Coronavirus and Employment Discrimination

March 27, 2020 by

coronavirus and employment discriminationCoronavirus related anxiety is palpable. The worldwide growth of those infected and those that have died from the virus has been exponential. With travel bans and World Health Organization alarms ringing, it is natural that fears related to the virus and its symptoms abound.  But when those fears become outright cases of xenophobia, it is a real problem. If your workplace no longer feels safe because of prejudice and unfounded fears directed toward people of Asian descent, it is an issue that may require the assistance of a local employment attorney. 

Common Maybe, but Not Normal

The University of California Berkeley Health Services made a serious mistake when they sent out an Instagram post to students telling them that bias and bigotry are normal and common when facing the coronavirus. The university surely realized as much, leading to their quick deletion of the post. The fact is, while it may be true that many Americans experience bias and bigotry, it is not normal, and is certainly not acceptable. The unfortunate truth is, Western culture sometimes reverts to unreasonable xenophobia when faced with such issues, and it is not a pretty sight. 

A Comparison of Health Issues

The flu season this year in the United States has resulted in 19 million ill individuals, 180,000 people being hospitalized, and 10,000 fatalities. Yes, the coronavirus has deadly potential and it is important to have some perspective when considering the potential issues related to coronavirus.

Workplace Issues

What is an employer to do?  There certainly is a real issue confronting us; an epidemic apparently originating in Wuhan, China, is wreaking havoc worldwide. Actions have been taken to shut down non essential businesses, limit travel and shelter in place. Confirmed coronavirus cases continue to mount here in America. Employers of essential businesses have a responsibility to keep the workplace safe even in the face of a frightening epidemic. Common sense practices like regular hand-washing are appropriate. Here is what is not:

  • Just because an employee is of Asian descent, it does not mean they are carriers of the coronavirus. If your employee has not been to China in recent weeks, there is no need to treat them any differently than any other employee. Ostracizing such employees by word or deed is both improper and illegal. That is true for all employees, regardless of nationality.
  • Allowing employee gossip to flourish can be extremely damaging to employee morale and performance. If an employer is aware of unfounded rumors related to Asian-American employees and coronavirus, those rumors must be dealt with promptly. Failure to do so could result in legal action.

[Read more…]

Filed Under: Blog, Employment Discrimination Tagged With: ,

Boeing Pays for Hostile Work Environment

November 21, 2018 by

hostile work environmentSix hostile work environment lawsuits at Boeing. Boeing considers itself to be a stellar employer, one that aspires to build values of respect and that is intolerant of harassment. A jury, however, found that the company fell short of that aspiration, and demonstrated just how serious the shortcomings were with a verdict awarding hundreds of thousands of dollars to a disparaged employee.

Details of the Boeing Hostile Work Environment Case

Roderick Marshall was a veteran employee at Boeing, having put in 18 years with the company. He tolerated jokes that were seething with racism without reporting them to supervisors. While management does not dispute this, they did not deal with the situation because, they say, Marshall failed to follow company protocol for reporting complaints.

Then one day, a white employee at Boeing twiddled with a string of rope, eyes on Marshall, Marshall could not have imagined what was to come next  The white man tossed the rope to Marshall, who caught it, only to see that it had been tied into a hangman’s noose. Offended, Marshall had had enough. A jury awarded Marshall $350,000 in damages. Their judgment listed several problems:

  • Boeing failed to prevent harassment;
  • Hiring practices were negligent;
  • Supervision of employees was lax;
  • Retention of problem employees was negligent.

This case highlights the responsibility of employers to police the work environment in order to ensure that employees are safe in all regards. Unfortunately for Boeing, their court days are not over. Five additional lawsuits are currently in the works, all related to discrimination and harassment.  

Defining a Hostile Work Environment

The U.S. Equal Employment Opportunity Commission (EEOC) cites particular requirements in defining a hostile work environment:

  • Demonstrations of discriminatory behavior directed toward a protected class (race, gender, age, sex, disability, or religion);
  • Repeated, not isolated events over time;
  • Actions severe enough that a reasonable person’s work would experience interference as a result of feelings of intimidation and/or abuse, or;
  • Actions that prevent an employee’s ability to advance;
  • A failure of management to respond to a known and/or reported situation, or;
  • An insufficient response to the problem.

