Transgender Rights – Workplace Protections

transgender rights in the workplaceTransgender rights are human rights. According to Amnesty International, transgender individuals are the recipients of casual discrimination on a daily basis. In fact, they undergo as many as 60 instances of discrimination or harassment every single day. While many of these indiscretions are made without malice, or even unknowingly (such as using a pronoun other than the one the transgender person identifies with), they still take a toll on the transgender community. California lawmakers have taken deliberate steps to provide protections for transgender workers. The goal is to reduce and even eliminate instances of harassment and/or discrimination in the workplace that is based on gender identity, sex, or gender expression. The rights of transgender individuals in the workplace are important to the health and safety of the worker, fellow employees, employers, and the business itself.

Posting the Transgender Rights Poster

All employers with one or more employees must post the California Department of Fair Employment and Housing poster regarding workplace rights for transgender individuals. The poster clarifies any questions employers and their employees may have as to some specific rights for transgender employees.

Parity in Restroom Facilities – Transgender Rights

All employees are entitled to feel safe in restrooms, locker rooms, and similar facilities. Individuals who are transitioning and/or who are transgender have particular protections when it comes to restrooms in the workplace.  

  • California standards ensure that employees are allowed to use the facilities that correspond with their gender identity.  
  • Single-occupancy restrooms must be identified as gender-neutral with signs that label the room as such.
  • It is the choice of the transgender individual whether to use a single-occupancy restroom or a general use restroom that is designated as either male or female. Employers do not have the right to force transgender individuals to use the single use facilities exclusively.

When are Transgender Rights Protections Viable?

The California Fair Employment and Housing Act provides protections from harassment and discrimination for transgender individuals, among others. These protections apply to hiring, wages, opportunities for training and promotions, lay-offs, firing, and retaliation. They protect transgender workers before, during, and after social, legal, and physical transitioning.

Social Transition

Individuals undergoing social transition may not be discriminated against for the issues such as following:

  • Changes in attire;
  • Alterations in hairstyle;
  • Preferences for different pronouns.

Physical Transition

Transgender individuals who undergo hormone therapy and/or surgery may not be discriminated against during or after therapies and treatments that change the physical body of the individual.

Legal Transition

At the culmination of the social and physical transition, transgender individuals may ultimately be required to undergo a legal name change, which may, in turn, result in updates to social security cards, driver’s licenses and other identification, birth certificates, and additional important documents. These changes should not result in workplace penalties. [Read more…]

Job Interview Questions That are Off-Limits

job interview questions off-limitsDid you know that some job interview questions are none of your new potential employer’s business? With the unemployment rate hovering right around 4% in California, looking for a job is a pretty competitive business. As employers vie to capture the most qualified and able applicants for their companies, they all too frequently delve into interview topics that are, frankly, none of their business. In fact, certain issues are so far out of the realm of acceptable inquiry that they can land the company in court. If you have suffered enquiries that are legally off-limits, a local employment lawyer can assist with next steps.

What Job Interview Questions are Off-Limits?

A number of topics should never be broached during a job interview here in California. Among some of these job interview questions are the following:

  • What is Your Marital Status? How many kids do you have? Potential employers are not allowed to ask about your family status, whether or not you are pregnant or intend to be, or in any other ways fish around into your family status.
  • What year did you graduate from high school? This question gets at a person’s age, which is not allowed under the Age Discrimination in Employment Act and the Federal Employment and Housing Act. The only exception is when an employer is confirming that minimum age requirements are being met.
  • Have you ever been convicted of a crime? It has been illegal to ask about one’s criminal history since the legislature passed AB 1008 in 2017. The law applies to any company that employs six or more employees. Specifically, employers may not:
    • Ask any questions related to criminal convictions on the application;
    • Put any weight on an applicant’s criminal history until after a conditional job offer has been put forward;
    • Consider or share any information discovered during a criminal background check relates to specific criminal activities or convictions.
  • What are you earning at your current job? In 2018, AB 168 became effective, requiring potential employers to steer clear of questions related to an applicant’s previous earnings.  Knowledge of one’s salary history may not be allowed to influence whether or not an applicant is hired or the amount of pay that is offered. The exception to this rule is when the applicant offers unsolicited information related to previous earnings, and other factors are also weighed in determining future salary.
  • Are you a citizen of the United States? Where are you from? Although seemingly innocuous, questions related to one’s background may be a way for an employer to determine an applicant’s culture or national origin. While it is acceptable to ensure that an applicant is legally entitled to work in this county, asking questions that narrow down an applicant’s background is not allowed.

