Transgender Discrimination: A Case Study in California

Transgender DiscriminationImmediately after pronouncing herself a transgender woman, 53-year-old Meghan Frederick experienced transgender discrimination via a lack of respect, isolation, and outright harassment. As a correctional officer in a maximum-security prison, she discovered that colleagues as well as supervisors were more likely to react to her with rejection than acceptance. Ultimately, she felt she had no choice but to file a discrimination lawsuit. If you can relate to this case, you may wish to contact an experienced employment attorney, as well.

Meghan’s Transgender Discrimination Story

A career in finance segued into a position in the California Department of Corrections and Rehabilitation for Meghan. There, colleagues welcomed an athletic man. But some years later Frederick began to transition, and after five years announced that she wished to be identified as a woman.

Since then, sergeants, lieutenants, and captains have all misidentified her gender. She filed internal complaints against them, but nothing changed. Her vehicle has been vandalized multiple times since her announcement, as well, signaling the loathing fellow employers feel toward her.  She has spent years walking into rooms in the workplace, only to be ignored or stared at wordlessly. Meghan has been insulted over the intercom and has repeatedly had to correct peers who refer to her as “sir.” The least desirable assignments were given to Frederick, and her movements were frequently restricted for unusual periods of time. More significantly, Frederick claims her life was put in danger.

When inmates witnessed colleagues undermine her and openly disrespect her, it made her a target. In fact, inmates made death threats against her more than once – threats that her superiors failed to inform her about in a timely manner. Typical protocol requires that correctional officers be separated from inmates who have stated they wish to harm them personally. In Frederick’s case, she was not informed of the threats until weeks after they occurred, and she was required to work with the menacing inmates despite the accentuated risks associated with such threats.

Options When Transgender Discrimination / Discrimination is Pervasive in the Workplace

Why not find another job, some might wonder. Frederick says she will not be bullied. She is proud of herself and her work, and refuses to back down to transgender discrimination and retaliation. Frederick believes that fighting back through the courts will improve life for her, but the impact of the transgender discrimination suit may have much larger implications. Transgender men and women throughout the country experience workplace discrimination every day. This lawsuit shines a light on the types of behaviors condemned by state law. In California, the California Fair Employment and Housing Act (FEHA) specifically prohibits discrimination based on gender identity. Additional protections are in place related to housing, education, workplace dress codes, bathroom use, and hate crimes.

Aggressive Legal Help for Transgender Discrimination

If you have experienced discrimination in the work place, the law is on your side. At Beck Law, our aggressive employment team will go to the mat for our clients in Sonoma County, Mendocino County, and Lake County California discrimination cases. Contact us in Santa Rosa today for a confidential consultation.

Workplace Age Discrimination

workplace age discriminationLabor law and workplace age discrimination. You have worked for your employer for some time, and you are starting to notice a disturbing trend. Younger employees seem to be passing you by at an alarming rate. Are these colleagues outperforming you, or are you experiencing workplace age discrimination? If you suspect ageism is at the root of the issue, it may be worthwhile to consult an employment attorney for advice.

What is Workplace Age Discrimination?

When individuals who are 40 and older experience roadblocks in the workplace and age is a primary factor, it is age discrimination. Federal law addresses the issue through the Age Discrimination in Employment Act (ADEA). Under ADEA, making age a factor in employment decisions with regard to hiring and firing, promotions and assignments, and compensation and perks is unlawful. In addition to the ADEA, the California Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC) support fair practices for aging workers and potential workers.

Workplace Age Discrimination Complaints on the Rise

If you suspect workplace age discrimination is holding you back, you are not alone. According to the U.S. Equal Employment Opportunity Commission (USEEOC), the number of workplace age discrimination complaints in this country has grown from 19.8%in 1997 to 22.8% of all discrimination complaints. Nearly 21,000 such complaints were filed last year.

Whether or not complaints have been filed, older Americans report that age discrimination is alive and well in America. In fact, nearly 70% of workers aged 45-75 note that they have either seen or personally experienced the problem. Astonishingly, age is cited as one of the biggest obstacle to workers over the age of 35, particularly in high tech industries. The most common form of age discrimination, in fact, is related to not getting hired in the first place.

