Understanding Workplace Age Discrimination Laws

April 8, 2015 by

workplace age discrimination lawsUnderstanding workplace age discrimination laws. Age discrimination occurs when a person is treated differently, or denied a benefit, right or service because of their actual or perceived age. Age discrimination is more subtle than other forms of discrimination, but can be just as pervasive in a workplace.

Workplace Age Discrimination Laws

Both federal and California state laws provide specific prohibitions against age discrimination in the workplace. The Age Discrimination in Employment Act of 1967 (ADEA) prohibits age discrimination against all persons 40 years or older. The ADEA is applicable to employers with 20 or more employees, and this includes labor organizations, employment agencies and also state and local governments. This law prohibits unfavorable treatment against those who are 40 years or older, though it is not illegal for employers to favor an older employee over a younger employer, even when both workers are over the age of 40. Furthermore, age discrimination can be conducted by a person who is also over the age of 40.

The ADEA prohibits age discrimination from occurring during any part of the employment process, which includes firing, hiring, job assignments, training, promotions, layoffs, benefit payouts, and for any other condition or term of employment. Harassment is also prohibited by the ADEA. Harassment can take an assortment of forms and can include offensive remarks about an employee’s age and ability to perform job functions as the result of their age. Furthermore, an employment practice/policy that has general applicability to all employees, regardless of their age, can still be found illegal under the ADEA if that practice/policy is not based on a reasonable factor other than age, and has a negative impact on employees 40 years of age or older.

California’s Fair Employment and Housing Act

California’s Fair Employment and Housing Act (FEHA) provides specific prohibitions against discrimination in California workplaces. The FEHA applies to all employers with five or more employees, and this includes government bodies, labor organizations, apprenticeship programs, employment agencies and private employers. Under the FEHA, there is an exception to the five-employee minimum when harassment has occurred in the workplace. Under this exception, all employers with one or more persons, or those receiving the services of at least one independent contractor, are subject to the FEHA’s prohibition against workplace harassment. This exception also allows individual co-workers who are harassing other employees to be held strictly liable for their actions.

Both the ADEA and the FEHA provide employees with a cause of action to file suit against their employers because of workplace age discrimination laws. However, state administrative remedies provided under the FEHA must first be exhausted before a civil action is pursued under the ADEA. In order to pursue age discrimination suit under federal law, the age discrimination suit must be filed with the Equal Employment Opportunity Commission (EEOC) within 300 days of the alleged discrimination, or within 30 days after the EEOC receives notice from the California’s Department of Employment & Housing (DFEH) that they will not pursuing the age discrimination claim.

Age discrimination in the workplace is a very important issue that is prohibited by both state and federal laws. If you work in Sonoma County, Mendocino County, or Lake County California and feel that your employer is in violation of workplace age discrimination laws, contact the employment law attorneys at Beck Law P.C. in California today.

Filed Under: Age Discrimination, California Labor Law Tagged With: , , , , , ,

Can An Employer Fire An Employee For Discussing A Raise?

February 24, 2015 by

fire an employee, california labor lawCan an employer fire an employee for discussing a raise? You have a great Office Supervisor that deserves additional compensation for her dependable work. You decide to reward her with a fantastic performance review and an excellent raise. But, because not all of your your employees are exceptional and you have only so much money to go around, you would prefer that the Office Supervisor keep her raise to herself and not share this information with her co-workers. As she leaves your office, you tell her: By the way, I would prefer you not tell anyone about your raise. If you do, it may cause a lot of disruption in the office, and hurt other employee’s feelings. Actually, I need to trust that you will not tell anyone in this office or you may lose your job over it.

From an employer’s point of view, this statement may seem like a good reminder, given what you think about the other employees, how fairly you want to compensate the other employees, and how much you appreciate the hard work and dedication of this particular employee over the others, given that cash flow is tight. You know your business and what your limits are, and you just don’t want to deal with all the other employees’ complaints. The bottom line is you want the raise to go to the person who earned it, you believe it is reasonable to ask that some things remain private, and frankly, you don’t want to have to explain yourself.

Can you say this to your employee? The answer is: NO. In fact, it is illegal.