[Read more…]

At-Will Employment in California and Suspicious Firings

at-will employeeIf you are an at-will employee, join the crowd. The majority of California employees are in the same situation, meaning you can leave your job whenever you choose, and employers can (mostly) fire you at any time, without ever citing a reason for the decision. However, if you suspect that you are being terminated for unlawful reasons, it may be worth pursuing legal action.

Can I be Fired if I am Doing a Good Job?

The short answer is yes. As previously stated, you can be fired any time at all, even if you are a stellar employee. Your boss is not legally required to explain the rationale behind the firing.  However, if you think there might be discrimination or other issues at play, your employer should not be allowed to hide behind the at-will statutes.

Illegal Firings of At-Will Employees

Both state and federal laws are on the books to protect workers from unlawful termination.  While you may be fired without cause, you can not be fired for reasons such as:

  • Race, religion, sexual orientation, gender identity, age, gender, pregnancy, disability, or other protected status;
  • Your political affiliations or actions away from work;
  • As retribution for reporting issues related to worker safety, sexual harassment, hostile work environment, or discrimination;
  • Because you reported illegal activity;
  • Involvement in union activities or attempting to organize workers;
  • Because you asked to take time off work to which you are legally entitled.

These are all illegal reasons to terminate an employee.

At-Will Employee Leave of Absence

Many employees do not realize that they are legally entitled to time off for certain events, even though they are at-will employees. In addition to maternity leave, employers must make reasonable accommodations for at-will workers who have disabilities impacting their mental or physical health. Furthermore, employees are protected from being fired for taking time away from the job for other important events, including:

  • Participating in military service;
  • Being called to serve on a jury or testify at a trial;
  • Caring for a seriously ill family member;
  • Voting in a statewide election (two hours).

At-Will Employee – Suspicions After Being Fired

Let us say you are an at-will employee and fired for no reason, or for a reason that you believe is invalid. If you think you were fired for an illegal reason, what should you do? At Beck Law P.C., we handle cases like this more often than you might think. If we take on your case, in preparing to fight back, there are some specific steps we can and will take, including:

  • Collecting and examining written employment policies and procedures;
  • Documenting issues that you believe are at the root of the termination. These include dates, names, and details about conversations you have had with management and fellow employees. For instance, if you think you are being fired based on age discrimination, what comments or events have occurred that substantiate your theory, and when did they occur?
  • Assembling any physical evidence to support your claim, including emails, texts, MEMOs, and so forth.
  • Interviewing witnesses to the issues.

[Read more…]

Labor Strikes: an Uneasy Choice

labor strikesA number of California workers have faced of late some tough decisions with regard to their employment and labor strikes. Should they support fellow employees who wish to strike, or should they cross the picket line to continue working at their jobs? If you need help understanding the ramifications of either choice, a local employment lawyer is a good source for answers.

Local Calls for Labor Strikes

Strikes by workers are nothing new in this country, and Californians today are seeing several examples of employees fighting for improved wages, better working conditions, and a stronger voice in the workplace through organized strikes, such as:

  • University of California workers staged a three-day strike in hopes of increasing wages and reducing wage inequities. Service workers, security personnel, gardeners, and custodians across a score of California campuses stood on picket lines in an attempt to gain public support and leverage in contract negotiations after AFSCME Local 3299 and university officials were unable to reach an agreement.
  • California Nurses who are part of the CAN/NNU union have been part of a strike involving Kaiser, Oakland Children’s, and Sutter Hospitals.
  • The six day Los Angeles teachers strike just ended yesterday and teachers are back on the job today. A new agreement was reached with the School District for among other items, a 6% raise and the promise of a gradual reduction of class size.

Questions About Labor Strikes

Going on strike is no small matter. Contemplating such an action as a group is a weighty thing, and the stakes are no less significant for every single individual who is confronted with such a decision. The questions surrounding a strike often include the following:

Do Labor Strikes really ever accomplish anything?

Yes and No. Sometimes, striking does not result in wage gains or other benefits in any measurable way, but sometimes it does. Always, it could be argued, it brings attention to the issues and impacts public opinion, which, in turn, could sway policy-makers and employers.

Are Labor Strikes Legal?

Yes. However, strikers may not engage in misconduct, including:

  • Blocking individuals from coming or going into a location;
  • Threatening those who do not wish to join the strike;
  • Attacking employers, managers, or spokespersons on the other side.

Can anyone go on strike anytime?