Building a Healthy Workplace Environment

As an employee, there are a number of things you can do to help build an inclusive work environment. Some suggestions include:

  • Joining company activities and events designed to help employees network and grow relationships;
  • Participating in additional professional organizations;
  • Creating your own social groups with individuals from work, or who can help you with workplace issues.
Experiencing a Hostile Work Environment

In the event you are suffering from a hostile work environment, what should you do? Here are some tips:

  • Keep dated notes about specific issues;
  • File a complaint with human resources;
  • Consider getting counseling to deal with the emotional repercussions.

[Read more…]

Filed Under: Blog, Workplace Harassment Tagged With: , , ,

California Breach of Employment Contract

November 12, 2018 by

california breach of employment contractContact a California breach of employment contract attorney if you feel the terms of your employment contract are not being honored. Contracts are entered into in the workplace every day. While many employees here in California are considered to be “at will” employees who can be terminated without cause, certain employees do have contracts that specify a particular time frame for work, and that may or may not have options for extensions. If you feel the terms of your contract are not being honored, you may wish to consult with an attorney experienced in such matters to determine how to proceed.

California Breach of Employment Contract Defined

What constitutes a California breach of employment contact? Several elements must exist:

  • You and one or more parties must have entered into a contract;
  • You substantially met the requirements set forth in the contract;
  • If you did not complete all the requirements, you were reasonably excused from them;
  • Your employer did not meet his or her requirements set forth in the contract, or;
  • Your employer acted in a way that was prohibited within the contract;
  • You experienced some harm;
  • The harm was essentially due to the breach of contract.

What is a Material Breach?

A material breach is one that is so significant that it results in substantial damage, or it validates your reason for failing to fulfill your contractual obligations. For instance, let us say you contracted with an employer to redesign a web page and develop advertising materials over the course of one year. You were expecting to be paid monthly, but after three months you had yet to see a paycheck, or worse, you were let go. You are clearly justified in discontinuing your work because the failure to pay you as agreed for the established time period was a material breach.

What is a Non-Material Breach?

On the other hand, a non-material breach of contract generally involves only minor damage that would not entitle the other party to forgo their responsibilities of the contract. For instance, let us say you had agreed to redesign the web page and develop advertising materials by January 1st.  Although you completed most of the job, the finished advertising materials were not available until January 4th. While you did fail to meet the terms of the contract, the damages to your employer are presumably minimal under the circumstances. Ergo, there is no justifiable reason for your wages to be withheld.

California Breach of Employment Contract – Damages

The types of damages recoverable include general damages and consequential damages.

  • General damages are those that come directly out of the breach, such as wages for the job that was done.
  • Consequential damages go beyond what might be expected due to the employment contract breach.  For example, if the breach led to additional unforeseeable costs, they would be consequential damages.

[Read more…]

Filed Under: Blog, Employment Contract Tagged With: ,

Should You Sue Your Employer?

November 1, 2018 by

sue your employerShould you sue your employer? Plenty of people dislike their jobs. Sometimes it is because of the work itself, sometimes it is due to personnel issues, and sometimes it is because of a toxic work environment. When does simple disgruntlement become a legitimate reason to sue your employer? Every situation is different, and only an experienced employment attorney can answer that question for you.

