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

Does sexual harassment really still exist? Who would dare? It’s unfortunate that it does still occur in the work place but luckily California labor laws aim to offer protection. There are basically two different ways one can be sexually harassed: quid pro quo or to the point of hostile work environment.

Quid pro quo sexual harassment
“This for that” is the direct translation of quid pro quo. This type of sexual harassment is when the harasser offers something in return for the harassed to accept these unwanted advances. For example, if your supervisor or manager offers a promotion or a raise or rather threatens with a write up or termination in exchange for the harassed to bare or accept the harassment.
Under California labor law, the employer is absolutely liable for the sexual advances of a supervisor and has no legal defenses available to it. A victorious plaintiff can recuperate lost wages and compensation of other economic losses, emotional distress damages, interest and attorney fees, and in cases where the employer’s officers, directors or managing agents knew of the harassment, punitive damages intended to punish or deter the employer.

Sexual Harassment to the Point of Hostile Work Environment

Subordinates, co-workers, supervisors, and even managers can all participate in sexual harassment to the point of creating a hostile work environment. Often times this harassment can come in the form of slurs, intimidation, taunting, groping, grabbing and ridicule.
It’s important to note that a single severe act of sexual harassment can create a hostile work environment as well as many subtle acts, by one person or many. Also the person being harassed does not have to be the one that files a claim. Someone else that has witnessed and had to deal with watching another person being harassed is also a victim of hostile work environment.
Recently, the California Supreme Court held that employer actions, such as termination, demotion, etc., could also constitute hostile work environment harassing conduct. See Roby v. McKesson HBOC (2009) 146 Cal.App.4th 63.

Who is liable?

If the Harasser is a supervisor or manager then the company is certainly held liable for their actions. If the harasser is a coworker or subordinate then company will be held liable if you are able to show that a supervisors or manager was aware of this persons inappropriate behavior.
Under Title VII of the Civil Rights Act of 1964

When a supervisor engages in hostile work environment harassment that does not involve tangible employer actions (e.g., termination, demotion), the employer can escape liability for HWE if the employer can show

1) employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and
2) the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer, or to avoid harm otherwise.

See Burlington Industries, Inc. v. Ellerth (1998) 524 US 742, 764–765;Faragher v. City of Boca Raton (1998) 524 US 775, 806. This is unfortunate in that many victims of sexual harassment do not immediately report it to their employers for fear of retaliation. Under federal law, these employees may be out of luck. This is one of the reasons why filing a sexual harassment claim under California rather than Federal law is usually the better course.

Labor law is 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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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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Labor attorneys fought long and hard over whether or not Fair Labor Standards Act (FLSA) protects oral, as well as written, complaints in Kasten v. Saint-Gobain Performance Plastics Corp. On March 22, 2011, the United States Supreme Court issued its decision; the Court held, in a 6-2 decision, that the anti-retaliation provisions of the Fair Labor Standards Act (FLSA) protect oral, as well as written, complaints.

Labor attorneys had already a won a suit against Saint-Gobain for placing time clocks in a location that did not allow workers the ability clock in prior to getting in and out of their gear, thus forcing them to work off the clock. Kasten filed an anti-retaliation suit against Saint-Gobain, alleging that Saint-Gobain terminated him for orally complaining about the location of the time clocks.

FLSA is probably better known for enforcing wage and hour issues such as overtime, working off the clock and reimbursable expenses, but  It also forbids employers from terminating  "any employee because such employee has filed any complaint alleging a violation of the statute.” The text of the FLSA was insufficient for the Court to interpret whether the term "filed" included oral complaints. Thus, the Court considered other factors, including:

·         A wide interpretation of "filed" would be the same as the understanding of the National Labor Relations Act's anti-retaliation provision

·         A narrow interpretation would weaken the FLSA's basic purpose - prohibiting detrimental labor conditions

·         TheEEOC and Secretary of Labor  have both decided that "filed" includes both oral and written complaints.

·         The FLSA's requirement that an employer receive fair notice of a complaint can be met by oral and written complaints

California labor attorneysdon’t commonly sue under FLSA because California's Labor Code has its own anti-retaliation provision. California Labor Code section 1102.5:

(a) An employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.

(b) An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.

(c) An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.

(d) An employer may not retaliate against an employee for having exercised his or her rights under subdivision (a), (b), or (c) in any former employment.

Nevertheless, the FLSA applies to California employers as well. Thus, California labor attorneyscan now rely on Kasten to protect California employees from retaliation for oral complaints about FLSA-protected rights.

If you feel you have been retaliated against after making a complaint at work, be it verbal or written, contact an experience California labor attorney to examine you 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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A simple yet common question in the regard to California Sexual Harassment has to do with whocan sue. The simple answer is that any employee who works for a company can sue for sexual harassment. Furthermore, sexual harassment does not have to be perpetrated by a member of the opposite sex. California sexual harassment laws protect victims of same sex harassment whether or not the perpetrator is homosexual or not. If you feel that you have been the victim of sexual harassment, it is important that you contact a California Labor Law Attorney immediately.

A second common area of question is the myth that there must be touching to be sexual harassment. Nothing could be farther from the truth. California sexual harassment can include a large range of inappropriate behaviors that include but are not limited to not only touching, but promotion of retaining of employment in exchange for sexual favors, unwanted sexual comments, leering or other visual harassment, offensive materials, posters and jokes.

A third misconception is that sexual harassment must occur only in the workplace. In actuality, sexual harassment may occur in a wide variety of business, professional or service relationships. Employees should become familiar with California Civil Code of Procedure 51.9 to be clear on which relationships are covered.

