California Employment Lawyer Blog

January 5, 2012

New Irvine Wage Theft Law Goes Into Effect in January

In the business world, companies strive to make the most amount of money they can on a given product or in whatever service the business offers and sometimes that profit comes in the form of attempts to cut back on employees’ wages.

Wage disputes in Irvine and throughout Southern California must be treated seriously because they are serious offenses. In this economy, with unemployment high and many people struggling to make ends meet, any time a company tries to cut back wages unlawfully, the worker must stand up for their rights.

Our Irvine employment lawyers understand that employees want to keep their jobs. They need to work and they don’t want to rock the boat. At the same time, employees mustn’t be scared of their employers, but rather they should fight for their rights and stand up for what is right.

Wage disputes come in many different forms and California’s employment laws provide various forms of protections for employees who may have problems being paid for work.

Starting at the beginning of 2012, California lawmakers added new protections for workers so they don’t have to deal with companies attempting to rip them off through their pay. One specific law, called the Wage Theft Protection Act, means that all newly hired employees must be provided with specific information regarding their work:

-Rate of pay -Applicable overtime rates -Food, lodging or other allowances used against minimum wage -Regular paydays -Business address and mailing address of company’s main office -Company phone number -Contact information for company’s workers’ compensation insurer -Other needed information
This is designed to provide employees with as much information as possible so that they aren’t taken by surprise when the company tries to make sudden changes or to try to show the employee they can’t earn what they should. Because of deceptive practices in the past, lawmakers have created this new law so that everything is put in writing when a person is hired so there is no confusion if bosses attempt to make changes.

Our Irvine employment lawyers believe this will be a good step toward ending some common wage disputes in our area. By making sure all the facts are put on paper up front, the employer shouldn’t be able to find any loopholes to try to make changes to pay or to try to short the worker for money that was earned on the job.

There are many more ways, however, that a company and employee can run into disputes regarding their pay. One of the biggest is whether an employee can earn overtime. One of the most common ways companies try to profit off their workers are when they classify a person as a “manager” just so they can’t earn overtime, yet they still get an hourly wage or don’t receive “management-level” benefits. Time and time again, companies try this trick until a group of workers fight back.

Illegal deductions from a paycheck or issues with bonuses are also problems that workers sometimes have with their bosses. And the only way to get a resolution is to bring it to the company’s attention. Simply allowing the problem to persist will allow it to happen over and over.
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January 2, 2012

New Year Brings New Fullerton Employment Laws

by Fakhimi & Associates

While many employees may just be getting back to work after some vacation time, companies’ human resources departments are likely just getting started on making sure they are in compliance with a host of new laws that went into effect and are designed to protect workers from discrimination in Fullerton and statewide.

The San Francisco Chronicle recently published an article that states nearly two dozen new employment laws went into effect Jan. 1 — some that prohibit discrimination and others that help employees who typically end up getting the short end of the stick at work.

Our Fullerton employment lawyers fully support new laws that go into effect with the plan to end discrimination and not put people at a disadvantage in the workplace. There are far too many situations where employees face a difficult time at work, whether it be pregnancy, service in the military or because of their race or gender.

One law that may have the biggest impact is one that requires companies to inform workers who aren’t exempt from overtime of their rate of pay, the workers’ compensation insurer, the paydays and if there are any meal or lodging allowances.

If there are any chances in that information, the employer must tell each non-exempt worker within seven calendar days, the newspaper reports. If there are wage violations, the penalties are larger than in year’s past.

Another new law on the books requires companies with five or more employees to ensure they have health coverage under a group health plan to ensure female employees who take leave for pregnancy can do so for up to four months. The benefits have to be the same as if the woman were working during the leave period.

In cases where employees and employers split health care costs 50/50, the same must be done if the woman is out on leave. The current law applies to companies with 50 or more employees and for a maximum of 12 weeks, so the new law expands the time frame and type of company affected.

Other laws that go into effect:

SB459: A law that creates penalties of $5,000 to $25,000 for a “willful misclassification” of employees as independent contractors. Doing so can save money for companies, but being penalized changes things.

