California Employee Rights Advocate : California Labor Attorney & Lawyer : Southern CA Employment Law : Los Angeles, Orange County : United Employees Law Group

Pepsi Bottling Group recently paid out $3.13 million in racial discrimination case for its practice of criminal background checks. Pepsi was simply not hiring anyone with a criminal record, or anyone that currently had a criminal case pending, regardless of conviction. While having a criminal record is not a protected class and cannot be considered discrimination in and of its self. The EEOC did find that the incidence of African American applicants and some other minorities with criminal records was much higher than Caucasians, therefore finding this hiring policy to be racially disproportionate.

When the company applied across-the-board criminal background checks, the EEOC found that over 300 African-American people were adversely affected. "Under Pepsi's former policy, job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any offense," according to the EEOC. In a press release the EEOC reported that the policy violated Title VII of the Civil Rights Act of 1964.

Acting Director of the EEOC's Minneapolis Area Office, Julie Schmid said, “When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position. Such exclusions can create an adverse impact based on race in violation of Title VII." Schmid also stated, "We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance with Title VII."

Later a Pepsi spokesperson, announced a new policy that takes a more "individualized approach" in considering an applicant's criminal history relative to the job being sought in an effort to "...create a workplace that is as diverse and inclusive as possible." The Pepsi has also decided to provide the EEOC with regular reports on its hiring practices and to provide nondiscrimination training to its hiring personnel and managers.

Labor law is complex and if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or information on our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

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While the law can’t prevent employers from retaliating against their employees, it can offer restitution should you fall victim to retaliation. Retaliation can come in many forms and can be a result of several different types of issues reported.

Often times the employee will report issues such as sexual harassment, unsafe working conditions, workers compensation claims, another employee breaking company policy or even broken laws, also known as Whistleblower. Most commonly discrimination is reported; such as: age, race, gender, sexual orientation, religion, and disability.

As unfortunate as retaliation is, it can be in administered in many different ways. Employers have been known to cut hours or pay, pass employees over for promotions, place people on unpaid administrative leave and even terminate employment. Termination in retaliation for reporting any of the previously mentioned issues would likely be considered a wrongful termination.

It’s also interesting to note that even though there might only one person, perhaps your manager, giving you a hard time or retaliating against you, under the law the company is still liable for that person’s actions. In 1998, the California Supreme Court ruled that individual managers and supervisors can’t be held personally liable for retaliation. However, the California Fair Employment and Housing Act says that it is unlawful for "any employer, labor organization, employment agency or person'' to engage in retaliation.

If you have recently reported some type of illegal or improper activity within the company and your working environment or conditions have been adversely effected you should seek counsel of an experienced California labor law attorney. An experienced attorney can help you understand the legal aspects of your situation as well as offer guidance in seeking recompense.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

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Recently Governor Brown has signed over 20 new bills effecting California labor laws. Employers and employees alike will see several changes in the coming months, some changes will be beneficial and or costly and some help to better define existing a laws. Here is an over view of a few notable changes.

Gender Discrimination: Identity and Expression

Bill 887 redefines or better defines the term gender to aid in how gender discrimination cases will be assessed, specifically in regards to the terms gender identity and gender expression. The idea is that a person should not be discriminated against based on their gender. Previously this was described as one’s sex, male or female. Now it will include how one perceives themselves or chooses to express their self; often displayed through appearances such as clothing, hair styles, makeup and even behavior. Assembly bill 887 instructs employers that they must to allow employees to appear or express themselves as whichever gender they choose to identify with.

Discrimination: Domestic Partners

Bill 757 relates specifically to medical insurance offered by employers. the Knox-Keene Health Care Service Plan Act of 1975 does not allow discrimination in coverage between spouses or domestic partners of a different sex and those of the same-sex marriages. Senate Bill 757 takes it a step further and makes it a crime to willfully violate the Knox-Keene Health Care Service Plan Act. There is an exception for a policy issued outside of California to an employer with a majority of its business and employees located outside of California.

Discrimination based on your Credit Report

…Sounds ridiculous to begin with and with our countries current economic issues even more so. Assembly Bill No. 22 says what we are all thinking. Previously Employers were allowed to access an employee or potential employees credit report (with the employee’s permission) regardless of the employee's position or the position the applicant is seeking to fill. Bill 22 recognizes that there are some instances when a credit report is necessary to the employer and has restricted access to the following types of employment positions:

• person is or would be named signatory on the employer's bank or credit card account, or authorized to transfer money or enter into financial contracts on the employer's behalf
• person will have access to confidential or proprietary information
• person will have regular access to $10,000 or more
• a position in the state Department of Justice, that of a sworn peace officer or other law enforcement position
• a managerial position as defined by the stringent exempt status definition
• a position for which the information contained the report is required by law to be disclosed or obtained;
• a position that involves regular access to specified personal information for any purpose other than the that the routine solicitation and processing of credit card applications in a retail establishment;

Labor law id complex if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193
 

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After the decision for Wal-Mart v Dukes was announced many believed that it was significantly change class action litigation, specifically what was needed to certify a class action. The case also alleged Sexual Discrimination and much of the language seemed to apply to other kinds of class actions, those outside of the employment context entirely.