What We Know About Older Workers:

Research confirms several key points about older workers and what they need and want from their jobs:

  • Most older Americans are working for economic reasons. They need a salary, or benefits, or both;
  • Many older Americans are simply working because they enjoy it, and some are working on building up a nest egg for the future;
  • Older workers want respect;
  • These workers wish to be in a position that utilizes their particular talents and abilities.
  • Older workers report being significantly more engaged in their work than their younger counterparts.

How do I Know if Workplace Age Discrimination is the Problem?

Proving age discrimination requires a significant burden of proof. Some things that may tip your employer’s hand include:

  • Younger workers are being hired to replace fired older workers;
  • You are assigned unenviable tasks in an attempt to get you to leave voluntarily;
  • Your boss informally chats you up and asks when you are planning on moving on to greener pastures;
  • After receiving glowing performance reviews for some time, you suddenly see your reviews take a significant dip. It looks like someone’s building a case to let you go;
  • Everyone around you seems to be getting raises, but your pay is stagnant, despite equivalent job performance.

[Read more…]

Defamatory Job Reference from Former Employer?

Defamatory Job ReferenceIs your former employer going to decimate any chance you have for future employment with a defamatory job reference? Let’s say that you left your previous job under less than favorable circumstances. Obviously, you need to find a new job, and any potential employer is going to want a list of previous work experience, including the last place you worked.

Verifying Work History With Your Former Employer

Your current application is likely going to undergo scrutiny that includes some investigation into previous job performance. Supervisors are legally allowed to share both positive and negative information about a former employee if it is done correctly under the legal doctrine of “qualified privilege.” That means, among other things, that information must be shared in good faith; it must be based on facts, not suspicions, suppositions, or generalizations.

Defamation

A defamatory job reference occurs during background checks when information shared is not necessary for the inquirer to have, especially regarding reasons for resignations or terminations. There are legal doctrines for individuals who provide a reference, and if a former employer goes outside those guidelines, you may have grounds for a defamatory job reference libel suit. A good labor law attorney can help you to determine the validity of your case. Here are some general guidelines:

Relevance: Information shared must be directly related to questions asked and pertinent to the position being applied for. If you were formerly a classroom teacher with horrible classroom management, and are now applying in for a sales position, you ability to control children is not relevant.

Critical to job performance: Minor issues that did not have a serious impact on job performance need not be shared with a potential employer. If applying for an accounting position, and serious calculation errors were a problem in the previous position, by all means, that is information that should be shared. On the other hand, if you had a disheveled desk but produced flawless accounting reports, the desk issue would be unimportant to relay.

Truthfulness: Accurate statements about observable behavior are appropriate; generalizations or personal musings about those behaviors are not. Your former employer may legitimately share a record or excessive tardiness; drawing a conclusion that you are lazy is another matter.

Information shared must be job-related:  Information about your marriage or other non-work issues is inappropriate.

Proper manner of dissemination: Information should always be provided in a proper setting and manner. Chatting at the water cooler in the office where unauthorized ears are lurking would be problematic. Discretion is the bottom line. If it is lacking, the potential for a legal remedy arises.

Defamatory Job Reference? Next Steps

If your reputation is harmed and you are brought into disrepute, you may have been defamed.  The criteria for defamation includes that those statements made about you were either false, or made with malice; the statements were slanderous (made verbally) or libelous (made in written form) to a third party; and the statements damaged your reputation or character. [Read more…]

Gender Wage Gap – California Fair Pay Act

Gender Wage GapThe gender wage gap has been around for a long time, and came to the forefront with Hillary Clinton’s bid for the White House. Although Clinton lost the election, the issue she ran on is still alive and well. Are you a woman who suspects disparate wages due to gender discrimination?  You need an experienced legal team to help you recoup the wages you deserve.