AB22: The law prohibits companies, except some financial institutions, from using credit reports on job applicants and employees. Some exceptions include managerial positions exempt from overtime pay, law enforcement and work with money.

AB1396: This requires commission plans for employees to be in writing so they can’t be changed after the fact.

AB877: The law prevents companies from discriminating against employees based on their gender expression. While there are laws on the books that protect from discrimination against people based on their gender and gender identity, the new law also protects employees based on the way they dress and behave.
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December 31, 2011

Russell v. ExpressJet Airlines Case Shows Sexual Orientation Discrimination in Irvine Cannot Be Tolerated

by Fakhimi & Associates

A recent court case out of Maine shows that the only way to fight discrimination in Irvine and other places in the country is to take the case to court and fight for your rights.

Some workers today would argue that officials at large corporations have little in the way of loyalty. They spend most of their time worrying about making profits, regardless of what that means to their employers.

Sadly, our Irvine employment lawyers have seen workers be discriminated against in cases where people in power believe the law and company policies don’t apply to them. Discrimination comes down to a power struggle without regard for a person’s feelings.

If a person faces discrimination at work, it’s likely because a co-worker with authority has decided not to follow the laws that are in place to protect workers from discrimination. That person likely believes they won’t get caught or they disagree with the laws and choose to disobey them.

A person can face discrimination for a variety of reasons — age, gender, race, national origin, sexual orientation, disability and other factors that have no bearing on whether you are able to competently do the job at hand.

The Maine case of Russell v. ExpressJet Airlines shows us that standing up and fighting in a court of law may be the only way for a person to fight discrimination in their workplace.

In this situation, a jury found that the airline discriminated against Edward Russell based on his sexual orientation. The airline appealed, arguing that it should have won the case on three grounds. The Maine Supreme Judicial Court denied the appeal and found in favor of Russell.

In 1998, Russell became an agent for Continental Express and he was later promoted to supervisor. When ExpressJet opened in 2002, he joined that company as a supervisor. At the time, the general manager was a gay man and Russell, too, was gay and was open about his sexual orientation.

A year after being hired, a regional director for the airline told Russell that three women had filed a lawsuit against the company alleging that only gay men were being hired for managerial positions. The general manager left soon after and Russell, along with another man, took over those duties. Co-workers said Russell did a great job running the office while the company searched for a new general manager.

He asked about getting the job full time and was turned down twice because the company had just gotten out of a “boiling pot of water,” a reference to the discrimination lawsuit filed by the three women. Russell was told twice he would not get the job.

When a new general manager was hired, he spoke well of Russell. When a new regional director was hired, he was told by the general manager that Russell was doing a good job. But then, the regional director recommended Russell be fired, and the general manager declined to do so.

As new general managers came in, Russell was overlooked for the position and he was told that the company had a policy — though unwritten — of hiring general managers from within the stations. By 2006, Russell began trying to reach the human resources department about unfair hiring practices, though those calls were not returned.

In 2007, a new general manager was hired and Russell overheard him say that the company needed to “clean house” of homosexuals. When he contacted the regional manager about becoming a general manager, he suggested two other locations, but then those positions either weren’t available or were filled. Russell eventually resigned and filed suit. A jury awarded him $500,000.
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December 28, 2011

Glenn v. Brumby Leads to Reinstatement After Discrimination Firing

by Fakhimi & Associates

A recent case out of Georgia, Glenn v. Brumby, centered around a man who wanted to transform to a woman and amounted to sexual discrimination.

The transgender person got a favorable ruling recently and may be soon reinstated to editor and proofreader of legislation, The Atlanta Journal-Constitution reports.

Our Newport Beach employment discrimination lawyers have seen many forms of discrimination at work that have left employees feeling ostracized and unwanted, causing them to struggle at work and form emotional problems, among other issues.

These problems are not only internal issues, but they are illegal. There are laws, both in California and federally, that are designed to help employees who have been discriminated against by co-workers, bosses or by the company in the form of not hiring them in the first place. Job candidates and workers should be judged based on their performance alone and not the color of their skin, religious following, gender or other factors.