Particularly; will Dukes apply to collective actions under FLSA section 16(b)? 16(b) is what allows wage and hour claims to be filed collectively if the class members are “similarly situated”. In the past, most courts find this to mean that the class members must be able to show that they were subject to "a common policy or plan that violated the law." The best example of this was written by district court judge Sonia Sotomayor , Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 367-68 (S.D.N.Y.1967).  However the Dukes Decision was related specifically to Rule 23(a)(2), which necessitates a commonality. In other words: Are the facts of the case common to the class?

In California Cruz v Dollar Tree, Case No. 3:07-04012-SC (N.D. Cal. July 8, 2011), demonstrates that Dukes will apply to wage and hour suits as well. Cruz represented all current and former Store managers of the Dollar Tree Stores in California. Cruz filled in Northern California courts alleging that they were misclassified as exempt from overtime but were in fact entitled to overtime pay as well as meal and rest breaks. The court certified the class in 2009.

In both of these cases the plaintiff won the first round, but this did not last. After the cases were certified the Ninth Circuit render it’s decision in Wells Fargo Home Mortgage Overtime Pay Litigation, 571 F.3d 953 (9th Cir. 2009), and Vinole v. Countrywide Home Loans, Inc.,571 F.3d 935 (9th Cir 2009), rendering the class partially decertified. Then later The Ninth Circuit decertified a class of truck loading dock supervisors it had previously certified in Marlo v UPS, Case No. 09-56196 (9th Cir. 2011).

After Cruz v Dollar tree and Marlo v UPS were decertified the court felt obligated to reexamine Dukes v Wal-Mart, stating, "a forceful affirmation of a class action plaintiff's obligation to produce common proof of class-wide liability in order to justify class certification." The court’s interpretation of this requirement was "common proof to serve as the 'glue' that would allow a class-wide determination of how class members spent their time on a weekly basis." The end result, decertification of the class.

The bottom line is that no matter what you think the current labor law says about your employment rights, the laws are always changing. It can never hurt to reach out to an experienced California labor law attorney to evaluate your current situation.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

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This California class action originating in San Francisco has been in court for over a decade. Labor law attorneys for the plaintiffs assert that Wal-Mart has discriminated against millions of woman in over 170 separate job classifications, in terms of pay and promotions.

This would be the first class actions of its size that sets out to prove discrimination through the broader use of statistical models rather than direct evidence. If the Plaintiffs are successful this could mean a slew of similarly litigated discrimination class actions will flood the courts. Naturally corporations are holding their breath and watching closely to see the outcome as it could mean millions in liability.

There are some concerns with such a wide range of subclasses and situations. Wal-Mart argues that the plaintiff’s discrimination claims are too diverse to be banded together in a single action. They also try to point out that with so many different situations there is bound to be a few rogue managers that might have discriminated against woman in terms of pay or promotions, but that doesn’t necessarily mean that all women were treated similarly.

On the other hand the attorneys for the plaintiffs would argue Wal-Mart provided to its managers unchecked discretion … that was used to pay men more than women. Furthermore, that if there is a pattern of discrimination and Wal-Mart knew about it then shouldn’t they be held responsible.

Because of these concerns the justices could choose to remand the case to the lower court under a revised set of guidelines; rather than a divided court issuing an opinion and setting a precedent in such a case.
 

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Proving age discrimination has never been an easy thing to do, let alone proving age discrimination. There is a common misconception that being terminated at the age of 40 or above is grounds to file a wrongful termination based on age discrimination. However if this were all that is need to prove the age case, every person over 40 who was terminated would have had a discrimination claim. This would of course be ridiculous.

