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: , , , ,

Understanding California Employment Retaliation Laws

October 22, 2014 by

Employer Employee ConflictEmployment 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: , ,

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: , ,

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

October 1, 2014 by

making a cell phone callCan 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:

  1. 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”.
  2. 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.
  3. 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: , , , ,

Ensuring Compliance with New Changes to California Employment Law Regarding Retaliation Related to Immigration Status

September 24, 2014 by

Retaliation Road SignRetaliation related to immigration status. In June of this year, California Governor Jerry Brown signed into law Assembly Bill No. 2751 (“AB 2751”), which provided updates and clarification to AB 263, a California law that, among other things, prohibits employers in Santa Rosa and all of California from retaliating against employees who wish to exercise their rights under the California labor laws. AB 2751, which specifically addresses employer retaliation against employees on the basis of immigration status, will take effect on January 1, 2015.

Current California Law on Retaliation in Employment

Currently, California law already protects employees from discrimination or retaliation by employers if the employee engages in protected activity.  Protected activity under California law includes:

  • Filing a claim or informing your employer of your intent to file a claim with the Labor Commission;
  • Complaining about unsafe work conditions or practices;
  • Discussing your wages or complaining about non-payment of wages; and
  • Taking time off from work for jury duty.

Employees who engage in protected activity and suffer an adverse action from their employer for doing so, such as termination of their employment, are entitled to be reinstated and to receive payment for lost wages.

Updates to California Employment Law and Immigration-Related Retaliation

AB 263, which took effect January 1, 2014, specifically prohibits employers from threatening to take or taking adverse actions against an employee with regard to immigration status if the employee engages in protected activity.  These “unfair immigration-related practices” include:

  • Threatening to contact immigration authorities;
  • Requiring an employee to produce documents that are not required under current law for work authorization purposes;
  • Rejecting employee documents that appear to be genuine; and
  • Misuse of the E-Verify system.

For example, if an employee complains about nonpayment of wages and the employer subsequently threatens to call immigration authorities on the employee, the employee may seek an employment attorney to determine if they may to enforce their rights under California law.

AB 2751 specifically updates AB 263’s definition of unfair immigration-related practices. As of January 1, 2015, unfair immigration-related practices will include threatening to file or filing a false report or complaint with any state agency as an unfair immigration-related practice.

Under AB 263, employers who engage in unfair immigration-related practices may lose their business licenses and be required to pay a $10,000 fine for each violation. AB 2751 clarifies that the proceeds of the penalty will go to the employee who was retaliated against by the employer.

Northern California Employment Attorneys

Due to these recent changes in California labor law and the upcoming implementation of AB 2751, employers in Santa Rosa may wish to review and update their handbooks, policies and training materials to ensure that they are in compliance with the changes. Employees who believe their rights under the new laws may have been violated should consult with an experienced employment attorney. The attorneys at Beck Law, P.C. have experience counseling both employees and employers. Contact us today to discuss your employment-related legal needs.

Filed Under: Blog, Employee Retaliation 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: ,

How Long do I Have to Sue My Employer?

September 9, 2014 by

ContractHow Long do I Have to Sue My Employer? If your potential suit is in regards to a Fair Employment and Housing Act Violation, earlier this year, a California Court of Appeals released a decision regarding an employee’s claim under the Fair Employment and Housing Act (FEHA).  The decision is the first to address the issue of how long an employee has to file a claim, that length of time also known as the statute of limitations. (Non-FEHA claims: intentional infliction of emotional distress and negligent hiring)

Fair Employment and Housing Act

FEHA prevents discrimination in employment on the basis of a variety of reasons, including:

  • Age (over 40);
  • Race;
  • Marital status;
  • Gender; and
  • Sexual orientation.

FEHA also protects employees from retaliation for reporting discrimination in the workplace.  Employees may file private lawsuits under the FEHA, but they first must go to the California Department of Fair Employment and Housing to exhaust their administrative remedies.  An employee has one year from the date of the discriminatory act to file a claim with the Department to seek what is referred to as a right to sue letter.

Employers Cannot Shorten the Time to Sue under the FEHA

The employee in the case, Ellis v. U.S. Security Associates et al., worked as a security guard for a company in Northern California and alleged that she was subjected to sexual harassment by a supervisor.  As the court’s decision details, Ms. Ellis reported unwanted sexual advances and unrealized promises to raise her rate of pay.  Ms. Ellis filed a claim with the Department of Fair Employment and Housing and received a right to sue letter.  She then filed a lawsuit against her former employer.

The lower court dismissed Ms. Ellis’ claims because she had signed an employment agreement when she started working for the security company in which she agreed that she only had 6 months to bring any discrimination claims.  While parties to agreements sometimes do agree to shorten the statute of limitations, the practice is one that has been met with varying success throughout the country.  In this particular instance, the Court of Appeals determined that the provision in the contract shortening the statute of limitations was against public policy and it reversed the lower court’s decision.

The Court of Appeals’ decision on public policy was based on the premise that the FEHA is designed to protect employees against discrimination and retaliation in the workplace and provides remedies for employees who have experienced either.  The FEHA also requires employees to exhaust all administrative remedies.  An employee who follows the rules of the FEHA and exhausts all administrative remedies will likely not be able to sue within a shortened amount of time as allowed by an employment contract.  Therefore, if enforced, the 6-month time period that Ms. Ellis agreed to in her employment contract would have the result of not allowing Ms. Ellis to pursue her claims under the FEHA.  The court determined that this was against public policy and the purpose of the FEHA.

Contact Us for Legal Help

Do you feel you have been harassed or discriminated against at your place of employment? The labor and employment attorneys at Beck Law P.C. have experience litigating employment lawsuits, including sexual harassment and retaliation cases and can advise you on these types of matters.  Please contact us if online or by phone at 707-576-7175 to schedule a consultation with one of our attorneys.

Photo Credit: thinkpanama via Compfight cc

Filed Under: Blog, Employee Rights, Employment Law 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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