How to File a California Employment Discrimination Claim

It is against the law for California employers to discriminate against protected class citizens during your scope of employment or the application process. You could file a claim for financial compensation if a company discriminated against you for reasons related to your gender, race, religious beliefs, or medical conditions.

While these cases are challenging to prove at times, it is not impossible to achieve. If you believe you have a discrimination claim, speaking with a California employment lawyer is the most practical method for receiving legal guidance as to how to proceed. He or she can help you prove your claim while handling the communication between the company and their team of attorneys.

In this article, the legal team at Perkins Asbill describes how to file an employment discrimination claim, signs of discrimination, and other relevant topics that help you understand what to expect during the process.

Filing an Employment Discrimination Lawsuit in California

The first step in submitting a workplace discrimination claim in California begins with going to the Department of Fair Employment and Housing (DFEH). Victims of discrimination must go through the proper administrative avenues before filing a claim for compensation in civil court.

While it is possible to avoid this step in specific circumstances, DFEH advises that parties filing a civil lawsuit first to speak with a California employment lawyer first. Not correctly filing a claim going this route means that you could disqualify yourself from receiving future compensation after courts make a decision.

After going through the administrative process, your attorney will petition the court and serve the complaint upon your employer as well as other named individuals in the lawsuit. He or she will also advise you as to whom against you should file your claim.

Many employees assume that it is the name of the company. However, your managers and other relevant individuals might be named as well.

Upon serving the complaint, pre-trial litigation ensues. It is typically during this phase that discrimination victims, who have strong claims, may receive a settlement offer. You do not have to accept an offer that you do not believe is fair.

If your former employer chooses to forgo the opportunity to settle out of court, your case will continue litigation. Your lawyer will build your case and take it to the final trial if necessary.

Determining If You Experienced Discrimination

Workplace discrimination tends to be more covert than obvious. Managers and human resources personnel believe that they are more intelligent than the system and erroneously think that subtle acts will gently push you out of the way, and no one will be any wiser.

Big mistake.

It is not just a single action that they are avoiding. Proving a discrimination claim is a set of measures established over time.

If you notice that managers and co-workers treat you differently than others or than in the past, it might not be in your head. The subconscious mind signals to you when something is wrong.

Potential and sustained patterns of discrimination may include:

  • A sudden drop in your performance evaluations
  • Team members and managers leaving you out of meetings
  • Changes in work responsibilities
  • Reduced pay or work hours
  • Overt acts of discrimination
  • Making sexist or racist remarks
  • Managers not doing anything about your reports of misconduct

As you can see, there are several ways in which discrimination can occur. If you are still working there, start keeping a private, hidden personal journal that includes the date and time each act of discrimination occurred. Your journal is admissible as evidence in California civil courts and will become valuable to you as you proceed.

Protected Class Citizens in California

Workplace discrimination is something that can affect anyone at any time. It is an act not just reserved for minorities, as many people mistakenly believe. Primarily it affects protected class citizens.

You cannot receive discrimination for the following characteristics:

  • Race
  • Religion
  • Nationality
  • Gender and gender presentation
  • Medical and cognitive disabilities
  • Marital status
  • Age
  • Sexual orientation
  • Ancestry

You cannot experience exclusion, harassment, or discrimination for these characteristics. For example, if you are an unmarried woman who works among married women and exclude you because it is a “wives club,” you might have an employment discrimination case.

Final Thoughts and Considerations

You do not have to shrink back as someone else leverages their veiled confidence based on something of which you have no control. Filing a claim for discrimination compensation for your financial, physical, and emotional losses is possible. Talking with a California employer lawyer, like Perkins Asbill, can help you understand your next strategic move.

Call Perkins Asbill  for More Information

We understand how frustrated and upset you are. The California employment law lawyers at Perkins Asbill  invite you to contact us for a consultation by calling 916-446-2000 or submitting a request via our online contact form.

Can you be fired in California for being transgender?

Although society has become more understanding about gender identity, that does not mean an individual’s decision to change gender has gained complete acceptance. If you have undergone this transition, you may find that certain people do not approve of this change. If those people include your employers or fellow employees, that can create a challenge in the workplace.  If you suspect you have been fired because you are transgender, it is time to consult with an attorney, who can examine your situation and determine whether or not you may have a case against your employer for wrongful termination.  

California Fair Housing and Employment Act

The California Fair Housing and Employment Act (FHEA) prohibits employers from firing employees just because they are transgender. Whether or not a person has had surgery to change gender is immaterial. California law bars discrimination and harassment in employment based on gender, gender expression and gender identity.

