California Compliance Deadline for Sexual Harassment Prevention Training Still Set For January 1, 2021

In 2018, California extended its law regarding anti-harassment training requirements to employers with five or more employees and mandated that non-supervisors and supervisors also had to receive this type of training. Yet, even though the original deadline for this prevention training was set for January 1, 2020. In 2019, Governor Newsom signed legislation extending this deadline to January 1, 2021. However, this amendment also clarified that any employer that provided sexual harassment training in 2019 was compliant with the requirements and did not have to provide any further training again for two years.

Yet, even with these updates, many employers are still confused with the sexual harassment prevention training requirements and their specific obligations. That is why, in this blog post, we will dive into these training details and provide you with answers to some frequently asked questions many employers have.

Anti-Harassment Training Requirements

Current California laws require that employers provide the following anti-harassment training:

  • One (1) hour of sexual harassment prevention training to non-supervisory employees.
  • Two (2) hours of sexual harassment prevention training to supervisors and managers.
  • This specific interactive training has to occur every two years. It includes the prevention of abusive conduct as a component of the program, as well as practical examples of harassment based on gender expression, gender identity, and sexual orientation.

COVID-19 Delay

Unfortunately, many employers delayed their anti-harassment training because of COVID-19 and California’s stay at home orders. Most hoping that by the summer, they could reschedule. However, based on the current state and county guidance, the ability to have in-person training remains challenging. Plus, there has been no further update about the Governor extending the deadline. As a result, it looks like the January 1, 2021 compliance deadline remains, and employers must provide the sexual harassment training to their employees by then.

How to Make the Training Work for You

Even though you may not provide in-person training, the California Department of Fair Employment and Housing (DFEH) allows these live pieces of training to occur online, in a classroom, or in any other adequate, interactive format. This training:

  • May be completed by employees as part of a group or individually.
  • May be completed in portions as long as the total hourly requirements are met.
  • Is accessible on a mobile device or computer.
  • Is available in English, Korean, Spanish, Vietnamese, Chinese, and Tagalog.
  • Can have closed captioning turned on or off in any version.
  • Can have alt-text for all images and icons.

It is critical to note that the training module will not save progress. As a result, if you reload the page, you can end up losing your progress. Once complete with the training, your employees will be able to obtain a certificate of competition. This means that no matter whether they are using a mobile device or computer, they will be able to print, take a screenshot, save, or email the certificate of completion to you.

What are the Employer Requirements in California for this Training?

Regardless of how the training is completed, employers need to make sure they take the following actions:

  • Retain records of all their employees’ training for at least two years.
  • Provide abusive conduct and sexual harassment prevention training to their employees every two years.
  • Provide their employees with a fact sheet or poster developed by the Department regarding sexual harassment or comparable information.

Sexual Harassment Prevention Training FAQs

Since 2018, there have been many concerns regarding the sexual harassment prevention training. Typically, some of the most common questions include the following:

1. Why is this Training Required?

Sexual harassment is taken very seriously in California. Yet, despite it being against the law and there also being a greater awareness of the harms that come with sexual harassment. Many individuals are still subject to harassment because of a protected characteristic or their sex. As a result, this training was designed to remind and educate everyone about what is appropriate behavior and what is not appropriate behavior at work.

2. Who Needs To Be Trained?

Per the requirements, employers with five or more employees, all supervisory and non-supervisory employees must be trained. Regardless if they work at the same location or even if not all of them reside in California.

3. What Does the Training Need to Cover?

The Sexual Harassment Prevention Training needs to include practical guidance and information regarding the federal and state laws concerning:

  • The prevention, prohibition against, and correction of sexual harassment and any available remedies to victims of sexual harassment.
  • Practical examples of harassment, discrimination, and retaliation
  • Information about preventing harassment or abusive conduct based on gender identity, sexual orientation, and gender expression.

4. By When Does The Training Need to Be Completed By?

There has been no indication that the date will be extended due to COVID-19. As a result, all employees must receive this training by January 1, 2021. Those employers who have 50 or more employees still have an ongoing obligation to train any new supervisory employees within six months of them assuming their new supervisory role. However, beginning on January 1, 2021, new supervisory employees in workplaces of five or more employees have to be trained within six months of starting their supervisory position. Additionally, new non-supervisory employees must be trained within six months of their hire.

5. Do I Have to Take California’s Department of Fair Employment and Housing Training?

No. The DFEH provides training as a resource to help employers. However, to meet the obligation, you do not have to use their training. Instead, you are allowed to take part in your own sexual harassment prevention training as long as it meets the specific California training requirements.

Let Perkins Asbill Help You Meet Your Training Requirements

Time is running out. If your employees still need to be trained, call the Perkins Asbill law firm at 916-446-2000. We can discuss your sexual harassment prevention training questions and provide your employees with a compliant training webinar making sure they get the required training done, even if they are remote. Please do not wait any longer. Contactus today.

Can Private Employers Regulate Employees’ Off-Duty Conduct in California?

More than ever, an employee’s activism and social media posts can prove quite challenging for employers. Their reasons often ranging from an employer not wanting to be lumped with a particular viewpoint or because the employee’s stance goes against the employer’s public image or ethics. In today’s society, employers are increasingly concerned about their employee’s actions. Mainly due to our current “cancel culture,” where it is a common practice to withdraw support for a company that has done something that may be considered objectionable.

Even if the employer did not authorize the employee’s actions, companies can still feel the negative repercussions. And unfortunately, there is no explicit solution to this dilemma. So, what is an employer to do in these situations? In this blog post, we will discuss some of the issues employers face when dealing with off-duty conduct and what rights employers and employees have in California?

Can Employers Lawfully Monitor Off-Duty Conduct?

In California, like many other states, there are specific laws that protect an employee’s right to engage in off-duty conduct that is lawful. These laws also provide monetary relief to those employees whose employment is adversely affected in violation of these regulations. However, even though it seems these laws are meant to protect an employee’s actions, it is crucial to understand that these laws do not protect all types of employee’s off-duty conduct.

If an employee’s off-duty conduction is harmful or potentially hurts an employer’s business interests or involves some crime, it can result in a valid basis for terminating the employment. Even so, this is often decided on a case by case basis, and specific facts need to be considered before making a final decision, including legal interests and business decisions.