Gender Wage Gap in California

An analysis of California wages demonstrates that women were earning about $8,000 less per annum than men in 2012. Women of color lagged even further behind. Latina women earned only 43 cents on the dollar, Black women earned 63 cents on the dollar, and Asian women earned 72 cents on the dollar in comparison to white men. The situation has improved with time, but women on average earn just 79 cents to every dollar a man earns in this country.

Why the Gender Wage Gap?

Research indicates that women traditionally gravitate toward lower paying jobs, such as nursing and teaching. Even in professions such as marketing and technology, women actually ask for roughly $14,000 less than their male counterparts for the same job. That makes it easy for employers to offer women about 3% less than men for the exact same position.

Discrimination may play a role in wage disparities. A Cornell study concluded that when women compete for men for the same job while holding equivalent credentials. Their study corroborates with census data indicating that across industries, job functions, and educational background. Women earn significantly less than men for the same work.

Closing the Gender Wage Gap in California

This fall, Governor Jerry Brown took a step to improve matters when he signed a tough new pay equity law that will come into effect in January 2017. Supplementing state and federal laws requiring equal pay for equal work, the new California Fair Pay Act prohibits bosses from paying employees less for “substantially similar work” when their titles or locations differ. It also bans retaliation against employees who discuss their disparate salaries.

Now, more than ever, rather than differentiating pay at will, employers must apply a reasonable standard based on seniority, merits, quantity or quality of production, education, or experience.  Furthermore, employers must keep accurate records of pay for three years.

Remedies for Discrimination and Retaliation

Under statute, employees may recover wages plus interest and attorney’s fees. If unfairly discharged as retaliation, an employee may pursue civil action and seek reinstatement, as well as pay for lost wages and benefits, plus interest. The employee must make such a claim within one year of the perceived actions. [Read more…]

Final Paycheck When Leaving a Job

Final PaycheckWhen can I expect to receive my final paycheck? Dissatisfied with your employment situation, you look for another job, providing your current employer with two weeks’ notice. You expect your final paycheck On the last day of employment along with unused vacation and sick pay. You are told, however, that payment will be deferred until the end of the pay period. So you scratch your head and wait for the check. Ten days later when it comes, the paycheck includes payment for the hours you worked, but nothing more. Where is the compensation for unused vacation and sick days?

What now? This is precisely the type of question that an experienced employment lawyer can assist with.

Was I Entitled to my Final Paycheck on the Last Day I was Employed?

In this situation, the answer is yes. The employee’s final paycheck is due within 72 hours of termination if the employee leaves without notice. The check may be picked up at the office or mailed to a designated address. If notice was given 72 hours or more prior to leaving, as in this case, the final check is due at the time of termination and at the location of the employer’s office.

What About Unused Sick Days and Vacation Days?

Earned, unused vacation pay must be included in the final payment. The same is not true for unused sick leave, however. Unless your contract says otherwise, California law does not ensure payment for these unused days.

Can Penalties Be Assessed if I am Forced to Wait for My Final Paycheck?

California law provides for employees who were discharged or who quit to be reimbursed at their daily wage for up to 30 days if an employer willfully fails to pay the earned wages in the time frame outlined. In this case, the 10 days of waiting may qualify for penalties. Also, the failure to pay out the unused vacation days may result in additional penalties. In Mamika v. Barca (1998) the court determined that the penalty would be calculated based on the monthly wage rather than at the daily rate for 30 days, which resulted in a slightly lower penalty.

Am I Entitled to Severance Pay?

California law does not require employers to provide severance pay, although many companies do have their own contractual obligations. It is important to examine your contract with regard to this matter.

Can I Collect Unemployment While Looking for a New Job?

All employers must pay unemployment insurance, which covers employees except in certain circumstances. In this case, you quit your job. Unless you can demonstrate good cause for quitting, you are likely ineligible for unemployment benefits. [Read more…]

Jointly Employed? New NLRB Ruling Has Major Implications

Jointly EmployedDoes your business include employees who are jointly employed (meaning that they work for you and another employer), as well as employees who work only for you? If the answer is yes, a new ruling from the National Labor Relations Board (NLRB) may complicate how your company handles collective bargaining.

