Understanding California Employment Retaliation Laws

October 22, 2014 by Beck Law P.C.

Employment retaliation occurs when an employee is fired, demoted, or faces any other negative employment consequence, after the employee exercises a right protected under federal, state or local law. Common forms that employment retaliation can take include firing, demoting or taking any adverse action against an employee because that employee has:

Reported or threatened to report any illegal activities of an employer;
Filed or participated in a civil suit and/or investigation of an employer;
Participated in labor union or similar activities that involve the employee’s right to free association and expression;
Complained about employment conditions; and/or
Filed a complaint against the employer with the California Division of Labor Standards Enforcement Division.

California Laws and Protection Against Employer Retaliation

In California, there are an assortment of employment laws in place that provide employees with protection from retaliation in the workplace. The most important is the California Labor Code, which outlines the protected activities that employees can engage in without fear of retaliation. The Code also outlines prohibited employer activities that will be deemed employment retaliation if proven. These prohibited employer activities include:

An employer cannot retaliate against an employee, nor adopt, create, enforce any regulation, rule or policy that prevents or prohibits an employee from disclosing information to the government and/or law enforcement agencies, when the employee has reasonable cause to believe that the information will disclose a violation of or noncompliance with federal and/or state rules, regulations and/or statutes;
An employer cannot retaliate against an employee who refuses to participate in any activity that would result in a violation or noncompliance with federal and/or state statutes, regulations and/or rules; and
An employer cannot retaliate against an employee who has exercised their rights in any former employment.

Employment Retaliation Investigations

The California Retaliation Complaint Unit is the agency that investigates complaints of employer retaliation. Furthermore, all employees in California have the right to discuss the difficulties they have been facing in the workplace with the California Labor Commissioner Office, and with any other law enforcement or government agency. If you chose to do so, your employer cannot suspend, discipline, demote or fire you because you have provided information to these state agencies.

An employment retaliation complaint can be filed against employers, employment organizations, labor unions and trade organization. Employment retaliation complaints must be filed with California’s Division of Labor Standards Enforcement (DLSE). An employment retaliation complaint must be filed within six months following the occurrence of the alleged retaliatory act. However, complaints can be filed within one year of occurrence for complaints filed under Labor Code sections 230(c) and 230.1, within two years for complaints brought under section 1197.5, and no later than 90 days after the occurrence of actions filed under section 1596.88 of the California Health and Safety Code.

If you feel that you have experienced employment retaliation in the workplace in Sonoma County, Mendocino County or Lake County California and would like to exercise your rights, Contact the employment and labor law attorneys here at Beck Law P.C.

Filed Under: Blog, California Employment Law, Employee Retaliation, Employee Rights Tagged With: petaluma employment retaliation lawyer, santa rosa employment retaliation attorney, ukiah employment retaliation attorney

New California Employment Law Bills Signed

October 14, 2014 by Beck Law P.C.

A look at the new California employment law bills signed into law this last term by Governor Brown. Governor Brown was busy this last term signing 931 bills into law, and more than a few relate to the workplace in California.

New California Employment Laws

One law extends harassment and discrimination protections to unpaid interns about which we previously wrote. In addition, California implemented a paid sick leave law, The Healthy Workplaces, Healthy Families Act of 2014, which takes effect in July 2015. As of January 1, 2015, the California-mandated sexual harassment training required of all employers with 50+ employees must include training on workplace bullying.

In addition, Governor Brown signed the following:

a law that expands the definition of national origin discrimination in the Fair Employment and Housing Act by prohibiting discrimination on the basis of requiring an employee to produce a driver’s license unless otherwise required by law;
new laws regarding wage and hour violations, including one that provides liquidated damages to employees who allege California minimum wage violations and another that increases penalties for employers who fail to pay an employee wages when that employee is terminated or resigns; and
a law prohibiting employers from threatening to file false complaints against an employee for immigration-related reasons.

Bills that Failed to Become Law

Some bills were proposed, but were not signed into law. This includes:

a proposed law that would have added “unemployed” as a protected activity under the Fair Employment and Housing Act;
inclusion of home health care workers in the California paid sick leave bill; these workers will not benefit from the new law; and
a proposed law that would have added familial association to the protected categories under the Fair Employment and Housing Act.