Common Reasons to Sue Your Employer

Suing an employer is a pretty bold move, but all too often it is justified, and is the only way employees can be empowered to regain the dignity, wages, and satisfaction they deserve after mistreatment on the job.  Here are just a few of the most common reasons employees decide to fight back against unscrupulous employers:

  • Firing without giving a reason: Some employers think that just because California is an at-will state, they can terminate anyone without providing an explanation. What they do not realize is that if they fail to explain the motivation behind their decision, the employee may rightfully suspect the termination is based on discrimination, retaliation, or some other unsavory factor. This can land the employer in court pretty quickly.
  • Claiming poor performance when the evidence says otherwise: If an employee has a long track record of satisfactory job performance and things suddenly change due to new management or some other issue, defending the termination will be tricky against a skilled prosecution team.
  • The timing for termination stinks: When an employee files some sort of complaint with HR, Workers’ Compensation, or another work-related entity, and is suddenly on the firing line, it may not be too difficult to connect the dots.
  • Delaying the investigation for a complaint: If the employer drags out an investigation about harassment or some other issue, it can become ammunition in a lawsuit;
  • Ignoring company policies: When policies are on the books, employees can expect their bosses to follow them. If that does not happen, the end result may be a lawsuit.
  • Discrimination: State and federal laws offer protections for employees based on a number of circumstances, including race, age, gender, disability, sexual orientation, pregnancy, and religion. When employers discriminate in the hiring, training, pay, promotion, or termination of individuals based on a protected status, it is simply a lawsuit waiting to happen.
  • Failing to accommodate: In addition to discrimination based on protected status, failing to provide reasonable accommodations is unlawful. Whether in regards to requirements related to attire, schedules, physical surrounding, job requirements, or other simple adjustments, employers must comply with EEOC rules.

[Read more…]

Filed Under: Blog, California Employment Law Tagged With:

How Far do Whistleblower Protections Go?

August 7, 2018 by

whistleblower protectionsWhistleblower Protections? When Michael Johnson learned that the company he worked for had amended its 2016 tax return to reduce its tax burden, he filed a whistleblower complaint against his employer. Blue Shield, he claimed, had listed over $3 billion less in premiums than the original filing report. Blue Shield responded with a lawsuit against Johnson for breach of contract, alleging he had shared confidential information about the company. Just how much credence is there to Blue Shield’s argument? Do whistleblower laws give employees the ability to disclose company secrets? For answers to these, and other business questions, contact a local business law attorney.

California Whistleblower Protections

In California, employees are encouraged to report suspected violations of state and/or federal law to appropriate agencies, which are then authorized to investigate claims of wrongdoing. In fact, as per California Labor Code Section 1102.5, individuals who report suspicions of wrongdoing by their companies are considered a protected class. Retaliation against such individuals is prohibited.

What, Exactly, Constitutes Whistleblowing?

Whistleblowing is the reporting of illegal or safety violations that may be occurring in the workplace. Employees may refuse to engage in activities deemed to be illegal or unsafe, and may ultimately report problems to applicable agencies for investigation.

Whistleblower Protections

Businesses may not legally create policies that prevent employees from reporting unsafe or illegal situations in the workplace. Additionally, the law provides that employers may not:

  • Retaliate against individuals who choose not to engage in workplace activities they believe to be against state or federal laws or OSHA regulations;
  • Retaliate against employees who report infractions.

Retaliation may take many forms, all of which are violations of California Labor Code.  Common examples include:

  • Demoting or firing the employee;
  • Denying training opportunities, promotions, or access to higher-level meetings;
  • Forcing the employee to quit by making work life untenable.

Section 1102.5 of the California Labor Code requires employers to make restitution for any of these actions and to reinstate the employee to a job from which they have been fired when these actions occur.

Whistleblower Protections from a Lawsuit?

One wonders whether or not whistleblower laws shield Johnson, who is being sued by Blue Shield. The truth is, the courts have reached different conclusions in cases across the United States in recent years. Generally speaking, they will want to take a look at a number of factors, ranging from how the materials were obtained and to whom they were given, to the employee’s need to preserve the items in order to “blow the whistle.” While a comprehensive policy regarding secret materials will help any company with its most confidential documents, it is unclear how such a policy will stand against whistleblower protections. [Read more…]

Filed Under: Blog, Whistleblower Retaliation Tagged With: , ,

Thank You California Firefighters for Putting It All on the Line

August 3, 2018 by

thank you california firefightersThank you California firefighters. By July 9, 2018, nearly 200,000 acres had been scorched in California wildfires. That is more than double the amount burned in each of the previous five years. Sadly, some parts of California have been so dry this year that they were never removed from drought status from last year. As of July 30, more than 10,000 people have been mandatorily evacuated from Mendocino and Lake Counties. The Ranch Fire along Highway 20 and the River Fire north of Hopland put residents across more than 35 miles at risk. With six out of the previous seven years experiencing severe drought across the state, hot, windy conditions make fighting these fires incredibly difficult and dangerous. It has been undeniably devastating for people who live and work in the area; but what has it been like for firefighters?