No. There are rules to striking. The purpose of the strike must be lawful (it can not be to compel an employer to do something that is contrary to state or federal law), and the timing of the strike must comply with legal regulations. Additional restraints are attached to certain groups. For example, striking at a health care facility requires a minimum of 10 days written notice.

Can you be fired and replaced for participating in labor strikes?  

The National Labor Relations Act gives employees the right to strike in order to attempt to secure improved working conditions, wages, and benefits. Strikers, generally speaking, are entitled to be reinstated to their jobs at the end of the strike.

Will striking put you on a targeted list by management?

Maybe.  However, this would put your employer in hot water. [Read more…]

Government Shutdown – Do’s and Don’ts for Furloughed Employees

partial government shutdownIf you are a federal employee who has been furloughed due to the partial federal government shutdown, you are likely frustrated by your situation. During the government shutdown, there are some definite do’s and don’ts of which you should be aware:

During Government Shutdown Do…

  • Understand that your paycheck is not guaranteed at the end of the shutdown. Congress must vote on whether or not employees will receive back pay for the period during which they were furloughed.
  • Feel free to make health insurance claims during the furlough. Your benefits through the Federal Employees Health Benefits program continue even if premium payments are late.  The employee portion of your premiums will be accumulated and tacked on to your checks once they start rolling in again.
  • Consider yourself continuously employed in terms of years of service for retirement. A break in service will not be a factor until or unless the shutdown lasts at least six months in one calendar year. (Let’s hope that is not a bridge you have to cross!)
  • Consider filing for unemployment benefits. Eligibility is based on your being unemployed due to no fault of your own. While furloughed, you are still considered an employee of the federal government, but since you are not collecting a check, you may qualify. Make sure you understand the requirements that go along with receiving this support.
  • Seek a second job—with caution. There are strict ethics rules that apply to federal employees and outside work, which are still in effect during the furlough. You could jeopardize your federal job if you violate those rules.
  • Feel free to contact your members of Congress to express your views on the federal government shutdown. Freedom of speech is still alive and it is your right to express your concerns as a furloughed government employee, without fear of retribution.

During Government Shutdown Don’t…

  • Don’t volunteer to go into the office even though you are not getting paid. You are not permitted to perform any job-related tasks during a federal shutdown. Period.
  • Don’t make the mistake of thinking you can take your annual leave or paid time off during the furlough. The Antideficiency Act prohibits using paid leave at this time, even if that leave was previously scheduled.  
  • Do not anticipate growth in your federal retirement plan. Payments cease during a furlough, meaning neither employee contributions or agency matches will be made. On a positive note, if congress does issue back-pay when the furlough ends, these payments can be made retroactively.
  • Don’t use your government-issue cell phone or laptop except to check in on the status of the furlough.

[Read more…]

New Laws Boost  Women in California Workplaces

women in californiaWomen in California in the workplace have been given greater protections and opportunities in 2019 by the California legislature. 2019 brings with it a number of new laws that will impact California businesses and their employees. In particular, female workers have been given greater protections and opportunities by the California legislature. As a worker, if you find that your boss is not willing to comply with the new regulations, getting an experienced and effective labor lawyer on your side can make a significant difference.

Women Take the Lead

The Governor signed SB 826, requiring all companies that are publicly traded in California to include women on their boards. The bill specifies that such companies must have at least one female on their boards by the close of 2019, and those with five members are required to have two women by the time 2021 wraps up. Half of directors on six-person boards must be female by that deadline.

Harassment Legislation – Women in California

Governor Brown signed SB 1343 into law, requiring that any business with five or more employees provide training related to sexual harassment – what it is, how to prevent it, and how to report it. Such training must occur before the end of 2019, and is required every couple of years from then on. This will impact a number of small businesses, since mandatory training was previously required only for businesses employing at least 50 workers. The California Department of Fair Employment and Housing (DFEH) has been directed to created necessary training materials which can be loaned out for training sessions. Employers may choose a number of ways to deliver the training:

  • In small groups;
  • By department;
  • Company-wide;
  • In another format that makes sense.

Additionally, AB1870 extends the time limit victims have to file a charge with DFEH to three years, a substantial increase over the previous limit of one year.  This applies to any harassment related to prohibited conduct against protected classes based on gender, race, culture, age, sexual orientation, or religion.

Confidentiality Restrictions

SB 820 shuts down provisions for confidentiality that have previously been included in settlements in sexual harassment or sexual discrimination cases.  Although discrimination and harassment are not restricted to one gender, women experience the lion’s share of such behavior, and will be the biggest benefactors of the new law. However, it is not retroactive, so only those cases that reach a settlement starting in January of 2019 are required to comply with the new law.

