California Employment Law Attorney Blog | Los Angeles Discrimination Lawyer | CA Wage and Hour Law Firm

Female employees, some teens, subjected to sexual harassment

2012-01-26T19:20:28Z

When an employee goes to their California workplace, they should feel safe and secure whether it is physically or emotionally. An employee should feel good about bringing home a hard-earned paycheck. That paycheck, however, should never have been earned in an atmosphere of sexual harassment.

An Italian restaurant chain has caught nationwide attention after a group of female employees came forward describing a variety of very serious incidents of harassment and described an extremely hostile work environment.

]]> Some of the female employees were not even adults; they were teenage girls who worked in the restaurants. According to the women, beginning in at least 2005 male kitchen workers harassed the women. After making a repeated number of complaints to management, nothing was done to correct the problem.

The claims included crude comments made against the female employees. They stated that the male employees often used vegetables to simulate sodomy and repeatedly used the same to touch the women between their legs. Some of the male workers also made inappropriate requests that the women physically and sexually touch them.

Instead of dealing with the lawsuit filed by the EEOC in federal court, the restaurant chain chose to settle the lawsuit. They agreed to pay $25,000 and to provide annual employee rights training.

When management fails to address claims of sexual harassment or correct the known problems, they are in violation of Title VII of the Civil Rights Act of 1964 and the laws of many individual states. If you feel unsafe or uncomfortable in your workplace due to sexual harassment, do not stand by but take action.

Source: eeoc.gov, "Rafael's Italian Restaurant Settles EEOC Sexual Harassment Suit," Jan. 18, 2012

California could be second state to ban unemployment discrimination

2012-01-24T23:38:31Z

California lawmakers are attempting to enact a new law that would prohibit discrimination against persons who are unemployed. Only one other state has achieved this legal standard to date. Democratic Assemblyman Michael Allen sponsored this important bill and introduced it to the legislature on Jan. 5. The bill sets fines up to $10,000 that could be levied against companies that violate the proposed bill.

The bill would overcome certain common practices among California employers to screen out certain unemployed applicants. One reason this type of discrimination is harmful is that it would target veterans recently separated from military service, women who have taken a maternity leave and other minority groups that have a tendency for high unemployment rates.

]]> Currently, the unemployment rate in California is around 11.3 percent. Nationwide, this same rate is only about 8.5 percent. When unemployed persons face discrimination, it only makes it harder for them to obtain employment. This bill would help to protect the unemployed as they seek reemployment. One study by the National Employment Law Project determined that many online job listings include a provision that requires candidates be currently employed.

Employers in California are bound by law to follow labor laws. This includes specific regulations that apply to wages and hourly rates. An employment discrimination and harassment attorney represents employees or applicants against work conditions that are banned, such as a hostile work environment, workplace retaliation, wrongful termination or other discriminatory acts due to the employee's race, gender, age or religion.

Unfair employment practices and discrimination are illegal; you may be entitled to compensation for discriminatory work practices. Preserve your rights and use the law to serve your best interests. If you feel you have experienced unfair employment practices for any of these reasons, including current work status, contact an employment discrimination and harassment attorney to review your case.

Source: The Huffington Post, "California Considers Outlawing Discrimination Against Unemployment," Ariel Edwards-Levy, Jan. 23, 2012

U.S. Supreme Court denies Applebee's appeal in wage and hour suit

2012-01-21T16:06:49Z

In a typical California restaurant there are waitresses, bus boys, hostesses, bar tenders and other staff members. There is a different pay structure for each position based upon the duties and the way the food industry operates. For instance, a hostess does not have the opportunity to earn tips from customers, so they generally get paid a higher base pay than a server or bartender whose income is largely based on the tips patrons customarily leave.

Servers and bartenders are fairly compensated for the lowered base pay by these tips, but what about when they are required to perform jobs that do not require tips? More than 5,500 Applebee's employees brought a wage and hour lawsuit that said they should be paid minimum wage during those "extra, non-tip producing" jobs.

