California Job Retaliation and Wrongful Termination Laws

April 1, 2015 by Beck Law P.C.

California job retaliation and wrongful termination laws. Under California state law, it is illegal for an employer to retaliate against any employee who has provided information to law enforcement or government agencies, or engages in other protected activities. Employment retaliation can take a variety of forms including an employer’s decision to demote, terminate, fire or conduct some other negative act against an employee because that employee has exercised an activity protected by federal or state law. Most often employment retaliation occurs when an employee becomes a whistleblower by reporting an employer’s activities that are in violation or public policy or law, or is otherwise considered illegal. Under the California Labor Code, an employer is prohibited from taking any adverse, negative action, or any other form of discrimination in response to an employee:

Reporting discriminatory acts and other illegal activity that have occurred in a workplace controlled by the employer;
Participating in a labor union and other activities related to collective bargaining and/or an employee’s right to freedom of association and expression;
Complaining about the state of the workplace facilities and/or working conditions;
Participating in investigations and/or filing suit against an employer;
Filing a complaint against an employer with California’s Division of Labor Standards and Enforcement (DLSE).

CA Law Regarding Job Retaliation and Wrongful Termination

The most common form of employer retaliation is the wrongful termination of an employee who has engaged in activities protected by the federal and state government. Here in California, employment relationships are presumed to be at will, which means that the employment relationship can be terminated by both the employer and employee at any time without the consent of the other party. However, there does exist an exception to the at-will employment presumption, which provides that employers can be found guilty of wrongfully terminating an employee when that employee has been discharged for “performing an act that public policy would encourage or for refusing to do something that public policy would condemn.” Under this exception, a California employee who is discharged because of these reasons can bring suit against the employer in order to receive damages and compensation for the wrongful discharge. However, this exception does not apply when the parties have a pre-existing employment contract that allows employment termination based on cause or because of specific reasons previously outlined in the employment contract.

An employee can bring a wrongful termination claim by asserting that the employment discharge violated federal law, public policy or California state law. Typically, wrongful termination suits are brought under the California Fair Employment and Housing Act (FEHA), which allows employees to bring suits against employers. However, the FEHA cannot be used to bring suit against an organization’s managers, supervisors and other employees. A complaint alleging discrimination or retaliation in the workplace must be filed within six months following the occurrence of the alleged activities. However, complaints filed under California Labor Code section 230.1 and 230 (c) can be filed within one year following the alleged retaliation or discrimination. Complaints of employment retaliation and discrimination are filed with the DLSE.

If you believe you have been the victim of employment retaliation or discrimination you should contact one of the labor and employment attorneys here at Beck Law P.C. here in Santa Rosa, California today.

The Nightmare of Missed Breaks and Unpaid Overtime

March 16, 2015 by Beck Law P.C.

The nightmare of missed breaks and unpaid overtime. A key and trusted employee gives notice. He was well liked and you give him a special going away party.

Ten months later that key and trusted employee files an overtime and missed breaks violation complaint against you with the Labor Board. At first you are shocked because you really liked him and he left on good terms! He never said a word to you about any of this. You wonder, when and how could this have happened? Why was this was never brought to your attention during all his years of employment?

Missed Breaks and Unpaid Overtime

You review his time cards. They show no missed breaks or unpaid overtime and you continue to believe that this must be some sort of mistake. All you have to do is show the employee’s time cards to the Labor Board and all this will be cleared up, right?

You attend the Labor Board hearing, and show the commissioner your records. At this time that key and well liked employee produces another set of time sheets. A “secret” set of time sheets personally kept for years by the employee, showing that he worked a lot more that what he reported on his official time cards. This secret set of time cards documented hours and hours of “missed overtime and breaks” over a period of, well years – he even shows overtime for work he says he performed late at night when your office was closed. All you can think is what is going on? At this point, you go completely numb.

The employee tells the commissioner that he wanted to do a really good job but there wasn’t enough time in the day to keep up without working late at night or from home and tells the commissioner that you as his employer “should have known this.” You can’t remember ever asking your ex-employee to work late at night or from home (off the clock) ever. What was this extra work? What did he do for all those years of overtime?

How will the Labor Board Rule?

More often than not the Labor Board will side with the employee. It is imperative that employers seek the counsel of an experienced Labor Law attorney prior to attending a Labor Board hearing.

Employer’s Case: The employer believed that the company time cards were an accurate record of the the time worked and is therefore completely caught off guard by the extra set of time sheets produced. It must be some kind of mistake. But, at the Labor Board hearing the employee testifies that he never told his employer about the “secret” overtime he worked because he wanted to do a good job, to get everything done, and he didn’t want to lose his job to an assistant who was pining for the title.

