The #MeToo Movement—Don’t Be Afraid to Speak Up
It seems like every day provides yet another headlining story about a celebrity, politician, or other high-profile person being accused of sexual harassment in the workplace, often times by multiple different people. While the specifics in each instance are always somewhat unique, an emerging theme is the manner in which the work environment discouraged employees victimized by harassment from coming forward to complain about this highly inappropriate and illegal conduct whether by deliberately ignoring them, threatening their personal or professional success or reputations, questioning their truthfulness, or some other type of retaliation.
Although it seems society is just beginning to sincerely and appropriately believe the work environment, despite industry or an individual’s status, should be completely free of harassment and discrimination, both California and federal law have long prohibited this type behavior. In fact, not only is the conduct itself illegal, but California has long provided employees substantial protections when it comes to making complaints about what an employee reasonably believes to be harassment or discrimination. Note the term “reasonably.” This is a rather significant distinction because, even if the conduct does not actually arise to actionable harassment, the employee is still entitled to considerable protections if he or she “reasonably” believed the conduct constituted harassment. Hopefully, with the exposure the media is providing perpetrators of unlawful workplace harassment, employees will begin to feel more comfortable coming forward to fight back with less fear.
In addition to fear, one of the other reasons employees do not come forward to complain about harassment is the fact the alleged harassment occurred what they believe to be too far in the past. In general, it is true that an employee hoping to pursue a legal claim for sexual harassment must submit their claim to a governmental agency within one (1) year. There are, however, some exceptions to this rule. So, if you have experienced harassment in the past, you should always consult with an attorney to determine what legal rights you may have. While there may be nothing actionable in the legal sense, there may be other avenues to explore and, most importantly, you should always know your rights!
Finally, while most of the complaints publicized recently deal with sexual harassment men are perpetrating against women, instances of sexual harassment can also take place with a woman harassing a man or members of the same sex harassing one another. Typically, employees are even more reluctant to raise complaints about these types of harassment because they believe they will be less believable (remember the movie Disclosure where Michael Douglas’ character complained about sexual harassment against Demi Moore?), they are equally improper and illegal in the workplace. In fact, California’s state law provides, sexually harassing conduct need not be motivated by sexual desire to be found unlawful. This principle has often been applied in same sex harassment cases. California law protects employees from all forms of harassment and employees should never feel like this type of conduct needs to be tolerated regardless of the fact it is not perpetrated in the typical manner.
The bottom line is, if you have been a victim of sexual harassment in the workplace, you should speak to a Newport Beach employment attorney as soon as possible. Do not worry about the passage of time—it is more important to know what options are available to you. Eliminating sexual harassment in the workplace will not occur because the spotlight turned on a few celebrities. It will happen when regular people know they do not have to tolerate such conduct and can complain about it without fear of any type of immediate doubt or retaliation.
The employment attorneys at Ares Law Group specialize in handling sexual harassment cases exclusively on behalf of employees. If you have any questions, or would like a free consultation, please feel free to call us at (949) 629-2519.
Holiday Parties and Harassment, Not a Good Combination
It’s the most wonderful time of the year, when everyone is bustling around preparing for the holidays and yet, they still get to find time to attend the obligatory office holiday party. The holiday party has evolved over the years from the blow out, open bar event to more subdued gatherings. Some employers now opt for employee only soirees without spouses or significant others. Others issue “drink tickets” in an attempt to limit the amount of alcohol consumed.
Even still, we have all heard a tale or two of the poor unfortunate soul who has a little too much to drink at the holiday party and finds themselves in an embarrassing situation. For some, this may be a version of Elaine’s holiday office party dance on Seinfeld, but for others it may be something more serious. One need only look to today’s headlines to find examples of where these events may go if individuals throw caution, good judgment and common courtesy to the wind.
What is key for all those who attend holiday office parties to remember is that your employer’s policies and procedures concerning harassment and sexual harassment in particular apply at company sponsored events and to non-employees. In fact, California’s Fair Employment and Housing Act provides employers may be held liable for harassment by non-employees in certain situations. Accordingly, even if the harasser is not your co-worker, your employer likely still has an obligation to take immediate and appropriate corrective action to stop the conduct.
