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…]

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…]

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…]

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…]

Can My Facebook Page Impact My Employment?

FacebookYou have a Facebook account; practically everyone does. Can it be a problem for you when it comes to seeking a job? The short answer is yes.

Employers Take a Peek

The fact of the matter is, 60% of 5,000 surveyed employers confess to using sites on social media to find out about potential employees. That number has increased by 500% in the past 10 years. Here is something worth noting: Nearly half of those employers report finding something on a social media site that made them hesitant to hire a job candidate. Do we have your attention yet?

Dangerous Facebook Posts

What kinds of Facebook or online posts could be detrimental to your employment opportunities? We recommend avoiding certain posts, such as:

  • Sexually provocative photos, videos, or stories;
  • Pictures, video, and comments related to drinking and/or drug use;
  • Posts displaying discriminatory attitudes;
  • Profanity;
  • Gun references;
  • Inflammatory comments about previous employers/coworkers;
  • Communication skills that indicate poor grammar, spelling, etc.

Turning Facebook Lemons into Lemonade

We know there is a good chance that your potential employer is going to look at your Facebook, LinkedIn, Twitter, or other social media page. In fact, 41% of employers report that they may not even interview candidates if they can not find information about them on Facebook or elsewhere online. What now? Seize the opportunity! This is your chance to make a great impression! Instead of causing your potential employer to scratch his or her head in wonder while viewing your online presence, let him or her see all the ways you stand head and shoulders above the crowd. What might your posts include?

  • Pictures showing you engaged in volunteer work;
  • Posts revealing your positive outlook and professional stature;
  • Engagement in hobbies that stretch your skills and determination;
  • Information displaying your travel and global interests;
  • Posts showing smooth, clean communication skills;
  • Comments from others indicating what a stand-up character you are.

Remember, employers are looking for someone who is not only qualified for the job; they also want someone who is a good cultural fit. Additionally, many employers are looking for creative, engaging people for their companies.

When it Becomes a Legal Issue

All of this is completely legal, although some potential employers may cross a line that could leave them vulnerable to legal action. You may have legitimate concerns if you are asked to share your password, or if you get the impression that you have been singled out when it comes to the viewing of social media.  

Think Before You Post on Facebook

In this day and age, every single thing you post on social media is fair game. So, think. Be smart about it. If you have concerns about your employment in Sonoma County, Mendocino County or Lake County California being impacted by social media and would like our legal team to take a look at your situation, contact us at Beck Law P.C., in Santa Rosa.

Can Polygraph Testing Impact Employment?

PolygraphCan my employer require me to take a Polygraph? Employers are more concerned than ever these days about both workplace culture and security. Pre- and post-employment testing of all kinds may greet employees in the workplace. This could include physical tests to measure stamina for certain positions, personality tests to give the employer a sense of one’s compatibility within the company, and drug tests to ensure a drug-free workplace. Regulations surrounding these tests are fairly limited.

What about lie detector tests? Here, the Employee Polygraph Protection Act (EPPA) is much more restrictive. When employers violate the EPPA, legal action may be necessary.

What Constitutes a Lie Detector Test?

Any device used to provide a diagnostic opinion regarding honesty is considered a lie detector.  This includes several devices:

  • Polygraphs;
  • Voice stress analyzers;
  • Deceptographs;
  • Psychological stress Evaluators.

When is Such Testing Allowed?

Although the EPPA prohibits most industries in the private sector from requiring employees and potential employees to take polygraph tests (or even asking about previous tests taken), some employers are exempt from the law:

  • Governmental organizations, including fire and police agencies;
  • School districts and private schools;
  • Correctional facilities.

In limited instances, employers are allowed to require polygraph tests within certain parameters.  Those businesses include:

  • Companies involved in various security services, such as armored car services, home or business alarm companies, and guards or other security personnel working for the state;
  • Companies involved in any aspect of the manufacture, distribution or dispensing of controlled substances.