Federal Employees

California’s FHEA does not apply to federal workers. However, that does not mean federal employees are left unprotected. Discrimination against transgender people violates Title VII of the Civil Rights Act of 1964, according to a 2012 decision by the federal Equal Employment Opportunity Commission. That section of the Civil Rights Act does not allow employers to discriminate against employees based on race, sex, color, religion and national origin.     

Exempted Employees

Certain employees are not covered by FEHA. This includes those working for a company with four employees or less, unless an employee claims harassment. Employees of nonprofit or religious organizations do not fall under FEHA jurisdiction.  

Dress Codes

An employer’s dress codes may trigger transgender discrimination, but that is not a reason to fire an employee. In California, transgender individuals have the right to dress to the code conforming to gender identity, including the wearing of uniforms.  

Proving Why You Were Terminated

Your employer is not likely to tell you explicitly that you were terminated for being transgender. However, if you strongly suspect, or even know, that is the reason, you must prove the firing was the result of discrimination. Your attorney will discuss your work history with you, and will ask when the atmosphere became discriminatory. Your lawyer may want to know:

  • Did you work for your employer under the different gender?
  • If you did work under your former gender, did you experience problems?
  • Did any management changes occur, after which you perceived discrimination?
  • What were your employee reviews prior to transitioning, and did they change?

Possible Remedies

California law provides remedies for those terminated or discriminated against because of gender identity. You may be eligible for reinstatement, back pay and promotion, along with payment of your attorney fees. You may also receive damages for emotional distress, along with punitive damages.

You have already made a brave decision in changing your gender identity. It is important to stand up for your rights if you think you lost your job due to discrimination. Our attorney’s will let you know if you have a legitimate case against your employer. Learn more by calling our office at 916-446-2000 or sending us an email.

Five Steps to Take If You Have Been Wrongfully Terminated from Your Job

Getting terminated from your job can create a great financial strain on your life. If you feel that the reason you were fired was not legitimate, you may be entitled to compensation. However, it is crucial that you act quickly. Here are five steps to take if you are wrongfully terminated: 

Document Everything

Keep records of all the events leading up to the termination, as well as everything that happens shortly after. Put together documents such as emails, termination notices, memos, and any other communication between you and your employer during the period before you are fired. If possible, record any verbal communication that may give an indicator as to why you were wrongfully terminated, although make sure you respect your state’s privacy laws.

Conduct Your Research

Carry out comprehensive research on acceptable reasons for termination in your state. Check that the reasons your employer has given are valid. If they are not, ask your lawyer to file a suit for wrongful termination as quickly as possible.

Consult Your Union

If you are a union employee, consult your union to find out what reasons your employer can use to terminate your employment. Your union representative will then research to find out if you have a valid claim. If you have a case, they can also help you fight for the damages that are due to you.

Find a Lawyer as Soon as Possible

Contract the services of a lawyer as soon as you have received notice relieving you of your services. Starting early will help your lawyer act quickly and make sure that you get a hearing at the earliest possible moment. Even though you may be cash strapped during this time, certain lawyers will agree to work for a contingency if you have a strong case.

Have Your Lawyer Go Through Your Severance Contract

You should have your lawyer go through your severance contract with a fine-tooth comb to ensure that your employer meets all legal obligations after firing you. The obligations include paying the proper amount of severance pay, transferring your retirement funds, paying for unused leave, etc.

In Conclusion

Employer laws are set in place to protect employees from being fired for illegitimate reasons. If you win your wrongful termination suit, you will be able to earn back money in lost wages and damages. Remember to contact an experienced attorney that will be able to guide you through the process. 

If you believe you have been wrongfully terminated from your job or if you are an employer in California who has questions about the state’s laws on wrongful termination, contact the knowledgeable and experienced team of employment attorneys at Perkins Asbill today. To schedule a consultation, please contact us at  916-446-2000.

Lost Your Job? Wrongful Termination Checklist

Being fired from your job is painful and perhaps embarrassing. You may feel frightened and overwhelmed. However, if you were fired for an illegal reason, it is called “wrongful termination,” and you may have a case to file against your employer.

What is Wrongful Termination?

“Wrongful termination” is any firing of an employee that is done in violation of federal, state, or local laws, the terms of an employment contract, or for any reason that goes against public policy. Being fired unfairly does not rise to the level of wrongful termination according to the law, however, there are several reasons that you may have been fired for an illegal reason.