In the Georgia case, a man was fired from the Georgia General Assembly after revealing he was planning to transition from a man to woman. She filed a federal lawsuit and in a recent court of appeals ruling, found favor with a three-judge panel.

She has continued to receive pay since she was fired in October 2007, but hasn’t been allowed to return to work. Vandy Beth Glenn, formerly Glenn Morrison, was hired in 2005. She was diagnosed with gender identity disorder, and doctors recommended she undergo a gender transition for her “health and well-being,” the newspaper reports.

She told her superiors she intended to start coming to work as a woman and underwent surgeries in order to complete the process. When she told her boss she intended to change genders, he fired her.

The recent appeals court ruling found that it was a form of sexual discrimination because she was fired for not conforming to the stereotypes associated with the gender. Previous court cases have shown that city employees couldn’t fire a man for wearing an earring considered effeminate, and a restaurant couldn’t allow a waiter to be harassed for carrying a tray like a woman.

These court cases are important in order to pave the way for future generations of people who may end up being the victim of a form of discrimination at work. For one, if a person believes they have faced discrimination at work and do nothing, they must work in that environment, which is unlikely to change, for the duration of their employment.

But secondly, they may have an opportunity to change the entire culture of an organization or an industry by stepping up and trying to make change. Sure, it could be difficult, but it also may be necessary. Allowing discrimination to continue is no way to work. These labor law issues and others must be addressed. They can’t linger and affect people in the future.
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December 21, 2011

Hillary Clinton Calls For End of Sexual Orientation Discrimination in Workplaces

by Fakhimi & Associates

Secretary of State Hillary Clinton called on world leaders for the first time not to discriminate against gays and lesbians, announcing that the United States would dedicate $3 million to fighting for gay rights worldwide, the Los Angeles Times has reported.

And while this is a noble cause, there is plenty of discrimination in workplaces right here in Orange County. Sexual orientation discrimination in Fullerton can be a major issue. Employers must be forced to comply with state and federal laws requiring them to hire and fire based on ability, not meaningless attributes.

Unfortunately, our Irvine employment discrimination attorneys have seen many examples of businesses doing exactly that. Rather than selecting the most qualified candidate, employers choose a person based on his or her skin color or gender. In some cases, instead of promoting a promising worker, they stick to someone based on age or religious preference.

According to the Times story, Clinton gave a speech as part of Human Rights Day, saying that protecting the rights of gay, lesbian, bisexual and transgender people is one of the “human rights challenges of our time.” She likened the cause to battles dealing with racial equality, the rights of women and religious freedoms.

Clinton said that people in the rest of the world tend to see this issue as a “Western phenomenon” and something they don’t have to deal with. But she said gay people come from every society, throughout the world. She called on other governments to combat the criminalization of sexual orientation.

She also reported the creation of a global fund that the country has committed $3 million to in order to enforce rights worldwide. The Obama administration has promoted gay rights in recent years through the changing of military policies and gay marriage law changes.

And while there are have certainly been examples of violent injustices, discrimination against gay, lesbian, bisexual and transgender people happens in corporate settings as well. Perhaps not violence, but bias against these people exists and must be stopped.

In some occasions, the discrimination is outward, where bosses or co-workers are allowed to call things “gay” or make remarks that are disparaging toward another person who they believe is gay or who outwardly states they are gay.

Other times, the discrimination is kept “in-house” when bosses make firing and hiring decisions or determine who can be promoted or not. Sometimes, these cases require a whistleblower, a person who reports the wrongdoing or other times a pattern of discrimination can be found.

In any of these scenarios, it is unlawful. There is a reason why laws were created to stop this type of behavior. No one wants to feel they don’t get a fair shot at a job or advancement in a field because of something they can’t control. Our Irvine discrimination defense lawyers challenge businesses that violate these laws and seek to treat people unfairly based on their sexual orientation.
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December 14, 2011

Williams v. Plum Creek Timber Co. Challenges Wrongful Termination in Irvine

by Fakhimi & Associates

A Montana case shows us that employees do get fired for improper reasons and that lawsuits are designed to help workers who are wronged by their bosses.