]]> Under federal labor law, there is a "tip credit" exception that allows restauranteurs to pay their servers and bartenders less than minimum wage so long as their tips plus base pay equal at least minimum wage each hour they work. The employees argued that while performing non-tip-producing jobs, they were not being paid at least minimum wage. Applebee's opposed the argument by saying that the jobs were a normal part of the employee's positions which do produce tips.

The case rose through the Missouri court system which agreed with the employees, stating that they should be paid minimum wage for those non-tip-producing jobs if the time spent on those jobs equaled more than 20 percent of their working hours.

Applebee's was upset with the ruling and appealed to the United States Supreme Court. As we have discussed in prior posts, the Supreme Court does not have to hear every case that is petitioned for. In this instance, the Supreme Court denied the appeal without comment thus the ruling holds. If you think that you are being taken advantage of in any way at your workplace, it is important that you discuss your situation with an attorney; you may be eligible for recourse through a class action or individual lawsuit.

Source: The Wall Street Journal, "Court Rejects Applebee's Appeal in Pay Suit," Brent Kendall, Jan. 17, 2012

California Court of Appeals discusses a hostile work environment

2012-01-19T15:05:38Z

A case was recently brought to the attention of the California Court of Appeals after a trial court judge stepped in to take the verdict out of the hands of the jury. The case was a sexual harassment suit brought by an employee who felt that she had been forced to work in a hostile work environment.

The jury determined that the female employee had been forced to experience severe or pervasive harassment, the threshold required for an award in the case. The jury determined that the woman had suffered damages in the amount of $250,000. A very rare JNOV or "judgment notwithstanding the verdict" was entered in this case. A JNOV means that despite the jury's ruling, a judge found that there was insufficient evidence to uphold the verdict, and the Court of Appeals agreed.

]]> Why was there insufficient evidence? The Court of Appeals discussed further what constitutes a hostile work environment and why in this specific instance the behavior, while "rude, insulting, and unprofessional," did not constitute severe or pervasive harassment. According to the court, when instances of possible harassment were spread out over a 4-year period with 6 months between several of the instances, in this instance it was not enough.

Also, in this specific instance, the court stated that the instances that were complained about were about the female employee but not directed at her. The court ruled that the conduct would have to have been directed at the woman and not found by her private, independent investigation. Other factors played a role in the decision as well.

There are certainly mixed feelings about the decision, but the one thing that the case certainly defines is that every situation is different. Every situation needs to be studied on a case-by-case basis. In one situation a factor may exist, but the combination of other factors could make the case go either way. If you feel like you are being harassed at work, consult with an attorney about your individual situation.

Source: HR.BLR.com, "Sexual Harassment: What Conduct Creates a Hostile Work Environment?" Jan. 10, 2012

Employee claims discrimination under the FMLA

2012-01-12T06:13:15Z

Generally speaking, when someone faces a serious medical condition that requires treatment, he or she can take a leave of absence from his or her job under the Family and Medical Leave Act. When he or she returns to work from a protected medical leave, he or she is guaranteed to return to the same or a similar position.

When a man found himself facing a medical condition that required serious medical treatment, he took a medical leave from his job to recuperate. However, upon his return his managerial duties were modified and his supervisory authority was eliminated. He was also required to work at a different location.

]]> Though he did maintain his same pay, benefits and title, he believes that these employment actions were acts of discrimination against him because of his medical condition. Shortly thereafter, the employee was fired for what were claimed to be budgetary reasons.

However, in his gut, he believed something was not right about his firing and the way he was treated when he returned to work. He brought a lawsuit claiming that his employer discriminated against him and wrongfully terminated him from his job.

Initially a federal judge dismissed all of his claims for lack of evidence. However, he did not give up and with the help of an experienced attorney he was able to have his discrimination and wrongful discharge claims reinstated by a California appeals court.

Was this man discriminated against based on his medical history and medical leave from his job? Did his employer retaliate against him and wrongfully fire him as he claims? These employment law questions can now be heard before a jury when this employee has his day in court.

