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Recently, one of my clients referred to me his former colleague. After having a long conversation with him, it became clear to me that he was a victim of blatant disability discrimination and retaliation for filing a workers compensation claim and for complaining about harassment because of his medical condition to the superiors of his HR manager.

There was nothing I could do to help him, however, because of the bad advice of his union representative, who told the employee that he could not file a lawsuit against the employer in court till he submitted his wrongful termination claim to Arbitration under the Collective Bargaining Agreement through a union, which he was a member of. As a result, an employee took no court action and waited till the union arbitrated his grievance. The employee contacted me shortly after he lost at the arbitration. The bad news were that our conversation took place 2 years and 1 month after his termination – a month after the statute of limitations has run on all his claims and they were all barred.

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For a while I could not understand why so many employers violate basic overtime laws. After all, these laws are not rocket science, and plenty of resources are available for employer to understand and make sure that they comply with the rules of the Department of Labor Standards Enforcement when it comes to overtime compensation.

Recently, I represented an employer at a hearing in front of the labor commissioner. The employer was clearly liable for some overtime to several of his employees, and my job was mostly mitigating that liability rather than denying it. I was also curious to find out why the employer did not bother to contact me or another employer attorney before hiring workers to make sure that he pays out compensation correctly. The answer was very simple: the employer was not aware of who the overtime laws apply, didn’t really care to find out, and honestly thought that the likelihood that he was going to have to deal with the issue in court was very low.

All of the above assumptions were mistakes on the part of the employer, especially the last part about the “likelihood.” Having hired over 10 workers for a project of 3-month duration and having had to unexpectedly terminate the project due to some cash-flow issues, he was guaranteed to turn his hard-working employee to disgruntled workers, left without the expected earnings from the project, who will do whatever they can to obtain additional compensation after being unexpectedly terminated. Naturally, they turned to the labor board to find out if they can “squeeze” some overtime from their employer.

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Employers who terminate employees routinely fight the award of unemployment benefits if they feel that the employee was terminated for cause or for misconduct and should not receive unemployment compensation, which results in increasing the premium that the employer has to pay toward that insurance reserve with the State.

Fighting unemployment benefit and even winning that fight is very likely to backfire and turn out to be much more expensive than simply letting an employee collect unemployment. Many employees, when laid off or terminated, at the very least consider in the back of their mind the possibility of suing their recent employer. Whether the employee decides to aggressively pursue litigation against his former employer depends on the number of factors, but the emotional component – the anger at the employer is certainly not an insignificant element in that decision. Often, it’s what makes a difference between letting things go and going after the employer in court.

Consider terminating an employee who feels that he was fired unjustly. He is hurt and angry, but at the same time thinks that it’s a better idea to take a break, collect unemployment and look for another job. He applies for unemployment and gets denied benefits because the employer stated that the employee was terminated for misconduct. This very likely takes the employee over the edge and drives him to file a lawsuit for wrongful termination, harassment, discrimination, defamation, intentional infliction of emotional distress, and many other possible claims.

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The leading opinion on the issue of employers’ obligation to remedy workplace sexual harassment of a victim by his co-workers, is the ninth circuit case Ellison v. Brady (1991). In that case, the court carefully analyzed the approach that a number of other courts take toward determining whether the employer complied with the obligations with regard to harassment imposed by law. The court made several important conclusions. First, the court reiterated that employers are liable for failing to remedy or prevent a hostile work environment of which management-level employees knew or should have reasonable known.

preventing harassment at workplaceThen, the court attended to the issue of what action an employer should take against the harasser to avoid liability. The EEOC guidelines recommend that an employer’s remedy should be immediate and appropriate without adversely affecting and terms and conditions of the complainant’s employment. The ninth circuit, agreeing with a number of other courts, held that the remedies against harassment should be reasonably calculated to end the harassment. Not all harassment warrants dismissal. Rather, remedies should be assessed proportionately to the seriousness of the offense. Employers should impose sufficient penalties to assure a workplace free from sexual harassment. The reasonableness of an employer’s remedy will depend on its ability to stop harassment and the kind of remedy used.

In Ellison the harasser was transferred to a different work locations for six months, after which he was returned to work to the original location. The harasser was not subjected to any other significant discipline, even though the victim complained repeatedly about the relatively egregious comments and sexual innuendos by the harasser. Further, the employer actualy transferred the complainant to the less desirable location. The court concluded that by failure to take effective remedial measures against the harasser combined with taking adverse action against the victim by transferring her to a less desirable work location, the employer did not meet it’s obligation with regard to harassment prevention and was therefore liable.

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An employee who feels harassed, discriminated or otherwise treated unfairly at his workplace may learn the term “constructive discharge” from his co-workers or from doing his own research, and will assume that quitting a job where he feels harassed or stressed out will automatically create a constructive discharge claim, entitling him to relief in court.

constructive-discharge-workplace

In reality, the standard for proving constructive discharge claim is much higher than a typical worker understands it to be. In Turner v. Anheuser-Busch, Inc. (1994), the California Supreme Court held that constructive discharge occurs when the employer’s conduct effectively forces an employee to resign, which is legally regarded as firing an employee. To be deemed a constructive discharge, the court noted, an employer must create or permit working conditions so intolerable or aggravated that a reasonable person in the employee’s position would fee compelled to resign. These employment conditions must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job, to earn a livelihood and to serve the employer. The circumstances giving rise to constructive discharge must be unusually aggravated or amount to a “continuous pattern” before the situation will be deemed intolerable. Single, trivial or isolated acts are insufficient to support a constructive discharge claim. Thus, the court continued, a poor performance rating or a demotion, even when accompanied by reduction in pay, does not by itself trigger a constructive discharge.