It is unclear that this time whether the failed bills will resurface in the next legislative session.

What does this mean for California workers?

California is a state with strong protections for its workers. Employees are protected from discrimination and retaliation, as well as theft of wages and various other protections. While this unfortunately does not mean that employers never engage in discrimination or fail to pay workers properly, it does mean that aggrieved workers can assert their legal rights when things go wrong.

Among the things that an employee may be concerned about are:

discrimination on the basis of race, national origin, age or other protected status;
eligible employees who are not paid California minimum wage or who are not paid adequate overtime pay;
sexual harassment by a co-worker and an employer who does not take action to stop such harassment;
employees with disabilities who request reasonable accommodations that the employer refuses; and
employers who attempt to enforce a non-compete agreement after an employee moves on to another job.

Have your rights been violated?

If any of the above situations have happened to you, you may wonder what your rights are. With so many different laws and rules in California employment, sometimes it’s hard to know. The labor and employment law attorneys at Beck Law P.C. have years of experience representing clients in employment lawsuits. Our attorneys will meet with you to discuss your situation and explain to you what your rights are. It takes the guesswork out of your situation. Call us today to make an appointment for a consultation.

Filed Under: Blog, California Employment Law, California Labor Law Tagged With: Petaluma Employment Lawyer, Santa Rosa Employment Attorney, Ukiah Labor Attorney

Can I Be Reimbursed For Business Calls Made From My Personal Cell Phone?

October 1, 2014 by Beck Law P.C.

Can I be reimbursed for business calls made from my personal cell phone? According to a recent California court decision – yes. Employers in the state of California may wish to review their reimbursement policies following a decision from a California appeals court. In its decision, the court held that employers in California must reimburse employees for business calls made on employees’ personal cell phones.

The Recent Court Decision

In the court case, the plaintiff, a customer services manager for a food delivery company, sued his former employer on his behalf and filed a class action on behalf of other employees for the employer’s failure to reimburse them for business calls made on their personal cell phones.

In an earlier decision, the trial court disagreed with the class action because it said that such a case depended on too many individual issues, such as the type of plan or whether an individual paid for his or her cell phone.

The appeals court disagreed, stating:

“We hold that when employees must use their personal cell phones for work-related calls, Labor Code section 2802 requires the employer to reimburse them. Whether the employees have cell phone plans with unlimited minutes or limited minutes, the reimbursement owed is a reasonable percentage of their cell phone bills.”

The appellate court wrote in it decision that it was irrelevant whether an employee had unlimited minutes or actually paid his or her own cell phone bill because, “[t]o show liability under section 2802, an employee need only show that he or she was required to use a personal cell phone to make work-related calls, and he or she was not reimbursed.”

What is Labor Code Section 2802?

California Labor Code section 2802, which requires an employer to indemnify employees for all business-related expenses.

After this court’s decision, it appears that this law applies to employer reimbursement for business calls made by employees on their personal cell phones, even if the cell phone plan has unlimited calling.

How will employers reimburse employees?

Employers may wish to update their cell phone and reimbursement policies in light of the recent court decision. Employers may choose one of the following options for cell phone reimbursement:

Update policies to make cell phone calls reimbursable expenses. How the company determines the method of reimbursement may vary, although the process may be cumbersome with many employees on different cell phone plans. According to the court’s decision, if the actual cost of the call cannot be determined, employers should reimburse employees a “reasonable percentage”.
Employers who regularly require their employees to use a cell phone for work may consider providing employees with cell phones for business. This will avoid having to calculate the reimbursement amount each month.
Employers who determine that cell phones are not needed by employees may update their policies to provide that personal cell phones should not be used for work purposes.

Are you experiencing trouble at work?

It’s not always clear to employees if their employer is complying with the law. Sometimes, it takes an experienced employment attorney to advise you on your current employment situation. The attorneys at Beck Law P.C. have years of experience dealing with all types of employment law issues, including discrimination, wrongful termination, wage and hour matters, and many other problems that arise in the workplace.