So what is needed to prosecute a lawsuit for age discrimination? In Stephens v. Coldwell Banker Commercial Group, Inc. the First Appellate District offers useful direction. The court analyzed the jury's verdict by noting that in most employment discrimination cases, lack solid evidence of the employer's intent to discriminate or it is difficult to disprove, and so an indirect method of proof is necessary. Thus, in order to initiate a claim for age discrimination the employee has responsibility to prove that not only was he/she over 40 but also, that he/she was performing adequately, and was fired or demoted due discrimination. After the initial case is presented, the employer has to prove that the plaintiff was terminated or demoted for valid, non-discriminatory reasons. At which point the plaintiff will then be given the opportunity to prove that the employer was motivated by discrimination or that the employer's explanation for termination or demotion is no more than a smoke screen for discrimination. It is now the employer turn to do its best to show that they have a reasonable explanation for taking action against the employee. The employer can claim the reasons for their actions are: performance related, misconduct, insubordination or even reduction in force. Often time’s employers try to justify the termination by stating poor performance due to its subjective nature; law allows the employer discretion when determining if they are satisfied with the employee's performance. Although employer argues that the employee wasn’t a good employee it doesn't mean the employer wins the case.

There are few things the employee can present to the court to show that the employers claims of poor performance are refutable.

1. Length of employment will be a big determining factor in showing that the employee was likely not terminated because of poor performance. The augment is “Why did you keep this employee for so long if they were performing poorly?”
2. Documentation of good performance, such as promotions, awards, bonuses, positive performance reviews etc.
3. The most beneficial information you could present would be proof that a younger person was given your position or promotion.

Lastly, age discrimination can be shown in the form of statements that show the employer making issue of the employee’s age. Or suggesting the employer wanted older employee out, for instance encouraging the employee to retire, by asking about the employees plans for retirement OR calling names such as "old times," "father," "old man," "grandpa" and alike.

If you feel that you have been a victim of age discrimination you should contact an experienced California labor law attorney to discuss your case.  

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The cat's paw theory for proving employment discrimination was solidified in a recent ruling by the United States Supreme Court. Under this theory a plaintiff will be allowed to demonstrate discrimination even though there is no evidence that the acting offender had any discriminatory intentions. The theory hinges on whether there is proof that another employee’s (other than the acting offender) discriminatory intentions influenced the "innocent" “acting offender)” thereby causing the unfavorable employment action to occur.

In Staub v. Proctor, the plaintiff was a medical technician for Proctor while in the Army Reserves. He was required to be present at weekend drill meeting once a month as well as trainings two or three weeks a year. Proctor fired the plaintiff in accordance with a decision by Human Resources. The plaintiff filed a discrimination suit under the USERRA, which forbids discrimination based on military service. Although the plaintiff did not have any proof that Human Resources had a motive to discriminate, the evidence showed that the decision to terminate was not made based on discriminatory reasons. However, Plaintiff disputes that his immediate supervisors were motivated by discriminatory intentions which eventually resulted in Staub’s termination. The basis for the court’s finding was based on the fact that the company had given Staub a false written warning that carried weight in the decision to terminate his employment. The lower courts had originally granted the defendant's summary judgment. The Seventh Circuit held that Proctor was granted summary judgment based on the evidence presented, that the final termination conclusion was made by someone with no discriminatory animus who autonomously examined the facts and that the choice wasn't entirely dependent on the write up issued by Plaintiff's supervisor.

The decision was reversed by the United States Supreme Court, stating the evidence was adequate to uphold a finding that the choice for termination was proximately caused by the write up, and that there was some substantiation that the written warning was discriminatorily motivated. In addition, the Court held that an employer cannot protect itself from liability simply by suggesting that the ultimate decision maker or acting offender did not discriminate. If there is evidence that the definitive decision maker or acting offender was predisposed by other supervisors who had a discriminatory motive, a plaintiff can demonstrate discrimination based on such a theory.

The Staub judgment is a USERRA case and its interpretation will relate similarly to discrimination suits brought on under cat's paw theory, Title VII, and alike federal and state statutes prohibiting employment discrimination. Summary judgment in discrimination cases will be much more difficult for employers to obtain since the Staub judgment.

If you believe you may have been discriminated against, inadvertently or otherwise, it’s advisable to consult with a California labor law attorney for review of your situation.
 

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A unanimous Supreme Court decision in Thompson v. North American Stainless Inc: Justice Scalia writes that employees may claim retaliation when they are associated with someone ELSE who engaged in protected activity.

Eric Thompson was engaged to Miriam Regalado. They both worked for North American Stainless. So, Regalado filed a charge with the EEOC alleging sex discrimination. North American Stainless fired Thompson three weeks later.

Thompson then filed a retaliation charge. But Thompson did not actually engage in protected activity. Regalado was the one who filed with the EEOC.

Was it retaliation under Title VII to fire Thompson? The Supreme Court said yes. Relying on the Court's expansive definition of retaliation set forth in Burlington N. & S. F. R. Co. v. White, 548 U. S. 53 (2006),the court said:

“the anti retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” Id., at 64. Rather, Title VII’s anti retaliation provision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id., at 68 (internal quotation marks omitted).