Source: The Register-Guard, "Fired man wins 'day in court'," Karen McCowan, Jan. 5, 2012

California Muslim worker suffers discrimination, harassed

2012-01-09T15:07:50Z

Sept. 11, 2001 was absolutely, no doubt a tragic and terrible day for many Americans across the country. No one would deny that fact, but since then, many Americans -- with no connection to that day's occurrences -- have continued to suffer from religious discrimination and harassment in the workplace simply for their beliefs and outward appearance.

A Muslim employee in California has felt like he was not only discriminated against since that day over ten years ago, but he said that he has been blatantly and seriously harassed. "I'm tired of being called Osama Bin Laden," said the employee in a complaint to a federal agency.

]]> The employee began working at his position the same year as the attack. He remembered back to the day and said in the complaint that he has always considered the attacks more than a criminal act, but the "mass murder of innocent people." Yet, his co-workers have continued to call him names with a very clear undertone suggesting terrorism.

"We've seen an uptick in employment discrimination around the country, including the Sacramento Valley, since 9/11," said Rachel Roberts with the Council of American Islamic Relations.

The Muslim worker claimed that his employer has failed to accommodate his religion. The employee had asked in the past for one hour off every third Friday. He had wanted to attend an Islamic ceremony -- as is his right under California Law. He even said that he would come into work at any time to make up for the hour that he would be gone, but he was refused. He noted that while his request was denied, another employee was accommodated in a similar fashion for a different event.

The employee has not only suffered the discrimination and harassment, but he said that the illegal behavior has caused a serious physical reaction. The physical and psychological problems suffered as a result have even forced him to take several months of leave from work.

Source: The Kansas City Star, "Muslim worker alleges religious harassment," Brad Branan, Jan. 4, 2012

No discriminating against applicants with bad credit in California

2012-01-06T14:33:14Z

Many persons seeking employment are aware that the company they wish to work for might check their credit scores as part of a routine hiring procedure. If an employer has to choose between a prospective employee with a good credit record and one that has a bad credit history, they most likely would not hire the applicant with a poor credit record. A representative from Manpower San Diego cites that, under California law, this is now prohibited.

The problem with relying on a credit report as an indicator of ethics, honesty or other desirable personal character qualities is that a poor credit record can develop due to circumstances beyond the control of that individual. Financial problems frequently arise following a medical emergency, death in the family, divorce or other circumstances that also can lead to negative entries on a credit report. A bad credit record is not necessarily a good measure of personal trustworthiness.

]]> In California, this practice is now denied to employers, beginning in 2012; employers are now prohibited from running credit checks on job applicants. This law is similar to laws in effect in several other states. An exception is made for job positions that relate substantially to financial worthiness, such as the following:

Managers
Department of Justice positions
Law enforcement or sworn peace officer positions
Jobs that require the employee to regularly access confidential information like credit account or social security numbers.

If you feel you have been discriminated against during a hiring process due to your credit record, contact your employment discrimination and harassment attorney to review your case. In California especially, employers must follow state labor laws that now include this provision to prevent checking of credit records to determine employment suitability.

Source: WHEC, "Some states working to block companies from checking credit scores of prospective employees," Jan. 3, 2012

Disability discrimination lawsuit settled in California

2012-01-04T18:52:18Z

A large clothing manufacturer and clothing distributor based in California settled a disability discrimination lawsuit in December 2011. The business employs about 10,000 people in 285 retail stores. The stores are located in 20 different countries. The Equal Employment Opportunity Commission filed the lawsuit on behalf of a garment worker that was fired while he was on leave because of a disability, a violation of federal law. The EEOC stated that the firing was a violation of the Americans with Disabilities Act.

During the lawsuit, the EEOC and the clothing company worked together to come to a settlement. The settlement terms state that the clothing business must pay the fired garment worker $40,000 in addition to providing training to the company's managers and supervisors.

