Employment Lawyers: Ensuring Employees Are Compensated Fairly

In California, as well as across the nation, there are many jobs which require employees to be on “standby” or “on-call”. For example, some employees who are on standby may be required to carry their cell phone or smart phone and check their email regularly while they go about their personal affairs. Other employers may require the employee to carry a cell phone at all times as they may contact the employee to immediately come into work. For the standby or on-call employee, it can become confusing as to whether he or she is being compensated fairly for being on standby or on-call. If something seems unfair, an employment lawyer should be contacted so the employee’s situation can be evaluated.

Under California law, on-call waiting time is compensable if it is spent primarily for the benefit of the employer and its business. In Augustus v. American Commercial Security Services, the employer had a widespread policy which required its employees, security guards, to remain on standby or on-call at all times, even during rest breaks. When on-call, the security guards carried radios and cell phones and were required to be available at all times. The plaintiff class made up of the security guards filed suit alleging they were not being provided off-duty breaks as required under California law as they were essentially forced to remain on-call and were never at any point relieved of all duties. The security guards contacted an employment lawyer to represent them against the employer.

Plaintiffs argued that the employer had to ensure that its employees were completely relieved of all duty during their breaks, and the employee failed to do just that. Defendants argued that it did not matter whether the security guards were on call so long as the rest breaks were never interrupted then there was no violation. The judge was not convinced and sided with the plaintiff class. The judge entered a verdict in favor of the plaintiff class for $90 million.

This case is a huge win for California employees. Unfortunately, employers still violate the law in an attempt to cut costs or maximize their employee’s work time. However, cases such as Augustus v. American Commercial Security Services confirms that there is consequences for employers violating the law and employers can be held accountable in the court of law. If you believes your employer has committed a wage and hour violation, contact an employment lawyer immediately.

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Holding Employers Accountable for Sexual Harassment: Chopourian v. Catholic Healthcare West

My good friend, Lawrance Bohm, got the largest sexual harassment verdict in history for his client, Ms. Chopourian. The case demonstrates that sexual harassment still occurs quite often across California, especially with highly successful individuals like doctors. Sexual harassment is one of the more disturbing forms of gender discrimination. Not only can it financially hurt someone in their profession, but can also severely hurt an individual emotionally.

Sexual harassment most commonly takes the form of hostile work environment. Hostile work environment can take the form of verbal and physical conduct, whether sexual or nonsexual in nature. In hostile work environment cases, an employee must show that he or she was subjected to unwelcome sexual advances conduct or comments, and harassment was so severe as to alter the conditions of the victim’s employment and create an abusive working environment. Further, the employee must also show the employer knew or should have known of the sexual harassment. Usually, the harassed employee is terminated for poor performance or for a reason out of nowhere or arbitrary.

In Chopourian v. Catholic Healthcare West, plaintiff, a surgery physician assistant, was terminated for not showing up to an on call shift, but plaintiff filed suit. She claimed she was terminated after filing over a dozen written complaints over the course of two years regarding sexual harassment in the workplace. During her employment, plaintiff was subjected to consistent unwanted sexual advances and physical contact, as well as inappropriate and demeaning sexual comments such as surgeons telling her they are horny. The jury was not convinced by the employer’s reasons for termination and awarded plaintiff a verdict of $167,730,488.00.

At the end of the day, this case is good news for employees in California. A verdict this large is a testament that employers will be still be held accountable for the wrongs they commit in the workplace. If you believe you have been a victim of a hostile work environment, contact an employment lawyer immediately.

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Minimum Wage and Overtime: Holding Employers Accountable for Depriving Employees of Basic Pay

Minimum Wage KittenAs surprising as it may seem, some employers still fail to pay their employees proper minimum wage and overtime under California law. Recently, the California Department of Industrial Relations issued wage theft citations of roughly $16 million against several California restaurants. The California restaurants were cited for wages, premiums, and penalties owed to hundreds of employees for various wage theft violations. Investigations exposed a heinous amount of wage theft as it was discovered that employees, mostly waiters and waitresses, were paid an average of $1.15 per hour. Some waiters and waitresses were even either not compensated at all or were just paid a fixed rate of $200 per month. Also, kitchen employees were also never compensated for overtime. Considering some employers have trouble following wage and hour laws, let’s go over some of the basics.