Finally, some employers may require a polygraph test of particular employees  when they have a reasonable suspicion of embezzlement or other crimes that led to the employer’s economic injury.

What can I Expect if Asked to Take a Polygraph?

If an employer requires you to take a lie-detector test, the law requires that the tester be bonded and licensed. You should be told the specific reasons for requiring the test, and be given the opportunity to obtain legal counsel prior to testing if desired. In the best of circumstances, you will be provided with a written explanation of their rights and the types of questions that are not allowed. You should expect questions on a variety of topics such as your:

  • Driving record;
  • Insurance history;
  • Past and current drug and alcohol use;
  • Past and present criminal activities;
  • Credit history;
  • Information you provided in your application;
  • Employment history.

Topics that are off limits include your:

  • Religious affiliations or views;
  • Sexual orientation;
  • Political views and memberships;
  • Racial or cultural background.

[Read more…]

Firefighters Need Legal Protection

firefightersRecent events in Mendocino, Lake, Napa and Sonoma County have highlighted the perils that firefighters face in the line of duty every single day. These heroes put their lives in danger in an attempt to salvage homes and businesses, not to mention crops, livestock, and of course, human life. For the most part, their bravery is rewarded with public adoration and appreciation. Sometimes, firefighters are placed in unpleasant situations that are legally untenable. In such circumstances, they have no choice but to seek local legal counsel.

Recent Firefighters Cases in the News

  • When firefighter Todd Milan spilled the beans on an OSHA violation that occurred, putting him in a particularly dangerous situation, he felt the response from his department was outright retaliation. A jury thought the same thing, awarding him over $2.3 million for emotional distress, past and future wages, and legal fees.
  • Santa Rosa firefighters filed suit in District Court in the spring of 2017, alleging an improper calculation of overtime pay. According to the suit, they wish to be reimbursed for the past three years of work, in addition to attorney’s fees. Why three years of back pay? That is the time frame allowed by the Fair Labor Standards Act.
  • A 27-year veteran firefighter in Los Angeles won a lawsuit in which he was awarded damages of over $1 million for racial discrimination, harassment, and retaliation. According to the suit, Jabari Jumaane’s captain falsified performance evaluations with the sanctioning of his battalion chief. Jumanne was disciplined, and even suspended for the poor evaluations. After over two weeks of deliberation, the jury found in favor of Jumaane.
  • Merely hours after learning of needed neck surgery, Chula Vista City fired their fire chief, James Garcia. He filed suit claiming discrimination based on a disability. The jury agreed, awarding him over $1 million.

Do Not be Deterred by the Fireman’s Rule

In addition to injustices, firefighters may wish to file civil suits base on injuries that occur during the workday. Because Workers’ Compensation laws seem adequate to cover injuries, the California Fireman’s Rule disallows firefighters from filing civil suits based on workplace injuries. However, there are specific exceptions to this rule:

  • When the injury was intentionally caused;
  • When unintentional actions occur that lead to injury, and the person causing the injury knew or should have known a public safety officer was involved;
  • When statutes, regulations, or ordinances created to protect public safety officers are ignored or violated.

[Read more…]

Intellectual Property: Who Owns Your Ideas?

intellectual propertyIntellectual property ownership. Let’s say a corporation hires you as an employee or an independent contractor. After completing a number of projects, you decide it is time to move on, and figure you would like to take your ideas with you. After all, none of the new programs, flow charts, and materials you created would exist without you. Your employer, however, believes that the intellectual property belongs to them, as it was created while in their employ. Who is right? An experienced employment attorney may be necessary to unravel those legal answers.

Intellectual Property – Things to Consider

While both you and your employer claim ownership of the intellectual property, your employer will have a stronger claim on these materials if you signed a contract agreeing to as much prior to starting work. These documents, referred to as an assignment of inventions or ownership of discoveries, generally assign the company ownership of all intellectual property created in the course of employment. If such an agreement does not exist, you have a greater claim to your ideas. Your case could be even stronger if you called out specific areas of ownership interest in an employment addendum prior to employment or preceding work on a specific assignment.