Neither the employer nor the employee could document the actual work produced during these years of “overtime” but the Labor Board commissioner was satisfied that in spite of this lack of concrete evidence, the employee seemed earnest and appears sincere in his belief that he did something beneficial for the employer.

Department of Labor Decision: Employee was granted the full amount of his claim, with all penalties and interest. In addition the employer was required to pay back taxes to the IRS for these wages. Further, the Department of Labor included even more interest and penalties due to the employee wait time. This exacerbated the cost to the employer even further, escalating the dollars in interest and penalties (per day for a 30 day period).

BECK LAW P.C. SUGGESTED TIPS TO SECURE EMPLOYEE TIME CARD ACCURACY

It is essential that all employers:

Include a mandatory Declaration Under Penalty of Perjury on each time card, signed by the employee, that clearly states the employee swears that the time submitted on the card is accurate, honest and includes ALL time worked for that pay period
Mandate in your Policy Manual that non-exempt employees with pre-approved overtime must clock in and clock out, remotely, via e-mail prior to commencing and ending any work performed.
Ensure that time sheets are legible, professional and clearly written
Ensure employees initial all notes and changes and provide reasons and copies of email approvals for overtime, late, sick and vacation days, in their own handwriting
Outline Employee Manuals with language that non-exempt employees are never permitted to work “off clock” for any reason whatsoever, unless pre-approved by management in writing
Ensure all non-exempt employees are not permitted to sit at their desks during breaks and/or meals
Train management to post break/meal schedules in a public work area and to monitor them accordingly, and ensure breaks and meals are taken timely and in a manner that complies with current labor regulations
Provide recurrent reminders to management and employees to never talk about work to an employee that is on a break or meal period
Provide a separate defined space for employees to take breaks and meals that is free from work
Install time clocks within sight of management to monitor that employees clock in and out in a timely manner and do not clock in and out for another employee
Keep up to date employee records that are stored in a locked file or a password protected computer file
Seek a professional employment/labor law attorney, such as Beck Law P.C., to prepare and annually update all employee manuals, policies, procedures and employment documents

Filed Under: Blog, Meal Break Violations, Rest Break Violations Tagged With: Petaluma Labor Lawyer, Santa Rosa Labor Attorney, Ukiah Labor Attorney

Big Win for California On-site On-call Employees

March 10, 2015 by Beck Law P.C.

Big win for California on-site on-call employees. CPS Security Solutions, Inc., a California employer was delivered a crushing blow when the California Supreme Court ruled that the company’s compliance with a federal employment law that permitted the exclusion of compensation for sleep time was irrelevant in determining CPS compliance with California employment law. In Mendiola v. CPS Security Solutions Inc. the dispute was whether California’s Wage Order 4 was being adhered to by CPS. In determining that CPS’s wage policy violated the Wage Order 4, CPS and other California employer’s will now have to determine what retroactive effect if any the ruling will have on their compensation policy for employees.

The California On-site On-call Employees of CPS

The ruling in Mendiola requires that on-call security guards employed by CPS at different construction worksites are entitled to retroactive pay for 24 hours of work, despite the fact that their same employees only actively worked 8 hours per day. Originally, the on-call security guards employed by CPS had a written agreement with the company to reside in trailers provided by CPS. While residing at these trailers, the on-call/site security guards were allowed to rest and enjoy other leisure activities, though with some limitations. The guards were compensated at an hourly rate for all time spent patrolling their construction worksite. However, no compensation was received for time spent on-call at the worksite trailers unless an alarm went off or other circumstances required the attention outside of the trailer, or during the time spent waiting to be relieved from work by another guard. Ultimately guards were only paid for their time spent patrolling sites, and time spent in the investigation of disturbances occurring at the site.

The difficulty in this case is the fact that CPS did not intend to violate California state law when developing its compensation plan for on-site, on-call employees. In fact throughout the 1990s CPS worked with the California Labor Commissioner in order to ensure that the compensation policy in place, which excluded sleep time at the trailers, was in compliance with relevant federal and state law. The basis for this suit was a request by CPS for a declaratory relief action, requesting assistance from the California courts to review the compensation plan, and to also rule on its viability. Ultimately it was determined that though the federal law provided an express provision allowing the exclusion of sleep time in compensation, this fact was irrelevant in the determination of whether CPS was in compliance with state law because, as the court put it, California “is free to offer greater protection.” As a result, subject to Wage Order 4, CPS will be required to retroactively pay its employees for their rest time while on-site and on-call.