In the case of Miller & Anderson, Inc., the NLRB was faced with the issue of whether workers who are solely employed by one employer can collectively bargain alongside jointly employed workers without the permission of their employers. It does not mark the first time the NLRB has ruled on the jointly employed issue. In 2000, in the case of M.B. Sturgis, Inc., the NLRB ruled that employer consent was not necessary. In 2006, however, the NLRB took the opposite approach in Oakwood Care Center, 348 N.L.R.B. No. 37, and held that Sturgis was incorrect.

The ruling in Miller & Anderson is a return to the Sturgis standard. It holds that jointly employed workers in this situation can bargain collectively, regardless of whether their employers approve.

A Return to the Old Standard

This issue involves Section 9(b) of the National Labor Relations Act. Section 9(b) refers to different types of bargaining units, such as “employer units,” “craft units,” and “plant units.” The NLRB has long held that when employer units contain employees who work for multiple employers, these “multi-employer” units can only bargain collectively with the consent of all parties – meaning all of the employers involved have to give their permission.

But what happens when some of the employees are employed by a “supplier” employer (such as a temp agency) and perform work for a “user” employer? (The NLRB refers to these types of units as “Sturgis” units.) Does a Sturgis unit constitute a multi-employer unit?

In Oakwood, the NLRB ruled that Sturgis units are multi-employer units. However, Miller & Anderson reverses this holding. It states that multi-employer units are created “without regard for any preexisting community of interest among the employees of the various separate employers.” According to the ruling, a traditional multi-employer unit contains employees whose employers have nothing to do with one another, aside from being in the same industry.

A Sturgis unit, on the other hand, contains employees who are all employed by the same employer (even though some of the employees are joint employees, who also work for a different employer). The Miller & Anderson ruling states that because workers in Sturgis units share an employer, Sturgis units are not multi-employer units, and that they meet Section 9(b)’s definition of an employer unit – which does not require employer consent to bargain collectively. [Read more…]

Will California’s Equal Pay Law Be Amended to Include Race?

Equal Pay LawWill California’s equal pay law be amended to include race? California employers should already be familiar with the state’s Fair Pay Act, which prohibits them from paying employees lower wages than employees of the opposite gender who perform substantially similar work. The law, which took effect on January 1, 2016, is considered the strictest of its kind in the nation.

Racial disparities may soon be prohibited, in addition to gender disparities. State Senator Isadore Hall has introduced legislation that applies similar prohibitions with regards to race. If Senate Bill No. 1063 becomes law, an employer may not pay employees lower rates than employees of other races or ethnicities for performing substantially similar work – with certain exceptions.

The Bill’s Specifications

The bill does not state that all employees must receive the same salaries paid to colleagues of other races that hold the same position. Rather, it prohibits employers from paying their employees lower salaries than other employees of other races or ethnicities performing substantially similar work (when viewed as a composite of skill, effort, and responsibility), unless an employer can demonstrate a valid reason for the wage differential.

If you are wondering what would be considered a valid reason, the legislation provides guidance. Racial wage disparities would not be in violation if an employer can show that they are based on either:

  • A seniority system
  • A merit system
  • A system based on the quantity or quality of an employee’s production, or
  • A bona fide factor other than race or ethnicity.

The legislation also specifies that a factor will only be considered bona fide if it is not related to race or ethnicity, if it is related to the employee’s particular job, and if it is “consistent with a business necessity.” Also, if the employee who is making a complaint can show that there is a different practice that would satisfy the business necessity without a racial pay disparity, then the factor will not be considered bona fide.

The bill gives examples of the types of factors that could qualify. These include education, training and experience.

What Would Happen to Employers Who Violate the Equal Pay Law?

Employers who violate the law would be liable for damages to employees who have been affected by the wage disparities. They would be required to pay the employees for their lost wages, along with interest, and an additional equal amount of liquidated damages.