If you have a labor and employment law matter you wish to discuss, please contact Beck Law P.C. at 707-576-7175 to speak to a Santa Rosa labor – employment attorney and make an appointment for a confidential consultation.

Filed Under: Blog, California Employment Law, Employee Rights Tagged With: California employment attorney, california labor attorney, Labor attorney santa rosa, Labor lawyer petaluma, labor lawyer ukiah

Are Unpaid Interns Protected From Harassment or Discrimination in the Workplace?

September 19, 2014 by Beck Law P.C.

Are unpaid interns protected from harassment or discrimination in the workplace? California employment law is changing rapidly and creating more protections for employees. In addition, Governor Brown just signed a new law that protects unpaid interns from harassment or discrimination in the workplace.

California law already prohibited discrimination and harassment of employees. The new law means that unpaid interns are also afforded the same protections.

What does the law provide for unpaid interns?

Employers cannot discriminate against interns on the basis of protected characteristics in the hiring, firing or training of unpaid interns. Protected characteristics include age, race, gender, and sexual orientation.

Employers may not harass unpaid interns based on protected characteristics. As is the case with employees, employers may be liable for harassment against unpaid interns if the employer knows about the harassment and fails to take appropriate corrective action.

Employers specifically may not discriminate against unpaid interns on the basis of their religious beliefs and must provide reasonable accommodations for interns to observe religious obligations.

The law goes into effect January 1, 2015. California joins New York, the District of Columbia, Oregon and Illinois as states that have laws that protect unpaid interns against sexual harassment and discrimination.

Why Protect Unpaid Interns?

Title VII of the Civil Rights Act of 1964 and California state law already provided protection for employees. The new California law extending protections to interns was proposed after several courts around the country barred unpaid interns from bringing sexual harassment or discrimination lawsuits because they technically are not employees.

A case in New York that received a lot of media attention was one involving a Syracuse University student who sued the company where she was an intern because she alleged that her supervisor had sexually harassed her and groped her then retaliated against her when she reported his misconduct. The court in New York decided that the intern could not sue the company where she had her internship because the law only protected employees, not interns.

The new law is especially important in California, where jobs in the entertainment, film, media and technology industries are highly competitive and many people are willing to work as unpaid interns with the hope of eventually becoming a paid employee.

What is Sexual Harassment?

Sexual harassment comes in many different forms, but includes:

threatening an employee with termination, a reduction of hours, less desirable work shifts, or denial of a promotion if the employee does not perform sexual favors;
unwanted sexual advances;
inappropriate touching; and
sharing inappropriate sexual images, pornography or other sexual content with employees.

What is Discrimination?

If an employer makes decisions regarding its employees and uses an employee’s gender, national origin, race, religion, sexual orientation, pregnancy or disability to make that decision, that employer may be engaging in discrimination. Some of these decisions may include who to hire and fire, how much to pay employees, which employees receive a promotion, who loses their job during layoffs, and retirement plans. There may be other situations where an employer unlawfully discriminates against an employee. If you believe you have experienced discrimination in the workplace, it is best to consult with an attorney.

Experienced California Employment Attorneys

If you feel that you have experienced sexual harassment or discrimination in the workplace, it is important to consult with an experienced employment attorney who will discuss your rights with you. The attorneys at Beck Law P.C. have experience negotiating and litigating employment law issues and are available to discuss your case. Please contact us to make an appointment.

Filed Under: Blog, California Employment Law, California Labor Law, Employment Discrimination Tagged With: discrimination attorney, Labor Lawyer

What Does The California Paid Sick Leave Law Do?

September 15, 2014 by Beck Law P.C.

What does the California paid sick leave law do? Our California Governor Jerry Brown signed into law recently the Healthy Workplaces, Healthy Families Act of 2014, which mandates paid sick leave for California employees. According to the governor’s office, nearly 6.5 million people – 40% of California’s workforce – had no paid sick leave benefits prior to the passage of this law.