In Williams v. Plum Creek Timber Co., a man claimed he was wrongfully discharged. After a local judge dismissed the case, the Montana Supreme Court reversed that court’s decision.

Wrongful termination in Irvine is a problem and one that causes many employees to not file claims for various forms of discrimination. If people believe there is a chance they will get fired or demoted for filing a claim of discrimination, they may be less likely to file a claim in the future.

Sadly, big companies sometimes believe that firing an employee may ensure their other workers think twice before filing a claim. But a successful jury verdict in favor of the fired employee can go a long way toward making sure officials think twice.

Irvine employment lawyers have represented many employees who feel they have faced discrimination in the past. That has led to many claims of discrimination and lawsuits that have followed. In cases where people have filed claims and then been fired, that opens up a whole new round of litigation that can lead to workers getting settlements.

But these cases aren’t easy. That’s why consulting with an experienced employment lawyer and keeping well-kept documented proof of notes, e-mails, calls and paperwork can help in proving your case. Big companies may try to throw their money at the problem with a high-priced legal team, but the truth is more valuable.

In the Williams case, the man had worked for the company since 1988. During the 18 years he worked there, he held various positions. But in 2006, the logging company determined it couldn’t supply enough logs in one of its plants to justify eight-hour days. It reassigned 25 employees to other mills.

The transfer process involved a grading system of sorts based on discipline, versatility, attendance and skill. Workers got a 1, 2 or 3 in each category. Scores were averaged and the employees with the highest scores earned a transfer. Transferred employees retained their pay level, but lost seniority.

Despite nearly two decades of experience, Williams was reassigned to a plan in 2006 and was put on probation for 90 days. Since he lost seniority, he was put in a low-impact position where he had no experience. He was supposed to take out defects and knots in plywood and while he improved over time, his company fired him after the 90-day probation period.

In his lawsuit, he alleged the company wrongfully terminated him based on a faulty scoring system, demoting him to a position where he had no experience, for not following its written policies and firing him.

Plum Creek moved for a dismissal and a judge granted the dismissal. But Williams appealed and the Montana Supreme Court reversed. The court ruled that a dismissal early in a case, called summary judgment, shouldn’t be granted unless there are not disputed facts.

In this case, the court ruled, there are many disputed facts and summary judgment shouldn’t be substituted for a trial. The decision was reversed and the case was set back for trial.
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December 7, 2011

Study: Small Percentage of Dentists in Los Angeles Discriminate Against People With HIV/AIDS

by Fakhimi & Associates

Discrimination can happen anywhere. Most commonly it happens in the workplace — people may be hired or fired not based on their abilities or work performance, but based on race, sexual preference, disability, national origin or other factors.

Those are unlawful reasons to fire someone or not hire someone. And that type of discrimination in Newport Beach must be fought.

But the job market isn’t the only place you may find discrimination. As our Newport Beach discrimination lawyers have reported in recent months, discrimination outside the workplace can lead to major changes with businesses as well as municipalities.

In August, a woman sued Bloomingdale’s after alleging that a male employee wouldn’t serve her when she attempting to buy a men’s shirt for her upcoming wedding. A lawsuit states that the man scoffed at her and told her she shouldn’t be buying men’s clothes for herself.

In October, we reported that a city in Georgia had to re-do its policies about headgear in the courthouse after a woman sued and later settled with the city after her headscarf was torn from her head by a security guard. In that case, the Muslim woman was attempting to show support to a relative and was arrested because she refused to remove her headscarf.

In the news recently was another example of problems with discrimination. According to a study by the Williams Institute at UCLA, a survey of 612 dentist offices in the Los Angeles area found that five percent of dental providers have a policy of denying service to HIV-positive people.

Many surveyed claimed that they don’t have the needed precautions to control infections. Another five percent admitted they would treat HIV-positive patients differently, in ways that could violate anti-discrimination laws, The Huffington Post reports.

