Monthly Archives: December 2012

Tight Clothing & the Implications of “Leading the Boss on” in Sexual Harassment Lawsuits

Sexual Harassment Lawyer

Statistics show that most women fail to confront their bosses about sexual harassment. This is a mistake.

When a woman wears tight or provocative clothing at work, and is thereafter sexually harassed by a male manager or coworker, will that fact hurt her sex harassment case? This is an especially important question in Orange County, where California culture encourages working women to wear shirts that show a little cleavage and skirts that show off some leg.

Some men believe that when a woman wears tight clothing, revealing blouses, or a short skirts, she is seeking sexual attention. Many believe that she “asked for it” and that they should not be punished because she “led him on.”

California’s hostile work environment laws state that the harassment must be “severe” or “pervasive” and is evaluated on a “totality of the circumstances” scale. These legal constructs allows judges, juries, mediators, and arbitrators to evaluate just about anything they want in deciding whether sexual harassment has occurred.

As a result, society, judges, juries, and arbitrators, often blame the victim for encouraging the harassment. These decision makers have, on numerous occasions, decided against employees on the basis of conduct they see as encouraging the harasser such as, using sexual language & mannerisms around the person who allegedly harassed them, wearing tight & revealing clothing, failing to make complaints after harassment allegedly occurred, and initiating social contact with the harasser after the harassment has occurred.

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

Employees of Franchises May Be Able To Sue The Deep Pockets

dominospizzalogoA great case came down earlier this year that I’ve been meaning to blog about. Employee rights attorneys’ like myself are hesitant to take cases against small employers. This is true even when the employer is a franchisee (e.g. your local McDonald’s). Generally, franchisor’s (e.g. McDonalds corporate) isn’t liable for franchisee’s labor practices. Attorney’s like myself fear that we might litigate a case for two years, win a trial, but be unable to recover the full judgment because the local franchise doesn’t have very much money.

A recent case changes this in certain situations.  Patterson v. Domino’s Pizza, LLC held a franchisor can be held liable for alleged sexual harassment of an employee of the franchisee by a supervisor employed by the franchisee and for related claims.

The facts of the case are fairly common. Patterson was a teenage employee of Sui Juris, a Domino’s pizza franchisee. Renee Miranda was the assistant manager of that restaurant. Patterson claimed Miranda sexually harassed and assaulted her at work.

Patterson filed an action against Miranda, Sui Juris, and the franchisor Domino’s, alleging causes of action for sexual harassment in violation of Fair Employment and Housing Act (FEHA), failure to prevent discrimination, retaliation for exercise of rights, infliction of emotional distress, assault, battery and constructive wrongful termination. She claimed Sui Juris and Domino’s were Miranda’s employers and were vicariously liable for his actions under the legal doctrine of respondeat superior.

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Filed under FEHA – Fair Employment & Housing Act, Franchise, Harassment, Independent Contractor, Retaliation, Sexual Harassment

What About Wages? Termination & Quitting

Wages on firing, termination, layoff, quitting, etc. Donald TrumpEveryone has either quit a job or been fired. Sometimes, employers take advantage of this transition period and fail to pay the employee for all the work that he or she has done. The California Labor Code addresses this vulnerable time and has come up with a series of statutes to protect workers.

Labor Code Section 201 – When an employee is fired, terminated, or laid off, their earned wages are due and payable immediatelyThis also applies to any vested vacation time.

Labor Code Section 202 – When an employee quits without notice their wages are due and payable within 72 hours. If the employee has given at least 72 hours notice, the employee is entitled to their wages at the time of quitting.

Labor Code Section 203 – If an employer willfully fails to pay any wages due to an employee who is discharged or who quits (pursuant to sections 201 and 202), the wages of the employee continue as a penalty from the due date until paid – up to 30 days. This means that your wages continue at the hourly rate you were earning when you quit or were fired for 30 days at 8 hours per day.

Labor Code Section 208 – Every employee who is discharged shall be paid at the place of discharge, and every employee who quits shall be paid at the office or agency of the employer in the county where the employee has been performing labor. All payments shall be made in the manner provided by law.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Filed under Wages and Hours

Want to Be a “Private Attorney General” and Fight Labor Injustice?