Wrongful Termination Checklist

To determine if you were fired for an illegal reason and would have a claim for “wrongful termination,” follow this checklist to see if any of these situations apply in your circumstance. If you can answer “yes” to any of these questions, you may be eligible to file for wrongful termination.

  • Discrimination and Harassment

    • Were you terminated due to your ethnicity, national origin, religion, gender, pregnancy, age, disability, or genetic information?
    • Did your employer ever make statements of a discriminatory nature towards you?
    • Is there either circumstantial or direct evidence from your employer or other employees that you were fired for discriminatory reasons?
    • Were certain groups of people treated differently in your office?
    • Were comments made by your employer that could have been construed as racist, sexist ,or otherwise discriminatory?
    • Were there ever any unwelcome sexual advances, or sexual requests by an employer?
      Did you get fired after terminating a romantic relationship with an employer?
  • Retaliation

    • Did you tell a government agency or law enforcement about suspected violations of the law or regulations that you believed your employer engaged in?
    • Did your employer react negatively to learning that you reported potential violations?
    • Were you ever warned about engaging in such participation or reporting such violations?
    • Were you ever discouraged from exercising your rights under the law, such as under the FMLA?
  • Breach of Employer/Employee Contracts

    • Did your employer fire you against the provisions in your employer handbook?
    • Did your employer make verbal promises, such as guaranteeing that you would have a job, and then fire you?
    • Did your employer provide adequate reasons according to the handbook or your employer/employee contract for the firing?
    • Did your employer act in bad faith? For example, if you worked for a company for 30 years and you were fired with only one week away from full benefits.
  • Violation of Public Policy

    • Were you fired for voting, participating in jury duty, or filing a worker’s compensation claim?
    • Were you told by your employer to lie under oath or break the law?

An Experienced Employment Attorney on Your Side

A survey shows those employees who were wrongfully terminated, and hired legal representation in the matter, earned 150% higher on average in their claim than those who represented themselves.

The experienced employment attorneys at Perkins Asbill can help you build your case regarding your employer’s discriminatory practices, or illegal actions, and help you get the compensatory damages you are owed. For more information, and to speak with one of our attorneys at Perkins Asbill, please call us at 916-446-2000 or online today.

Employment Law 101 for Startups

Whether your startup is growing slowly or rapidly, as you begin to add team members, you are entering a whole new world of laws and regulations you must abide by as an employer. In this article, we will present a brief primer of legal considerations you should be aware of and both state and federal laws you must comply with to avoid legal liability as you grow your team.

Independent Contractors vs. Employees

With the gig economy rapidly growing in the U.S. and global markets, many startups are utilizing the services of independent contractors — virtual assistants, marketing specialists, social media managers, graphic designers, web designers, software developers, and more — to help scale their businesses before they are ready to hire part-time or full-time W-2 employees on payroll.

However, understanding the distinction between an independent contractor and employee is essential because, even if a team member is not on payroll, certain factors could cause a court to determine the team member was acting as an employee, rather than an independent contractor, and impose the legal requirements of an employer on your business.

Some of the factors a court will consider when determining whether an individual’s status is employee or independent contractor, include:

  • Telling the team member what tools and equipment to use
  • Telling the team member when and where to work
  • Telling the team member where to purchase supplies and services

This is a very fact-based assessment. The more you direct and control the details of the team member’s behavior, the more likely an employer-employee relationship will be determined to exist. This is very important because when an employer-employee relationship is found, your business is required to comply with many different regulations geared toward protecting employee rights in the workplace.

Americans with Disabilities Act (ADA)

The ADA is a federal law that prohibits employers from discriminating against prospective or current employees on the basis of their physical or mental disability. It also requires employers to provide disabled workers with reasonable accommodations to allow them to perform their job duties, so long as a reasonable accommodation can be provided without causing undue burden to the employer.

Similar requirements are imposed under California state law through the Fair Employment and Housing Act (FEHA).

Equal Employment Opportunity Commission (EEOC)

Under federal regulations enforced by the U.S. Equal Employment Opportunity Commission (EEOC), employers are prohibited from discriminating against employees or prospective employees on the basis of:

  • Race
  • Color
  • National origin
  • Religion
  • Age
  • Sex
  • Sexual orientation
  • Physical or mental disability
  • Pregnancy
  • Genetic information
  • Retaliation

Family Medical Leave Act (FMLA)

The Family and Medical Leave Act of 1993 (FMLA) is a federal law that requires non-exempt employers to provide job protection and unpaid leave to employees who must be absent from work due to a qualified medical or family reason including surgery, caring for an ill family member, or the birth or adoption of a child. FMLA provides job protection for up to 12 work weeks, during which the employee may not be terminated without a legitimate and non-discriminatory reason. The California Family Rights Act provides similar legal protections.