Hazards for California Firefighters

The men and women who fight these enormous fires are heroes in everybody’s eyes. The perils they confront as they protect Californians are many:

  • Thick smoke;
  • Winds that lead fires to change directions without warning;
  • Narrow roads that make traveling difficult;
  • Falling branches and exploding trees;
  • Fallen trees blocking roads;
  • Fatigue from working long hours;
  • Fallen power lines posing dangers to firefighters;
  • Dehydration;
  • Heat Stress as a result of vigorous manual labor, heavy gear, poor acclimatization to severe heat, and personal risk factors.

Work Schedules for California Firefighters

When situations are urgent, firefighters are often required to work long hours. In the case of these devastating wildfires, many of these heroes are unable to spend any time with their families and friends for days and weeks at a time. They grab sleep when at the brink of exhaustion, only to go back out to continue the demanding work again until communities are safe. While the fire season was once limited to the summer months, these days, California has deadly wildfires year-round. In the past six years, at least one wildfire has been burning during every single month of the year. While firefighters used to have the cooler months to refresh and regroup, the extended heat and drought have vaporized those opportunities.  

Injuries and Death a Constant Concern for California Firefighters

Firefighters put their lives at risk every time they confront a blaze. Consider these daunting statistics from 2016:

  • Over 60,000 serious injuries were incurred by individuals fighting fires;
  • Over half of the injuries involved respiratory problems;
  • There were 69 firefighters who lost their lives in the line of duty;

As of July 30, 2018, 59 firefighters have died on the job. A study of firefighter deaths indicates that firefighter fatalities for those involved in wildfires has increased by 26% in recent years. The primary causes of death between 2007-2016 include:

  • Vehicle accidents;
  • Aircraft accidents;
  • Heart attacks;
  • Entrapments;
  • Falling rocks and trees.

[Read more…]

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

California’s Fair Employment and Housing Act

June 18, 2018 by

california fair housing and employment actCalifornia’s Fair Employment and Housing Act (FEHA) lays out the duty of employers toward their employees, as well as prohibited actions in the workplace. These policies address discrimination against individuals with disabilities, as well as other protected groups, including:

  • Age;
  • Military status;
  • Race;
  • Religion;
  • National origin or ancestry;
  • Marital status;
  • Physical or mental disability;
  • Gender, sexual expression, or sexual orientation.

Anti-discrimination rules have been on the books for years. Revisions to these policies in recent times are worth noting:

Sex Discrimination and the California Fair Employment and Housing Act

The law protects individuals from any form of discrimination on the basis of sex. This applies to both males and females and expressly covers gender identity and expression and transgender identification.

Fair Employment and Housing Act on Volunteers, Interns, and Other Unpaid Individuals

California’s Fair Employment and Housing Act protects unpaid persons from discrimination, just as paid workers are. In fact, for the purposes of a harassment claim, they are considered employees.

Discrimination on the Basis of Religion

Religion may not be a factor in hiring and firing decisions. Reasonable accommodations must be made to address a worker’s religious tenets. An employer may not isolate a worker from fellow employees or from customers due to religious beliefs or attire, unless it is something that is requested by the employee.

Pregnancy

Employees are entitled to as much as four months of unpaid leave in association with a pregnancy. It is not necessary to for the time to be taken in one continuous break. Furthermore, discrimination on the basis of pregnancy, breastfeeding, or other conditions associated with childbirth is not permitted.