Written Contracts

Again, if there is no written agreement outlining specific ownership provisions, you may have a strong case for ownership. If there is a written contract, consider the following:

  • Does it assign rights or ownership of intellectual property, copyrights, or trademarks?
  • Was it executed prior to employment or later? If later, were you offered additional compensation or consideration in exchange for giving up ownership?
  • Were you, as a prospective employee or independent contractor, allowed to specify any intellectual property you owned prior to this contract?
  • Was there a regular communication as to what intellectual property you owned and what you did not?
  • Does it specify consequences for infringing on company ownership of intellectual property?

Intellectual Property and Rules for Independent Contractors

Independent contractors often experience this conflict when it comes to intellectual property, even though it may be assumed they can keep what they create. They generally own their work, except in specific situations, such as:

  • A cooperative project;
  • Audiovisual work;
  • A translation;
  • A supplement to an existing piece;
  • A compilation of works;
  • An atlas;
  • Any test;
  • An answer key to a test.

Determining Whether Ideas Were Developed During the Course of Employment

If there is no written contract regarding intellectual property, determining ownership becomes a bit trickier. The courts generally then consider whether your ideas were developed during the course of the employment relationship. That is, were they a direct result of your work, beyond simply occurring during the time frame in which you were employed? Making that determination requires the court to examine the reasons for employment, including any directives or job descriptions. Is the material in question a direct result of your employment goal? If so, it may belong to the employer. Even if the work was completed at home, on your personal computer, it may still belong to your employer if it can be directly connected to your work responsibilities. [Read more…]

Sick Leave in California

sick leaveDo California seasonal employees accrue sick leave? Let’s say you are a seasonal employee, and you suddenly become ill. Should you show up to work anyway, and risk infecting others? That may seem like a better option than losing a day’s pay, or even your job, right?

The fact of the matter is, you do not have to make that choice if you work 30 hours a week or more. Paid sick leave (PSL) is available to temporary, seasonal, hourly, exempt, and nonexempt employees. California law requires employers to provide at least on hour of paid sick leave for every 30 hours worked. So, take the day off and stay home in bed where you belong! Your employer cannot ask you for a doctor’s note and cannot retaliate against you for using your PSL.  If your employer is not following the law, contact an experienced employment attorney.

What if I do Not Use My Sick Days?

On the other hand, let’s say you are super-healthy and never need to take time off.  What happens to your paid leave? Gone are the days of use-it-or-lose-it. California law allows you accumulate up to 48 hours of unused leave. Even if you can only earn 24 hours of leave each year, hours can be rolled over into the next year. The exception is if employers provide the hours in a lump sum at the beginning of the year. In that case, they are not required to allow a rollover.

Exemptions in the Law

There are, however, exceptions to the rule. Workers who are not entitled to sick leave under this law include:

  • Certain aviation employees, including cabin crew from particular airlines;
  • Home Support Service employees;
  • Construction employees;
  • Employees with a collective bargaining agreement who earn not less than 30% of the state minimum wage.

Compliance with the Law

Employers are required to do several things in order to remain in compliance with California law regarding sick leave mandates:

  • Provide a written copy of the sick leave policy;
  • Display a poster of the sick leave poster;
  • Provide a minimum of 24 hours of paid leave per eligible employee per year;
  • Calculate, track and report employee sick leave balances on pay stubs;
  • Keep sick leave records for at least three years.

Use PSL for Other Circumstances

Employees may use paid sick leave to care for sick family members, too. If your child, spouse, registered domestic partner, parent (or parent-in-law) grandparent, sibling, or grandchild is ill, you have paid time off to provide care. In fact, PSL may be used if you are a victim of domestic violence, stalking, or sexual assault.   [Read more…]


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 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.