Examples of inappropriate conduct can include conduct that is visual, verbal and physical. It may be a flirtatious comment about one’s appearance, an expression of a sexual desire/fantasy, or an inappropriate touching. In more egregious cases it may involve someone exposing themselves or, worse, sexually assaulting a co-worker. It is also common in today’s electronic communication to see inappropriate text messages or photos.
Individuals who operate under the assumption that because they are “off the clock” or out of the office, they are free to engage in whatever conduct they choose do so at their own peril. It is not uncommon for complaints of sexual harassment to stem from employees behaving badly at holiday parties. This can sometimes lead to an unhappy new year with a formal investigation or possible termination of employment.
It is important for employees to understand they have the same ability to report inappropriate and unwelcome behavior that occurs at office events, or other work-related events, even if they are after hours, off-site or the alleged harasser is not an employee. If you or someone you know has been subjected to inappropriate behavior at the yearly holiday party or another company sponsored event, you should report the conduct immediately. Employers are required to conduct a prompt and impartial investigation into such complaints. Additionally, employees who report such conduct in good faith are protected from retaliation under both state and federal laws. If you have been subjected to inappropriate conduct and your employer has failed to take action, you should contact an experienced employment attorney immediately to discuss your rights.
Matt D’Abusco and Cynthia Sandoval, partners at Ares Law Group, P.C., with a combined 30 years of experience in employment law and litigation, have handled a multitude of sexual harassment cases. Ares Law Group’s background and experience allows its attorneys to approach cases in a unique manner. Understanding how their adversaries view and defend cases, their strategic perspective is invaluable to clients.
California Expands Protected Parental Leave
With the close of the 2017 legislative season, employees of small businesses or who work at small locations in California can celebrate the passage of SB63, which provides for protected parental leave. Previously, only employers with 50 or more employees within a 75-mile radius were required to provide this protected leave. Now, under SB63, employers with 20 or more employees within a 75-mile radius will also be required to provide parental leave. To qualify for this expanded leave, employees must: (1) be employed for 12 months; (2) have worked at least 1,250 hours in the previous 12-months; and (3) work at a location where the employer has at least 20 employees within a 75-mile radius. Qualifying employees are now entitled to 12 weeks of protected parental leave in connection a child’s birth, adoption or foster care placement, along with other benefits such as continued health insurance coverage and reinstatement rights.
If you do not qualify for protected parental leave or your leave is due to a disability or medical condition, you may still be entitled to protected leave under federal and California law. Both the Americans with Disabilities Act as Amended (“ADA”) and the California Fair Employment and Housing Act (“FEHA”) protect disabled employees and require employers to provide reasonable accommodations which will allow a disabled employee to perform the essential functions of their job. A reasonable accommodation can include a leave of absence for an employee who does not otherwise qualify for protected leave or an extended leave beyond an otherwise protected leave (i.e. leave provided under the Family and Medical Leave Act or the California Family Rights Act.) Both the ADA and the FEHA require employers to engage in an interactive process with employees to explore possible accommodations.
Employees in California also enjoy leave entitlements beyond those related to parental leave or disabilities/medical conditions. California employees may also qualify for protected pregnancy leave (“PDL” which is more than the traditional concept of maternity leave), paid sick leave, school activities leave and leave for military members’ spouses, just to name a few.
Another key component to many leave laws is the protection against discrimination, harassment and retaliation. In many instances, employees who need to exercise their protected leave rights cannot be subject to discrimination or retaliation as a result, nor can they be subjected to harassing conduct. For example, an employee who requests a reasonable accommodation cannot be subjected to a hostile work environment on account of that request.
If you require a leave of absence for one of the protected reasons or some other modification to your work environment to enable you to perform the essential functions of your job and your employer refuses to consider your request or otherwise takes an adverse action with respect to your terms and conditions of employment, you should consult with an experienced employment attorney in Newport Beach.