As of July 14, 2014, California’s minimum wage is $9.00 per hour. Although the Federal minimum wage is $7.25 per hour, California law supersedes for employees working in California. Thus, the California restaurants were breaking both California and Federal law by paying their employees only $1.15 per hour. It is also important to note two important things. Employees cannot waive minimum wage so even if some of the waiters and waitress here agreed to be paid under minimum wage, that agreement would not hold water in court. Second, since we are talking about employees who make tips, California law prohibits an employer from crediting tips toward minimum wage and also prohibits an employer from taking any amount of tip given to an employee by a patron.

Under California law, an employer must pay 1 ½ times the employees regular wage after 8 hours worked in a day and after 40 hours worked in a week for all non-exempt employees. Sometimes employers tell an employee that it is necessary for him or her to work long hours due to the nature of the assignment and therefore overtime is not required. Or employers might tell employees that the company he or she works for does not fall under the kind of company that must pay overtime under California law. These are all fabrications and excuses not to pay an employee. All that matters is if the employee worked overtime hours and whether the employee worked with the knowledge of his employer.

Although it sad and unfortunate that employers continue to violate basic wage and hour laws, citations issued by the California Department of Industrial Relations, such as the citation discussed above, shows that employee rights are still being fervently upheld across the state. If you believe your employer is paying you under minimum wage or you are being deprived of overtime, contact an attorney immediately.

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Filed under Class Actions, Minimum Wage, Overtime, Wages and Hours

Same-Sex Sexual Harassment Claims: Just as Powerful as Opposite-sex Harassment Claims

The right to work in an environment free from sexual or gender based harassment is a federal and California civil right. Sexual harassment includes the the unwanted and unwelcomed visual, verbal or physical conduct that is sex-based or of a sexual nature or requests for sexual favors. If an employee is sexually harassed by his or her supervisor, an employer is liable for those damages incurred by the employee as a result of the sexual harassment. But is an employer potentially still liable for sexual harassment that occurs between an employee and supervisor of the same sex?

Sexual Harassment Attorney – Same Sex Harassment?

In recent a case from this year, Lewis v. City of Bencia, Brian Lewis, a paid intern and heterosexual man, sued his former employer, the City of Bencia, and his former supervisors for sexual harassment and retaliation. Lewis’ supervisor showed him pornography on the office computer and consistently told him inappropriate sexual jokes. The supervisor also bought Lewis lunch on numerous occasions and gave him numerous gifts while Lewis was employed with the City. One such gift was tuxedo underwear. Lewis claimed that the supervisor had asked whether he can visit Lewis’ home and once asked Lewis why he has not kissed him yet. On another occasion, a different supervisor also showed Lewis pornography on the office computer.

Continue reading “Same-Sex Sexual Harassment Claims: Just as Powerful as Opposite-sex Harassment Claims” »

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Filed under Harassment, Sex Discrimination, Sexual Harassment, Sexual Orientation Discrimination

California Labor Law Update: Sexual Harassment Protection

Every year, the California legislature passes new employment laws or amendments to already existing laws. These new laws and amendments directly impact the employer-employee relationship as well as impacts the way an employer conducts business in California. There were dozens of new labor laws and changes to existing laws passed in California in 2014.

Sexual Harassment Attorney – Free Consultation

One such amendment to an already existing law, Government Code 12940, clarifies the definition of sexual harassment in the workplace. Prior to 2014, due to a 2013 appellate decision, there was some confusion within the California courts as to whether there needs to be sexual desire of the perpetrator to establish a legitimate sexual harassment claim. Senate Bill 292 directly addressed this issue.