The legislation also specifies that an employee who is entitled to these damages would also be entitled to compensation for the costs of their suit, and reasonable attorney’s fees. In order to recover damages under a civil action, the action must be commenced within two years of when the discrimination occurs – unless there has been a willful violation, in which case the action must be commenced within three years. [Read more…]

Fair Labor Standards Act and “Fair Notice”

Fair Labor Standards ActOnce an employee has made a complaint under the Fair Labor Standards Act (FLSA), she is protected from retaliatory acts such as being fired for making the complaint. What if the employee never filed a formal complaint, and instead she simply alerted management to a potential Fair Labor Standards Act violation? And what if the employee was a manager? If a manager voices concerns that her company is not complying with the Fair Labor Standards Act, would it be clear that she was actually making a complaint under the FLSA, or would it appear that she was just doing her job?

The Fair Labor Standards Act Case

The Ninth Circuit Court of Appeals addressed this scenario in the case of Rosenfield v. GlobalTranz Enterprises, Inc. The plaintiff, Alla Rosenfield, was hired by the defendant, a transportation management services company, to serve as their Manager of Human Resources. She was later promoted to the position of Director of Human Resources and Corporate Training.

Rosenfield made numerous complaints to her superiors that the organization was violating the FLSA. Her boss, who saw himself as the only employee at GlobalTranz in charge of FLSA compliance, agreed to look into her concerns. Rosenfield later concluded that he had not corrected the violations and complained to him again.

Shortly afterward, he fired her. Rosenfield then filed a wrongful termination complaint, which included an allegation that her firing was retaliation in violation of the FLSA. At trial, the defendant filed a motion for summary judgment. The court granted the motion, holding that Rosenfield’s complaints to management did not actually constitute an FLSA complaint. Rosenfield appealed.

Fair Labor Standards Act and “Fair Notice”

The U.S. Supreme Court has held that an employer must be given “fair notice” that an employee is making a complaint. Under this precedent, a complaint must be “sufficiently clear and detailed” that a reasonable employer would recognize it as an assertion of the rights protected by the FLSA.

Several federal courts have adopted a separate standard for complaints from managers when determining if complaints are sufficiently clear and detailed. The rationale behind this distinction is that when an entry-level employee points out a violation of the FLSA, the most obvious explanation is that the employee is asserting his or her rights – whereas a manager who does the same thing may be pointing out the violation as part of his or her job duties.

The Ruling

The Ninth Circuit sided with the plaintiff. Its decision overturned the summary judgment ruling, and remanded the case for further proceedings. The Court determined that because informing management of FLSA violations was not part of Rosenfield’s job portfolio, it should have been reasonably clear to her superiors that when she notified them about FLSA violations, she was not simply doing her job.

In the ruling, the Court rejected the idea that all managers should be held to a different standard than non-managerial employees. Rather, the Court held that complaints should be resolved on a case-by-case basis, in which an employee’s managerial status is one factor. [Read more…]

SB 358: Equal Pay for Substantially Similar Work

equal payThe concept of paying men and women equal pay for equal work should be familiar to California employers but under new legislation, wage equality requirements no longer apply only to employees with identical job descriptions. Employers are now required to pay male and female employees equal wages for doing “substantially similar” work.

The legislation in question, California Senate Bill 358, was signed into law on October 6, 2015 by Governor Jerry Brown at the Rosie the Riveter National Historical Park in Richmond. The new legislation amends Section 1197.5 of the California Labor Code.

What Does the equal pay Bill Say?

SB 358 states that an employer may not pay any of its employees at lower wage rates than employees of the opposite sex for work that is substantially similar, when viewed “as a composite of skill, effort, and responsibility and performed under similar working conditions,” unless the employer can demonstrate that:

  • The wage differential is based upon one or more of the following factors: a seniority system, a merit system, a system that measures earnings by quantity or quality of production, and/or a bona fide factor other than sex (such as education, training or experience.)
  • Each factor is relied upon reasonably, and
  • The factor or factors relied upon account for the entire wage differential.