Pregnancy

The Pregnancy Discrimination Act prohibits employers from discriminating against prospective or current employees due to pregnancy or a pregnancy-related condition. Employers may not make decisions about hiring, firing, pay, promotion, job assignment, benefits, or any condition of employment based on a woman’s current, past, potential, or intended pregnancy or medical condition related to pregnancy or childbirth.

If your startup is growing and you need to begin hiring team members, it is extremely beneficial to seek the advice and counsel of an experienced employment attorney who can help to ensure that you have the proper policies and procedures in place to comply with applicable federal and California employment laws.

To schedule a consultation with one of our knowledgeable employment attorneys in Sacramento, contact Perkins Asbill at (916) 520-1417 today.

When to Accept a Wrongful Termination Settlement

Losing your job is a traumatic experience, which brings with it financial and emotional uncertainty. You may feel angry, embarrassed and shocked that you have been fired, especially if you believe you were fired unfairly. Being terminated from your position is painful enough, but if you feel that you were fired for an illegal reason, you may be wondering if you have a case for wrongful termination.

What is Wrongful Termination

“Wrongful termination” is clearly defined by the law and certain conditions must be met in order to bring a claim in court.  It is important to note that being fired unfairly does not necessarily constitute a legitimate legal claim for wrongful termination. In order to bring a claim against your former employer for wrongful termination, you must have been fired for an illegal reason such as the following:

Termination due to discrimination or harassment based on a protected characteristic

These characteristics include ethnicity, national origin, religion, gender, pregnancy, age, disability, genetic information, etc.

Violation of Public Policy

Many states allow wrongful termination claims when an employee has been fired for voting, participating in jury duty, filing a worker’s compensation claim, or requiring an employee to lie under oath or break the law.

Written Employment Contracts

These legally binding contracts are the basis for a wrongful termination suit if they have been violated by the employer.

Covenant of Good Faith

If an employer terminates an employee seemingly to avoid paying out a pension, that may be a basis for a wrongful termination claim. For example, if an employee has worked at the same company for 30 years and is terminated a few days before their retirement, this termination may be a violation of the good faith of the relationship between the employee and the employer.

Implied Contract of Employment

If an employer has policies in place that would reasonably lead an employee to believe that their employer would not fire them “at-will” but rather would only fire them for cause, this may constitute an implied contract of employment. A typical example of an implied contract wrongful termination claim is a termination that directly violates something from an employee handbook, which articulates an employee’s rights and duties. If an employee is fulfilling their duties and is fired without cause, they may potentially have a claim for wrongful termination.

Valuing a Wrongful Termination Settlement

Many factors are involved in valuation of a wrongful termination claim. The total value of damages may include lost wages, compensation for emotional distress, punitive damages, attorney and court fees, front pay (the amount of money you would have made until finding a new job), and compensatory damages.

Additionally, it is important to note that there is a clear connection between damages and compensation. If you are able to quickly find a new job for a greater salary, you may have a difficult time obtaining compensation for your claim from a court of law.

When Should I Accept a Wrongful Termination Settlement in California?

You should only accept a settlement from your employer of your wrongful termination claim if the offer is a fair reflection of the damages you suffered as a result of their actions.

Individuals who are represented by an attorney enter into settlements that are 150 percent higher on average than those who pursue wrongful termination claims on their own. You should not agree to a settlement with your employer until you consult with an experienced employment attorney to review their offer.

Have an Experienced Advocate on Your Side

Unfortunately, wrongful terminations occur quite commonly. You typically only have 180 days to act after you have been wrongfully terminated, so you should consult an attorney right away.

Wrongful termination cases can be challenging and difficult to prove. The team at Perkins Asbill can step in quickly to protect your rights against wrongful termination and help you to negotiate a fair settlement agreement. Contact our office in Sacramento at (916) 520-1417 today to schedule a consultation.

California Sexual Harassment FAQs

Through the #metoo movement that has swept the nation, encouraging victims of sexual harassment and abuse to tell their stories, a heightened awareness of the problem and proliferation of sexual harassment allegations have become public. However, it is just as important to understand your rights and legal options as a victim of sexual harassment.