Take, for example, a recent viral video that showed a Franklin Templeton employee, Amy Cooper, reporting to local law enforcement that an “African American man” was frightening her. Yet, all the video showed was Christian Cooper, a bird watcher asking Amy Cooper to put her dog on a leash per the rules of Central Park. This video resulted in an uproar on many social media platforms, accusing Amy Cooper of lying to the police because of racial discrimination. And even though Amy Cooper’s action had nothing to do with her job duties or work performance, Franklin Templeton quickly terminated her employment, citing their company’s “zero tolerance for racism.”

Can Employers Lawfully Discipline Decisions Based on Off-Duty Conduct?

One popular misconception that many individuals have is they feel that because the First Amendment protects their free speech, it is illegal for an employer or company to fire an employee based on something they said. Unfortunately, this is not how this Amendment works. As the First Amendment, typically, does not apply to private employers.

However, some laws that do apply to California’s private employers, include the following:

  • California Labor Code section 96(k): This law protects employees who are terminated for “lawful conduct” that occurs during hours away from the employer’s premises and not working. Generally, this law applies to lawful off-duty political pursuits.
  • Labor Code Section 1101 bars an employer from adopting, making, or enforcing any regulation that prevents an employee from taking part in politics or becoming candidates for public office. In addition, it prevents the employer from controlling the political activities of their workers.
  • Labor Code Section 1102 bans an employer from influencing or attempting to coerce their employees through the threat of discharge to refrain from following any particular course of political action or activity.

Taken together, these provisions prevent an employer from directing the political activities of its employees. However, these regulations do not stop employers from limiting political and other non-work-related activities in their workplace. Additionally, employers can also prevent employees from posting content that makes viewers believe that the employee is speaking on behalf of the company. In these situations, an employer can take action against the employee, even if their conduct happens off-duty.

Employee’s Social Media Conduct

According to Article 1, Section 1 of the California Constitution, each citizen has an “inalienable right” to obtain and pursue “privacy.” When combined with Section 980 of the Labor Code, these laws are meant to protect an employee’s privacy on their personal social media platforms. While also prohibiting employers from asking employees for their log-in information and passwords. Yet, even though these laws provide some sort of privacy protection for employees and their use of social media, it does not mean that an employee’s public social media posts are protected. If an employee begins posting content beyond their private followers, they waive their right to privacy. As a result, they can be disciplined for their posts, especially when these posts are not deemed to be related to their workplace issues, which are often protected by the National Labor Relations Act (NLRB). 

What Employers Need to Ask Themselves Before Making Any Decisions About Off-Duty Conduct

If an employer has an issue with their employee’s off-duty conduct, they need to consider California’s applicable laws, the effects on the business, and the litigation exposure they may have to face. Looking into their past conduct and reviewing whether they have consistently applied these company protocols can also help them determine the likelihood of the employee succeeding in their legal actions.

During these “polarizing times” that we are experiencing, it should come as no surprise that disciplining off-duty conduct has become incredibly challenging and complex. Not only does the business have to heavily weigh the legal problems that can result in pursuing these actions against their employee, but they also have to take into account the potential loss of sales and customers if this issue becomes common knowledge. In some cases, companies can even suffer when they decide not to take any action against the employee for their conduct.

For these reasons, if you are considering your employee’s off-duty conduct, you need to contact an experienced employment law office today. These lawyers can provide you with the information you need to be able to carefully explore your options while helping you understand all the issues and problems you may have to face. Do not wait any longer; call our office at 916-446-2000.

 

 

 Can My Employer Enforce a Non-Compete Agreement if I Work in California but the Business is Headquartered in Another State?

Most companies go out of their way to protect their data. Data typically includes trade secrets which is often found in internal communications, customer lists, and other information which they do not wish to have “leaked” to other businesses. However, in some cases, a business attempts to discourage their employees from taking information they learn while an employee and starting a competing business.

Employers often demand an employee sign a non-compete or non-solicitation agreement to ensure they do not have to be concerned about the employee later becoming their competitor or working for a competitor. However, under California laws passed in 1985, these agreements are not enforceable because they contain restrictive covenants — that is they restrict the employees ability once they are no longer working for the firm to secure similar employment with another firm, or start their own business which is of a similar nature.

Out of State Business Doing Business in California

California, like most other states, allows businesses which are incorporated or set up in other states to do business within its borders assuming they follow the regulations published by the Secretary of State. In some cases where this occurs, a business owner will draw up a non-compete agreement and specify the agreement was made in another state. This is known as a choice of law provision, which may mean the restrictions, or covenants are enforceable.

However, this does not always mean your employer has the right to enforce a non-compete agreement, even if it contains a choice of law provision. For example, an employee who works in California, for a company who has headquarters in Arizona may be asked to sign a non-compete agreement which states the “choice of law” is Arizona. This is when California courts will review the rules as they pertain to conflict of law.

How Conflict of Law Applies to California Employees

If you are working in California, in a company which maintains an office in California, you may be unaware the company is actually headquartered in Arizona. To complicate matters further, oftentimes a non-compete clause is inserted into other employment documents and is only pointed out should your employer feel they are threatened by your competing with them after you have left the company.

An employer may opt to have you “sign” your documents in Arizona — in this case, then chances are the document could be enforceable under Arizona laws. However, it is also worth noting in most cases, a choice of law provision which violates public policy of the other state could be determined to not apply in such cases.

Since 2018, when these changes went into effect, the goal was to protect employees from being bound to agreements which violated their right to pursue employment with competitors or to start a competing business after leaving one employer. Keep in mind, these documents are often signed as part of the paperwork you sign when you are initially hired. In rare circumstances, an employee may be told they cannot be hired unless they sign a non-compete agreement. This is unlawful in California because they are not enforceable within the state.

The code which makes these unenforceable is  found in California Business and Professions Code Section 1660specifically states “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.

Not Limited to Key Figures or Managers

Many employees believe they have nothing to be concerned about with such clauses in their employment contracts because they are “lower level” employees. However, according to the U.S. Department of the Treasury Office of Economic Policy, across the United States, 20 percent of those who are bound by non-compete agreements, including 14 percent of those earning less than $40,000 per year. Therefore, it is not safe to assume you have no need for concern.

Because employers were routinely attempting to skirt the statutes regarding non-compete agreements, the California Labor Code (Section 925) was modified to specify that any agreement which was entered into between an employer and employee after January 1, 2017 would not be allowed to include non-compete agreements a provision as a condition of employment.