Matt D’Abusco and Cynthia Sandoval, both partners at Ares Law Group, P.C., have a collective 30 years of experience in employment law and litigation. The employment attorneys at Ares Law Group have worked at the most renowned and prestigious labor and employment firms in the United States representing local, national and international employers, including Fortune 100 companies, in individual and class action employment litigation matters. This background and experience allows our attorneys to approach each case with a unique perspective. Understanding how their adversaries view and defend cases, their strategic perspective is invaluable to clients.
Sexual Harassment: No One Is Above The Law
The news of Harvey Weinstein’s termination in the face of mounting sexual harassment allegations demonstrates no one is immune from being held accountable for their actions under the standards set forth in both federal and state laws prohibiting sexual harassment in the workplace. It does, however, beg the question, why was this not brought to light sooner? Were the alleged victims unaware of the law? Did they fear retaliation and irreparable damage to their career trajectories? Anyone who has been subjected to sexual harassment in the workplace has likely struggled with these same questions. No one will ever really know the reasons behind the delay but if the allegations currently circulating around Mr. Weinstein prove to be true, they are text book examples of sexual harassment.
There are two forms of sexual harassment under the California Fair Employment and Housing Act and Title VII the Civil Rights Act of 1964: (1) hostile work environment and (2) quid pro quo. Anyone can create a hostile work environment based on sex/gender, such as a co-worker, supervisor/manager, owner, or a third-party (i.e. customer/client). A hostile work environment exists when an individual is subjected to conduct, based on his/her sex/gender, which is severe or pervasive, and which a reasonable person would consider offensive. Quid pro quo, on the other hand, can only be committed by a person in a position of power, typically a supervisor or an agent of the employer. In such instances, the alleged harasser exploits his/her position and makes unwanted sexual advances or engages in unwanted verbal, physical or visual conduct of a sexual nature and conditions the terms of employment (i.e. being hired, benefits, wage increase) by word or through conduct, on the victim’s acceptance of the sexual advances or conduct.
The type of conduct that usually gives rise to a sexual harassment claim can also come in many forms. In today’s technology driven society, more sexual harassment claims stem from conduct engaged in via electronic communication, such as inappropriate text messages or emails. It can also exist when there are advances, conversations or inquiries of a sexual nature, even if an employee is not the person engaged in the conversation but forced to endure them.
Another component of sexual harassment that employees may not appreciate is the prohibition against same sex harassment, regardless of sexual desire. The California Legislature amended the FEHA effective January 1, 2014 to provide an employee need not show the alleged harasser’s conduct was motivated by sexual desire. Sexual harassment is often motivated by hostility toward an individual, which is more common in same-sex harassment cases. In such instances, the harassment may appear similar to bullying conduct.
Although it is often difficult and intimidating, employees should immediately complain about workplace harassment to their supervisor, human resources department, or another responsible manager. If your employer does not immediately and seriously take action against workplace harassment, you should immediately contact an experienced employment attorney in Orange County.
If you have questions about workplace harassment or other employment issues, please feel free to contact one of the experienced employment lawyers at Ares Law Group, P.C. Their unique backgrounds, spreading over 30 years of combined experience, the attorneys at Ares Law Group, P.C. provide clients the experience they need, with the attorneys they want. “Se habla Español.” Call us today for a free consultation (949) 629-2519.
IT Professionals and Exemptions in California
Exemptions in California can be very confusing. Trying to determine whether an employee is exempt from overtime or non-exempt and entitled to overtime is difficult, and this is especially true with IT professionals. While IT professionals are usually salaried employees, salary alone does not mean they are not entitled to overtime.
So what are IT professionals? IT professionals (i.e. Information technology professionals) can hold a variety of job titles – a few examples include: IT specialists, systems administrators, systems engineers, IT technicians, database administrators, desk and IT support, and network operations engineers or specialists. However, whether an IT professional is exempt or non-exempt does not depend on the title, but comes down to the duties. Because most IT professionals work long hours, it is especially important to determine whether as an IT professional, you are entitled to overtime pay.