California Paid Sick Leave Law

The Healthy Workplaces, Healthy Families Act of 2014, which takes effect in July 2015, mandates the following in California:

part-time and full-time employees can receive up to 3 paid sick days per year; employers may allow more paid time off at their discretion
workers accrue 1 hour of paid sick time off for every 30 hours worked
workers may use accrued time after 90 days of employment
sick days may be used to care for an ill family member

The law does not apply to certain employees who are part of collective bargaining agreements, airline flight crews or in-home healthcare workers. Employers will be required to post signs in the workplace informing employees of paid sick leave laws. Employers are prohibited from retaliating against employees who request paid sick leave and face fines of up to $4,000 a day for refusing to allow employees to take paid sick time as allowed under the new law.

Paid Sick Leave Trending

San Francisco County has had mandatory paid sick leave in place since 2006. California is now the second state in the nation to pass paid sick leave laws. Connecticut enacted a paid sick leave law in 2011. Various localities such as the District of Columbia and New York City have also enacted laws mandating paid sick leave for certain employees. Approximately twenty other states have proposed legislation involving paid sick leave. There is no federal law guaranteeing paid sick leave for employees.

Not Without Controversy

While Governor Brown said of California’s new paid sick leave law, “Whether you’re a dishwasher in San Diego or a store clerk in Oakland, this bill frees you of having to choose between your family’s health and your job”, the law is not without its critics.

Business owners, especially small business owners, have expressed their concern over the additional costs that their businesses will have to bear once the new law goes into effect. California also recently increased the state’s minimum wage. Another increase in minimum wage is scheduled to take effect in January 2016.

Employers will also incur the administrative costs involved with keeping track of accrued paid sick leave, as well as the productivity costs involved with having workers call in sick.

Experienced Employment Attorneys

In light of the passage of the paid sick leave law in California, employers may consider updating their handbooks, trainings and other policies. Beck Law P.C. has years of experience advising employers on how to remain compliant with various laws, including wage and hour laws, paid time off and other issues. Please contact us to discuss your business’s needs.

Filed Under: Blog, California Employment Law, California Labor Law, Paid Sick Leave Tagged With: california employment lawyer, california labor attorney

Workplace Harassment or Just Playful Conversation?

August 29, 2013 by Beck Law P.C.

Q: I’m an employer of a local business, and recently there’s been a problem between several employees. One of the employees claims the others are sexually harassing her. I’m not sure the conduct qualifies as harassment, and it seems like just playful conversation. What should I do?

A: A claim of harassment by an employee should be taken very seriously by the employer, as harassment of any type, sexual, discriminatory or otherwise, continues to be a common problem in the workplace in California. The California Code of Regulations is helpful in identifying several different layers of sexual harassment, but these principles may also be applied to other types of harassment as well:

Where submission to harassment is a condition of employment;
Where the choice to submit or not affects employment decisions;
When the purpose or effect of the conduct alleged as harassment unreasonably interferes with the employee’s work performance;
When the purpose or effect of the conduct alleged as harassment unreasonably interferes with the employee’s work performance; or
When the conduct alleged to be harassment creates an intimidating, hostile or offensive work environment.

Fair Employment and Housing Act

2 Cal Code Regs §§7287.6(b), 7291.1(f)(1). These categories set the prohibitions on the variety of conduct by employers and co-employees. Under the Fair Employment and Housing Act (FEHA), California law defines two types of methods to prove sexual harassment in the workplace: conduct which establishes a quid pro quo, and conduct creating a hostile work environment. Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4^th 264, 42 Cal.Rptr.3d 2, 11.

Sexual Favoritism

Does your employee contend that the harassment is a result of some quid pro quo arrangement with another employee or manager? The California Supreme Court defined such quid pro quo harassment as conduct that leads to “sexual favoritism”, including the award of job benefits or bonuses if the employee submits to sexual advances. Miller v. Department of Corrections (2005) 36 Cal.4^th 446, 461-462. However, this also incorporates the converse, such as a manager threatening to demote or take punitive action against an employee should they not submit to sexual advances or conduct requested, expressly or impliedly.