Senate Bill 292 was passed by the California legislature in 2013 and went into effect January 1st, 2014. Senate Bill 292 holds that sexual harassment is prohibited under California law without regard to the sexual desire of the perpetrator. The legislature reasoned that like other forms of harassment, sexual harassment does not always need to be motivated by desire, but more often can be motivated by hostility. In addition, by passing this bill, the California legislature effectively suppressed the confusion within the California courts as to whether sexual desire is needed to establish a legitimate sexual harassment claim.

Sexual Motive Not Necessary for Sexual Harassment Cases in California

However, before Senate Bill 292, California courts have long recognized that a sexual motive or desire is not required for legitimate sexual harassment claim. For example, in Pantoja v. Anton, a former employee brought an action against the employer for sex discrimination under the Fair Employment and Housing Act. The Court held that a plaintiff “need not show that the [sexual harassment] conduct was motivated by sexual desire.” Again, more than two decades before Senate Bill 292 was passed, in Mogilegsky v. Superior Court, in which an employee brought action against the employer for same gender sexual harassment by a supervisor, the Court held that “the focus of a cause of action [for sexual harassment] is whether the victim has been subjected to sexual harassment, not what motivated the harasser.”

Ultimately, Senate Bill 292 clarifies what has already been recognized by California courts, that sexual harassment under the Fair Employment and Housing Act does not require proof of sexual desire towards the plaintiff. At the end of the day, this is a great result for plaintiffs seeking damages due to sexual harassment in the workplace, especially if that harassment is caused simply by hostility and not sexual desire.

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Filed under FEHA – Fair Employment & Housing Act, Harassment, Sexual Harassment

Sheldon Cooper on How Not to Behave in Court

While this video isn’t about employment law, it does demonstrate improper courtroom demeanor. Sheldon Cooper (Jim Parsons of the Big Bang Theory) decides to insult a traffic court judge and finds himself in contempt. Hilarious.

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Arbitration is Bad for Employees. Trust me, I’m an Employee Rights Attorney.

Before I went to law school, I thought arbitration sounded neat. I had heard that lawsuits took years to resolve in court and were ridiculously expensive. Arbitration, on the other hand, sounded like an effective alternative to court. What is arbitration? As opposed to going to court, the feuding parties choose a “neutral” third party to review the facts, hear-out both sides, and make a ruling. Many proponents of arbitration say that it is faster, cheaper, and more fair. It’s not. Arbitration is bad for employees. Why? No jury. No media. No appeal. Period. Just an old white guy (usually) who rules with an iron fist. For those of you who like bullet points, here is a quick list of reasons why arbitration hurts employees:

Arbitration is Bad for These Seven Reasons

  • Unlike courts, arbitration is not a public system. Why is this bad? Because a company may repeatedly break the law, get sued in arbitration, but the public never finds out and there is no pressure on the company to ever make a change.
  • Unlike a judge in court, the arbitrator is not neutral. First, major corporations are constantly in arbitration against employees, and the corporation generally handpick arbitrators from firms with proven records of favoring the corporation. If word gets around that arbitrator ruled for an employee, the arbitrator gets blackballed by defense lawyers and goes out of business. It has happened. Second, and worse, many of these “neutral” arbitrators are under contract with corporations that engage in multiple cases. This is an enormous conflict of interest. Third, the company pays the majority of the arbitrators fee, essentially guilting the arbitrator to rule for the company.
  • Arbitrators do not have to reveal the reasons for his or her decision. They can say, “Company wins” and go home and take a nap. They are not legally accountable for errors, and their decisions do not set legal precedent for future cases.
  • Even if an arbitrator’s decision is legally incorrect, it still is enforceable, and there is nothing you can do about it. There is virtually no right to appeal an arbitrator’s ruling.
  • Generally, the company chooses the city or town where the case is heard, allowing it to make the case inconvenient, expensive, and unfair for employee bringing the complaint.
  • Arbitrators are not required to know the law relevant to the cases they adjudicate, follow legal precedents, or even be lawyers. Although most arbitrators are lawyers, it isn’t even a requirement!
  • Normal procedural rules for gathering and sharing evidence and safeguarding fairness to both parties do not apply in arbitration cases.

