in the workplace? It seems that everyone has an opinion on the current state of affairs in Washington, not to mention right here in California. Employers and employees alike may be experiencing some discomfort as the temperature rises in some of these discussions, and one might wonder if limits on speech in the workplace are a reasonable, desirable, or even legal option.

Political Discussions and the First Amendment

Censorship of free speech is against the law, right? Well, not necessarily. Constitutionalists generally agree that the first amendment applies to government censorship. That means that a company is entirely within its rights to limit, or even banish political discussions in the workplace entirely. The rationale behind such regulations generally relates to productivity and efficiency. While state and federal laws guarantee employees protection from discrimination based on political affiliation, employers may sanction or even fire an employee who disrupts the workplace, lacks efficiency, or engages in practices that create a conflict of interest with the company. That being said, California Labor Code prohibits policies that direct or control employees’ political activities.

Wearing Political Buttons at Work

Again, employers have the right to dictate the dress code in the workplace, which means policies that ban political buttons, t-shirts, and so forth are allowable. Of course, an employer cannot pick and choose, allowing some political views to be put on display and disallowing others.

On the other hand, the National Labor Relations Act (NRLA) expressly allows for the right of employees to wear items associated with their labor union in the workplace. Although unions are somewhat political organizations, union members may wear union-sponsored buttons or other apparel that send political messages.

Political Discussions During Lunch?

You would think that during your lunch hour in the break room, you could say whatever you would like, but you would be wrong. Employers are tasked with making sure employees in protected categories do not feel disaffected. If an employee were to state, for example, that it is a good thing Hilary Clinton was not elected because she is a woman, it could mean trouble. Why?  Because the comment centers on a protected factor – gender. Women who hear the comment could take offense or feel alienated due to gender discrimination. Employers would be wise to have strong anti-discrimination and anti-harassment policies in place and to quickly investigate complaints and rectify situations that cause discomfort among workers.

Are Off-Duty Political Activities Protected?

In California, employers may not intimidate or prohibit workers from engaging in legal political activities, including managing a campaign or running for office. [Read more…]

New Employment Laws to Benefit Employees

new employment lawsNew employment laws for 2018. If you are an employee who feels that unfair or illegal procedures have impacted your success at the workplace, you are not alone. Studies indicate that across the nation, nearly 12% of businesses experience a legal challenge to business practices at some point; California’s rate is 40% higher than the national average. If you find yourself wondering whether or not your legal rights have been violated on the job, discussing your concerns with a local employment attorney may be helpful.

2018 Rings in New Employment Laws

Several new employment laws went into effect in January that may positively impact employees. A few important ones include:

  • AB 1008: This law applies to employers with more than four employees, and deals with the actual application process. Now, questions related to criminal history prior to employment are banned, except for positions where a background check is required by law (such as public education, law enforcement, etc.). After a conditional offer of employment has been made, an employer may investigate an applicant’s criminal history, but cannot refuse employment without first determining that the criminal history would have a direct impact on the performance of job duties, giving the applicant a written explanation of the reason for the rejection, and providing an opportunity for the applicant to contest the decision, providing a second written determination of the final decision not to employ the applicant.
  • SB 63: This law, which applies to employers with more than 19 employees, requires eligible workers to be offered as much as 12 weeks of unpaid leave to bond with a new child. Whether the child was adopted, is a foster child, or is a newborn to the employee, this leave is now available. While on leave, employers are required to pay for health care coverage under any group plan. Following the leave, the employee is guaranteed an equivalent position back in the company.
  • SB 179: Residents of the state may now choose one of three options to identify their gender on state I.D. cards and birth certificates: male, female, or nonbinary. (The same will apply to driver’s licenses in 2019). Changing one’s gender on other legal documents is now much easier, as well.
  • AB 46: Public employers are now required to provide the same protections offered through California’s Fair Pay Act (against gender, race, and ethnicity discrimination) that private employers have been held to for years.
  • SB 396: Covered employers must now include information about harassment related to sexual orientation and gender identity and expression in their required sexual harassment trainings.

[Read more…]

The Rights Employees do and do Not Have

Employee RightsWhat are my rights as an employee? Is your employer crimping your style at the office? Does it feel as though you are walking on eggshells because you are so unsure of what is ok and what is not? Sure, everyone knows discrimination is illegal and that the workplace has to accommodate for disabilities. What about the nitty-gritty things that nobody ever talks about? Uncertainty is an ugly companion on the job; it is better to clarify your rights at work from the get go. If serious concerns arise, a local employment attorney could help.