What Is Sexual Harassment?

Sexual Harassment is defined as any unwelcome conduct of a sexual nature. It takes two forms – quid pro quo and hostile workplace.

Quid pro quo sexual harassment is where a sexual act or favor is made as a condition of getting a job, keeping a job, getting a promotion, or some other circumstance related to employment. For example, if a supervision requires a subordinate to enter into a romantic relationship in order to gain career advancement, the supervisor has committed quid pro quo sexual harassment.

Hostile workplace sexual harassment occurs when sexual harassment is so pervasive and/or severe that it creates an abusive work environment. Factors to be considered as to whether conduct is sufficiently severe or pervasive are: the frequency of the conduct, whether the conduct was verbal or physical, when the conduct was patently offensive, such that any reasonable person would find it offensive, and whether the harasser was a co-worker or a supervisor. An example of a hostile workplace would be one where sexually explicit photographs are posted in a break room, or female employees are encouraged to wear revealing clothing.

Is Sexual Harassment Illegal in California?

Yes. Both Title VII of the Civil Rights Act and the 1964 California’s Fair Employment and Housing Act classify sexual harassment as sexual discrimination and prohibit such conduct.

What Are Examples of Sexual Harassment? 

Sexual harassment can occur in many different forms. It is not limited to the stereotypical situations of a male superior harassing a female subordinate. Women can be guilty of sexual harassment toward men and individuals may commit sexual harassment against members of the same sex. Here are a few examples of sexual harassment in the workplace:

  • Hanging sexually explicit photographs or other images in the workplace
  • Making sexual comments about a person of the same or opposite sex
  • Engaging in inappropriate or unwanted physical contact
  • Making derogatory jokes of a sexual or discriminatory manner
  • Offering benefits in exchange for sexual favors
  • Making sexual threats

This list of examples is not exhaustive.

What Is Sexual Harassment Retaliation?  

Many individuals may fear reporting sexual harassment in the workplace because they do not want such complaints to negatively impact their current or future employment. Retaliation occurs when an employee makes a complaint or report of sexual harassment in good faith, or if they participate in an investigation of sexual harassment, and they are subject to negative treatment by their employer as a result. Retaliation may take the following forms:

  • Ignoring the victim
  • Giving the victim a negative performance rating/review
  • Gossiping about him or her
  • Subjecting him or her to the “rumor mill”
  • Giving him or her less desirable work assignments.

How Can an Employer Be Liable for Sexual Harassment?

California and federal courts have sent a clear message that sexual harassment will not be tolerated and that employers must take proactive steps to prevent sexual harassment from occurring by way of training both supervisors and employees. An employer who knows of the sexual harassment of an employee and does not take prompt, appropriate action to respond will be held responsible for the harassment. If an employer does not know of the harassment, but should have known, they may still be held legally accountable. If the employer fails to provide sexual harassment training, this will be strong evidence of liability in a victim’s case.

Do California Employers Have to Provide Sexual Harassment Training?

Yes. By January 1, 2020, California employers with five or more employees must provide a minimum of two hours of sexual harassment training to all supervisory employees and at least one hour to all nonsupervisory employees within six months after they begin their position.

Employers must provide the required sexual harassment training in a classroom setting, through interactive e-learning, or through a live webinar. Trainees must be given instructions on how to contact the trainer with questions and receive an answer within two days.

This training must be provided to each employee at least once every two years.

What Sexual Harassment Training Do California Employers Have to Provide?

Any sexual harassment training provided in California must explain:

  • The definition of sexual harassment under the Fair Employment and Housing Act and Title VII of the federal Civil Rights Act of 1964
  • The statutes and case law prohibiting and preventing sexual harassment
  • The types of conduct that can be sexual harassment
  • That the complaint process has limited confidentiality
  • Remedies available to victims
  • How employers must correct harassing behavior
  • How to prevent sexual harassment
  • Supervisors’ obligation to report harassment
  • Resources for victims

Which Employees Do Employers Have to Train?

Employers having five or more employees must train all supervisors in California, as well as non-supervisory employees. A supervisor is anyone with authority to hire, fire, assign, transfer, discipline, reward other employees, or anyone who can effectively recommend (but not necessarily take) these actions occur.

Who Can Provide Sexual Harassment Prevention Training?

There are three types of qualified trainers in California. They are attorneys who have been members of the bar of any state for at least two years and whose practice includes employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964; human resource professionals or consultants with specialized practical experience in sexual harassment prevention, investigation, and response; and law schools, or college or university instructors with post-graduate degrees and experience or special teaching credentials related to the subject.