How to Avoiding Arbitration in Employment Disputes

  1. Don’t sign the arbitration agreement! This is the easiest way to avoid this mess. Arbitration is a contract, and contracts are not enforceable unless two parties agree. You don’t have to agree to it. If your employer asks you to sign an employment agreement, cross out the arbitration provision, initial and date it, and then give it to the employer. There is a risk that they won’t hire you, but if you’re a valuable hire I bet that many employers would simply ignore your failure to agree and hire you anyway. Make sure you get a copy of the revised agreement when you first get hired.
  2. Regardless of an existing signed arbitration agreement, have your lawyer file your case in court anyway. In many cases, the arbitration agreement is unenforceable due to various legal doctrines.

There is much more I could write on this subject. But I wanted to keep this article brief and to the point. Arbitration is bad and you should avoid it at all costs!

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Retaliation & Wrongful Termination in the Aerospace Industry

Many employees are retaliated against in the workplace. But not all retaliation or terminations are illegal.  This article discussed the case of Green v. Ralee Engineering Company. This case analyzes whether a company may fire an employee who complains about the failure to follow quality inspection protocols. In this case, the company manufactured airplane parts that were critical in keeping the plane safe.

Facts of the Wrongful Termination Case

In the mid 1990’s Ralee Engineering Company was sued by a former employee, Richard Green.  While employed, Mr. Green was a Quality Assurance Inspector. His duties were to inspect Ralee’s manufactured fuselage and wing components for military and civilian aircraft. Ralee supplied those parts to major airline assembly companies such as Boeing and to major war plane assembly companies such as Northrop.

Beginning in 1990, Mr. Green allegedly noticed that Ralee was shipping some airplane parts even though, according to him, they failed the inspections his team performed. On several occasions over the next two years, Mr. Green objected to Ralee’s practice to supervisory and management personnel and to the company president. He made all of his complaints internally, and at no time did he complain to outside government sources.

Despite his complaints, Ralee continued to ship allegedly defective parts to Boeing. In an effort to provide proof of the ongoing practice, plaintiff began photocopying the inspection reports, including some reports concerning parts destined for Boeing. In March 1991, Ralee shut down its night shift, citing a downturn in orders for the parts it produced. Ralee then fired Mr. Green along with other night shift employees.

Mr. Green filed a timely wrongful termination lawsuit against defendant. His attorney alleged Ralee terminated him in retaliation for his complaints about its inspection practices. His lawyer also argued that his complaints served a broad public policy favoring aviation safety, entitling him to tort damages even though he was an at-will employee.

Continue reading “Retaliation & Wrongful Termination in the Aerospace Industry” »

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New CA Employment Law – Protecting Victims of Violent Crimes

Governor Brown signed into law SB 288 this year. The bill adds Section 230.5 to the California Labor Code. The new law makes it illegal for employers to fire employees who are victims of violent crimes who take time off to attend court proceedings.

The offenses include all of the following:
  • (A) Vehicular manslaughter while intoxicated
  • (B) Felony child abuse likely to produce great bodily harm or a death
  • (C) Assault resulting in the death of a child under eight years of age
  • (D) Felony domestic violence
  • (E) Felony physical abuse of an elder or dependent adult
  • (F) Felony stalking
  • (G) Solicitation for murder
  • (H) A serious felony
  • (I) Hit-and-run causing death or injury
  • (J) Felony driving under the influence causing injury
  • (K) Sexual assault (there are many different types contemplated by this statute)

 

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Filed under Victims of Crime, Wrongful Termination

California Employment Lawyer’s Association Annual Conference was a Raging Success

CELA Annual Conference Employment Workplace Lawyer AttorneyFor the past few days I’ve been absorbing information at the California Employment Lawyers Association (CELA) annual conference. It has been an astounding event, full of highly intelligent and successful lawyers who deeply care about California worker’s rights.

