The Weary Worker

California among States with the Most Employment Discrimination Complaints

2012-05-18T22:35:00Z

California may be the State that houses the largest civil right agency in the U.S., the Department of Fair Employment and Housing, but the Golden State ranks number three among states with the most number of employment discrimination complaint filed before the office of the U.S. Equal Employment Opportunity Commission (EEOC).

The rankings were revealed in the EEOC’s new released data for 2011. The data shows that California had 7,166 workers’ complaints filed last year.

About 45% of this figure was related to retaliation complaints, while one-third of charges focus on racial discrimination, 29% on disability discrimination charges, about 27% on gender discrimination complaints, and more than one-fourth on age discrimination.

Texas was the state with the most number of employment discrimination cases, having a total 9,952, followed by Florida with a total of 8,008 complaints, and then California with 7,166 complaints.

Texas has about 6 million more population than Florida, while the state of California is the biggest state by population which is actually twice that of Florida.

Some speculated that the major reason why Texas reached such abundant number of employment discrimination complaints is because the state’s agency responsible for implementing equal employment opportunity lacks strong administrative power in preventing employers from committing employment misconducts.

Although California has been more proactive in dealing with complaints in the past few years, a Los Angeles employment discrimination lawyer suggests that the state should be more persuasive in implementing anti-discriminatory rules in the workplace. Such effort is to keep it from being in the list of states with the most employment discrimination complaints.

Employee’s Claim for Workers’ Compensation Denied

2012-05-11T20:49:09Z

The Tennessee Supreme Court recently denied an employee’s claim for workers’ compensation after the worker sustained personal injuries while at work.

Troy Mitchell filed for a workers’ compensation claim, alleging that the company he was working with denied his workers’ compensation benefits despite the injuries he incurred from performing his job.

Mitchell worked for Fayetteville Public Utilities as a lineman and on February 5, 2009, as he and several crews were working on a power pole, he got an electrical shock of 7,200 volts as a result from him not wearing a glove while hammering a metal staple.

Mitchell sustained significant burns in both hands and half of his body. Due to the incident, Mitchell was unable to return to his work for over a year.

On the other hand, although the Fayetteville Public Utilities admitted that Mitchell incurred his injury from work, the company attested that the injury was caused by Mitchell’s failure to follow the company’s safety rule regarding the use of protective gloves while working. Therefore, the company sees Mitchell’s failure as a reasonable cause to deny the latter’s workers’ compensation claim.

Mitchell filed his claim to the higher court upon receiving no response from the company’s management.

In his lawsuit, Mitchell was initially awarded with benefits upon seeing that the he had a reasonable cause for violating the rule. However, the court soon reversed the previous decision prior to a recent case law and an authoritative legal treatise on the subject. The court eventually ruled that the evidence presented at the trial projected that Mitchell was at fault when he violated the company’s safety rules and regulations.

Although some dissented with the said resolution, the Supreme Court still finds it decision as solid and firm, since the same was supported by a prior case law and authoritative legal treatise.

Workers’ compensation laws are designed to protect workers who incurred injuries on the job. Under the said law, injured workers are given legal rights to receive the rightful compensation for their injuries sustained.

However, mounting a claim is never easy, since employers will definitely look for ways to exempt themselves from any liabilities; therefore, workers should raise strong evidence during litigation. This is where an employment attorney, like a Los Angeles labor lawyer, can be of great help.

10 Employers’ Mistakes that May Lead to Labor Law Violation

2012-05-04T22:00:59Z

Most employers are not fully aware that even one seemingly innocent, yet totally careless mistake can become a valid reason for an employee to file for a complaint. Even simply trying to be nice to an employee or trying to save company resources could already land an employer in court for labor law violations.

Below are the 10 mistakes that employers often commit that eventually lead them to litigations, according to a recent report released by the California Chamber of Commerce:

• Under state and federal laws, classifying all staff as exempt is a violation of labor law. Only certain positions can be exempt from overtime laws, which include meal and rest break. Although putting the entire staff on salary is a lot easier, labor laws will definitely not permit the same for all types of job position.

• Providing staff with a flexible time schedule, such as allowing employees to work through meal and rest breaks, so they can leave earlier. It is actually considered illegal. Non-exempt employee should be required to take at least a 30-minute meal break and 10 minute rest break for every four hours of work.

• Classifying all personnel as “independent contractors” is likewise illegal under state and federal laws since independent contractors lack worker’s compensation, unemployment insurance, state liability insurance or paid family leave benefits. Furthermore, independent contractors do not pay taxes.

• Not providing training for supervisors and managers on how to handle employment discrimination and workplace harassment complaints.