]]> Further, the company will sponsor two seminars regarding the rights of employees under the American with Disabilities Act. The company has also adopted and implemented a new ADA policy. It must also inform employees about their rights under the Americans with Disabilities Act. As part of the settlement, the company must also hire an ADA coordinator to ensure that the terms of the settlement are adhered to and that the company does implement the ADA policy.

The training for the managers and supervisors includes ensuring that they understand the ADA and how to comply with the law, including making sure employers accommodate those with disabilities. The district director for the area's Equal Employment Opportunity Commission stated that people with disabilities are productive and creative, and job opportunities give them the ability to flourish in their jobs if the employer provides reasonable accommodation, which is required under the law.

Source: Fibre 2 Fashion, "American Apparel to pay $40K to a fired garment worker," Dec. 20, 2011

San Francisco minimum wage workers get mandated New Year bonus

2011-12-31T22:30:55Z

San Francisco minimum wage workers will be celebrating more than just the New Year as Dec. 31, 2011 rolls into Jan. 1, 2012 and the ball drops. For those individuals, it will mean a wage and hour law mandated raise from $9.92 per hour to $10.24 for every hour worked. While the raise only amounts to a 32 cent increase, we have all heard the adage that every penny counts.

Those minimum wage workers in San Francisco will not only be the highest paid minimum wage workers in California but across the entire United States. The federal minimum wage currently rests at $7.25 per hour and California laws mandate at least $8 per hour. The San Francisco increase is set to take effect on Jan. 1, 2012.

]]> It is safe to say that most of those workers will not complain about the increase in their weekly paycheck. For one student, it means a little less stress when it comes to paying back some debt. "It'll be nice," he said. "It all adds up. I need a second job to start paying off student loans." The young man is a 27-year-old hardworking graduate from San Francisco State University who holds down a job at a pizzeria.

Some employers unsurprisingly are not in agreement with the prospect of spending the extra cash. Some have even hinted that the raise could force their hand into downsizing. Either way, the requirements are set in stone as of tomorrow morning. Any employer who fails to pay the minimum wage - whatever it is in their respective city - are in violation of the law and should be held liable.

Source: Kansas City Star, "S.F.'s minimum wage will be tops in U.S.," Marc Lifsher, Dec. 28, 2011

Golden State Warriors and Monta Ellis sued for sexual harassment

2011-12-29T17:11:28Z

A former employee of the Oakland, California, basketball team, the Golden State Warriors, has sued the team and star shooting guard Monta Ellis for sexual harassment.

The woman, who had been the team's director of community relations, said that Ellis sent her more than 60 unwelcome and harassing text messages, as well as sending her a picture of his genitals. She said she replied to the text messages because she thought that no one would listen to her if she complained and because she believed she needed to "humor" Ellis to avoid retaliation.

]]>
In a strange twist to the story, the messages were sent via a "secret" phone that was billed to Ellis' grandmother. The former employee said that Ellis' wife called her and told her she knew about the secret phone -- and then went to Warriors management to ask that the employee be fired.

She said that the team tried to bribe her to quit, but she refused. The team later fired her after she told them that a reporter had contacted her, asking if Ellis was stalking her.

The team's president is now saying that Ellis and the woman had a consensual relationship, something that the woman strongly denies.

She is claiming that the Warriors have a history of sexual harassment, saying that the team "condoned, encouraged and/or ratified" various incidents of harassment, including requiring the team's cheerleaders to perform for the team's chairman and his friends.

The lawsuit was filed in Alameda County Superior Court on December 21.

Source: Fox News, "Woman sues Ellis, Warriors for harassment," Dec. 21, 2011

Blockbuster avoids trial with $2M sexual harassment settlement

2011-12-21T16:27:34Z

A settlement of more than $2 million for sexual harassment of seven workers has been reached with Blockbuster Inc. The Equal Employment Opportunity Commission allowed the agreement to pay following charges that several female temporary workers had been subjected to sexual harassment and retaliation for resisting sexual advances and making complaints.