The ruling in the CPS case is interesting in that it does not involve an employer attempting to thwart labor employment law. In fact the unfavorable ruling was the result of CPS attempting to ensure their compliance with California state law. However, the holding means that other employers in California who do not pay compensation for rest time at on-site locations for on-call employees could be required to provide retroactive compensation to these employees. If you have any legal questions regarding California’s wage and compensation laws, and live in Sonoma County, Mendocino County or Lake County California contact the attorneys at Beck Law P.C. in Santa Rosa today.

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

I’m Being Laid Off But Must Train My Replacement?

March 5, 2015 by Beck Law P.C.

I’m being laid off but have to train my replacement? SCE is Southern California’s biggest utility provider. The company has recently faced public criticism after it was confirmed that SCE would be laying off many members of its large IT department in order to replace them with new hires from Tata Consultancy Services (TCS) in Mumbai, India, as well as from Infosys, an IT company in Bangalore. These new employees will be allowed to begin work in Southern California through the U.S. federal government’s H-1B program. The intent of the H-1B program is to allow foreign workers to access jobs in the U.S. that employers are unable to fill with U.S. employees. The main complaint about using the two Indian companies is that SCE already had U.S. employees who were trained, ready and willing to complete the work required, thus negating the very need for H-1B employees in the first place.

SCE and the Alleged H-1B Program Abuse

SCE is one of Southern California’s largest utility companies, which, before layoffs, reported having 1,800 employees in its IT department alone, with an additional 1,500 workers on contract. The IT department’s transition effort will result in an estimated 400 employee layoffs along with an additional 100 employees terminating their employment voluntarily. The employees who will be leaving SCE’s IT department have years of experience in their jobs, and will be forced to train their replacements in the upcoming months as part of the broader transition effort. Not surprisingly, many of the workers feel betrayed by SCE, and believe this transition is an attempt to pay lower wages to foreign employees, through the abuse of the U.S. federal government H-1B program. This argument is somewhat persuasive when one considers the very goals and purpose of the H-1B program, which is to provide employers access to non-U.S. employees when there are not enough domestic employees to provide the unique services that their businesses require. However, as one employee put it,

“Not one of these jobs being filled by India was a job that an…employee wasn’t already performing”.

Laid Off and Training My Replacement

The fact that some of the laid-off U.S. employees will be training their own successors seems to support the claim that the U.S. employees are skilled, trained and capable of providing all of the employment services that SCE requires.

In response, SCE has stated that the transition towards using Tata and Infosys H-1B employees will inevitably “lead to enhancements that deliver faster and more efficient tools and applications for services that customers rely on. Through outsourcing, SCE’s information technology organization will adopt a proven business strategy commonly and successfully used by top U.S. companies that SCE benchmarks against.”

However, SCE’s response does not touch on the issue of why California, home to Silicon Valley and some of the most advanced tech specialists and professionals, was not an adequate location to find the employees that SCE required. Some from within SCE have voiced concerns that the new Indian tech workers do not posses the necessary skill levels of the very people that they will soon replace.

The layoffs at SCE are a unique example of the immigration issues involved in foreign labor and employment. If you think you need a Santa Rosa Labor Attorney, or Mendocino County Labor Lawyer, contact the California labor and employment lawyers at Beck Law P.C. in Santa Rosa today.

Filed Under: Blog, California Employment Law, Labor Law Tagged With: California employment attorney, california employment lawyer, lake county labor lawyer, Santa Rosa Labor Lawyer, Ukiah Labor Attorney

Can An Employer Fire An Employee For Discussing A Raise?

February 24, 2015 by Beck Law P.C.

Can 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…]

Filed Under: Blog, California Labor Law, Employee Rights Tagged With: Petaluma Labor Lawyer, petaluma lafbor attorney, Santa Rosa Labor Attorney, Santa Rosa Labor Lawyer, Ukiah Labor Attorney, Ukiah Labor Lawyer

Labor Law Overtime Violations and Employee Commute

February 20, 2015 by Beck Law P.C.

Labor law overtime violations and employee commute. Must I pay overtime for my employee’s commute? Your receptionist has clocked out for the day and is driving home; yet, while at a stop light, gets a text from a co-workers regarding a work related question. It requires a simple “yes” or “no” and being a diligent employee he/she pulls over and responds with a text back. A few minutes later, another text is received that requires a very simple response which only takes a minute. In total, your receptionist spent approximately 1 minute and 20 seconds to read and respond to these texts.