This portion of the Labor Code also went a step further and specified that the employee who lives in and primarily worked in California could not, without the guidance of an attorney, agree to have any future disputes heard in a court outside of California law or agree to such provisions under any state’s laws except California.

There are exceptions to when something may be enforced, even if it is part of an overall unenforceable agreement. For example, if an employee were to leave a company and begin soliciting clients to their business from their prior employer, or if the employee were to begin sharing internal trade secrets with a competitor. In the event your former employer filed a lawsuit, the general provisions may be upheld in court.

When Employers Retaliate Against Former Employees

When your employer attempts to stop you from accepting a job because they claim it is in violation of a non-compete or a non-disclosure agreement, one of two things will occur. You may receive a cease and desist order, or you may be notified a lawsuit has been filed against you by a former employer. In either case, you should immediately contact an attorney to learn about your rights and protect yourself from missing an opportunity to further your career.

If you are starting a new position and being asked to sign a non-compete agreement, you should seek legal help immediately before you sign the agreement. It is important for you to know whether the agreement is enforceable before you sign any documents. Whether you need help negotiating a contract, reviewing an employment contract, or you are in receipt of notification of a pending civil lawsuit, or a cease and desist order, contact Perkins Asbill, A Professional Law Corporation at 916-446-2000. We have more than three decades of labor and employment law experience representing clients in central and northern California.

What You Need to Know About COBRA and Job Loss Amid the COVID-19 Pandemic 

The arrival of COVID-19 has dramatically changed the lives of many in the United States and around the world. Job loss has been one of the unfortunate consequences of the pandemic. More than 30, 000 people in the United States have lost jobs due to business closures and cutbacks. In the United States, job loss also translates to a loss of health insurance for many.

Even without the global pandemic, U.S. workers have some protection of health insurance under COBRA, but current times make it more important that you understand your rights to employer-sponsored health insurance. For many, job loss because of COVID-19 is the first time they have had to deal with involuntarily leaving a role. We’ve developed this guide so you can learn more about COBRA and the ways in which it applies to you if you’ve lost your job during the coronavirus pandemic.

What Is COBRA?

COBRA is an acronym for the Consolidated Omnibus Budget Reconciliation Act, which provides workers and their families the choice to continue employer-sponsored health benefits after job loss, a reduction in hours, job transition, death, divorce, and other qualifying life events. You can think of COBRA as ‘gap insurance,’ because it fills the gap in your health insurance coverage that you or your family would experience after losing employee benefits.

You should know that if your employer paid for your benefits, COBRA does not require employees pay for your continued coverage. Instead, separated employees must pay for their temporary coverage, which can be the entire premium. The law requires that businesses with more than 20 employees who sponsor a group health plan give employees and their families continuation coverage in situations where coverage would end.

Health Plans that Fall Under COBRA

Under federal law, all private-sector employers with more than 20 employees must provide continuation coverage. COBRA does not apply to the federal government, but state and local governments must comply. Other groups exempt from complying with COBRA include churches and some religious organizations.

Qualifying Events to Receive Continuation Coverage Under COBRA

Beyond your employer’s requirement to comply with COBRA, you must also have been enrolled in your employer’s group health insurance plan and experience a qualifying event, which is an event that causes someone to lose their health insurance coverage. The type of event determines who receives benefits and for how long.

Covered employees are eligible for coverage in all situations of job loss except if they were terminated for gross misconduct. Cobra does not cover employees who lose coverage because of a reduction in hours. The same caveats apply for coverage to spouses and dependent children, but other situations also exempt family members from continued coverage under COBRA. They include:

  • The covered employee becomes eligible for Medicare.
  • A spouse is not covered in the case of divorce or legal separation.
  • The covered employee dies.
  • Once children are no longer dependent, they lose coverage. The Affordable Care ACT requires plans to make coverage available until a child reaches age 26.

Employer Responsibilities Under COBRA

The employer’s group health plan must give the covered employee and any other beneficiaries notice when a qualifying event occurs. The notice should describe their rights to continuing their health coverage and how to make that choice. The plan must provide notice within 14 days. Once you receive notice of your right to COBRA coverage, the law requires you have 60 days to make a decision on whether to continue your coverage.

Even though the law requires notification, many large companies have failed to comply. Employees have accused Citigroup, Lowe’s, and Starbucks of failing to comply, just to name a few. In the most recent lawsuit against Starbucks, a former employee claimed that Starbucks sent out confusing notices with regard to COBRA that did not explain how to enroll in continuation coverage. Instead, the notice instructed the former employee to call Starbucks human resources to visit a website. Starbucks COBRA notices also left out other important information about the conditions in which the employee could lose covers, the plan administrator, and where to make payments.

New Department of Labor Guidelines for Job Loss During COVID-19 Pandemic

In April 2020, the Department of Labor, in conjunction with a few other federal agencies, issued a joint statementspecifically addressing multiple programs and benefits. COBRA was included in this statement. The previous information is law, but until further notice, the following applies:

  • If your employer temporarily closes due to COVID-19, you should remain covered under your current healthcare plan. Yet, if you aren’t being paid, your premiums are not getting deducted from your check. If your employer is not paying your premiums, you might have to make payments on your own to make sure your coverage doesn’t lapse.
  • If you elect COBRA coverage, you cannot be forced to make payments on your premium more than 45 days from your election.
  • You have 30 days to pay your premium before the insurance carrier can consider it late.
  • The federal government considers the COVID-19 outbreak period lasting until June 29, 2020. Any time requirements under COBRA can disregard the Outbreak Period. For example, if you lost your job due to COVID-19 and want to elect coverage, your employer had 14 days from June 29 to send you a notice. Similarly, if you received notice in the middle of the outbreak, your 60-day election window did not begin until June 29

Consult with a Workplace Attorney About Your Health Benefits During the Pandemic

It’s a difficult time for many Americans right now, especially for those who have lost their jobs and health insurance benefits. Even after separating from a job, you have rights. If your employer has failed to provide you notice of your rights under COBRA or failed to provide you with enough time to make your choice, you may be eligible to take legal action. Contact the experienced attorneys at Perkins Asbill, A Professional Law Corporation online or at 916-446-2000 to discuss your circumstances and determine your next steps.