In addition to charges made in the 2007 lawsuit for sexual harassment, Blockbuster Inc. admitted that four workers had endured racial harassment for their Hispanic origin in a Blockbuster distribution center in Maryland in previous years. The lawsuit makes an important statement to employers in California and across the nation that such discrimination and harassment is not lawful and that a high penalty will be assessed upon employers that allow it to occur. The law applies equally to the many temporary workers that are hired in every state.

]]> Workers had been dismissed after complaining, and after Blockbuster did not take any preventative action to correct the problems. Racial harassment violates Title VII of the 1964 Civil Rights Act. This large monetary settlement amount underscores the seriousness of violations of sexual harassment and racial discrimination laws. Blockbuster has a petition for bankruptcy currently pending in U.S. Bankruptcy Court and has already closed most of its operations.

These laws extend to employers using a staffing company to hire workers. If the staffing company violates these same laws, employers using those staffing companies are liable for a harassment or discrimination lawsuit. It is the employer's responsibility to create a system that will protect, detect and respond to any abuse of temporary workers, even when the staffing company is paying the workers directly.

California employers and others must adhere to all labor laws. If you believe you have been discriminated against for racial origin, or if you have experienced retaliation or sexual harassment on the job, contact an employment discrimination and harassment attorney. Your rights can be protected; no employee is to be forced to endure these types of harassment from any employer.

Source: Business Insurance, "Blockbuster settles sexual harassment, retaliation charges for $2M," Dec. 15, 2011

California precedent favors worker wage and hour rights

2011-12-19T17:04:19Z

A recent U.S. Court of Appeals decision reinforces nearly 150 years of precedents that American employers cannot own their laborers. In the most recent case employees of software giant Oracle Corp. who lived in Colorado and Arizona were sent to work in California. Oracle only compensated according to the laws of their respective states, and not according to California's wage and hour laws, which favor workers more. When the workers sued for compensation the case found its way to federal district court, which found for Oracle.

However, the 9^th U.S. Circuit Court of Appeals reversed the lower court ruling after consulting the California Supreme Court. Since according to California law any business in the state must compensate workers by state law terms, those who live in other states but work in California deserve compensation by California law. Oracle now owes those employees from other states back compensation for work completed in the Golden State.

]]> This case echoes one of the most controversial cases in U.S. History, Dred Scott v Sanford. Born a Virginia Slave, Dred Scott was purchased in Missouri by a military officer who later took Scott to states where Congress prohibited slavery. Scott sued for his freedom on that basis.

No two justices completely concurred on all reasons for finding 7-2 against Scott, and the dissenting opinions did not agree on why either. The case's far-reaching precedent on state's rights fed the fires of the Civil War and overshadowed the significance of personal rights issues until later. When personal; rights returned to focus the Supreme Court reversed the Dred Scott decision.

Though slavery was eliminated by then anyway, the court acknowledged how wrong the initial decision had been regarding Scott's rights under separate jurisdictions. The lesson remains pertinent in this new case. Employers do not own their labor. They must comply with the local labor laws of the states where their employees work, regardless of the laborers' states of residence.

Source: Reuters, "U.S. appeals court reviews Oracle overtime lawsuit," Terry Baynes, Dec. 13, 2011

Retaliation claim filed by 'photo shopped' California sisters

2011-12-15T19:36:25Z

We have all heard the phrase "beauty is in the eye of the beholder." Well, so is workplace harassment. What some people may think is a funny joke or lighthearted criticism is often more than hurtful to the subject of the joke and even other co-workers. The "jokes" can create an extremely hostile work environment, one that is often also not very accepting of those who complain.

Two California sisters recently filed a retaliation claim against their former employer after they were terminated after tearing down a "photo shopped" picture of themselves in a collage.

]]> The photo collage was supposed to be a part of an 'Appreciation Week' for the employees. Other photographs of their co-workers were included in the collage. The only difference was that this photo was one that the women said made the "very embarrassed and angry." The photo included bikini-clad bodies with the 50-year-old worker and her younger sister's faces photo shopped onto the bodies.