Under the National Labor Relations Act, employers cannot prevent employees from discussing wages, salaries, raises, evaluations, cuts in pay, bonuses, benefits, or anything related to their employment among themselves. Employees may discuss ALL WORKING conditions among themselves and they are free to organize, share information and band together as a group. As taken from the NLRB website:

“The law we enforce gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away. These rights were written into the original 1935 National Labor Relations Act and have been upheld in numerous decisions by appellate courts and by the U.S. Supreme Court”

More specifically, Section 7 of the National Labor Relations Act clearly states:

“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”

You may then wonder, can I as an employer discuss one employee’s raise with another employee? The answer is again: NO.

Whereas employees can discuss all work related information with each other, you as an employer must protect the privacy of every employee, and you are not allowed to discuss information regarding one employee with another employee, unless that employee is a supervisor; and even then, information can only be shared that is relevant/necessary for the supervisor to do the job, and nothing more. For example: An employer and a supervisor may discuss an employee’s bonus only if that employee is working directly under that supervisor. An employer may not “tell” an employee anything about another employee’s bonus. [Read more…]

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A Guide to Some of California’s Most Frustrating Employee Protection Laws

December 19, 2014 by

Frustrating Employee Protection LawsA guide to some of California’s most frustrating employee protection laws. While California is typically considered one of the most worker-friendly states in the U.S., the flip-side is that many employers operating within the state believe that California’s employee-protection laws are onerous and complicated to understand. In fact, employers who operate in California as well as other states have noted how the laws within this state are frustrating to comply with, especially when compared to more business-friendly jurisdictions. What employers have been confounded by is the administrative burdens, the lack of flexibility with regards to compliance and enforcement, and also the enhanced degree of litigation possibilities. The California Chamber of Commerce decision to enact 24 additional new state employment laws and amendments will go into effect starting in 2015, which will provide additional procedures and regulations that employers must adhere to. The following includes the four most difficult and frustrating employment laws that both California employers and employees should be aware of in order to avoid violations and to be fully informed about employee rights.

The Four Most Confusing California Employee Protection Laws

  • Overtime: While in many states overtime cannot be paid until after over 40 hours have been worked by the employee, in California employees are entitled to overtime pay when they work more than 8 hours in one single day. This law has confused many new employees and employers because its effects reach beyond just overtime pay. Under the law, employees are prevented from having the flexibility to work late or leave early and subsequently make up the hours later during that same workweek without their employer being required to pay overtime wages.
  • Employee Breaks: California has extremely strict requirements for employee breaks. In fact, employers are required to provide employees with both a 30-minute meal break per every five hours of work, plus a 10-minute rest break for every four hours of work. This law has resulted in a great deal of class actions against employers, especially the section about the 10-minute rest break, which is a requirement not provided by many other states. A 2012 decision clarified the 10-minute rest break requirement, holding that employers did not have to relieve their workers of all of the work duties during the break. However, this rule has been difficult for employees who would simply like the flexibility to skip their rest break in order to take a longer lunch. While employers would like to provide their employees with the flexibility to do so, fear of litigation prevents such employers from providing this leniency.
  • Layoffs: California state law requirements for layoff reporting are some of the most stringent in the country. While federal law requires 60-day notices before any layoffs for those employers with over 100 full-time workers, California law requires the same notice from employers that have 75 or more part-time and full-time employees.
  • Employment Contract Non-Compete Agreements: Non-compete agreements provide employers with protections and prohibit employees from soliciting their employer’s clients after the employment relationship is terminated, or taking other actions that place the employees in direct competition with the employer. While in many states non-compete agreements in employment contracts are enforceable, in California non-compete agreements are not valid.

The above is not a completely exhaustive lists of all of the California laws that are difficult to understand and comply with. However, understanding the basics of these laws will keep employers out of trouble and allow employees to understand their basic rights. When you need labor and employment law legal assistance, make sure to contact the labor and employment attorneys at Beck Law, P.C. in Santa Rosa, California.