 

Know Your Rights During COVID-19 in the Workplace in California

The arrival of the COVID-19 pandemic has changed the workplace for those in California, across the nation, and across the world. Under the guise of disaster, some employers have taken actions that violate federal, state, and local laws. Others have unknowingly violated employee rights as a result of uncertainty during the pandemic. During this difficult time of transition, it’s crucial that you know your rights and have the information you need to protect your job and your income. Below we’ve provided a broad overview of additional rights you have as a result of the coronavirus pandemic.

Families First Coronavirus Response Act (FFCRA)

The Families First Coronavirus Response Act (FFCRA) is a key piece of federal legislation that protects your rights to take emergency sick leave if you work for an organization with less than 500 employees. FFCRA allows you to take 80 hours of PAID sick leave in the following circumstances:

  • You must quarantine or you are caring for someone who must quarantine as a result of COVID-19 exposure.
  • A healthcare provider has advised you or someone you care for to self-quarantine.
  • You are seeking medical treatment or diagnosis because you have experienced coronavirus symptoms.
  • The school, daycare, or childcare provider you use is unavailable as a result of COVID-19, so you must care for your child(ren).

The Family & Medical Leave Act (FMLA) continues to provide employees with 12 weeks of UNPAID leave every 12 months if they or an immediate family member needs care for a serious health condition.

Working from Home During COVID-19

The coronavirus and associated closures and stay-at-home orders have forced some businesses to have their employees work from home when possible. Rights associated with working from home during the pandemic include:

  • If you are not sick and not caring for a child because of coronavirus-related childcare issues, you are not protected if you stay home from work. There is no right to work remotely during the pandemic.
  • Your employer has the right to set the terms of your employment. They can force you to work from home even if it is not your choice. Your employer might also prohibit business travel during this time.
  • If you are forced to work from home as a result of coronavirus, your employer must pay you for your work, whether you are salary or hourly.
  • California requires employers to reimburse employees for the cost of internet access, computers, work cell phones, and other expenses required to set up a home office.

Terminations and Layoffs During COVID-19

Coronavirus has forced businesses to terminate and layoff employees on a large scale. Rights associated with layoffs and terminations during COVID-19 include:

  • FMLA and FFCRA protect you from your employer firing you if you contract COVID-19, but time limits do expire.
  • The Americans with Disability Act (ADA) also provides some protection. If the coronavirus causes an underlying condition to flare up, the condition might qualify as a disability. Employers cannot fire you for a disability.
  • The federal Worker Adjustment Retraining and Notification (WARN) Act requires employers to give a 60-day notice in the event of a mass layoff or business closing. California has similar state legislation; however, the governor suspended the 60-day notice requirement to allow businesses to take swift action to stop or curtail the spread of coronavirus.
  • If your employer sends you home or directs you not to come to work as a result of government orders or is concerned about your safety, California law does not require them to pay you. Yet, you still might qualify for paid sick leave under FFCRA

If you contracted COVID-19, and your employer terminated you, call an attorney as soon as possible. A confidential case evaluation will reveal whether your employer violated your rights. It’s also crucial to consult with an attorney before you sign a severance agreement, if applicable.

Sacramento Worker Protection, Health, and Safety Act

On June 30, 2020 Sacramento implemented the Worker Protection, Health, and Safety Act to protect employees in the workplace during COVID-19. Sacramento’s employers must adhere to the following safety protocols. You have the right to refuse to work if they violated the act:

  • Employers must ensure that any high-touch areas in the workplace are disinfected and cleaned daily per the Centers for Disease Control and Prevention (CDC) guidelines.
  • Employers must maintain cleaning protocols throughout the entire workplace.
  • Employers must create safety protocols that describe actions to take if the workplace has been exposed to a probable or confirmed case of COVID-19.
  • Employers must provide all employees access to handwashing with soap, hand sanitizer, and disinfectant wipes.
  • Employers must ensure all common areas, including break rooms, locker rooms, dining areas, bathrooms, conference rooms, and training rooms are cleaned daily and in between each shift.
  • Employers must provide face coverings for employees to wear while working and enforce usages. You can take your mask off when you can maintain social distancing guidelines and when you have a break to eat and drink.
  • Employers must establish and implement best practices ensuring proper physical distancing.
  • Employers must inform employees of all the associated protocols and practices in writing, in English, and in any other language spoken by 10 percent or more of employees.

Contact an Experienced Employment Attorney if Your Employer Has Violated Your Rights During COVID-19

The employment attorneys at Perkins Asbill, A Professional Law Corporation have the experience and the resources to advocate for employees whose employers have violated their rights during the COVID-19 pandemic. If your employer has acted unlawfully towards you during COVID-19, you need a competent and knowledgeable attorney to fight for your rights.

At Perkins Asbill, A Professional Law Corporation, we pride ourselves on professional excellence, case preparation, and seeking justice for our clients. Contact us today online at 916-446-2000 for a confidential and free case evaluation to examine the viability of your claim and find the best path forward to seek justice after your rights were violated in a California workplace during COVID-19.  

Common Types of Harassment in the Workplace and What You Can Do About It

Harassment at a place of work is nothing to joke about. As an employee, you have a right to work at a site that is free from insults, intimidation, and bullying. And yet, even though there are established laws that protect you against these harassment tactics, this sometimes-illegal behavior still occurs. What makes this situation even worse is that there are so many different types of workplace harassment that even the most diligent of supervisors can miss the signs. However, as an employee experiencing this type of harassment, you should not just have to deal with it.

To help you better understand if you are getting harassed at work, we have prepared the following blog post, which will explain the most common types of harassment found in the workplace, and what you can do about it.

Discriminatory Harassment

Discriminatory harassment refers to the physical or verbal conduct that shows hostility towards another individual based on their race, gender, color, national origin, age, disability, religion, or other protected personal characteristics. Such workplace harassment is considered illegal under both state and federal law.

Racial Harassment

Racial harassment involves harassment due to your skin color, ancestry, citizenship status, or race. This harassment can include racist jokes, insults, slurs, racial disgust, and even degrading comments.

Gender Harassment

Gender harassment results from discrimination against another individual because of their gender. This harassment often involves stereotypes indicating how a man or a woman should act.