Your employee may also be referencing a claim of a hostile work environment. The California Supreme Court has also set forth the standards in Lyle in relation to what constitutes a hostile work environment sufficient to create harassment:

Under Title VII, a hostile work environment sexual harassment claim requires a plaintiff employee to show she was subjected to sexual advances, conduct, or comments that were (1) unwelcome (see Meritor, supra, 477 U.S. at p. 68, 106 S.Ct. 2399); (2) because of sex (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 80-81, 118 S.Ct. 998, 140 L.Ed.2d 201 (Oncale)); and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment (id. at p. 81, 118 S.Ct. 998; Meritor, supra, 477 U.S. at p. 67, 106 S.Ct. 2399). In addition, she must establish the offending conduct was imputable to her employer. (Meritor, supra, 477 U.S. at pp. 69-73, 106 S.Ct. 2399.)

Lyle, 42 Cal.Rptr.3d at 12. Whenever an employee performs any type of investigation prompted by a claim of harassment, these three elements are necessary and essential questions to ask and conclusions to determine before taking any action. It may very well be that such “harassment” is in fact nothing more than workplace conversation which the employee has taken out of context, for the mere discussion of sex or vulgar, sexual language is generally insufficient to show the harassment was “because of sex”; the conduct must involve some treatment to the employee on the basis of sex itself.

In either sense, every employer should take a claim of harassment seriously. [Read more…]

Filed Under: Blog, California Employment Law, California Labor Law, Employment Law, Labor Law, News, Workplace Harassment Tagged With: Petaluma Employment Attorney, Petaluma Employment Lawyer, Santa Rosa Labor Attorney, Santa Rosa Labor Lawyer, Ukiah Labor Attorney, Ukiah Labor Lawyer

Employer Retaliation

July 25, 2013 by Beck Law P.C.

Q: I have a question about employer retaliation. I’ve worked at the same company for years. Recently there was a problem on a job site where safety precautions weren’t implemented correctly by management, and someone was hurt. I made my supervisor aware of the problem, but he said if I want to keep my job, I should simply let management worry about those problems, and go about my day. What should I do? Can my employer really get rid of me for telling them about that?

California Employer Retaliation Protections

A: California law is designed to protect employees from employer retaliation for raising issues which either violate legal statutes, rules, or other improprieties at the workplace. For example, the California Occupational Safety and Health Act (OSHA, California Labor Code §§6300-6718) provides for protections to employees who make complaints or notifications regarding the safety conditions of the workplace or job site. Such employees who make complaints, regardless of whether written or oral, to the employer or to a government agency, cannot be subject to discharge, reprimand, or adverse action by the employer because of those complaints. Taylor v Lockheed Martin Corp (2000) 78 Cal.App.4th 472, 485.

How serious does your complaint need to be? Generally, the complaint to the employer or to the administrative body need only be reasonable. In other words, even if an employee makes a complaint about safety code violations, but the employer’s conduct otherwise complied with the relevant rules, they are still protected from any adverse action as long as the employee held a reasonable belief of the violation.

What does an employee do if an employer does take such adverse action against them for making those complaints? An employee may file an administrative complaint with the California Department of Industrial Relations, Office of the Labor Commissioner. California Labor Code §98.7. The complaint must cite the issues raised by the employee, the adverse action taken by the employer in retaliation, and must generally be filed within six (6) months of the action by the employer in question. If the Labor Commissioner should find a violation of any law, rule or regulation, the Commissioner will order the appropriate remedies for the employee, including “rehiring or reinstatement, reimbursement of lost wages and interest thereon, payment of reasonable attorney’s fees associated with any hearing held by the Labor Commissioner in investigating the complaint, and the posting of notices to employees.” Section 98.7(b). It is possible the employee may not be required to exhaust this administrative remedy before proceeding to file a civil lawsuit against the employer should they choose to do so. Daly v Exxon Corporation (1997) 55 Cal.App.4th 39, 46. Even so, filing an administrative complaint with the Labor Commissioner is generally less costly than a civil lawsuit, and the employee might consider that remedy first, in order to see if the administrative body can resolve the problem.