Most IT professionals, if truly exempt, will generally fall under one of two exemptions: (1) the computer professional exemption; and (2) the administrative exemption (although other exemptions may sometimes apply).
The Computer Professional Exemption
Under California Labor Code Section 515.5, employees in the computer software field are exempt and therefore not entitled to overtime ONLY if ALL of the following four requirements are met:
(1) The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment.
(2) The employee is primarily engaged in duties that consist of one or more of the following:
- The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications.
- The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications.
- The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.
(3) The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, or software engineering. A job title shall not be determinative of the applicability of this exemption.
(4) The employee’s hourly rate of pay is not less than thirty-six dollars ($36.00) or, if the employee is paid on a salaried basis, the employee earns an annual salary of not less than seventy-five thousand dollars ($75,000) for full-time employment, which is paid at least once a month and in a monthly amount of not less than six thousand two hundred fifty dollars ($6,250). The Division of Labor Statistics and Research shall adjust both the hourly pay rate and the salary level described in this paragraph on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. Effective January 1, 2016 the minimum hourly rate is $41.85 and the minimum annual salary is $87,185.14 for full-time employment, and paid not less than $7,265.43 per month.
So in short, what does this all mean?
While there is no bright line rule, this means generally that to be considered exempt under the Computer Professional Exemption, employees must be:
- Exercising independent discretion and judgment – this generally means that the employee makes decisions over significant matters and is free of direct supervision;
- Highly skilled and proficient – this generally excludes trainees, entry level positions, and those learning to become proficient or those not at a skill level that does not require supervision;
- Primarily engaged in intellectual or creative work and one or more of the duties listed above – generally, “primarily engaged” means more than one-half of the employee’s work time.
- Earning no less than $41.85 per hour or $87,185.14 per year/$7,265.43 per month (as of January 1, 2016).
The Administrative Exemption
Under the Industrial Welfare Commission (IWC) Wage Orders, an employee falls under the Administrative Exemption ONLY if ALL of the following requirements are met:
- you must perform “office or non-manual work directly related to management policies or general business operations;”
- you must “customarily and regularly exercises discretion and independent judgment;”
- you must regularly and directly assist the owner of the business, or another exempt administrator OR do specialized or technical tasks that require special training or education and only under general supervision OR do special assignments and tasks only under general supervision;
- you must be engaged in these administrative duties more than 50% of your work time; and
- you must also earn a monthly salary equivalent to no less than two times the state minimum wage for full-time employment ($41,600 per year or $3,466.67 a month).
With the Administrative Exemptions and IT professionals, many times the question of exemption really comes down to whether the IT professional is performing tasks and functions that involve matters of substantial importance to running the business OR is simply engaged in the core day-to-day business.
If you are an IT professional and want to know whether you are properly classified, please consult with one of our attorneys.
Returning To Work After Baby – California Requires Breastfeeding Accommodations
It’s hard enough returning to work after baby – place on top of that finding enough time, let alone room, to pump at work. The great thing is that California is one of the more protective states for
breastfeeding moms. Under the California Labor Code, employers are required to provide reasonable break time for expressing breast milk.
Specifically:
Section 1030. Every employer, including the state and any political subdivision, shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child. The break time shall, if possible, run concurrently with any break time already provided to the employee. Break time for an employee that does not run concurrently with the rest time authorized for the employee by the applicable wage order of the Industrial Welfare Commission shall be unpaid.
Section 1031.The employer shall make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private. The room or location may include the place where the employee normally works if it otherwise meets the requirements of this section.
Section 1032. An employer is not required to provide break time under this chapter if to do so would seriously disrupt the operations of the employer.
Section 1033. (a) An employer who violates any provision of this chapter shall be subject to a civil penalty in the amount of one hundred dollars ($100) for each violation.(b) If, upon inspection or investigation, the Labor Commissioner determines that a violation of this chapter has occurred, the Labor Commissioner may issue a citation. The procedures for issuing, contesting, and enforcing judgments for citations or civil penalties issued by the Labor Commissioner for violations of this chapter shall be the same as those set forth in Section 1197.1. (c) Notwithstanding any other provision of this code, violations of this chapter shall not be misdemeanors under this code.