Supreme Court found that firing a fiancé "well might have dissuaded" the complainant from making or supporting a charge: NAS argued, where do you draw the line? Trusted co-worker? Girlfriend? What third parties are close enough to the complainant? The Court could not find any language in Title VII to support setting down a blanket rule.

“We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.”

Additionally, the court decided that Thompson had standing to sue under Title VII because he was a "person aggrieved." The Court knew it was opening a can of worms to let third parties sue. So, it limited Title VII standing to those covered by the "zone of interests" Title VII seeks to protect. Thompson was an employee at the same company as his fiancé, and, most importantly, according to the complaint, the company fired him for the purpose of hiring the fiancé who filed the charge.

If you are concerned that you have been a victim of retaliation please contact a California labor law attorney for help evaluate your case.

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Are you married, single, or divorced? Like many individuals, you may not relate the answer to this question to your employment status. Unfortunately, many employers wrongfully consider marital status when making employment decisions, including hiring, firing, compensation, and promotions. There is no federal law that specifically prohibits employers from making employment decisions based on marital status, although sexual and racial discrimination claims can be brought under Title VII of the Civil Rights Act of 1964. Nevertheless, a growing number of states have enacted laws protecting workers from adverse employment actions made on the basis of marital status.

In California, marital status discrimination is prohibited by Government Code Section 12940,  which states in pertinent part as follows:

It shall be an unlawful employment practice, unless based
upon a bona fide occupational qualification, or, except where based
upon applicable security regulations established by the United States
or the State of California:

(a) For an employer, because of the …marital status…of
any person, to refuse to hire or employ the person or to refuse to
select the person for a training program leading to employment, or to
bar or to discharge the person from employment or from a training
program leading to employment, or to discriminate against the person
in compensation or in terms, conditions, or privileges of employment.

The statute is enforced by the California Department of Fair Employment and Housing (DFEH),  which is one of the largest state civil rights agencies in the country.

Marital status discrimination, employment decisions made on the identity or situation of one’s spouse, can occur in a number of situations. Marriage between two individuals in the same company may be viewed as creating an uncomfortable working environment. If an employee’s spouse works for a competitor, an employer may consider it a conflict of interest. An issue may also arise where a spouse is deemed to be objectionable because of race, sexual orientation, or criminal background. These are all wrongful considerations by employers and employees should not hesitate to action.

If you believe you have been discriminated against based on your marital status, you should first consult an experienced California labor law attorney. By hiring a California labor law attorney, it may be possible to collect punitive damages, plus costs and attorney fees.

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Good news is on the forefront. According to Reuters, the U.S. House of Representatives voted on September 22 to extend jobless benefits for those who risk exhausting them.

Idled workers are typically eligible for up to 26 weeks of payments to cover expenses as they look for another job. Some workers are now eligible for up to 79 weeks of unemployment benefits.

The extension of benefits bill, if passed, would extend benefits by 13 weeks in states where the unemployment rate is above 8.5 percent. This extension would include California’s unemployed, where the unemployment rate was 12.2 as of August 2009.

In California, unemployment benefits are granted in the event of layoff or downsizing, or other limited circumstances. If an employee simply quits a job, and there are no extenuating circumstances, i.e. documented harassment, documented violence in the workplace, it is likely that the employee will not be awarded unemployment benefits.

California Unemployment Insurance Code 1256, reads, inpart:

An individual is disqualified for unemployment compensation benefits if the director finds that he or she left his or her most recent work voluntarily without good cause or that he or she has been discharged for misconduct connected with his or her most recentwork.
 

In addition, if an employee is terminated for willful misconduct, that employee may also be ineligible for unemployment benefits. I have seen on more than one occasion, an employer “blackball” an employee they wish to terminate in order to possibly avoid a potential wrongful termination lawsuit and unemployment insurance. 

Strategy:

1. If you are an employee, and believe you are being “railroaded” and on the way to being terminated or were terminated for what your employer deems “misconduct,” it is important to gather witness statements and other evidence to refute the employer’s contentions.   
2. You should have these witness statements and other evidence readily available for your hearing with the Employment Development Department.
3. Should you not win your unemployment insurance hearing, you do have the right to appeal, however appeals are difficult, and must be filed timely.

If you feel that you have experienced wrongful termination or feel you are the victim of discrimination, it is important to talk to a California labor law attorney  to find out what your options are. Keep in mind that there is a statute of limitations to file your claim and protect your rights.

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