While this is a relatively small percentage, it still shows that discrimination exists in our society. On a positive note, 90 percent of those surveyed said they wouldn’t discriminate. And dentistry’s numbers are far lower than other industries surveyed by the organization — 55 percent of obstetricians and 46 percent of skilled-nursing facilities and 26 percent of plastic surgeons admitted to refusing treatment.

While there is room for improvement, the researchers were happy with the results, opining that two decades of exposure to HIV and AIDS and the progress of information about the illnesses has helped change the culture of discrimination against this group.

Our lawyers agree that while 90 percent is good, 100 percent would be better. No group should face discrimination based on their medical records, skin tone, gender or other factors. The only way to stop discrimination is to fight against it. Allowing it to happen and doing nothing only allows the culture to continue. It has taken decades to break down barriers and our Newport Beach employment lawyers will continue working toward that goal.
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November 27, 2011

1 in 4 Women Have Faced Sexual Harassment at Work in Newport Beach, Poll Finds

by Fakhimi & Associates

A recent ABC News/Washington Post poll found that 1 in 4 American women has been sexually harassed in the workplace, Forbes.com reports.

This is a sad statistic, but not all that surprising.

As the article correctly points out, many women are shy about reporting sexual harassment because they are worried that their male bosses could shun them for promotions, training and other perks at work. All of that is also unlawful.

Sexual harassment in Fullerton happens every day and it happens to both men and women. Facing sexual harassment — including getting unwelcome looks and comments, receiving sexually based e-mails or being asked for sexual favors for work — can be intimidating.

Many people feel this intimidation and don’t report the harassment, which can continue. Garden Grove sexual harassment lawyers have seen the frustration and tough work environment this culture of harassment can create.

The article states that in 1992, 88 percent of Americans believed that sexual harassment was a major on-the-job problem. That number has dropped to 64 percent now. Perhaps that’s because in the 1990s, there was a revolution of sexual harassment claims as more women felt empowered to report such abuse.

In 1997, there were nearly 16,000 claims of sexual harassment, with claims staying above 15,000 until 2001, the U.S. Equal Employment Opportunity Commission reported.

Since then, claims have dropped steadily to 11,717 in 2010. Still, the amount of money paid out for these claims has remained between $47 and $50 million in recent years.

While the attitude of women in the workplace has change, the more common attitude in recent years, the Forbes article points out, is that women are less likely to report sexual harassment because they feel that not reporting it would hurt their career chances. It could also hurt the efforts of female co-workers, who sometimes pressure them into not reporting.

Another common thinking is that women believe they are “strong enough” to handle dealing with a little sexual harassment and that reporting it is a sign of weakness. They should be able to take a joke, some might say.

But sexual harassment in Irvine isn’t a joke. It’s a power play by bosses, who like to throw their weight around at work. It is pure intimidation and it can’t be stopped unless someone reports it. The longer this environment continues, the longer it takes.

And the more times it goes unreported, the more engrained it becomes in a culture. Think about your workplace. There are most likely patterns that occur that have been the same for years, maybe decades. People settle into a routine and do somethings the same way they always have.

Sexual harassment, in some companies, is one of those everyday occurrences. If it continues to go unreported, it will continue to happen. If you have been sexually harassed in Southern California, don’t sit back and let it happen.
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November 16, 2011

Ramos-Echevarria v. Pichis Highlights Challenges of Disability Law in California

by Fakhimi & Associates

A case out of Puerto Rico recently shows the challenge that persons with disabilities have at work as well as trying to show they have faced discrimination in the workplace.

In Ramos-Echevarria v. Pichis Inc., a worker who suffers from epilepsy claimed that his employer discriminated against him because he was denied a full-time position. He claims it was because of his disability, but two courts have ruled against him.

There are both state and federal protections for people with disabilities in California. Under disability discrimination laws in Newport Beach, workers who are otherwise qualified for a job but who suffer from a physical or mental disability can’t be denied employment simply because of the impairment.