Your complaints about workplace hazards and safety, however, are not the only category of complaints protected under California law. Employers may not retaliate against employees for refusing to perform any acts which the employee reasonably believes would result in a violation of the rules of law. Section 2856; Tameny v Atlantic Richfield Co. (1980) 27 Cal.3d 167, 174 fn8. While this would encompass safety violations, the provision is also broad enough to encompass administrative violations, crimes, or other conduct which would otherwise violate the rules of any state or local law. In fact, Section 98.6 provides that employers may not take any retaliation against employees for exercising their rights under the Labor Code, and that doing so may entitle the employee various remedies such as reinstatement, reimbursement for back wages, and possible criminal penalties.

Human Trafficking Notice Posting Required of Certain Businesses

June 15, 2013 by Beck Law P.C.

A human trafficking notice must be posted at bus stations, truck stops and several other types of businesses.

SB 1193 requires specified businesses to post an 8.5″ x 11″ notice, on or before April 1, 2013, that contains information about organizations that provide services to eliminate slavery and human trafficking. The Department of Justice will develop a model notice that complies with the requirements of SB 1193 and make the model notice available. This notice will also be made available on HRCalifornia after the Department of Justice has created it.

Summary of Human Trafficking Notice Requirements

The following is a summary of the requirements set forth by Senate Bill 1193. This summary is not a regulation as defined by the California Administrative Procedure Act (Gov. Code § 11340.5) and does not constitute an agency interpretation of Civil Code § 52.6.

1. Who Must Post a Public Notice

Civil Code § 52.6 mandates that the following businesses post the notice:

On-sale general public premises licensees under the Alcoholic Beverage Control Act (Division 9 (commencing with Section 23000) of the Business and Professions Code).
Adult or sexually oriented businesses, as defined in subdivision (a) of Section 318.5 of the Penal Code.
Primary airports, as defined in Section 47102(16) of Title 49 of the United States Code.
Intercity passenger rail or light rail stations
Bus stations.
Truck stops. For purposes of this section, “truck stop” means a privately owned and operated facility that provides food, fuel, shower or other sanitary facilities, and lawful overnight truck parking.
Emergency rooms within general acute care hospitals.
Urgent care centers.
Farm labor contractors, as defined in subdivision (b) of Section 1682 of the Labor Code.
Privately operated job recruitment centers.
Roadside rest areas.
Businesses or establishments that offer massage or bodywork services for compensation and are not described in paragraph (1) of subdivision (b) of Section 4612 of the Business and Professions Code.

2. Where Must the Public Notice Be Posted

Civil Code § 52.6 requires that a specified business or other establishment must post the notice in a conspicuous place near the public entrance of the establishment or in another conspicuous location in clear view of the public and employees where similar notices are customarily posted.

3. What the Public Notice Must Say

Civil Code § 52.6 requires that the public notice to be posted must be at least 8.5 inches by 11 inches and written in size 16 font. Additionally, the public notice must state:

“If you or someone you know is being forced to engage in any activity and cannot leave — whether it is commercial sex, housework, farm work, construction, factory, retail, or restaurant work, or any other activity — call the National Human Trafficking Resource Center at 1-888-373-7888 or the California Coalition to Abolish Slavery and Trafficking (CAST) at 1-888-KEY-2-FRE(EDOM) or 1-888-539-2373 to access help and services. Victims of slavery and human trafficking are protected under United States and California law.

The hotlines are:

Available 24 hours a day, 7 days a week.
Toll-free.
Operated by nonprofit, nongovernmental organizations.
Anonymous and confidential.
Accessible in more than 160 languages.
Able to provide help, referral to services, training, and general information.”

4. What Languages the Public Notices Must Contain

The specified businesses and other establishments must post the notice in English, Spanish, and in one other language that is the most widely spoken language in the business or establishment’s location (and for which translation is mandated by the Voting Rights Act, 42 U.S.C. § 1973, et seq.). For those counties where a language other than English or Spanish is the most widely spoken language, Civil Code § 52.6 does not require the public notice to be printed in the non-English and non-Spanish language.

5. The Attorney General’s Model Public Notice

The Attorney General of California has developed a “model notice” available for download on the California Department of Justice’s Internet website as of March 27, 2013. The model notice is available in English and Spanish. The Attorney General has also provided a list of counties in which a third language other than English and Spanish is the most widely spoken language.