As the above language indicates, the employee must consider his options carefully before quitting his job in reliance on having a potential constructive discharge claim in court. It is highly recommend to consult an attorney before quitting the job to evaluate your work conditions and consider legal action along with other viable alternatives, short of quitting and suing.

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One of the challenging in proving the workplace retaliation claim against an employee is showing a nexus – a connection between the employee’s protected activity and the adverse employment action taken by the employer against the same employee. The employer will almost always deny retaliation and will always argue that the employee was terminated for reasons that have nothing to do with his disability or his complaints about discrimination/harassment. It is therefore crucial that the claimant has a solid evidence to establish that he complained and that those complaints were actually received by the employer.

This means that if you feel that you are subjected to discrimination and/or harassment, you complain to your supervisor or to the HR department in writing, so that later – the employer cannot deny the very fact that you actually complained. Whether it’s an e-mail, a handwritten note or a formal letter – written evidence of complaining about possibly unlawful conduct is much harder to refute than the “he said / she said” situations.

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On February 23, 2004, the City of San Francisco established a minimum hourly wage for the employees pursuant to Administrative Code section 12R (the Minimum Wage Ordinance or MWO). Under MWO section 12R.4, San Francisco employers shall pay to employees no less than the minimum wage for each hour worked in the geographic boundaries of the City. The local minimum wage in the City and County of San Francisco exceeds the State minimu wage, and it is adjusted each year based on increases in the regional Consumer Price Index for urban wage earners and clerical workers.

Under section 12R.3(a) of the ordinance, an employee is any person who, in a particular week, performs at least two hours of work for an employer within the geographic boundaries of the city. The local San Francisco minimum wage during the past few years have been as follows:

$8.82 per hour during 2006; $9.14 during 2007; $9.36 during 2008; and $9.79 during and till the end of 2009.

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The California courts have long recognized that fact that direct evidence of discrimination or retaliation at workplace is rarely available. Employers whose mindset and who actions are discriminatory will rarely admit it to other or to themselves and will of course almost never openly tell an employee: “I am terminating you because you are a black / christian / disabled / participate in the union activity”. Workplace discrimination and retaliation is usually subtle. It can and should be proven through circumstantial (indirect) evidence. While each type of circumstantial / indirect evidence might not be enough to meet the burden of proof, several types combined may well established a real risk for the employer to lose at trial and face a significant verdict for violation of an employee’s civil rights.

Here are five common, subtle and “circumstantial” ways in which employers engage in discrimination against employees:

1. Applying the Rules of Discipline Unequally. If you have been terminated for being tardy 3 times but there are other employees who are in the same or similar position and rank as you are, who are late to work more often than you are without facing any discipline, it might be evidence of the employer’s attempt to get rid of you for reasons other than tardiness.

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Under California Labor Code and a number of orders of the Industrial Welfare Commission, almost all employees (with few exceptions), who work for over 5 hours are entitled to a meal break of at least 30 minutes. The only way the employer may be relieved from this obligation is that if (1) the employee’s workday is no longer than 6 hours; and (2) the employee expressly consented to waive the right to a meal break.

An employer has to provide the employee with a second 30-minute meal break, if the same employee works for over 10 hours. This second meal break period can be waived by mutual consent, but only if the employee took advantage of the first meal break. In other words, the employee cannot waive both breaks if he/she works for over 10 hours.

Some positions make it impossible or impracticable for an employee to leave the work site in order to have a meal break (night employees at gas stations who work alone, security guards at different sites, etc…) In such cases, the employee is considered as having “on-duty” meal break because he is not relieved of all duties (being forced to stay at workplace during his lunch break), and he must be compensated for that time at a regular rate of pay.

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In 1994, the California legislature enacted Civil Code section 51.9 to address the relationship between providers of professional services and their clients. The statute sets out a non-exclusive list of such providers, which includes physicians, psychiatrists, dentists, attorneys, real estate agents, accountants, bankers, building contractors, executors, trustees, landlords, and teacher; also falling within the statute’s reach is sexual harassment in any relationship that is substantially similar to the ones specifically listed. Thus, for instance, a certified nursing assistant’s relationship with a patient is either a service or professional relationship with that patient, and would support statutory liability for sexual harassment within this section within a “business, service, or professional” relationship.

Under Cal. Civ. Code section 51.9, the victim must establish not only that a qualifying “relationship” exists, but also that the relationship is one that the claimant cannot easily terminate. The claimant must also show both that the harasser made sexual advances, solicitations, sexual requests, demands for sexual compliance, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe. The standard for determining whether the conduct is severe and pervasive is similar to the one applicable to the sexual harassment at California workplace.

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