Discrimination on the Basis of National Origin

The California Fair Employment and Housing Act does not permit employers to require employees to demonstrate that they have a driver’s license except under particular circumstances:

  • State or federal law requires it for the position;
  • It is a mandatory item for the type of work required;
  • There is a legitimate business reason for the requirement, and all employees are held to the same standard.

Training for Anti-Bullying

Employers who employ 50 or more workers are required to provide training that encompasses key topics:

  • Definitions of “abusive conduct;”
  • Impacts of such conduct on both victims and employers;
  • Steps the company will take to rectify harassing behaviors, such as the policy for investigating complaints and responsive actions;
  • Obligations of supervisors to document claims of discrimination, harassment, and/or retaliation.

Employers must document attendance at these trainings with sign-in sheets and must keep training materials on hand.

Support Animals in the Workplace

Support dogs or other animals that are required to assist with vision issues, cognitive problems, or emotional support must be accommodated in the workplace. [Read more…]

Filed Under: Blog, Employment Discrimination Tagged With: ,

Suing Your Employer

May 2, 2018 by

suing your employerSuing your employer? If you have had your fill of the treatment you are getting at work, perhaps you have considered a lawsuit. If so, gear up: It is going to be a battle, and you need to prepare for what is ahead. After all, chances are your employer is not going to roll over and admit to wrongdoing. Here is how to prepare:

Evaluate Your Circumstances Before Suing Your Employer

You and an attorney experienced in employment law need to sit down to look over your claim:  Do you have a valid complaint? Has your employer violated protected rights under state or federal law? Are you dealing with harassment, wrongful termination, or discrimination? These and other issues may be worth pursuing in court. What legal theory will you proceed under?  Developing a strong rationale is central to success. Additionally, it is important to know whether or not you are within the statute of limitations. If the time to file suit has expired, you are most likely out of luck.

Consider the Evidence Supporting Your Case Before Suing Your Employer

What kind of documentation do you have to prove that your employer has acted outside the law?  Assemble any records, photographs, recordings, and other pieces of evidence that support your claim. Make a list of potential witnesses to the violations, as well. They may be asked to testify in order to verify your complaint.

Consider Your Emotional and Physical Stamina

There is nothing easy about a lawsuit, in all frankness. Before proceeding, you need to feel sure that you want to go forward. It will take time and energy. It may wear on your psyche, and may strain relationships. Sometimes suits are quickly settled, but they often take months or even years to resolve.

Think About Backlash

Is there a possibility of a countersuit? It is not uncommon for those under attack to seek revenge in the form of a defamation suit, for example. Beyond that, it is entirely possible that a lawsuit will cause discomfort or outright resentment among some colleagues. You must plan for the possibility of feeling ostracized, or worse.

Consider the Outcome of Suing Your Employer

Are you suing as a matter of principle? Do you want to teach someone a lesson? Would you like an apology? Is public shaming a desired outcome? Are you interested in improving things for the next person who works for that employer? Is it financial gains you are interested in? You may be entitled to satisfaction on all counts. Be sure you know exactly what you would like to have happen at the conclusion of the suit. It can clarify your attorney’s approach, and determine whether or not settlement discussions are worth pursuing. [Read more…]

Filed Under: Blog, Employment Law Tagged With:

Avoiding a Legal Crisis

April 27, 2018 by

legal crisisLawsuits are every business owner’s worst nightmare of a legal crisis. Contemplating the hours and dollars that become lost to legal challenges can set a CEO’s head spinning. The truth of the matter is that many lawsuits and the associated headaches can be avoided with some smart moves early on.  For those lawsuits that simply cannot be sidestepped, there are ways to protect personal finances if you just make some informed choices from the get-go.

Avoid a Legal Crisis by Choosing the Right Business Setup

Bankruptcy is a real possibility for anyone who sets up a business as an individual or a partnership. Avoid this disaster by incorporating and/or creating a limited liability company (LLC). This simple step protects your personal assets from claims made against the company and other debt.

Respect Your Employees

When you treat people as valued members of the work community, you are less likely to create the feelings of resentment that often precede the filing of a lawsuit. While nothing can ensure protection from being sued, dealing respectfully with others, even in the face of necessary discipline or bad news, can only increase the chance that you are admired and respected in return.