The legislation clarifies that if an employer cites a “bona fide factor other than sex,” it must not be based on, or derived from, a sex-based differential in compensation. In addition, the factor must be related to the job in question, and it must be consistent with a business necessity.

Other aspects of the legislation include:

  • The Division of Labor Standards Enforcement, which is in charge of administering and enforcing the legislation, may supervise the wages that are due to employees when a violation takes place.
  • Employers must maintain records of the wages and wage rates, job classifications, and other terms of employment of their employees. The records must be maintained for at least three years.
  • When an employee files a complaint with the Division of Labor Standards Enforcement, the name of the employee will be kept confidential until the Division establishes the validity of the complaint. (There is an exception to this, however, if abridging the employee’s confidentiality prevents the Division from investigating the complaint.) If the employee withdraws the complaint before his or her confidentiality is abridged, then the Division will maintain the employee’s confidentiality.

Your Equal Pay Responsibilities Under the New Law

If you run a business in Sonoma County, Mendocino County or Lake County California, and you have not monitored whether there is a gender gap in your employee’s wages, it is time to start. Consulting an attorney to ensure your wages meet the standards of this legislation may be far less expensive than dealing with a gender discrimination lawsuit. [Read more…]

Big Labor Rights Movement Win For California-Area Walmart Employees

labor rights movementBig labor rights movement win for California-area Walmart employees. Walmart employees at stores in Richmond and Placerville, California recently had a big win against their retail giant employer. In fact, in December an administrative law judge found in favor of California-area Walmart employees who claimed that they were unfairly disciplined for attempting to organize employees in a strike and other collective bargaining activities. The National Labor Relations Board Administrative law judge of Washington, D.C. ordered Walmart to stop pressuring employees in order to prevent work stoppages, because it is believed that Walmart used intimidation tactics to encourage employees to return from strikes. Walmart was also ordered by the judge to change its dress code for its California employees who were being restricted from wearing pro workers’ rights shirts.

Labor Rights Movement

The administrative judge’s decision in favor of the California Walmart employees is a victory for the Organization United for Respect at Walmart (OUR Walmart), an employee-based campaign advocating enhanced health benefits and better pay for Walmart’s employees at the companies  4,000+ U.S. stores. Though OUR Walmart is not an official labor union that represents workers in collective bargaining issues, the organization does receive substantial support and advice from the United Food and Commercial Workers Union. On Black Friday of this year, OUR Walmart led employee protests at over 1,000 Walmart stores, while calling for more full-time jobs opportunities and also for a $14 base wage paid to employees.

The OUR Walmart Labor Movement

The NLRB ruling was supported by the federal law that prohibits employer retaliation against workers who support unions, and also prohibits employers from making intimidating statements intended to discourage workers from supporting worker unions. The NLRB judge ruled that a California Walmart manager had unlawfully threatened to close a Walmart store if employees decided to join the (Organized United for Respect at Walmart) or “OUR” Walmart in its demands for higher wages, and also that Walmart had illegally disciplined employees for exercising their legal right to go on strike. It was discovered that one specific Walmart manager had used illegal intimidation tactics against workers by stating that “If it were up to me, I’d shoot the union.” Furthermore, it was also found that it was an unlawful statement for the Walmart managers to tell its employees that their co-workers who had returned from a one-day strike would soon be looking for new jobs.

In addition to claims that Walmart prevented employees from exercising their right to both strike and organize, the suit also focused on dress code restrictions enforced at Walmart’s California stores that prohibited employees from wearing most logos excluding clothing manufacturers and also Walmart logos. This restriction served to prevent workers from wearing clothing that expressed the OUR Walmart cause and message. The administrative judge’s ruling, which focused only on the two specific California Walmart stores, is the first NLRB judge opinion that was submitted since OUR Walmart began operations in 2010. Complaints about labor practices at Walmarts across the U.S. have also been consolidated into one nationwide complaint that is currently ongoing.

If you need legal advice and representation regarding workers’ collective bargaining rights, or any other employment law legal assistance, you should contact our employment and labor law attorneys at Beck Law P.C. in California today.

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