Many employers utilize the practice of having employees “on-call” in order to flex their workforce. This practice, however, often comes at a cost to the affected employees, be it by way of inconvenience, sacrificed opportunities or time spent waiting around to determine if he or she will be required to report into work. On February 4, 2019, in Ward v. Tilly’s, Inc., the California Court of Appeals addressed this common wage an hour practice used by California employers and held that Tilly’s employees who were subjected to on-call scheduling were entitled to compensation under California’s reporting time pay requirements.
Under Tilly’s policy, employees were scheduled for both regular and on-call shifts. Tilly’s then required its employees to call in two (2) hours before the start of their on-call shift to determine if they needed to report to work for their shift. Worse, Tilly’s disciplined employees who failed to call in before their on-call shifts, if they called in late or if they refused to work an on-call shift.
For their part, Tilly’s made various arguments in opposition to the claims, including pointing out that employees were not required to physically report to the workplace for an on-call shift. The Court rejected this argument, ultimately holding Tilly’s telephonic call-in requirements trigger reporting time pay. Notably, the Court pointed out how Tilly’s practice benefits employers by allowing them to keep their labor costs low when business is slow at the expense of their employees “while having workers at the ready when business picks up.” The Court recognized how this practice creates “no incentive for employers to competently anticipate their labor needs and to schedule accordingly.”
The Court also recognized how these types of policies “impose tremendous costs on employees” such as precluding other job opportunities, requiring employees to make contingent child or elder care arrangements, preventing employees from taking classes and stopping employees from making social plans. In short, the Court found such policies “significantly limit employees’ ability to earn income, pursue an education, care for dependent family members, and enjoy recreation time.” The Court also noted that reporting time pay may also be required if an employee is required to remotely log into a computer system.
This ruling in this case may have a significant impact on employer on-call policies in favor of California employees. If you believe your employer’s on-call policy is similar to Tilly’s and may require that you received reporting time pay, you should speak with a California Employment Attorney who is experienced in wage and hour matters.
Our employment attorneys in Orange County have extensive experience in handling wage and hour cases exclusively on behalf of employees. Ares Law Group, P.C. attorneys also offer a unique perspective with their collective of 30 years experiencing in employment law.
The attorneys at Ares Law Group, P.C. who regularly handle sexual harassment cases, are following new allegations against multiple NFL Network analysts. Erin McParland and Jami Cantor, who both worked as make-up artists for the NFL Network, have raised allegations of sexual harassment including sexually suggestive comments, inappropriate touching and sexual advances by NFL Network personalities including Eric Davis, Michael Irvin, and top executive Eric Weinberger. Ms. McParland describes how, shortly after her hire, she was told that she needed to be careful because she was new, pretty and would likely be targeted. Ms. McParland was stunned by the conduct she claims she was subjected to by the male personalities at the network. Ms. McParland explained what gave her the courage to speak up was talking to other female make-up artists and learning they were subjected to the same or similar conduct by the same individuals. After hearing these similar accounts, Ms. McParland felt empowered and took her complaints to the NFL Network’s Human Resources Department.
While both Ms. McParland and Ms. Cantor have separate individual cases, their allegations will likely be used to corroborate each other’s account. One piece of evidence which will likely be central to Ms. McParland’s complaint are alleged Instagram direct messages from Davis in which she claims he commented on her flexibility and made suggestive remarks about how good they would be sexually. Additionally, both Ms. McParland and Ms. Cantor’s attorneys will likely seek evidence related to complaints or concerns raised by other females in the workplace about similar conduct by the alleged sexual harassers. If they find evidence the NFL Network was aware of inappropriate conduct by the accused harassers and failed to take appropriate action to stop it, it will likely strengthen their claims.
The allegations of sexual harassment by female make-up artists at the NFL Network against various NFL Network analysts reiterates what many experts in the field already know to be true, sexual harassment is often times not isolated incidents. Rather, it consists of repeated actions indicative of a pattern of behavior. Many women who are subjected to sexual harassment in the workplace never report the conduct for a variety of reasons including: fear of retaliation, financial need for a job, fear of being ostracized and fear of not being believed. With the #metoo movement, many women are now feeling empowered to shine a light on inappropriate conduct in the workplace. In doing this, what many are finding is they are not alone not only in the larger sense of the #metoo movement but often times, in terms of their own work environment.
Accordingly, if you continue to look where you see smoke, you may eventually find a fire. In today’s day and age fire is often times found through the use of evidence provided through electronic communications and social media. It remains unclear what will play out with respect to Ms. McParland and Ms. Cantor’s claims but what is clear, is that individuals who feel they have been subjected to sexual harassment, or other types of harassment, in the workplace, are often times not alone and should consult with a sexual harassment attorney to ensure they understand their rights.
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.
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.
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.
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.