Religious Harassment

Religious harassment is more focused on an individual’s religious beliefs. However, it can sometimes overlap with harassment based on race. Religious harassment can involve comments or jokes about religious traditions, holidays, clothing, and customs. Or it can be in the form of pressure to convert an individual into a different religion.

Age Harassment

Age harassment often includes any teasing, unfair criticism, insults, or being left out of activities because of an individual’s age. According to the Civil Rights Act of 1964, employers are prohibited from discriminating against workers 40 years or older.

Disability Harassment

It is illegal to discriminate against another employee because of their real or perceived disability, their relationship to a disabled person, or their use of disability services. This type of harassment is often experienced through patronizing behavior, crude jokes, or refusal to provide reasonable accommodations.

Personal Harassment

Personal harassment is a type of harassment that is not based on one of the protected classes. But rather, it is the most basic form of bullying that is not illegal. Often this behavior creates an offensive or intimidating work environment for the victim, that includes

  • Crude Jokes
  • Offensive Comments
  • Personal Humiliation Tactics
  • Critical Remarks
  • Intimidation Tactics
  • Excluding Behaviors

Physical Harassment

Physical harassment, often referred to as workplace violence, is harassment that involves physical threats or attacks. In some instances, it can even be regarded as an assault. Physical harassment needs to be taken very seriously in the workplace and explained clearly to make the actions more defined.

Some examples of physical harassment include the following:

  • Threats of direct harm or an intent to inflict this harm
  • Physical Attacks that include shoving, kicking, or hitting
  • Threatening Behavior (such as shaking your fist angrily)
  • Destructive Behavior that is meant to intimidate another employee

Depending on the industry (health care, social services, law enforcement, education), the employees may be at a higher risk of workplace violence.

Power Harassment

When there is a power disparity between the harassed and the harasser, it is often referred to as power harassment. The harasser who has a higher status in the workplace hierarchy bullies someone in a lower rank, making excessive demands of them, intruding into their personal life, providing verbal intimidation, demeaning comments, or physical threats.

Psychological Harassment

Psychological harassment often involves specific actions that hurt an employee’s mental wellbeing. Victims of this harassment feel belittled or put down on a professional and personal level, and this harassment can quickly escalate into impacting their health, social life, and work product.

Psychological harassment can include actions such as:

  • Isolating the victim
  • Ignoring the victim
  • Trivializing the victim and their ideas or thoughts
  • Spreading rumors about the victim
  • Challenging anything the victim says

Online Harassment

Technology has significantly improved our working environment. However, as more employers embrace technology’s power, online harassment or cyberbullying is continuously on the rise. This type of harassment often includes:

  • Spreading gossip or lies about the victim through social media channels
  • Sharing humiliating information about the victim by mass chat or mass email
  • Sending harassing text messages or other instant messages to the victim

Retaliation Harassment

Retaliation harassment is a form of harassment used in retaliation against another employee for participating in a lawfully protected activity. For example, if employee A files a complaint against employee B, and employee B finds out, and they start harassing employee A as revenge for filing the claim- this type of harassment is called retaliation harassment.

Sexual Harassment

Sexual harassment is a form of harassment that is sexual in nature and includes unwanted sexual conduct, behavior, or advances. Not only is this type of harassment always on the news, but what makes it so prevalent is that it can happen on any worksite, affect both men and women, and impacts the victim’s life immediately. Examples of sexual harassment include:

  • Sharing sexual photographs
  • Making sexual comments or jokes or posing sexual questions
  • Posting Sexual Posters
  • Inappropriate sexual touching or gestures
  • Sexually invading another employee’s space.

Quid Pro Quo Sexual Harassment

Quid pro quo sexual harassment also translated to “this for that” is a form of exchange-based sexual harassment. It is often experienced when a supervisor or manager conditions work benefits in exchange for some sexual favor. It can also occur if the harasser turns to blackmail to coerce another employee into a sexual act. This type of harassment can be either explicit or implicit, meaning the harasser can outright ask for the sexual exchange or hint at it.

Third Parties Harassment

Third-party harassment is a type of harassment in the workplace instigated by a third-party or someone outside the organization, such as a customer, supplier, or vendor. The victims of this type of harassment are often low-status workers or low-power jobs (such as a sales associate or cashier). And even though this type of harassment does not fit the typical workplace harassment narrative, it still is the employer’s responsibility to stop this behavior.

Verbal Harassment

Verbal harassment is often the result of personality conflicts that have escalated into something serious. Even though this harassment is not illegal, a verbal harasser usually involves a consistently unpleasant individual who is constantly throwing insults, swearing, yelling, or making public and private threats. These insults can be particularly damaging since they often go unnoticed by supervisors. It is also important to remember that if this harassment is based on a protected class, it is illegal.

How Can an Experienced Employment Lawyer Help?

If you are getting harassed at work, and you have taken the necessary actions to get this behavior to stop. Yet, your employer has not appropriately responded. You need to contact an experienced employment lawyer today. The legal team at Perkins Asbill is ready to provide you with the legal representation that you need and the help that you deserve. Do not wait any longer; call our office at 916-446-2000.

What Steps Do You Need to Take if You Work in a Hostile Work Environment?

Having a bad day at work is one thing. Getting harassed daily by a co-worker or your boss is a whole separate matter. If you feel like you are working in a hostile environment, you have a right for these actions to stop, and if they do not, you deserve to go after the people that are causing you to this extreme fear, anxiety, and stress at your workplace.

In this blog post, we will detail what exactly is a hostile work environment, what steps you need to take if you are working in such a situation, and how an employment lawyer can help you.

What is a Hostile Work Environment?

hostile work environment is legally defined as offensive or unwelcome behavior that causes one or more workers to feel scared, intimidated, or uncomfortable in their place of employment. Simply put, a hostile work environment is the sum of all communications, behaviors, and actions done by an individual at work (boss, client, colleague, vendor) that alters the expectations, terms, or conditions of a workplace that a worker feels comfortable with.

What is NOT a hostile work environment:

  • A worksite that is unpleasant
  • A bad boss
  • Obnoxious co-workers
  • Lack of benefits or perks
  • Feeling undervalued or underpaid

Therefore, to truly have your work environment meet the level of illegal hostility, it needs to go beyond the causal lousy joke.