How Can California Employers Prevent Sexual Harassment in the Workplace?

California employers can prevent sexual harassment by:

  • Drafting a comprehensive sexual harassment policy that complies with state and federal law
  • Conducting ongoing education for employees about sexual harassment
  • Monitoring the conduct and environment of the workplace
  • Encouraging comments regarding the work environment, including problems regarding sexual harassment
  • Letting employees know that there is a “zero-tolerance” for sexual harassment in the workplace
  • Posting the sexual harassment policy in a prominent place and distributing the policy to all employees
  • Treating allegations of sexual harassment seriously and investigating them
  • Being both neutral and objective during an investigation of an incident
  • Quashing rumors and further offensive actions by coworkers immediately after the incident occurred
  • Appropriately disciplining the harasser after the conclusion of any investigations

How Can Employers Discipline a Harasser?

Disciplinary action for sexual harassment may range from reprimand to permanent dismissal. Managers/supervisors should be aware that the implementation of discipline could cause other employees to become angry or resentful, which could include retaliation against the victim.

While disciplining someone under these hostile conditions may be difficult, it is absolutely appropriate and necessary. A very clear “zero tolerance” message must be sent to all employees to ensure their understanding that sexual harassment conduct is not permissible.

Is Complimenting a Co-Worker Sexual Harassment? 

Generally, it is acceptable for a coworker or even a supervisor to compliment a colleague in the workplace. Telling someone they look good today or complimenting a new piece of clothing is generally considered fine. It is, however, inappropriate if the comment is accompanied by a leering stare and/or a whistle, is continually given to only one particular person or is accompanied by a sexualized innuendo or behavior. Any of these actions may be deemed as sexual harassment. For example, saying to someone, “Hey baby, you are sure looking fine today,” is unacceptable harassing behavior.

Is Dating a Co-Worker Sexual Harassment?

Consensual dating at work is generally permissible. However, awkward situations can occur. For example, if the relationship falls apart and the coworkers are still forced to work around each other on a daily/regular basis, work-related interactions could become negatively affected by the failed relationship, and sexual harassment could occur in the aftermath.

Is Dating a Supervisor Sexual Harassment?

Consensual dating of a supervisor is also permissible but is rarely advisable. Such relationships often give the perception (at least) of a conflict of interest and that the supervisor is “playing favorites.” To counter this perception, supervisors have been known to overcompensate by giving too much work, for example, to his/her partner thus treating the partner unfairly.

Again, the break-up mixed with constant daily contact may lead to sexual harassment, (e.g., if one party continues making advances in the workplace in attempts to save the relationship or makes a negative sexual comment in anger about the former lover. Because the implications are great and the potential complexities are many, dating in the workplace should proceed only after careful consideration of the potential problems.

What Can I Do If I Experience Sexual Harassment?

While each person needs to decide the best plan for him or herself, many individuals have found informal action facilitates the fastest resolution with the fewest complications. You can start with telling the person involved to stop the behavior. Try to be as clear as possible. (e.g., “It makes me uncomfortable when you rub my shoulders, please do not do this.”)

If this does not work, you should consider putting it in writing, and telling the person what conduct you find offensive and what action you will take if it continues.

If none of the above works, tell your supervisor (unless he or she is the offender) or a human resource person in your organization (i.e., file a complaint). Check to see if your organization has a mediation or informal complaint resolution process.

What Should I Do If I Experience a Sexual Assault, Sexual Violence, or other Criminal Acts?

If you experience sexual harassment that rises to the level of violence or assault, you should immediately contact law enforcement. Please visit the California Attorney General’s webpage on Sexual Violence at https://oag.ca.gov/workplace-sexual-harassment for more information about sexual violence and available resources for victims of such violence.

I am a Supervisor and Have Received a Complaint of Sexual Harassment from an Employee? What Should I Do?

If you are an employer or supervisor who has been advised of sexual harassment occurring in your workplace, you should first reassure the employee that you appreciate being informed about any problems, that you will investigate, and that you will follow up. It is difficult for employees to come forward regarding sexual harassment, as many fear retaliation from the harasser or being ridiculed, ostracized, or otherwise “left out” by their coworkers. It is even harder when the employee coming forward is the victim and has to expose something very personal to their supervisor at the place where they earn a living.