PAGA, wages, paystub, hours, time card, punch card, employment law, californiaIn 2004, our great State enacted the “Private Attorneys General Act” (commonly known as “PAGA” – Labor Code § 2699). This statute gives an incredible amount of power to everyday employees who want to fight for workplace rights.

Under the PAGA, an employee may bring a lawsuit for Labor Code violations committed against the employee by his or her employer on behalf of other current or former employees against whom one or more of the alleged violations was committed. What is interesting here is that PAGA is not referring to class actions, it creates a private civil action on behalf of other employees. That means the PAGA contains no specific class certification requirements.

Employers are liable for a penalty of $100 for each aggrieved employee per pay period for the first violation and $200 for each aggrieved employee per pay period for each subsequent violation. The aggrieved employee does not, however, recover the full penalty amount. Seventy-five percent of the penalty goes to the Labor and Workforce Development Agency for enforcement of labor laws and education, and only 25 percent is recovered by the aggrieved employees. In addition to the civil penalty, a prevailing employee (but not a prevailing employer) may be awarded “reasonable attorney’s fees and costs.”

What type of penalties are we talking about?

  • Failure to pay wages immediately upon discharge.
  • Failure to pay with a payroll check with sufficient funds.
  • Illegal deductions or withholdings from wages.
  • Failure to provide statutorily compliant paystubs.
  • Failure to provide proper meal and/or rest breaks.
  • Failure to pay all tips and gratuities left for workers.
  • Failure to pay overtime for all hours worked in excess of 8 hours in a day or 40 in a week.
  • Failure to pay minimum wage.
  • Failure to reimburse for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.

If you are currently suffering from one of the above Labor Code violations, you can become a private attorney general, and sue on behalf of your fellow employees to right the wrong. If you have any questions about PAGA or the labor code violations listed here, feel free to give me a call.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Filed under Accurate Paystubs, Meal Breaks, Overtime, PAGA, Rest Breaks, Wages and Hours

California Tip Pooling Laws – “Direct Table Service” Defined

Tip Pooling, Lawyer, Employment Law, Waitress lawyerCalifornia law protects hundreds of thousands of people who work as waiters, waitresses, servers, bartenders, etc. The law protects these employees from having to share their tips with the owners or managers of the company they work for. However, employers are allowed to implement certain types of mandatory tip sharing arrangements (most call this “tip pooling”), but these arrangements must conform to the law.

So what is the law? The California Labor Code states:

Section 351.  No employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron, or deduct any amount from wages due an employee on account of a gratuity, or require an employee to credit the amount, or any part thereof, of a gratuity against and as a part of the wages due the employee from the employer. Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for….

Section 353.  Every employer shall keep accurate records of all gratuities received by him, whether received directly from the employee or indirectly by means of deductions from the wages of the employee or otherwise. Such records shall be open to inspection at all reasonable hours by the [government].

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Filed under Tip Pooling, Wages and Hours

California Passes New Regulations on Paystubs

Paystub Requrements - Sample PhotoWhat’s the deal with paystubs? Most employees don’t even look at their paystubs. Existing law in California requires every employer, twice a month or at the time of each payment of wages, to furnish each employee an accurate itemized statement (paystub) in writing showing certain information.

This information includes, among other things, the name of the employee and the last 4 digits of his or her social security number, the gross wages earned, all deductions, net wages earned, the dates of the period for which the employee is paid, and the name and address of the employer. Existing law provides that an employee suffering injury as a result of a knowing and intentional failure by an employer to comply with this requirement is entitled to recover the greater of all actual damages or a specified sum, not exceeding an aggregate penalty of $4,000, and is entitled to an award of costs and reasonable attorney’s fees.

The “injury” required to trigger the penalty has just changed. California just amended its paystub statute (Labor Code § 226) with a new law (SB-1255 which Governor Brown signed into law on September 30th, 2012). The changes go into effect on January 1, 2013.

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Filed under Accurate Paystubs, Class Actions, Lawsuits & Lawyers, Wages and Hours