Legal Requirements for a Hostile Environment

Dealing with a hostile environment can be a complicated process, as most of these cases are extremely fact-specific and quite subjective. Additionally, it is hard to say precisely when a working environment becomes illegal, as most often, nobody in the workplace will admit to their wrongdoing. Therefore, to determine if your workplace is hostile, the court needs to consider all aspects of the harassment, including the severity of the behavior and frequency.

So how does someone succeed in a hostile work environment case? By establishing the following factors:

  • Discriminatory in Nature: The workplace’s actions must result in discrimination against a protected classification, such as age, disability, race, or religion.
  • Pervasive: The workplace communications or behavior must be pervasive, or lasting over time, and not just limited to some remark or statement that an employee found unacceptable. An action becomes pervasive if it continues over some time, is all around the employee, and is not investigated adequately by the employer to make the problem stop.
  • Severe: The workplace actions or behavior must be severe, such that they disrupt the employee’s ability to work or their work product. In addition, the severity can occur if it interferes with a worker’s career progress; for example, they fail to receive a promotion because of the hostile environment.
  • Unwelcome: The inappropriate actions, harassment, communication, or behavior must be unwelcome. Generally, to show that it is unwanted, there is some evidence that an employee asked the hostile worker to stop their behavior, but it continued to persist.

The Questions You Need to Ask Yourself

If you are still hesitant about whether you are working in a hostile environment, ask yourself the following questions:

  • Are the actions, communications, or behavior unwelcome?
  • Are the actions, interactions, or behavior happening over a period of time, repeatedly?
  • Could you view the incident as hostile, both subjectively and objectively?
  • Are the actions, communications, or behavior discriminatory towards a protected class?

If you answer yes to these questions, you need to speak with an experienced employment attorney who can protect you against these illegal actions by your employer.

What Evidence Do You Need to Show Hostility?

Once people figure out they are working in a hostile environment, the next question they often ask is now what? In response, we have prepared the below necessary steps that you need to take to document this hostility.

Company’s Internal Complaint System

If you think you are working in a hostile environment before you do anything, make sure you create an internal official complaint. Yes, many people often worry about telling their HR about their issues in fear of getting in trouble. However, it is illegal for your employer to retaliate against any employee who complains about harassment or discrimination, even if the claim holds no validity.

Obtain Evidence

Obtaining evidence that shows the organization or management was aware of the hostility, or that they should have been made aware is crucial for your claim. Start by documenting times, dates, places, and discussions at which you reported this harassment to the appropriate people. Even if it is an informal meeting with a supervisor, documenting these discussions can help show that the hostility was pervasive and that employer did nothing about it.

Witnesses

Having witnesses support your case can make your claim stronger. Therefore, if there are people who saw the harassment take place, make sure to get their name, contact information, and write down exactly what they saw. If the witness is willing to do so, have them provide you with a written statement or an email detailing the incident.

Document Everything

Just as witness statements are critical, physical proof of your harassment can also be vital in proving your claim. Make sure to save all communications (notes, letters, emails, and voicemails) that detail the hostility and how often it occurred.

Keep Proof of Negative Impact

A great way to document how a hostile working environment affected your work performance is saving all your performance reviews from your employer and keeping all your medical records. These records can show that you not only sought medical help around the time you claimed you were being harassed at work, but it can also provide you with a timeline that can strengthen your overall case.

Contact an Experienced Employment Lawyer

If you are experiencing a hostile work environment, you need to contact a knowledgeable and skilled employment lawyer today. With everything you are going through, you do not need to add more to your plate by trying to figure out which laws apply to your situation. Instead, these lawyers can take care of all of this legal work for you while fighting for the justice you deserve.

If you would like to discuss your employment issue or find out more about our business and employment law services, give us a call at 916-446-2000 today. We look forward to providing you the legal representation that you need.

 

 

What Is the Difference Between Retaliation and Unfair Treatment in a California Workplace?

All retaliation is unfair treatment in the workplace, but not all unfair treatment is retaliation. The primary difference between retaliation and unfair treatment in the California workplace is the presence of unlawful conduct. Unfair treatment, although often morally reprehensible, is not always illegal. On the other hand, retaliation against an employee always has legal consequences for an employer.

With a clear understanding of the difference between unfair treatment and retaliation, you can protect your rights in the workplace and have a better idea of when you have recourse against your employer for unlawful conduct. Below, we delve deeper into the idea of unfair treatment in the California workplace, specifically outlining when unfair treatment crosses the line into unlawful contact. Then, we take a closer look at the different scenarios that might prompt an employer to retaliate against employees in the California workplace.

What Is Unfair Treatment in the Workplace?

At some point in your employment history, you’ve likely experienced unfair treatment at your workplace. Maybe you didn’t get the promotion you deserved because of office politics or your boss played favorites. Nepotism—privileging family members—is another common occurrence in some workplaces. Unfair treatment can also include supervisors and managers who verbally abuse employees by yelling or screaming or falsely accusing employees of violating company policies.

Although the above examples result in frustration and sometimes anger for employees, unfair treatment is not illegal. California is an ‘at-will‘ employment state. At-will employment is a legal description of the relationship between an employer and an employee. In at-will employment states, employers can terminate an employee at any time without reason and an employee can leave a job for no reason; neither party has legal consequences. Additionally, employers can also demote, transfer, and discipline an employee without legal consequences.

Yet, even in employment-at-will states, like California, employers cannot take adverse action against an employee for illegal reasons. In these cases, unfair treatment becomes unlawful conduct.

When Does Unfair Treatment in a California Workplace Become Unlawful Conduct?

Title VII of the Civil Rights Act of 1964 protects all workers in the United States from discrimination based on race, color, sex, religion, or national origin. The United States Supreme Court extended the law to protect gay, lesbian, and transgender workers in June 2020. Further, the Americans with Disabilities Act (ADA) prohibits employers throughout the nation from discrimination based on disability. California employers that discriminate against employees and treat them unfairly based on the above protections are engaged in unlawful conduct.

Additionally, California employees have the right to file a complaint when their employers are breaking the law when they treat them unfairly. Federal law also protects employees who need to take time off for family or medical reasons under the Family and Medical Leave Act (FMLA). The Whistleblower Protection Act (WPA) protects federal workers in California who report illegal activities in the workplace. In some cases, employers choose to retaliate against workers whose absence falls under FMLA. Similarly, federal employers sometimes retaliate against whistleblowers.