To put the employee more at ease, explain all of the options the have at your company (e.g., formal investigations and reporting, informal handling of the matter and mediation). The complaining employee should be informed of resources such as counseling that may be available to him or her. All complainants should be made aware that retaliation of any form against them will not be tolerated and will be subject to discipline. You should periodically check with the complainant employee to ensure that the harassment has ceased and that no retaliation has ensued.

The spectrum of disciplinary actions an employer should consider in response to allegations of sexual harassment should range from reprimand to permanent dismissal — based on the conduct. Appropriate discipline sends a clear “zero tolerance” message to all employees. Eventually, all parties will understand that sexual harassment conduct is not permissible.

In addition to coworkers, supervisors are also responsible for ensuring that their employees are not sexually harassed by the public, clients, or vendors. All managers and supervisors should inform their employees that such conduct will not be tolerated and that they should immediately report any sexual harassment from the public, clients, or vendors. If the harassment is from a customer, you must still take appropriate action within your control to ensure that the offensive behavior stops.

If you believe you have been the victim of sexual harassment or if you are an employer in California who has questions about the state’s laws on sexual harassment, contact the knowledgeable and experienced team of employment attorneys at Perkins Asbill today. To schedule a consultation, please contact us at 916-446-2000.

Understanding California Employment Law Changes For 2019

Employers and employees are bound together in a relationship defined by contract, convention and the law. California employment laws are constantly being reviewed and amended to balance the competing interests of workers and their employers. Here are a few of the changes that employees and employers should be aware of going forward:

Sexual Harassment, Senate Bill 1300

This bill makes it clear that employers may be held responsible for acts of harassment committed by nonemployees if the employer or certain other parties knew or should have known about the conduct and didn’t take immediate and appropriate corrective action. The bill, under certain exceptions, would prohibit an employer from requiring an employee(s) to release their claims under FEHA or stop them from disclosing unlawful acts, including but not limited to sexual harassment, in their workplace, in exchange for continued employment, or in exchange for a bonus or raise.

Another important aspect of SB 1300 is that it limits the situations in which an employer could collect attorney’s fees and costs from a worker who made unsuccessful claims of sexual harassment. Such an award would only be available in cases where the claims were frivolous, unreasonable or groundless when they were brought, or when a plaintiff continued to litigate after the claims lost their merit.

Lactation Accommodation, Assembly Bill 1976

Under this law, employers are required to make reasonable efforts to provide employees with a room or other location expressly for lactation purposes. The room cannot be a bathroom. Employers must be able to show that such an accommodation would be an undue hardship to be allowed to use a bathroom as the designated location, though they would still have to provide a space other than a toilet stall for employees to express milk.

Salary History Inquiries, Assembly Bill 2282

This bill added definitions for the terms, pay scale, applicant and reasonable request to existing law. The new law requires employers to provide someone who has completed an interview with a salary or hourly wage range for the position. Employers continue to be barred from relying on or seeking salary history information from an applicant. The new law does allow employers to ask applicants about their expected salary.

Defamation, Libel and Sexual Harassers, Assembly Bill 2770

This bill protects sexual harassment victims from being sued for defamation by their alleged harassers. It also protects employers from similar suits by harassing employees, thus allowing them to tell other potential employers of the sexual harassment accusations without fear of a defamation lawsuit.

Paid Family Leave Update, Senate Bill 1123

Looking farther ahead, SB 1123 will expand the Paid Family Leave wage replacement program starting in 2021. Employees will have access to the program to handle situations arising from the covered active duty status of their spouses, domestic partners, children or parents.

New Sexual Harassment Prevention Training, Senate Bill 1343

Starting January 1, 2020, all California employers with 5 or more employees must provide supervisory employees with at least 2 hours of sexual harassment training. They would also be required to provide nonsupervisory employees with at least 1 hour of sexual harassment training. The training would be classroom or other effective interactive training and education. Employers would also have to provide sexual harassment training and education to each employee at least once every two years going forward.

Confidential Settlement Agreements, Senate Bill 820

The use of confidentiality clauses in settlement agreements is restricted in this bill, starting January 1, 2019. The bill applies to settlement agreements reached in civil or administrative proceedings based on the following violations:

  • Sexual assault
  • Sexual harassment
  • Workplace harassment or sex discrimination
  • The failure to prevent workplace harassment or sex discrimination
  • Retaliation against a person for reporting harassment or sex discrimination

Courts will no longer be allowed to enter, by stipulation or otherwise, an order that prevents parties from disclosing factual information involved in the settlement. The bill specifically allows for confidentiality orders meant to protect the identity of the victim. It also allows provisions that prevent the parties from disclosing the amount paid in settling the claim. The bill declares these nondisclosure provisions related to factual information of the claim are void as a matter of law and against public policy.