"I came to work and saw men laughing at the pictures, and I was so embarrassed to see my face pasted on a bikini body," said one of the sisters. "For me this is no joke. I take my job very seriously, and all I ask is to be treated with respect." The other sister felt that what the management did was "unjust, displaying [their] bodies in that manner."

The two sisters took the images off of the wall as a way to stop the torment in the quickest possible way. When the managerial staff saw this, they instructed the sisters to put the picture back up on the wall because it was "Hotel Property." When the sisters refused, the management printed a new copy and terminated their employment only two weeks later.

The termination was allegedly based on a failure to return from lunch break within the allotted time. Although hotel management claimed that the sisters opted to take an extra 10 minutes of lunch time, it was new information to the sisters after never having been notified of the violation that could allegedly subject them to termination.

Source: Hispanically Speaking News, "Reyes Sisters Photoshopped Bikini Pics at Center of Union Fight with Hyatt," Nov. 22, 2011

Restaurant industry gets second look after harassment allegations II

2011-12-12T15:52:51Z

In our last posting, we began the discussion about sexual harassment in the restaurant industry. As a positive sign, the number of overall harassment claims has decreased in the past decade or so. In 1997 for instance, there were a total of 15,889 total claims. That number decreased to 11,717 by 2010, a decrease of about 26.3 percent.

The problem is that there are still thousands of claims made each year by people who have been sexually harassed by a supervisor or have had to suffer daily in a hostile work environment. As we mentioned in the prior post, the restaurant industry contributes to a large portion of those complaints. What we did not share - and may surprise many - is that the number of complaints filed by men has increased in the past few years.

]]> It was in 1997 that only 11.6 percent of all harassment claims filed was done so by men. By 2010, that number had increased to 16.4 percent. A young man who worked for a steakhouse shared with his attorney that the he endured months on end of harassment that was serious enough to be considered assault. The employee reported that his employers taught him to react in a stoic manner and that the harassing behavior was almost expected.

One area of harassment that is not easily prevented or controlled is a hostile work environment based on sexual orientation. The federal government still does not recognize sexual orientation harassment, but under California law, homosexual employees have a route to compensation.

As more and more men are filing lawsuits against their employers for the pain that they endured, women continue to be the most prominent target of inappropriate sexual advances in the restaurant industry. No employee should ever feel like they have to suffer through sexual harassment no matter what industry they work in.

Source: Nation's Restaurant News, "Looking at sexual harassment in the restaurant industry," Ron Ruggless, Dec. 5, 2011

Restaurant industry gets second look after harassment allegations

2011-12-09T17:48:06Z

We recently wrote about the harassment claims made against presidential candidate Herman Cain that arose when he was the chief executive of the National Restaurant Association. The allegations that the association settled twice with women who made claims against him have turned new attention towards the entire restaurant industry.

The restaurant industry has not had the most stellar record in the past when it comes to providing a sexual harassment free workplace for employees. Although a lot has changed in the past few decades, it appears as though harassment in the industry is not one of them.

]]> Researchers compiled information from the Equal Employment Opportunity Commission and state and local Fair Employment Practices agencies to study harassment. What they found was that although the total number of sexual harassment claims has recently experienced a decline, the industry is still a leader -- and not in a good way.

In this year alone there have been 75 sexual harassment claims filed with the federal government. Of those claims 37 percent of them were related to the foodservice industry.

What is especially concerning is that not only does harassment remain a problem, but the claims are becoming even more serious. Historically, many of the claims have been based on verbal comments. Now, legal experts are commenting that they are seeing more of a combination of physical and verbal acts that contribute to the problem.

A lot of instances of harassment involve a specific sexual interest between the tormentor and the victim, but that is not always the case. For experts it seems as though inappropriate touching and horseplay that have a sexual nature are becoming even more commonplace in many restaurants.

Watch for our next posting on the subject to learn about another frightening and yet surprising fact about harassment in the restaurant industry.

Source: Nation's Restaurant News, "Looking at sexual harassment in the restaurant industry," Ron Ruggless, Dec. 5, 2011