What Is Retaliation?

On a broad level, retaliation refers to the notion of taking revenge against someone for actions that have harmed you or actions of which you don’t approve. In legal terms, retaliation specifically refers to the unlawful and unfair treatment of employees as a response to a protected action. According to the Equal Employment Opportunity Commission (EEOC), employers are engaging in unlawful conduct when they retaliate against employees for:

  • Filing an EEO complaint or lawsuit against an employer
  • Talking with management about discrimination or harassment
  • Cooperating with an investigation about harassment or discrimination
  • Refusing to follow orders that result in discrimination
  • Refusing sexual advances
  • Intervening to protect other employees from harassment
  • Requesting accommodations for religious reasons or for a disability

Whistleblowers also have protection from retaliation and employers cannot discriminate or take unlawful action against an employee who needed time away from work under FMLA.

Filing a Claim Against Your Employer for Unlawful Discrimination or Retaliation

You do not need a lawyer to file a claim against your employer; however, it’s often in your best interest. A lawyer can file a claim on your behalf, protecting your identity. This is especially important for sexual harassment claims and whistleblower claims. Employers, especially specifically targeted members of an organization, can take drastic measures when they feel desperate. An experienced attorney knows the ins and outs of the EEOC claims process and can ensure your meet required deadlines and fulfill criteria.

As a California resident, you can file a claim with the Equal Employment Opportunity Commission (EEOC) or California’s Department of Fair Employment and Housing (DFEH), the state equivalent of the EEOC. DFEH will automatically share information with the EEOC, so you need not report to both agencies. If you are a federal whistleblower or have suffered retaliation as a whistleblower, you must file with the EEOC because the State of California does not have jurisdiction over your claim. Regardless of the situation, you cannot file a lawsuit against your employer before your file a claim with the EEOC. You can begin an  EEOC claim online and make an appointment or you can file a claim with a state or local agency like DFEH.

Contact an Experienced Employment Attorney If You’ve Been a Victim of Unlawful Conduct in a California Workplace

The skilled legal team at Perkins Asbill have the knowledge and resources to advocate for employees who have been victims of unlawful conduct in a California workplace. If your employer has illegally discriminated against you, sexually harassed you, or retaliated against you for taking action against them, you need a competent and diligent lawyer in your corner.

At Perkins Asbill, A Professional Law Corporation, we take pride in client service and holding employers accountable for their illegal practices. Contact us today online or at 916-446-2000 for a confidential case evaluation to determine your eligibility for compensation and learn the best way forward for your individual circumstances.

How Are Whistleblowers Protected by Law in California?

It’s important for employees to stand up to unethical or illegal activities in the workplace. Unfortunately, the pressure to keep silent is often overwhelming. Whistleblowing is the right thing to do but sometimes doing the right thing has unexpected emotional and financial consequences.

Some employers terminate employees or make it difficult to resume their careers elsewhere. Others simply make the workplace environment uncomfortable. The California Whistleblower Protection Act prohibits these retaliatory actions. If an employer continues their punitive behavior, the CWPA gives employees legal rights to make a claim against them.

If you are a whistleblower retaliation victim, you understand that the legal issues are often complicated. It’s critical to consult with a legal professional who will stand up for your legal rights. At Perkins Asbill, we believe that every employee deserves professional legal representation. For over three decades, our attorneys have provided legal assistance for employees of all backgrounds and industries.

Whistleblowers Provide an Important Service

Whistleblowers often jeopardize their careers, peace of mind and financial security to do what’s right. They do it to benefit fellow workers, citizens, and consumers and to preserve their own integrity. Past whistleblowers have revealed corporate secrets that changed the way we see cigarettes, vehicles, pharmaceuticals, and other products. They have revealed government overspending and drawn attention to nuclear power plant safety. The media regularly shares whistleblower stories. They show how courageous employees play an important role in keeping employers and organizations honest and citizens safe.

  • Integra Med Analytics is using a different approach to whistleblowing. They aren’t government employees, but they used data analytics to uncover potential Medicare Fraud. Their discoveries give them the authority to file a qui tam lawsuit under the federal False Claims Act. They are making claims in both California and Texas under a federal statute which became effective during the Civil War. California has a similar False Claims Act. It spells out recovery rights for those who report Medicaid fraud.

The California Whistleblower Protection Act

California Government Code, Chapter, 6.5, Article 3. California Whistleblower Protection Act [8547 – 8547.15] provides protections for state employees and those conducting business with the state. It covers people employed directly by the state, California University, and California State University. It also covers contractors, job applicants, and clients seeking state services. The act was designed to encourage employees and others to feel free to report “…waste, fraud, abuse…” and other unethical or illegal acts.

The CWPA makes it illegal for a public employee to directly or indirectly use “…official authority or influence…” in an attempt to interfere with rights granted by the act. A person in authority cannot attempt to control or influence an employee or other party through intimidation, coercion, retribution or other threatening behaviors. The act also prohibits employers from recommending or devising reprisal actions or ordering others to take actions on their behalf. Prohibited behaviors include inappropriate handling of personnel-related processes such as:

  • Appointments
  • Promotions
  • Transfers
  • Assignments
  • Performance evaluations
  • Suspensions
  • Disciplinary actions

Making a Claim

The California State Auditor investigates all state employee Whistleblower Act claims. The office holds a wide spectrum of investigative powers over most state offices, departments, bureaus, boards, and commissions, and executive and judicial branches. Their investigative responsibilities include:

  • Elected constitutional officials
  • Appointed state officials
  • Civil service employees

The auditor’s office has no power to investigate state senators, assemblymen, legislative staff; local and federal government agencies and employees; or private businesses, entities, and nonprofits.

The Auditor Makes Recommendations Only

The state auditor investigates cases involving embezzlement, conflicts of interest, improper overtime, and other inappropriate actions. They have investigative powers only.  The independent investigators who handle these cases maintain each employee’s confidentiality throughout the process. A whistleblower may report an incident anonymously if they choose.

If the auditor’s office finds that a report has merit, they take one of several actions.