Equality and Corporate Boards of Directors, Senate Bill 826

This bill requires all public companies with the principal executive offices in California to have a minimum of 1 female on its board of directors by the end of 2019. By the end of 2021, companies will be required to have a minimum of 2 female directors if the company has 5 directors, or 3 female directors if the board consists of 6 or more directors. The bill further authorized the Secretary of State to impose fines against companies that do not meet the requirements.

Addressing Sexual Harassment Claims, Senate Bill 224

This bill expands the group of people who can be held liable for sexual harassment to include investors, elected officials, lobbyists, directors and producers. In general, it allows for sexual harassment liability when the victim can show that the defendant held himself or herself out as someone who can help them establish a business, service or professional relationship with the harasser or a 3rd party. It also takes away the old requirement that sexual harassment victims must prove that they were unable to easily terminate the relationship.

Additionally, SB 224 makes the Department of Fair Employment and Housing responsible for enforcing sexual harassment claims. It also makes it illegal for someone to incite or help someone else denial the rights of persons related to sexual harassment actions.

These are just a few of the changes enacted by the California Legislature that will affect employers and employees in 2019 and beyond.

Sources: California Employment Law Report; HR Watchdog; CaliforniaBreastfeeding.org; California Legislative Information

WHISTLEBLOWER AWARDED $631,200 IN MEDICARE FRAUD CASE

A respiratory therapist in Fresno County was working at a sleep medicine center when she noticed what she believed to be Medicare fraud happening at the facility. She decided to speak out, becoming a whistleblower and exposing the scheme. As a result, she was fired from her job.

She ends up with the last laugh, though, as the case recently went to court and the jury decided to award her $631,200.

The case itself was fairly simply. The woman was not a doctor, but did have a respiratory care license. The company, which worked with people who had breathing problems like sleep apnea, told her to do the in-person evaluations. These were supposed to be done by a doctor, and she wasn’t licensed to do them. When the company billed Medicare, they then claimed that doctor visits had been done, adding significant additional costs, even though she had done those visits.

The woman eventually made her complaint and refused to do the evaluations. That’s when she was fired.

It is worth noting that the investigation did not find fraud, but did determine that the company had been over-billing. The center then had to reimburse Medicare.

However, since they had fired the 51-year-old woman for refusing to break the rules and bringing the over-billing to light, the jury decided that constituted an illegal retaliation. As such, she was given $500,000 in punitive damages and another $131,200 for emotional and economic damages.

The law has many protections for whistleblowers, and it’s critical for employees to know exactly what these are. Many are nervous to make reports for fear of losing their jobs, but this case shows that there are still legal options after a job termination.

Source: The Fresno Bee, “Medicare fraud whistleblower gets $631,200 from Fresno County jury,” Barbara Anderson, Nov. 04, 2016

WHY ARE SUPERVISOR/EMPLOYEE RELATIONSHIPS A BAD IDEA?

Dating in the workplace isn’t sexual harassment on its own, and many people who are on the same level enjoy healthy relationship status while working together. That’s often true with two workers from separate teams or departments are dating. But many companies frown on romantic involvement between supervisors and their workers — some even forbid it in policies.

While a supervisor dating a worker isn’t automatically sexual harassment, the possibility of harassment is high once people get romantically involved. Even well-meaning supervisors could unintentionally harass workers if they have romantic feelings for them that are not returned or feel angry about the way a relationship ended.

Even if both parties behave themselves with utmost composure in the workplace during and after a relationship, other problems can arise. If word gets out about the relationship, other employees might believe the person dating the boss is being treated with favoritism. If you are the person dating the boss, you might then experience harassment from others because of your involvement.

Dating and then breaking up with the boss could put you in a position where you feel like you are facing retaliation for your romantic actions, and that retaliation is impacting your job. When someone has hurt feelings and he or she has power over you in the workplace, it can be a bad combination.

While it’s probably best to avoid romantic entanglements with the boss, it’s also true that the heart wants what it wants. Things happen, and a relationship — or lack of one — is not an excuse for unprofessional or illegal behavior on the part of a boss. If you feel like you are being retaliated or discriminated against because of a relationship or emotional tension in the workplace, you have legal options.

Source: Forbes, “Is It Sexual Harassment If I Date My Employee?,” Liz Ryan, accessed Nov. 27, 2015