And California residents also have federal protection from disability discrimination as well. Private employers, state and local governments, and others aren’t allowed to discriminate against the disabled, including hiring, firing, compensation, advancement, training and other areas of employment.

In this difficult economy, our Irvine employment lawyers feel for those who are rejected for jobs based on their disability. We will stand by their side and demand justice.

In this case, Ramos-Echevarria suffers from epilepsy, and according to court documents has nine to 16 “episodes” a week where he will see an “aura” before his body convulses for eight to 15 seconds. After that, his cognitive abilities are impaired and sometimes for a period after.

He was a part-time kitchen assistant since 1999, assisting with food preparation. He had a similar position since 2002 with another restaurant. Between three and six times a year his seizures cause him to leave work, but most of the time he stabilizes himself until they pass.

When he was first hired — he told the company about his illness on his application — his boss fired him after his first episode. He was told to bring in a doctor’s note stating that he can work despite the illness and he got one and was re-hired. Since then, he has never been denied medical assistance.

He claimed in his lawsuit that he has asked for full-time work but was told that he couldn’t get full-time work because of his condition. Others were hired after him and got full-time work while he still was stuck in a part-time role, despite his reviews being favorable.

The appeals court ruled that he failed to show that he has a disability within the meaning of the Americans with Disabilities Act and therefore his claim should be dismissed. They agreed with the lower court ruling and dismissed his case.

Employment law is a complex area that must be handled by an experienced lawyer. While these laws provide protection for workers, there are specific elements that must be met in order to show that a person has faced discrimination for a disability. A Santa Ana employment lawyer can help.
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November 9, 2011

Makowski v. SmithAmundsen LLC Highlights Pregnancy Discrimination Can Happen in Orange County Too

by Fakhimi & Associates

A recent case out of Illinois highlights just how critical it is to make sure your rights as an employee are upheld when you take medical leave.

In Makowski v. SmithAmundsen LLC, a law firm marketing director took time off from work under the Family Medical Leave Act in order to give birth to her child and recover afterward.

When she was on leave, her bosses told her that her position had been eliminated as part of a restructuring. She sued, alleging that she was the victim of discrimination and for retaliation. After a lower court ruled in favor of her former employer, an appeals court reversed.

In our now ultra-competitive work environment, companies are often scrambling to get or stay ahead as they compete. But they simply aren’t allowed to show favoritism toward employees simply because another is pregnant. Pregnancy discrimination in Fullerton is considered a special class that is protected.

Women who are pregnant must be treated like anyone else. That means they can’t simply be dismissed or fired because they are with child. And like any other full-time employee, they have a right to time off for medical reasons.

The federal Family Medical Leave Act is designed to allow employees to take unpaid leave for a certain period of time while enjoying the protection of their job. Under federal guidelines, to qualify for FMLA, a worker must have been employed for at least a year and must have worked at least 1,250 hours in the past year. The company must also have 5 or more employees over a 20-week period.

California also has a family leave law that was in place two years before the feds created their own in 1993. The two sets of laws are close in language and protections to pregnant employees.

In this case, sadly, the woman was treated poorly while on maternity leave with a bogus reason of “restructuring” as why they let her go. But as the appeals court noted in a 15-page ruling, verbal statements by a human resources director speaking with the employee upon being fired should have been admitted. Those statements showed a connection between the woman taking leave and her termination and were discriminatory in nature.

When the woman came to work to pick up her belongings after being fired over the phone, the human resources director told her she was fired because she was pregnant and took medical leave. She also told her that others who were pregnant had been discriminated against, and that she should consult with a lawyer to pursue a possible class action lawsuit.

After reviewing a lower court’s ruling, the appeals court reversed and admitted the H.R. director’s comments into evidence and allowed them to be used at trial.

While the term “smoking gun” is usually reserved for criminal cases, this would be the “smoking gun” in a pregnancy discrimination case. For an H.R. director, responsible for firing and upholding employment laws, to tell a fired employee that there is widespread discrimination would be a very important thing for jurors to hear at trial. It’s a good thing the appeals court took another look at this case.
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