Women in California – Accommodating New Mothers

Another piece of legislation that will impact many women in California on the job is AB 1976.  This law, which aligns with federal regulations, requires businesses to provide an appropriate area that is not a bathroom in which lactating women can be accommodated.   [Read more…]

Should You Sign a Separation Agreement?

separation agreementLet us say that, as you prepare to exit a job, your employer approaches you and asks that you sign a separation agreement before your final departure. Perhaps they have some concerns about the knowledge you have accumulated over time. Maybe you are leaving under unpleasant circumstances, and they fear that you will spread rumors about them, or even file a lawsuit against them. Should you sign the document they have presented to you? A local employment attorney can help you make the right decision for your unique circumstances.

Terms of a Separation Agreement

California law does not require a separation agreement, so when your employer proffers one, chances are it has something of value for both parties that is not required by law. Generally speaking, employers are looking for company secrets to be locked down and may wish to protect themselves from future lawsuits. What might they offer in exchange? The terms of the agreement might include the following:

  • A severance package, which may include wages and/or benefits in a lump sum, for a defined period of time, or in some combination of these;
  • A written plan regarding how and when payouts will occur;
  • Education benefits;
  • Tax and insurance benefits;
  • A non-compete clause that limits your opportunities in the field for a specified period of time;
  • A non-disparagement clause, barring you from saying negative things about the company or your reasons for leaving;
  • A statement agreeing that there was no coercion involved;
  • Clauses related to what will happen to company property that is in your possession, potential for rehire, or other matters of concern.

Unlawful Separation Agreement Requests

While it may be reasonable for an employer to attempt to protect itself from future legal action, California law states that employers can not request that you waive your claim to legal action regarding certain areas, including:

You Have Leverage Over Signing a Separation Agreement

When considering whether or not you want to sign a separation agreement, you need to remember that you do have some leverage here. Clearly, the company is hoping to gain something. Knowing this, do not be afraid to negotiate to get the things that you want. If they are offering a one-month severance package, try pushing it to six weeks. If you really need health insurance, or you would like to keep the company car you have been driving for the past five years, ask; you may get more than you ever imagined. Presumably they are asking you to give up legal rights. What is it worth to them? [Read more…]

Wage Theft a Rampant Problem in California

wage theftStarbucks is the latest big-name business that has been vilified for widespread wage policies that rob employees of earned wages. The court case has been brewing for six years and has undergone numerous twists and turns. Initially, the case, which was filed by former employer Douglas Troester, was deemed by the courts to be too trivial to even consider. Ultimately, though, California’s Supreme Court overturned that ruling, and found in favor of Troester. If you find yourself suffering from unethical wage theft practices at your place of employment, consider seeking the assistance of a local employment attorney to resolve the problem.

What Constitutes Wage Theft?

Wage theft can rear its ugly head in many forms. At Starbucks, the issue involved superiors asking workers to complete additional tasks after clocking out. Additional forms of wage theft include:

  • Failing to pay overtime;
  • Refusing to provide an employee’s final check after said employee leaves the job;
  • Paying for fewer hours than actually worked, or not at all;
  • Failing to pay minimum hourly wages or higher.

Employers Break Several Laws with Wage Theft Practices

Wage laws are outlined in a number of places, including:

  • The Fair Labor Standards Act (FLSA): Outlines federal minimum wage requirements and time-and-a-half pay for any hours over 40 in a week;
  • Bacon-Davis Act: Provides that workers who are employed by federal contractors are entitled to the prevailing wage in the vicinity in which their work occurs;
  • Tax Laws: Guidelines outline when employers may classify workers as independent contractors (saving employers money) and when workers must be classified as employees.

Common Fields for Wage Theft

Although it can happen in any field, certain industries tend to exploit wage theft practices more often than others. In particular, wage theft is prominent in restaurant work, the agricultural field, janitorial work, retail employment, and home health care services.

California Tops States for Wage Theft

Surprisingly, of the nearly $9 billion wage theft claims in the country in the last couple of decades, more than 50% have come from right here in California. One report states that wage theft is actually “built into the business model” of many American corporations. In California, a good chunk of the infractions are related to strict state codes for the rest and meal breaks to which employees are entitled. Another common issue relates to whether employees should be paid for the time it takes to put on and remove protective equipment and clothing. Disturbingly, the lion’s share of these cases are not against small operations that may be struggling to survive. Most labor probes involve large, profitable businesses that know better but choose to cut corners when it comes to fair pay to their employees. [Read more…]

Racism Within a Police Department?

racism within police departmentRacism within a police department? You would expect the people in the business of law enforcement to actually know the law and follow it. But according to one officer of the San Jose Police Department, when it came to racist comments and discriminatory behavior, the department knew of harassment and did nothing to stop it.