6. Liability and Penalty for Failing to Post the Public Notice

Civil Code § 52.6(e) creates civil liability for a business or establishment that fails to comply with the posting requirement. The penalty for violating this law is $500 for a first offense and $1,000 for each subsequent offense.

If you have any questions on the Human Trafficking posting, please contact the California Attorney General’s Office, Victims’ Services Unit.

Filed Under: Blog, California Employment Law, California Labor Law, Human Trafficking, Labor Law Tagged With: Labor Law

Sexual Harassment on the “Big Bang” Theory

June 13, 2013 by Beck Law P.C.

WHAT EMPLOYERS NEED TO KNOW

“The whole universe is in a hot dense state . . .” well, in regard to sexual harassment in the work place, yes, it is. Employers often find sexual harassment lawsuits as quite a surprise, or as the labor lawyers at B eck Law call it, a very expensive “Big Bang.”

Sexual Harassment In The Workplace Today

A recent episode of The Big Bang Theory on CBS shows us the realities and confusion of the human experience in conjunction with current laws regarding what is considered sexual harassment in the workplace today.

Take it from Sheldon Cooper, who tries to counsel an employee by showing her photos of venereal diseases and telling her “Your ovaries are squirting so much goofy juice into your brain you don’t know which way is up.”

Sheldon believes he is being completely professional here. Sheldon understands science, not social nuances. Employers must take heed of Sheldon’s fumbling and carefully train supervisors with in depth role playing to ensure that they fully understand what actions are permissible in the workplace.

To make matters worse, because he is Sheldon, he tells his HR manager that she is “brown sugar . . . a slave to her biological urges” and called her “an egg salad sandwich.”

The episode demonstrates that although an employee’s intentions can be very innocent and honest, and meant to provide positive re-enforcement, it does not necessarily matter what the employee/ supervisor meant to say, or what their intentions were. What matters is how the receiver of the information perceived what was said. An employer must perform due diligence training of supervisors and employees to ensure that they deliver the correct message, in the correct tone and manner.

Employees, like Sheldon Cooper, may be totally unaware of what they are saying and how they are affecting those around them.

The difficulty here lies in social nuance. The skill is in the delivery of the message, rather than the intent, although one would never show web photos of venereal diseases under any circumstances to a fellow employee, this is just for TV. Clearly, Sheldon’s intent is not malicious, the effect is.

Language training in the workplace, so that employees deliver the correct message is complex for an employer and a supervisor to grasp: it is more about the meaning behind the words, and not always the words themselves (although with Sheldon the words were clearly wrong as well).

Employers need to keep abreast in knowing the current legalities of what to say and what not to say in the workplace. It is about what the law determines to be appropriate, yet not all persons understand how to behave, nor is it necessarily in their nature to grasp the meaning of what the laws dictate, even when they try to behave with well intentions to all employees.

Any time a harassment complaint is filed, the employer is legally obligated to investigate and reconcile the issue. Some situations require that the employee no longer works in close proximity to others until an independent outside investigation is performed, and sometimes employees must be terminated. There are many factors to consider when handling a sexual harassment complaint as an employer. Legal counsel and independent investigations are provided by the attorneys at Beck Law PC regarding sexual harassment in the workplace.

Filed Under: Blog, California Employment Law, California Labor Law, Employment Law, Labor Law Tagged With: Santa Rosa Employment Attorney, Santa Rosa Labor Attorney

Current California Lunch Break and Rest Period Employee Labor Laws

October 25, 2012 by Beck Law P.C.

The Santa Rosa Labor Law Attorneys at Beck Law P.C. work with both employees and employers in regard to all areas governing compliance with California Labor / Wage and Hour Laws. So as not to violate current California lunch break and rest period employee labor laws, as of April 12, 2012 it is a California requirement that all non-exempt employees get uninterrupted meal breaks and rest periods according to a decision by the Supreme Court (Brinker vs. Superior Court) See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004. The Petaluma Employment Law Lawyers at Beck Law P.C. suggest to employers that all Employee Handbooks and Policies are updated by an experienced labor attorney to ensure compliance with these new laws so that overtime violations will be avoided. In turn, we encourage employees to contact an experienced labor and employment lawyer, such as Beck Law P.C., if they feel their legal rights are being violated.