In short, this means: (1) the break time runs concurrently with breaks required for all employees (i.e. meal and rest breaks) – in other words, if you can express milk during your lunch or rest break, then this fulfills the Labor Code requirement; (2) any additional break time can be unpaid; and (3) the employer must make reasonable efforts to provide a private place near your work area for you to express milk – I.e. No more having to pump in the public restroom. The only exception to these laws is if providing breastfeeding breaks would seriously disrupt the operations of an employer.
Finally, taking aside these breastfeeding accommodations, pregnant women and women return to work after pregnancy are entitled to California’s protections against discrimination and harassment based on their pregnancy (including need to breastfeed). Thus, if you are experiencing any offensive or unfair conduct, or believe you are being penalized because of your pregnancy (or breastfeeding), call one of our attorneys.
Is My Employer Required to Reimburse My Cell phone Use For Work?
The general answer is yes – and this is true even if your plan is unlimited, so long as it is necessary in performing your duties. In Cochran v. Schwan’s Home Service, Inc., 228 Cal.App.4th 1137 (2014) (“Cochran”), the California Court of Appeal held that employers must reimburse employees for required work-related use of personal cell phones—regardless of whether they incur any additional out-of-pocket expense from that work-related use. The Court held that even where the plan is unlimited and the employee did not incur any additional cost, reimbursement was required under Labor Code Section 2802 because the employer would otherwise receive a windfall as it would be passing its operation expense onto the employee.
The Cochran case of course raises a number of interesting issues with respect to other business expenses incurred. For example, expenses incurred when working remotely, such as electricity, internet, and use of personal devices. Arguably, such expenses are also reimbursable under Section 2802. While courts have not ruled on these specific issues, we will likely see these issues arise especially given the ease and ability of employees to work remotely.
If you believe you have incurred any business expenses that have not been reimbursed, contact one of our attorneys to discuss your situation.
Am I an Independent Contractor or Employee?
Am I An Independent Contractor or Employee?
An increasingly common question is whether a person working for a particular company is an employee or an independent contractor. While the answer to the question will always be dependent on each specific situation, in general, when the person works full-time and exclusively for a single company, the person is often an employee rather than an independent contractor.
Why is it important?
It is important to know if a person is actually an employee because an employee will be entitled to, among other things, minimum wages for all hours worked, overtime wages, rest periods, meal periods, and reimbursement for expenses. Employees may also be entitled to benefits with respect to workers’ compensation, unemployment, and disability insurance. Thus, an employee has far greater rights and protections than an independent contractor.
What is an independent contractor?
There is no exact definition of an independent contractor. Instead, Courts look at a number of different factors to determine whether a person qualifies as an independent contractor or employee. Very simply, an independent contractor is a person who works for a company on a project basis, and has freedom over how and when to perform work. For example, an insurance company might hire a contractor to design and install a computer network. The independent contractor would design the network (subject to the insurance company’s approval) and then build the network at his discretion consistent with his approved designs. Here, an independent contractor would perform the job, but would also be free to perform work for other companies as the person saw fit. In contrast, an employee would be a person who was required to work specified hours, was under the direction and control of the company at all times, and continued to work solely for the company.
Other factors considered by Courts include: (1) whether the person performing services is engaged in an occupation or business different from that of the employer; (2) whether the work is a part of the regular business of the alleged employer; (3) whether the employer or the worker supplies the tools and the place for the work; (4) the alleged employee’s investment in the equipment or materials required by the task; (5) whether the service rendered requires a special skill; (6) the kind of occupation; (7) the person’s opportunity for profit or loss depending on their managerial skill; (8) the length of time for which the services are to be performed; (9) the degree of permanence of the working relationship; (10) the method of payment, whether by time or by the job; and (11) whether or not the parties believe they are creating an employer-employee relationship.
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