  • Make a report to the involved agency
  • Make a confidential report to the Attorney General, a criminal law or administrative law enforcement agency, or a licensing agency
  • Publish a public report

Making a Claim for Retaliation Damages

To make a formal claim for reprisal, threats, coercion or other retaliative actions, you must file a complaint and a sworn statement with your supervisor, manager, or appointing power. You must also file your complaint with the State Personnel Board. In addition to the state’s internal process, you have a right to file a lawsuit for damages. Courts award punitive damages under certain circumstances.  If law enforcement authorities find the offender guilty of retaliatory acts against you, punishment may include a fine of up to $10,000 and imprisonment of up to one year in jail.

Additional Whistleblower Rights

As a Californian, you have protections under a network of state and federal laws.

These and other laws protect employees and designated individuals from retaliatory acts when they report unethical or illegal activities. Some statutes include provisions for back wages and job reinstatement. Others allow additional damages and incentives as a reward for blowing the whistle and revealing inappropriate behavior.

Employment Lawyers in Sacramento, California

Employers and others in authority do not have a legal right to punish you for reporting improper conduct. If you are a retaliation victim, you may have a right to make a whistleblower claim. To secure your rights, you must comply with the appropriate laws, filing processes, proof requirements, and timeframes. It’s important to consult with an employment attorney immediately.

To learn more about your legal rights, Contact Perkins Asbill at 916-446-2000 or complete our Intake Form. Let us schedule a consultation meeting to determine if we can help you.

2020 Key Employment Law Changes in California

Each year, California legislators move hundreds of bills into motion. This attempt to enact change in our laws usually results in a slew of new legislation at the beginning of every year. 2019 saw a myriad of shifts in the realm of employment law– and the ripple effect from these past few years continues to impact us now. As 2020 begins, California workers will be well-served by brushing up on some of the newest laws impacting their rights.

If you believe that your employer may be acting in violation of your rights, the most important step is to contact a seasoned employment law attorney. Only a legal professional can assist you in bringing a case and achieving compensation.

2020 Key Employment Law Changes in California

Freelancer and Contractor Laws: Tighter Restrictions (Maybe)

AB 5 approved September 18, 2019

If you or anybody you know does freelance or contract work, you’ve likely heard plenty about AB 5 already. Often referred to as “the freelancer law,” this bill presents a serious piece of work to freelancers. The details are a little muddy– and are currently being hashed out in court– but here’s what we know for a fact so far:

  • AB 5 established the “ABC test”
    • This “test” is a set of parameters to help determine whether somebody should be labeled as an independent contractor rather than an employee
    • The test essentially winds up categorizing far more workers as employees than it does as independent contractors
    • Employers tend to dislike this because they are mandated to offer employees certain rights and protections
  • Workers labeled employees gain access to improved benefits and more stable workplaces; many companies, however, are not interested in having actual employees
  • The bill was aimed at gig workers, but is currently set to disproportionately impact contract and independent workers

AB 5 is one of the most fluid shifts currently happening within California’s employment law sphere. If you are an independent worker who works within the state, the best course of action likely involves speaking with an attorney and keeping an eye on developments in legislation. Nobody can predict how AB 5 will play out in the end.

California Paid Family Benefits: Extended from Six to Eight Weeks

SB-83 approved June 27, 2019

Under SB-83, the state’s current Paid Family Leave (you may see it referred to as “PFL” in some documentation) is set to extend. Current benefits allow for six weeks of paid family benefits. This new amendment extends that timeframe to eight weeks.

Important factors to keep in mind:

  • Only applies to claims that start on or after July 1, 2020
  • Paid Family Leave is not a leave entitlement
    • Some employees are eligible to take leave through paid sick leave or FMLA/CFRA laws; some are otherwise granted leave by their employers
    • Only these employees are eligible to apply for wage replacement benefits through PFL

Expanded Lactation Accommodations

SB 142 approved October 10, 2019

California appears to be working to make the state’s workplaces more family- and parent-friendly as a whole. Much like the improved paid family benefits mentioned above, the expanded lactation accommodations offered by SB 142 offer parents another way to put their families first.

SB 142 presents a number of requirements for employers:

  • Employees must have access to lactation rooms or locations WHICH MUST…
    • …be close to employees; work areas AND
    • …be free from intrusion and shielded from view AND
    • …have certain features (i.e. electricity)
  • Employers must also provide other accommodations nearby
    • Sink with running water
    • Refrigerator
  • Employers must create and implement lactation accommodation policies that detail…
    • …employees’ rights to request lactation accommodation AND
    • …how employees can make such requests AND
    • …employees’ rights to file complaints with the Labor Commissioner in the event of a violation

Employees Now Eligible to Seek Penalty for Late Wages

AB 673 approved October 10, 2019

AB 673 amends the California Labor Code. Before AB 673’s approval, the process of seeking penalties for late wages from an employer was not possible. This amendment means that:

  • Penalties for late payment of wages may be recovered by the Labor Commissioner (as a civil penalty payable to the affected employee) OR
    • …by the employee as a statutory penalty

An initial violation warrants a penalty of $100. After this point, subsequent violations incur a penalty of:

  • $200 per failure to pay each employee PLUS
    • …25% of the amount unlawfully withheld

Minimum Wage Raise of One Dollar

SB 3 approved April 4, 2019

If you’ve worked minimum wage positions in California for some time, you’re probably already aware of the state’s increasing lower bar for pay. SB 3 raises the minimum wage throughout the state once again. Employees at companies with 25 or fewer workers will see $12 an hour; those who are employed by larger companies will make $13.

Serious Occupational Injuries Must Now be Reported Immediately

AB 1804 approved August 30, 2019

Those who work in notably dangerous industries (like the manufacturing, construction, or industrial sectors) may be most likely to be impacted by this change, but anybody can get hurt on the job.

AB 1804 mandates that employers report serious occupational injury or illness immediately through an online OSHA portal. This portal is not currently available; until its release, employers must make these reports through telephone or email. This injury or illness report does not replace any reports already legally required. It is a separate and additional report.

Perkins Asbill: A Professional Law Corporation

At Perkins Asbill, we offer Sacramento residents employment law and business litigation services. Our team of capable and experienced attorneys works diligently to ensure that each client understands the unique characteristics of their case. We tirelessly pursue our clients’ rights in an effort to protect and maintain justice.

If you have questions about upcoming changes in California employment law or if you believe you may require legal assistance with a prior or current occurrence contact our offices today at 916-446-2000. The Perkins Asbill legal team helps to enforce employee rights, help organizations navigate complex litigation issues, and more.