Discrimination Will Lead to a Legal Crisis

Make sure the message is strong and clear from the top down: Discrimination will not be tolerated. That applies to race, culture, gender, sexual orientation, religion, and any other category you can name. Managers who hate piercings need to keep their opinions to themselves; chauvinists must set a cordial tone at work. As the business owner, you set the culture of the workplace. Let it be known that every member of the team is to be treated fairly at all times.

Put Policies in Writing

If everyone knows the expectations in the workplace, you are much more likely to get compliance. Beyond that, your written policy backs you up in the event discipline is required.

Comply with Accessibility Laws

The most common lawsuits filed against California businesses deal with ADA compliance issues. The Americans With Disabilities Act was written to protect individuals and to provide equal access and opportunity. If you have questions about whether or not there are accessibility problems, have an evaluation of the property done and get a written legal opinion as to the acceptability of the premises to ADA regulations.

Document Employee Discipline and/or Termination

When an employee feels wrongfully terminated, the best way to save yourself from an ensuing legal crisis /retaliation is to have a well-documented paper trail proving that you proceeded through the termination process with due diligence.

Think Twice about Advertising Strategies

Be aware that if you make claims about other companies, and those statements have an adverse impact on their profits, you could be sued. Before you say something you might regret, have an experienced business attorney review the content of your message. [Read more…]

Filed Under: Blog, Employment Law Tagged With:

10 Things A New Hire Should Know

March 20, 2018 by

new hireIf you’re a new hire at a company, it’s important to know your rights and exercise them. Here are some things a new hire may not know that are definitely worth knowing.

New Hire Check List

  • Are you are required to wear a particular uniform? Your employer cannot force you to purchase it. Should you leave the job without returning the uniform, you may consent in advance to having the cost of the uniform deducted from your final paycheck.
  • Do you earn less than double minimum wage? If so, your employer cannot expect you to pay for the tools or equipment needed to perform your job.
  • Does your employer require medical tests, physical exams, or drug tests as a condition of your employment? They cannot require you to pay for those tests.
  • If your employer enacts a wage reduction or change of pay periods, notice must be provided before the change occurs.
  • Employers are limited as to what may be deducted from an employee paycheck to those deductions expressly required by state or federal law. This excludes:
    • Portions of gratuities;
    • Costs associated with photos or badges required by the employer;
    • Bonding fees;
    • Uniforms costs, unless as described above;
    • Expenses related to the termination of employment;
    • Expenditures related to equipment and/or tools except as described above;
    • Losses due to broken property, checks that bounce, or cash shortages, unless those losses can be proven to be a result of gross negligence or dishonesty.
  • When employees resign and give 72 hours notice or more, employers are required to pay out any remaining wages due on their last day.
  • If a labor dispute results in an employee’s resignation or termination, all wages due must be paid by the next scheduled pay day.
  • For companies employing 25 or fewer workers, the minimum wage is $10.50. For larger companies, the minimum rate is $11.00.
  • Hourly employees must be paid at 1.5 times the normal rate for all hours over 40 in one week, and for the first eight hours worked on the seventh day of any given week. They must be paid double the normal rate for any hours exceeding 12 in one workday, and for all hours beyond eight on the seventh consecutive workday.
  • Employees are entitled to a 30-minute break for every five hours they work consecutively.  During that time, they are to be exempt from performing any duties whatsoever related to their employment. Employees are allowed to leave the premises during this break.

[Read more…]

Filed Under: Blog, Employee Rights Tagged With: ,
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The information on this website should not be considered to be legal advice, nor construed to be the formation of any manner of attorney client relationship. Prior to taking any form of legal action, please consult with an attorney experienced in the appropriate area of law germane to your situation. Case results and testimonials presented on www.californialaborandemploymentlaw.net or any of its related websites are germane to the facts present for each individual case and is not a promise of similar outcomes for any other cases. This website is not intended to solicit clients for matters outside of the State of California.