I’ve seen presentations on wage and hour class actions, individual wage and hour cases, representing undocumented workers, updates on the evolving law concerning class waiver provisions in unconscionable arbitration agreements, and detailed analysis on the Harris v. City of Santa Monica mixed motive case. In all, if you practice employment law and you don’t go to this conference, you’re missing out on incredible tips, tricks, and strategies.

I’ve also had the pleasure to meet some highly regarded lawyers: Lawrence Bohm, Bryan Schwartz, and Glenn Kantor. I’ve seen presentations by David deRubertis, Michael Singer, and Cliff Palefsky. I can only hope that one day I’ve accomplished half of what these amazing individuals have accomplished. Keep up the good work!

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Filed under Class Actions, Employment Law, Uncategorized

Governor Brown Raises California Minimum Wage

Governor Brown Raises Minimum Wage in CaliforniaGovernor Edmund Brown will join business owners, legislators and dozens of working Californians tomorrow in Los Angeles and Oakland to sign AB 10 by Assemblymember Luis Alejo (D-Salinas), which will raise the minimum wage in California from $8.00 per hour to $10.00 per hour.

AB 10 will raise California’s minimum wage in two one-dollar increments, from $8 per hour today to $9 per hour, effective July 1, 2014 and from $9 per hour to $10 per hour, effective January 1, 2016.

Specifically, AB 10 will amend Section 1182.12 of the Labor Code is amended to read:

1182.12.

Notwithstanding any other provision of this part, on and after July 1, 2014, the minimum wage for all industries shall be not less than nine dollars ($9) per hour, and on and after January 1, 2016, the minimum wage for all industries shall be not less than ten dollars ($10) per hour.

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Filed under Labor Law, Minimum Wage, Wages and Hours

News: Top 10 Reasons Employers Get Sued & Clarification Regarding Male Sexual Harassment

Employment Attorney, Labor Lawyer, Employee Rights, Sexual HarassmentHR California posted a interesting depiction of the top 10 things employers do to get sued in California. I agree with a few of them. HR California is a information source for employers to protect themselves against employee lawsuits. I think they do some decent work in helping employers comply with California’s stringent laws.

In other employment news, Governor Brown just amended California’s main sexual harassment law. SB 292 was recently passed by the California Legislature to overrule Kelley v. Conco Companies (2011) 196 Cal.App.4th 191. This amendment, authored by California Senate Majority Leader Ellen M. Corbett (D-East Bay) is a direct response to the case. Kelley is  a terrible decision that harms male employees suffering sexual harassment in California. In Kelley, the Court ruled that although the male worker was subjected to a “barrage of sexually demeaning comments and gestures by his male supervisor” that were “graphic, vulgar, and sexually explicit,” his claim of sexual harassment failed because the male employee could not prove that “the harasser was homosexual” or was “motivated by sexual desire.”  The Court further stated: “The mere fact that words may have sexual content or connotations, or discuss sex, is not sufficient to establish sexual harassment.” SB 292 rectifies this illogical result, and shifts the focus back to whether the harasser targeted the victim because of his or her gender, not whether the harasser had sexual intent or desire for the victim.

In a press release, Senator Corbett stated: “SB 292 ensures that all Californians who are sexually harassed will receive the wide range of protections under existing law. I thank Governor Brown for signing this important legislation that protects all individuals whenever they are sexually harassed in the workplace, regardless of motivation. As elected officials, we must always strive to protect all Californians, regardless of gender, sexual orientation, race or any other personal characteristic.”

In todays workplace, employment lawyers like myself are seeing more male-on-male sexual harassment. Most male supervisors know they cannot sexually harass females, but they often don’t think that they can be punished for bullying a male subordinate. This amendment helps give lawyers the tools they need to punish those who behave this way.

 

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Filed under Harassment, Sexual Harassment