No big deal right? Wrong! It is a big deal. The receptionist, being a non-exempt employee, is due overtime for the work performed answering texts while commuting home. For employers, the modern use of devices and smart phones by employees has further complicated the lines between clocking in and out of work and what is considered “working”.

The Fair Labor Standards Act in the United States regulates overtime, and additional state laws are in place that can affect employers, especially in regard to non-exempt employees who communicate on devices prior to and after work hours.

Employers need strict guidelines for non-exempt employees regarding work related texts, emails, face chats and messaging while commuting to and from work or employers may be liable for expensive penalties and fines.

It is important that employers evaluate non-exempt status to determine if their business is following fair labor standards regarding overtime. A general rule of thumb is: if a non-exempt employee is working (doing something for their employer) no matter their location, including being “on-call” they are considered “working” and must be paid appropriately. Additionally, if non-exempt employees are sent off-site during working hours they must be paid for their travel time as well.

Violations to labor laws carry serious penalties and fines, so small business owners should have carefully written policies. Labor law violations can trigger a domino effect for an employer: when one employee files a complaint with the Labor Board, other employees often follow. Even past employees can get in on the action.

A clearly defined policy regarding telecommuting, such as provided below, should be included in your Employee Handbook:

TELECOMMUTING POLICY FOR NON-EXEMPT EMPLOYEES

For non-exempt employees, telecommuting (working from another location, i.e., mobile, smart phone and/or from one’s home computer) is not permitted, unless pre-approved by your immediate supervisor, in writing, via e-mail communication. Without express written permission to telecommute, all non-exempt employees must perform their job duties at their primary central and customary workplace, “on clock” and cannot work or resume work if clocked out. Failure to comply with these requirements will subject the employee to disciplinary action and/or termination of employment.

OFF-SITE REPORTING OF TIME FOR NON-EXEMPTS

When pre-approved for telecommuting (working off site), it is a requirement that non-exempt employees work “on clock” via e-mail certified time by following this procedure:

Before beginning any work, send one (1) e-mail to your immediate supervisor outlining the anticipated duties you will be performing; the time recorded on this e-mail is your certified start time.

At the end of work, send one (1) e-mail to your immediate supervisor outlining the work you accomplished; this e-mail will certify your finish time.

Non-exempt employees may not work before the first e-mail is sent, and may not resume work after the second e-mail is sent. For clarification, the time that is marked “sent” on the e-mails will be the certified/official time record for purposes of compensation. It is the employee’s responsibility and word of honor to use this e-mail certified time “clock” system in an accurate manner and to strictly follow all break/rest period labor law requirements when working via telecommunication, no matter their location. [Read more…]

Filed Under: Blog, Overtime Violations Tagged With: petaluma overtime violations attorney, santa rosa overtime violations attorney, ukiah overtime violations attorney

Employers Warned Against Providing Financial Incentives to Buy Non Employer Health Coverage

January 8, 2015 by Beck Law P.C.

Why is the Government warning employers against providing financial incentives to buy non employer health coverage? The implementation of the Affordable Care Act (ACA) has effectively revolutionized the U.S. healthcare insurance system. Now there is no longer an emphasis primarily on employers sponsoring the bulk of workers’ health insurance plans. In fact, there are now online exchanges where employees can shop for and purchase their own medical coverage instead of paying into their existing employment based plan. Some employers have welcomed this shift in burdens. However, some employers may be taking it too far, and the federal government has gone on record warning employers against providing financial payments to their high-cost employees as incentive for them to leave their employer’s medical plan in favor of purchasing their own individual market policy.

Non Employer Health Coverage, Rising Costs and Employer Incentive

From the employer standpoint, the costs associated with providing employee healthcare have risen so much since the ACA’s implementation that they are looking for any way to lessen their financial burdens. Some employers are finding it cheaper to pay their high-cost workers in exchange for the worker agreeing to exit their existing benefit plans, so that the employer does not have to continue making contribution payments on that employee’s behalf.

A November 14, 2014 memo released by the U.S. Department of Labor, Treasury, and Health and Human Services (the “Departments”) stated that providing payments in exchange for employees purchasing individual market policies is considered unlawful discrimination against employees on the basis of their health status. In fact, according to a May Kaiser Health news report, health insurance consultants and brokers have been advising employers to shift workers with expensive health conditions into individual market policies as a cost-cutting mechanism. Such practices are in direct opposition of the ACA, which requires that health insurance exchange plans accept all applicants, regardless of their existing illnesses or health conditions. This acceptance must be at prices that have been pre-established before acceptance.