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

Understanding the Basics of California Age Discrimination Laws

December 2, 2014 by

California age discrimination lawCalifornia age discrimination law – Understanding the basics. Age discrimination is the unlawful practice of treating someone differently because of their perceived or actual age. Age discrimination is specifically prohibited under both employment law and housing law. Age discrimination is one of the many forms of discrimination along with discrimination based on sex, race, and religion, and is explicitly prohibited under both California state and federal laws. Under federal law, the Age Discrimination in Employment Act (ADEA) prohibits age discrimination in the workplace against people who are 40 years old or older. This law does not provide protections for those workers who are under the age of 40 and face age discrimination in the workplace, and the ADEA also does not make it illegal for an employer to favor an older worker over a younger worker, even if both workers are 40 years of age or older.

The FEHA & Employment Discrimination

The California state law that provides protections against age discrimination in the workplace is the Fair Employment and Housing Act (FEHA). The FEHA prohibits discrimination, retaliation and harassment in both housing and employment when such illegal practices are based on a person being 40 years or older or because of that person’s “religious creed, color, national origin, ancestry, physical disability (including AIDS and HIV), mental disability, medical condition, marital status, sex (including pregnancy, childbirth, or related medical conditions), age (40 or older), or sexual orientation (heterosexuality, homosexuality, and bisexuality).”

The FEHA is part of California’s broader public policy goals of protecting residents’ civil rights to obtain, hold and seek employment while being free from discrimination. The FEHA is enforced by the Department of Fair Employment and Housing (DFEH), the agency that prosecutes cases brought under the FEHA, and the Fair Employment and Housing Commission (FEHC), the state agency that rules on cases brought by the DFEH and citizens. Claims that an employer has violated the FEHA can be litigated either in an administrative hearing before the FEHC, or in civil court. If an administrative hearing is held, an employee who wins a claim against an employer can recover past wages, out of pocket expenses, and also up to $150,000 in emotional distress damages. When an FEHA case is litigated in civil court, the employee can recover unlimited monetary damages for emotional distress, punitive damages, past wages, attorney’s fees and any other out-of-pocket expenses associated with the case.

Employers Covered Under FEHA

Any employer that regularly employs five or more persons is covered under the FEHA. Ultimately, private employers, as well as state, local, counties and all other governmental bodies are covered by the FEHA, as well as labor organizations, apprenticeship programs and employment agencies. Furthermore, an exception to the five-employee minimum requirement exists when harassment is alleged. In such a situation, all employers who employ one or more persons or receive the services of one or more independent contractor(s) can be found guilty of violating the FEHA because harassment occurred based on age in the workplace. Under the FEHA, an employer is guilty for harassment that occurred in the workplace that the employer either ignored, or should have known about, but did not act to prevent further discrimination, harassment or retaliation. Furthermore, individual co-workers can be found personally liable for violating the FEHA, but only if they engaged in harassment.

Do you need legal representation in an age discrimination employment law suit? Contact an employment law attorney at Beck Law P.C. in Santa Rosa, California today.

Filed Under: Age Discrimination, Blog, California Labor Law Tagged With: , , , ,

Landmark CA Temporary Worker Protection Law

October 31, 2014 by

Fruits warehouseLandmark California temporary worker protection law. This month, Governor Jerry Brown of California signed a new bill into law that will finally hold businesses responsible for situations when subcontracted temporary staffing agencies that a business utilizes underpay and/or endangers temporary workers. The law, previously known as Assembly Bill 1897, was created to address at least some of the accountability issues facing the temporary worker industry. In industries such as food processing and warehousing, outsourcing work to low-paying temporary staffing agencies has become extremely profitable practice for two reasons. First, the cost of using temporary workers is less than the costs associated with utilizing full-time employees. For example, under the Affordable Care Act, businesses are not required to provide health insurance policies for temporary workers, though they are required to cover the costs associated with providing health insurance to full-time employees. Second the use of temporary workers has allowed companies to skirt responsibilities regarding the adherence to workplace regulations and laws. Companies have been able to avoid responsibility for workplace regulation violations even if they are the one’s overseeing the work of temporary employees.

Temporary Worker Protection Law Aims to Curb Abuse of Temporary Worker Status

In the past decade, Southern California’s Inland Empire has become the home to a massive retail distribution industry that has been known to exploit low-wage temporary workers in order to produce a wide assortment of retail products at low costs. These temporary workers have spoken out about the unsafe working conditions and rampant wage theft that they have experienced. Worker advocates and labor unions have criticized the businesses who exploit the labor of California’s temporary workers, and the state has finally decided to take notice with the implementation of the new law specifically created to protect temporary workers.