GENERAL GUIDELINES FOR EMPLOYERS AND EMPLOYEES

The employer must relieve the employee of all duty: The Wage and Hour Labor Law Attorneys Beck Law P.C. interpret this to mean that literally ALL NON-EXEMPT EMPLOYEE DUTY must be relieved. We encourage employers to have built in contingencies to their policies to ensure that non-exempt employees do not eat at their desks or take any phone calls or instructions while they are “clocked out”.

The employer must relinquish control over all activities of the employee: The Ukiah Labor Attorneys at Beck Law P.C. suggest all of our business clients provide a break area for employees and to encourage non-exempt employees to take a full break as well as leave the premises whenever necessary.

The employer must permit an uninterrupted 30-minute break: The Lake County Labor and Employment Lawyers at Beck Law P.C. suggest our business clients provide a break schedule and appoint an Office Supervisor that monitors all non-exempt employees to make sure breaks are taken in a timely manner. All non-exempt employees must “clock in” and “clock out” and are never permitted to work at home or “off clock.”

The employer must not impede or discourage the employee from taking their 30-minute meal break: In order to demonstrate compliance with this law as well as avoid meal period violations, the attorneys at Beck Law P.C. suggests employers hire experienced employment law attorneys to prepare the appropriate legal language to be included in all Employer Handbooks and Policies that clearly outlines the break schedule stating that employees have a responsibility to take their breaks in a timely manner. Additionally, we encourage fellow employees to never discuss work related matters with a non-exempt employee while they are taking a break.

All Non-Exempt Employee Lunch Breaks and Rest Periods Must be Provided and Taken in a Timely Manner: Current California labor laws for rest breaks and meal periods require that the employer provide non-exempt employees with a 30 minute uninterrupted meal break after 5 hours of work (unless the employee’s workday is completed within 6 hours), and a 10 minute rest break time after each 3 ½ hours of work.

10 Minute Breaks Must Be Paid By Employer. Not only must an employer require a non-exempt employee to take an un-interrupted lunch or Rest break, but the employer must pay for it, according to current labor laws. rest break violations and meal break violations can occur if a non-exempt employee is interrupted during a break or meal period and said employee is entitled to additional compensation for working through a meal break. In addition to the one hour of pay, the extra compensation can increase the amount of overtime that you are due.

Employers May Not Pressure or Coerce the Non-Exempt Employee to Forgo a Lunch or Rest Break: Only if ALL of the above are met will an employee be deemed to have taken a break. In particular, the California Supreme Court noted that the “wage order and the governing statute do not countenance an employer’s exerting coercion against the taking of, creating incentives to forego, or otherwise encouraging the skipping of legally protected breaks.”

What this means, in simple terms is: A written company policy stating that you permit meal breaks and rest periods will not be legal if you do not enforce your employees to take timely breaks, that are monitored with accurate time keeping records that demonstrate that non-exempt employees “clocked in” and “clocked out” on time, every work day. Even on extremely busy days, managers must not pressure non-exempt employees to work through breaks and must ensure rest and meal breaks are taken on time and un-interrupted, or compensate the employee in the amount of one hour’s wage for each interruption or violation.

Missed Meal Breaks and Rest Periods are considered a Wage and Not a Penalty: In Murphy v. Kenneth Cole Productions, Inc. the courts decided that missed meal breaks are considered a wage and not a penalty. What this means is under California labor law code meal break rule violations can be collected by employees for 3 years and sometimes 4 years under the California unfair competition statute, whereas a penalty is only collectable for 1 year.

What are the Timing Requirements that Comply with First or Second Meal Periods during the Workday?

Train your management to keep in mind the 5-hour mark. When an employee works more than five hours, a meal period must be provided no later than the end of the employee’s fifth hour of work (simply stated: no later than the start of the employee’s sixth hour of work). When an employee works of a period of more than 10 hours, a second meal period must be provided no later than the end of the employee’s tenth hours of work (no later than the start of the employee’s eleventh hour of work).

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