A fourth misconception is that an employee must be the direct victim of sexual harassment in California in order to potentially file a claim. This is incorrect. If the sexual harassment permeates the work place of the employee even if the harassment is not directed at the employee, but rather happens in the presence of the employee. An important point, however, is that the harassment must be severe and happened to interfere with the employees work performance. This “severe” standard is typically upheld if there is sexual touching.

A final misconception is that an employee cannot win a sexual harassment case without witnesses or hard evidence. This is untrue. While, witnesses and evidence help a case, “he said, she said” cases have been decided in favor of the plaintiff if the court feels the plaintiff is more credible than the defendant.

If you feel that you have been the victim of sexual harassment, it is important that you contact a California labor law attorney immediately. The statute of limitations is strict in this area of labor law, so it is imperative to talk to a California labor lawyer at the earliest possible time so that your case can be assessed.

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Since the recession, more and more men are contacting California labor law attorneys to make claims of sexual harassment in the workplace. According to the U.S. Equal Employment Opportunity Commission (EEOC), 16.4% of all sexual harassment claims were filed by men in 2009, which is up from 15.4% in 2006.  While there are instances of women sexually harassing men, the reported cases mainly consist of men harassing other men. This trend can be explained in part by the recession. The recent economic downturn has impacted men far greater than women. The Bureau of Labor has reported that from September 2008 to January 2010, 4.4 million men compared to 2.3 million women lost their jobs. Because they fear for their livelihood, some men use harassment as a way to humiliate or control co-workers who they percieve as a threat. The behavior most often takes the form of comments about their genitalia, sexually suggestive simulations, and lewd comments. The rationale is that by creating a hostile environment, a co-worker will have a lower job performance and, therefore, become a more likely candidate to be laid off. States with higher unemployment rates have seen the greatest increase in harassment claims filed by men. For example, in California the percentage of claims filed by men rose from 18.7% in 2007 to 23.6% in 2009.  States with a lower unemployment rate such as Nebraska actually saw the number of claims decline. It should also be noted that these numbers may not be totally accurate as many instances of male harassment go unreported due to embarassment and the appearance that one is weaker than another.

Same-sex harassment has only been recognized by the legal system for a little more than 20 years. Typically, in the case of male on male harassment, the plaintiff must show that the work conditions are so permeated with discriminatory intimidation, ridicule, or insult that they consititute a “hostile” or “abusive” environment. If the plaintiff’s claims of harassment are objectively and subjectively reasonable, then he has a viable case against the employer. The only caveat is that the plaintiff must have viewed the conduct as inappropriate or unwelcomed at the time it occurred.

Sexual harassment claims should not be taken lightly by employers as violations come with stiff penalties. The most recently publicized case has involved The Cheesecake Factory restaurant. The EEOC filed suit against the eatery after six workers claimed they were repeatedly harassed, including allegations of fondling and sexual simulation. The company ended up settling the dispute for $340,000.00.  Another high profile case concerned three employees at McDonald’s who claimed the manager consistently made sexually related comments and physical advances. The restaurant chain setteled that case for $90,000.00.

Another component to the rise in harassment is that many companies are cutting costs by eliminating their sexual harassment training. Many managers simply do not know how to recognize and resolve sexual harassment issues. Typically, sexual harassment seminars should be provided on a yearly basis.

If you believe you have been the victim of sexual harassment, contact an experienced California labor law attorney to learn about your legal rights.
 

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The involuntary termination of employment by the employer is controlled by specific rules which if violated entitles an employee to recover damages.

Employment in California is presumed to be “at will.” This means either party may terminate the relationship for a good reason or no reason at all. Nevertheless, as with most such general rules, there are exceptions.

If you have suffered retaliation in the form of being fired, demoted, suspended, or denied an employment benefit because you complained about what you reasonably perceived as a violation of law, such as late or non-payment of wages, failure to receive overtime pay, filing a worker’s compensation claim, or workplace safety issues, or suffered discrimination on the basis of age, race, religion, sex, nationality, medical condition, disability, sexual orientation, or marital status you have a right to recover damages for wrongful termination.

There are exceptions to the “at will” provisions. These include a situation where your employer promises long term employment. Such a promise may be set forth in a written contract, an employee handbook or it may simply be implied through an employer’s actions such as continued promotions, raises, or positive performance reviews.

Furthermore, an employer may not take an adverse employment action against an employee for complaining about or generally opposing discrimination or harassment directed against themselves or another employee. Employers are also prohibited from retaliating against an employee for reporting information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal law. 

The two main remedies for wrongful termination are reinstatement and monetary compensation. Juries are generally sympathetic to someone wrongly treated and therfore employers are exposed to substantial awards for economic damages as well as penalties.  In addition to an action for wrongful termination, you may also have a claim against your employer for damages for defamation or invasion of privacy as well as for final payment of wages, accrued vacation time, and overtime. 

Wrongful termination cases are fact-specific; therefore, documentation is critical. If you believe you have been or about to be wrongfully terminated first seek counsel from a labor law attorney especially if your employer wants you to sign a release or other agreement. Many labor attorneys will offer an initial meeting without charge and in many instances may take your case on contingency. So finding out your rights costs you nothing. Not finding out your rights could cost you dearly.

You should also take time to compile the following evidence:

• Request a copy of your personnel file from the human resources department. This file will include vital information such as rate of pay, promotions, performance reviews, awards, and recommendations. Remember that you are entitled to any and all documents you have signed in relation to your employment.
• Collect all correspondence with your employer including letters, emails, and text messages.
• Obtain a copy of your employee handbook and any other written company policies.
• Create a list of individuals who witnessed your termination or the circumstances leading up to your termination. Be sure to obtain their personal contact information so you can reach them after you leave your job.
• Record all instances of comments or behavior you believe constituted discrimination or other illegal activity.
 

Once you have collected the above documentation, contact an experienced California labor attorney for an evaluation of your situation.
 

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