AB 1897 requires “the client employer to share with a labor contractor all civil legal responsibility and civil liabilities when it comes to paying wages to temporary workers. AB 1897 also prohibits client employers who utilize temporary staffing agencies from shifting the legal duties and liabilities associated with workplace safety to the contracted agency. As a result of these regulations, the state of California now has the right to fine businesses when the temporary staffing agencies they have contracted with have violated federal and state workplace laws.

Though it may seem obvious to some that businesses employing temporary staff should be held accountable for violations and bad working conditions that are experienced by temporary workers, the new law has created some discord amongst the business community. In fact, the California Chamber of Commerce has spoken out against AB 1897, stating that the law would “discourage further growth in this state, and will certainly discourage out-of-state companies from [re]locating here.” However, regardless of this dissent, California remains committed to protecting the rights and safety of all California employees regardless of their status as a full-time or temporary employee. In fact, AB 1897 is one of the many labor-friendly laws that has been recently passed in California. Other relevant laws include raising California’s minimum wage to $10 per hour, as well as newly governor-approved bill that will require employers to provide employees with paid sick leave.

If your business needs legal representation in Sonoma County, Mendocino County, or Lake County California contact the attorneys at Beck Law, P.C. We are prepared to help you in any way that we can.

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

New California Employment Law Bills Signed

October 14, 2014 by

Laws Rules RegulationsA  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: , ,

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

September 19, 2014 by

InternshipAre 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: ,

What Does The California Paid Sick Leave Law Do?

September 15, 2014 by

california flagWhat 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: ,

Are Waistlines Rising Along With Increased Employee Payroll Taxes? Survey Says Yes!

October 19, 2013 by

Employee Payroll Tax PeanutsA survey by Harris Interactive for the American Institute of CPAs indicates that the 2013 increase in employee payroll taxes has created tremendous stress on employers and employees alike.  Of course it is obvious that paying more in payroll taxes means an employee takes less money home to their families; however, the stress of how to make ends meet is taking its toll in other ways as well:  particularly in employee health and relationships.

Many Americans are feeling tremendous financial stress in this economy and, accordingly, it is taking great toll on their waistlines, their sleep patterns and their friendships.  The Harris survey, conducted on behalf of the American Institute of CPAs asked “1,011 U.S. adults to name all the ways financial stress is affecting their lives. Of those who rated their financial stress as “very” or “somewhat high,” nearly half (47%) said they are sleeping less, while 43% said they have less patience with friends or are seeing them less often; and 31% are eating more junk food or gaining weight.”

The survey seems like it is confirming what most Americans are feeling, and comes as common sense.  Junk food is cheap.  Eating fresh fruits and vegetables is becoming more costly.  And, it appears there is less time to grow a garden, should one have a plot of ground in which to do so.  Americans are working harder and longer hours than ever before.  After a working mom picks up her kids from day care, at 6:00 at night, and it is near payday, she may have only $15 that has to stretch a few days – the solution she may choose – McDonalds, Taco Bell, or the like.  After doing homework and baths with the kids and getting them to sleep, does she have time to meet with friends? There would be no time for that. Finally, she could sleep a lot sounder if she had $200 to last until the next pay check, instead of $15.

AICPA National CPA Financial Literacy Commission chairman Ernie Almonte commented: “Mounting money pressures are making Americans cranky, tired and unhealthy. This can lead to a double whammy, with ensuing physical and emotional stress potentially leading to higher long-term costs. Americans must find ways to cope with money stress even when financial challenges seem daunting.”

Filed Under: Blog, California Labor Law Tagged With: , , ,

Workplace Harassment or Just Playful Conversation?

August 29, 2013 by

Workplace Harassment

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:

  1. Where submission to harassment is a condition of employment;
  2. Where the choice to submit or not affects employment decisions;
  3. When the purpose or effect of the conduct alleged as harassment unreasonably interferes with the employee’s work performance;
  4. When the purpose or effect of the conduct alleged as harassment unreasonably interferes with the employee’s work performance; or
  5. 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.4th 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.4th 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: , , , , ,
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