The reality is that the costs associated with implementing the ACA have resulted in some companies’ health insurance liability costs increasing by over 100 percent. As a result, large, self-insured employers are looking for any way to cut costs. Employers are finding that the removal of just one high-cost employee from the group insurance plan can result in annual savings of hundreds of thousands of dollars. For some, a one-off lump sum payment to an employee is well worth the future financial benefits associated with that employee’s exit from the group policy.

Both the federal government as well as consumer advocates are concerned about this practice because it could erode the effectiveness of employer-based coverage, while creating higher costs and premiums for the entire insurance marketplace. If employees who would be better suited in employer-based plans are incentivized to switch to individual market policies, the entire marketplace would be forced to absorb the costs associated with the employee’s sickness instead of the employers, which are the one’s with the actual vested interest in the employee’s well being.

Employer payments in exchange for a worker exiting their existing employment based insurance policy is a violation of the ACA, and is considered unlawful discrimination. If an employer has propositioned you about switching to an individual market policy in exchange for payment, you should contact the Santa Rosa, Ukiah, Lake County California employment law attorneys at Beck Law P.C. today.

Filed Under: Affordable Care Act, Blog, California Employment Law Tagged With: California employment attorney, california labor attorney, labor and employement attorney, Petaluma Labor Lawyer, Santa Rosa Discrimination Attorney, Ukiah Employment Attorney

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

December 19, 2014 by Beck Law P.C.

A 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: mendocino county labor lawyer, Petaluma Labor Attorney, Santa Rosa Employment Attorney, Santa Rosa Employment Lawyer, sonoma county labor attorney

Understanding the Basics of California Age Discrimination Laws

December 2, 2014 by Beck Law P.C.

California 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: California employment attorney, california employment lawyer, Labor attorney santa rosa, Petaluma Labor Lawyer, Ukiah Labor Attorney

California Employers Must Provide Training on Workplace Bullying Prevention

November 21, 2014 by Beck Law P.C.

California employers must now provide training on preventing workplace bullying. This has been a busy period for California employment law. In addition to laws passed regarding unpaid interns and paid sick leave, Governor Jerry Brown also signed into law a new requirement on workplace training. AB 2053 mandates workplace bullying training be included as a part of mandatory employee training that is already required under California law.

California law currently requires employers with 50 or more employees to provide interactive training on sexual harassment, as well as additional training for supervisors, every two years.

California law specifies how the training must be conducted, including that it:

be interactive;
inform trainees of the relevant state and federal laws;
provide practical information and guidance to trainees;
include a description of the remedies available to individuals who are sexually harassed;
include practical examples for trainees; and
teach trainees on the prevention and correction of harassment.

Beginning January 1, 2015, training on “abusive conduct” will also be required in the biannual trainings.

What is abusive conduct?

The new California law defines “abusive conduct” as that “with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” In other words, California employers will have to conduct trainings on workplace bullying.

Examples of Abusive Conduct

The law gives examples of what is considered abusive conduct, including:

derogatory remarks and epithets;
verbal threats or intimidating language;
humiliating language;
physical conduct that is threatening, intimidating or humiliating;
insults; and
sabotage of an employee’s work performance.

One single act of any of the above will not constitute abusive conduct unless it is extremely severe.

The law stops short of making workplace harassment an actionable offense. However, if the abusive conduct is because an employee is part of a protected category, the employee may have a claim under existing California anti-discrimination laws such as the Fair Employment and Housing Act (“FEHA”).

As a result, the California law mandating workplace bullying training requires employers to provide training on conduct in the workplace that is not actionable in court. An employee cannot sue for workplace bullying unless the bullying falls under the auspices of FEHA.

Can I sue for Workplace Bullying?

Workplace bullying is currently not illegal in any state, although the issue has been in the media a lot recently. Twenty six states have some type of legislation regarding workplace bullying at various stages.

If you are being bullied at work, it is important to speak with an experienced attorney. You may have a claim for discrimination if the bullying is because of a protected category such as age, race, gender or religion. Our attorneys would be happy to meet with you to discuss your situation.

Are your employee training programs adequate?

California employers may wonder if their workplace policies, training programs and human resources policies are in compliance with the rapidly changing California law. Beck Law, P.C. can work with employers to advise on compliance with California employment laws. Contact us today to discuss your concerns.

Filed Under: Blog, Labor Law, Workplace Harassment Tagged With: employee training programs, workplace bullying