These Activities Fall Within Your Rights:

  • Discussing working conditions: If you have concerns about safety conditions, are curious about how much money your co-workers make, or believe certain policies are unfair, you have every right to discuss those issues with your colleagues. If you have been forbidden to do so by policy or contract, there is a good possibility your employer is breaking the law.
  • Keeping copies of signed documents: When you hire on with a company, they may ask you to sign a mountain of paperwork, from arbitration clauses to confidentiality agreements. Make sure you get copies of everything you put your signature to, so if problems arise later, you are clear about what their expectations are, and you can better evaluate how you will handle disputes.
  • Having a copy of the employee manual: Are you required to read and know what is in the employee manual? If so, you are entitled to have a copy, whether it is a hard copy or an online manual.
  • Receiving overtime pay for hours over 40: If you are an hourly employee, you must be paid time and a half for any hours exceeding 40 in one week. Employers sometimes try to get around paying for overtime by misclassifying workers as salaried, requiring employees to complete duties off the clock, requiring both exempt and non-exempt duties in your job description, and a multitude of other tricks.

These Activities are Not Protected at Work

That does not mean, however, that employees have free reign at work. There are plenty of activities in which employees assume they can engage, but that could get them into legitimate trouble with the boss.

  • Complaining about your job: You can actually be fired for complaining about problems at work if those problems are not the result of illegal behavior. So, if you want grouse about how unprofessional your boss is in his or her attire, bite your tongue. Even away from work, those kinds of comments can get you canned.
  • Getting into an argument with a co-worker: Whether talking about politics, education, or any other topic, do not assume you can freely spout your opinions. You are being paid to do a job, not change the world with your views on the state of the White House. Avoid disputes that should not be occurring in the office.

Protecting Workers’ Rights

At Beck Law P.C., we work hard on behalf of clients whose workplace rights have been violated. If you need legal advocacy in Sonoma County, Mendocino County, or Lake County California, contact us in Santa Rosa today.

Ethical Issues Can Lead to Legal Consequences in Business

ethicalEthical considerations sometimes get pushed aside when an organization’s managers makes decisions based purely on a cost-benefit analysis. In such instances, the bottom line may ultimately suffer, anyway. Why? If legal lines get blurred as the ethics fade away, lawsuits could spring up, costing much, much more in the long run. If you are concerned about ethical failures with regard to the policies that govern standard operating procedures at a local corporation, an experienced business attorney may be able to help.

Lapse of Ethics – Enron and Ford

Companies large and small are not immune to these hiatuses from sound judgment. Unfortunately, consumers often have to pay a high price before these businesses are reined in.

Enron

When the Securities and Exchange Commission investigated Enron for questionable bookkeeping practices, it was discovered that high-level executives were doctoring the books to hide losses and liabilities from stockholders. The company was eventually bankrupted, and key leaders of the corporation were tried on multiple counts of money laundering, bank fraud, conspiracy, and insider trading. Convictions ranging from 25-45 years were handed down to Kenneth Lay, Jeffrey Skilling, Andrew Fastow, and other key administrators.

Ford

Another example involves Ford’s efforts to break into the small car market in the 1970s. When the company’s crash data on the Pinto car revealed dangers associated with rupturing fuel tanks during rear-end collisions, Ford managers had to decide whether to address the problem or to go forward with production. The decision was made to proceed. The business thinking was methodical and completely void of ethical considerations; the costs associated with redesigning the vehicle exceeded projected costs associated with potential lawsuits down the road. That decision resulted in 900 injuries and dozens of deaths when fiery crashes occurred on roadways across the country.

The fallout for Ford was massive. 1.5 million Pintos were recalled, and Ford paid a legion of lawyers to defend them in court. After fighting criminal charges and numerous civil cases, Ford far outspent the $137 million it would have cost them to fix the car before releasing it to the public. In fact, just one California jury awarded a $128 million verdict. Many other cases were settled for undisclosed amounts, but it can be surmised that the decision to put the Pinto on the road cost Ford a pretty penny. Beyond that, Ford’s reputation was crushed.

What Constitutes an Ethical Issue?

When a lack of ethics leads to decisions that cause serious harm to the public, legal proceedings may ensue. In public service, the primary violation relates to bribery, and is punishable by two to four years in prison. [Read more…]

8 Common Errors for Employers to Avoid

ErrorsEmployer errors to avoid. Employment laws are written to ensure the safety and fair treatment of everyone in the workplace. When employers fudge their policies, it can open them up to potential lawsuits, and experienced legal assistance will be needed. Here are some key errors every employer should avoid:

  • Improper employee classification: Just because an employer wants to list everyone as exempt, it does not make them so. Only high-level administrators or professionals generally qualify for this classification; everyone else is entitled to rest and meal breaks, as well as overtime pay. Failure to pay overtime is a key issue that lands employers in court.
  • Independent contractor classification errors: Not anyone can be an independent contractor.  This classification is determined based on who holds the decision-making power as to how the work is performed. Additionally, consideration is given to the degree to which the person’s work is integral to the daily business of the company. Someone who paints the office is an independent contractor. Someone who contributes to the product your company sells is an employee.
  • Neglecting to train supervisors about harassment or discrimination: If you have 50+ employees, there is a legal requirement to provide sexual harassment training every two years.  Even if you have fewer employees, providing such training reduces your exposure in the event of a lawsuit.
  • Terminating employees who take leaves of absence: Employers are legally required to provide leave for a number of life events, including military leave, pregnancy, family and medical leave, disability, and others. Employees are entitled to return to their positions, or an equivalent position, following leave.
  • Insisting on non-compete agreements: Sorry, these are prohibited in California, except in very limited circumstances. You cannot force someone to stay with your company or restrict their ability to work elsewhere.
  • Eliminating vacation days that are not used: Employees in California are allowed to accrue vacation days with the expectation that they will be paid out at the time of termination at the current salary rate. Although accrual may be reasonably limited, it cannot be eliminated altogether.
  • Deducting unauthorized amounts from paychecks: California law provides for withholding taxes, insurance, wage garnishments, child support orders, and other specific items. It is unlawful to require loan repayments to the company through deductions.
  • Withholding a paycheck if an employee has not returned company property: Let us say an employee is terminated, yet still has possession of company property such as a cellphone, tools, or other items. Employers are not justified in hanging onto that employee’s final check.  California law requires a final check to be available within 72 hours of termination. You will have to pursue the return of your property in another way.

[Read more…]

California Fires: When Natural Disasters Impact Your Ability to Return to Work

california firesCalifornia fires have had a disastrous effect on natural structures and communities. In addition to the many homes that have been devastated, businesses have been destroyed as well, leaving many Californians without jobs. If you are one of the many residents of this state who have lost not only a home, but your livelihood, you may be wondering what the obligations of your employer are in terms of salary and leave during this fire disaster.

California Fires and Wage Laws

Under California law, when a natural disaster occurs, employers must pay reporting time pay as per the Wage Order. This means that as employees are scheduled to return to work and they show up ready to work, but are not able to be put to work, or are allowed less than half of their usual work hours, they must be paid half their usual wage. At a minimum, they must be paid for two hours of work at their normal rate of pay. So if, for example, an employee works one hour out of an eight-hour shift, payment for four hours is required. However, if the employee chooses to leave early, this requirement becomes null. If the employee leaves early due to illness, the company’s sick leave policy would then potentially come into play.

When employees are required to attend meetings on days in which they normally do not work, they may be entitled to anywhere from two to four hours of regular pay.

California Fires and Exceptions to Reporting Time Pay

There are certain circumstances under which employers are not expected to pay overtime pay:

  • When persons or property are threatened and authorities determine that work may not begin or continue;
  • When public utilities such as electricity, water, gas or sewer are inoperable;
  • When the problem that caused the work disruption is an Act of God, such as an earthquake.

When Employers do Not Pay Reporting Time Pay as Required

Employees are protected by California law and must be paid under the circumstances described. When employers fail to meet their obligations, individuals may file a wage claim with the Labor Commissioner’s Office, or they may sue their employer to recover lost reporting time pay owed to them.

California Fires – What if Employers Retaliate?

Federal law prohibits discrimination or retaliation against employees for attempting to collect owed monies. If an individual experiences these types of issues, or is fired altogether, it is yet another reason to file a lawsuit against the errant employer. [Read more…]

Office Party that Will Not Lead to Lawsuits

office partyAfter a year of hard work and decent profits, many companies celebrate in December with a holiday office party. Unfortunately, sometimes an office party can bring out the worst in employees and their bosses. If your office festivities take an ugly turn, what are possible consequences? A local employment attorney can answer this question.

Office Party – Questions Managers Should Consider

To minimize the possibility of ugly scenes, managers and party planners should consider some key questions:

  • Should alcohol be served? If so, will there be limits?
  • Will the company provide safe transportation home after the festivities?
  • How can you avoid discrimination issues with Christmas parties?
  • Can employee behavior at a company party result in termination? If so, on what grounds?
  • Can pictures of the party be posted on social media after the event?

Avoiding Legal Issues

Clearly, circumstances differ for every business. Experts suggest that alcohol-related problems can be avoided by holding a breakfast or lunch party. If you really want an evening event, consider these guidelines to avoid legal liability after your gathering:

  • Refer to the event as a Winter Celebration or even a Holiday Party, not a Christmas party.
  • Avoid “open bars.” Instead, opt for a cash bar or provide a limited number of tickets to be exchanged for drinks.
  • Advise professional bartenders to check I.D. and report individuals who seem to have over-imbibed.
  • Provide rides home, or hotel rooms, for inebriated partiers.
  • Serve plenty of food, especially if alcohol is on the premises.
  • Invite the employees’ spouses or significant others. It tends to keep people on their best behavior.
  • Advise everyone in writing that workplace conduct standards remain in place at the party. The upshot of inappropriate behavior or misconduct will be disciplinary action.
  • Have a written policy related to social media and privacy issues;
  • Avoid exchanges of gag-gifts or white elephant gifts. There is too great a possibility of sexual harassment issues.
  • Do not hang mistletoe. You are just asking for problems with it!
  • Remind managers to keep an eye on things and make sure questionable behaviors are nipped before they become problematic.

[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.