Details of the Racism Claim

Officer Nabil Haidar escaped a civil war in Lebanon by coming to the United States in the late 80s. Roughly a decade later, he joined the SJPD. According to him, discriminatory nicknames have plagued him from the beginning, increasing in ruthlessness over time. The taunts included tags such as The Beirut Bomber, ISIS, and Taliban. Why did he not complain when things first started? He says he feared retaliation.  

Finally, in 2017, Haidar had enough when a sergeant “joked” in a meeting that Haidar had worked with ISIS for two years. Haidar quickly filed an administrative claim alleging harassment. After almost a year passed with no conclusion to the internal investigation, Haidar took things a step further and filed suit against the department. In addition to the initial discrimination and harassment, Haidar asserts that the department Chief has retaliated against him with an unfair reprimand for a collision in which Haidar was involved. According to Haidar, the chief left out pertinent information related to the crash, which would have exonerated him to an extent, in the reprimand.

In Haidar’s May 2018 claim, he says a transfer taken due to the problems has resulted in more than one million dollars in lost future wages over the coming years until he is eligible to retire.  He also is claiming $5 million for emotional distress.

Equal Employment Opportunity Commission Laws

Federal law prohibits discriminating against individuals due to race, culture, or ethnic background. This relates to any aspect of employment, including hiring, pay, benefits, training, promotions, job assignments, layoffs, and firing. Equally important, the law addresses harassment, stating that employees shall not be victimized with racial slurs or pejorative statements related to race or ethnicity. This applies to coworkers and supervisors alike. If such harassment exists and is the basis for creating a hostile work environment, it can result in legal consequences.

Racism – A Significant Problem

Although some might believe that racism is no longer a problem in America, the numbers tell a different story. Nationwide, nearly 35,000 suits filed with the EEOC were resolved in 2017 alone, at a cost of over $75 million.  Clearly, a substantial problem still permeates this country in all sorts of businesses. [Read more…]

Unjustly Terminated?

unjustly terminatedWhen Barnes & Noble fired chief executive officer Demos Parneros, he fought back with a lawsuit claiming he was unjustly terminated. That the bookstore made up reasons to get rid of him, and by firing him after just over a year of employment, they breached their contract with him and harmed his reputation. He went after the company in court, asking for over $4 million in severance pay and additional damages.

Unjustly Terminated? Barnes and Noble’s Side

Barnes and Noble, on the other hand, contends that Parneros was no unjustly terminated. They stand by their decision to fire the executive, and has filed a countersuit claiming they should be able to recoup the money already paid to him during his 14-month stint with the company due to his “disloyal conduct.” His lawsuit, they claim, is simply an attempt by Parneros to extort money from the country’s largest chain bookstore.

The termination, they say, was the result of serious allegations of sexual harassment. A female employee reported that Parneros engaged in unwanted comments and touching, telling her in one incident that she seemed the type of woman who would “put out” if she were “wined and dined.”

Parneros is also accused of bullying CFO Allen Lindstrom.

In addition to the sexual harassment and bullying claims, Parneros is impugned for trying to sabotage a major sales deal involving Barnes & Noble and an unknown entity.

Unjustly Terminated? The Denial

Parneros denies the claims, and contends that he never sexually harassed female employees; nor did he bully subordinates, or in any way behave in a way that could be interpreted as disloyal to the company. In terms of his treatment of Lindstrom, Parneros attests that the treatment was appropriate in light of Lindstrom’s subpar work performance.

The idea that Parneros attempted to interfere with any sales deals is totally false, according to him. The sales deal fell apart, and the company founder, Leonard Riggo, blamed Parneros unjustly. According to Parneros, he was unjustly terminated soon afterward, and his severance package was withheld.  Beyond that, Barnes & Noble put out a press statement that made Parneros seem to be leaving due to gross sexual misconduct, something he says the company knew was patently false. His lawsuit claims breach of contract and defamation.

What Now?

With both cases pending, the outcomes remain to be seen. Barnes & Noble is reconfiguring its management team, and both sides seem to be preparing for a fight to the end. [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.