• Authorizing workers to decide their own daily working schedules. Most employees are limited by law as to how many hours they can work without being paid over time wages unless workers are classified differently.

• Terminating an employee after taking a leave of absence. According to the California Chamber of Commerce’s recent report, while employees are on leave for various reasons, they have lawful protection.

• Not giving workers their last pay check for the reason that the employee didn’t return company’s property. Under the California state law, employers who failed to give an employee’s final check within a given deadline could be penalized.

• Offering an employee with loan, payment of which will be deducted from paychecks. The only salary deductions allowed by the California Labor Code are health insurance and benefits.

• Utilizing non-compete agreements in protecting confidential information. Although non-compete agreements are prohibited in California, there are few exceptions. In some instances, like in customer lists and pricing information, legal options for protecting trade secrets are available.

• Implementing a “use it or lose it” policy regarding vacation leave to avoid paying lump sum at termination. Such policy is not allowed in the State of California.

Employers must be aware that there are several number of labor laws that protect employees against unfair employment practices and violation of labor laws. Therefore, employers are at a higher risk of being subjected to employment complaints and allegations. A skilled Los Angeles employment lawyer can also represent an employer in such mistakes.

EEOC Finally Rules Gender Discrimination in the Workplace Illegal

2012-04-28T00:40:56Z

The Equal Employment Opportunity Commission (EEOC) finally ruled in favor of the transgender employees and applicants.

Under the EEOC’s ruling, lesbians, gay, bisexual and transgender (LGBT) employees and applicants are declared as a protected class. An employer who will fail to hire LGBT or will subject employees to employment discrimination based on gender identity is more likely to face sanctions.

Advocates are grateful for the said ruling. Said decision is a notable one since the agency is the very first government partner in interpreting and enforcing a nationwide employment rights law.

The ruling was motivated by the case of a woman named Mia Macy, who originally applied as a male at the Bureau of Alcohol, Tobacco, Firearms and Explosive (ATF), but later on underwent a sex change.

In her lawsuit, Macy claimed that she was not hired by the bureau due to her gender switch. The bureau denied the allegations and said that funding for the job position was cut. However, Macy later discovered that another applicant was hired for the same job position.

Macy initially filed a complaint at the ATF but Macy’s complaint was declined since provisions under the federal laws do not cover transgender employees and applicants like Macy.

Based on the EEOC’s definition of gender, the term covers not just the biological sex of a person but also the cultural and social aspects collaborated with masculinity and feminity.

Although the agency’s ruling does not actually determine if Macy suffered gender discrimination in the workplace, she can still file a discrimination charge based on the provisions.

Although advocates praised the agency’s ruling, some family oriented groups are disappointed, saying that the agency has misinterpreted the provisions stated at the Title VII of the Civil Rights Act.

Now that LGBT was covered by the federal laws’ protected class, victims of gender discrimination in the workplace like Macy have all the legal rights to file for a claim. Definitely, members of the LGBT class would never have to worry anymore about being abused in the workplace.

ABC’s “The Bachelor” in Dispute for Racial Discrimination Issues

2012-04-21T00:06:55Z

ABC’s “The Bachelor”, together with its production company, Warner Horizon Television, was sued by two African-American for racial discrimination issues.

The class-action lawsuit was filed by two former football players, Nathaniel Claybrooks and Christopher Johnson, before the office of the federal court. In their lawsuit, the two claimed that when they went to a hotel somewhere in Nashville to audition for a role in “The Bachelor”, a producer blatantly asked them what they were doing there.

Allegedly, both men were taken to one side of the room and were left out of the usual audition process. No one between the two of them was called. Such hostility made the men believed that it was all due to their race.

The men said in an interview said that ABC has deliberately excluded black from the show. ABC has been running the shows for a decade, consisting of sixteen seasons of “The Bachelor” and seven seasons of “The Bachelorette”.

In their legal documents, the men further said that two shows are examples of intentionally segregating racial differences in the media and denying person of color opportunities in the entertainment industry.

Warner Horizon, on the other hand, called the complaint as baseless and meritless. The show’s producer said that they actually had different non-white participants throughout the show’s history, and that its producers have been continuously and publicly expressive about seeking candidates of different race for both shows.

Although Claybrooks and Johnson are both based in Tennessee, they still have an option to file the lawsuit in California since the show was filmed in the said state. Even their lawyers suggested as well that they will have a better protection in the Golden state than in Tennessee due to the former’s provisions called “Unruh Civil Rights Act”, which is not present in Tennessee.

The Unruh Civil Rights Act includes rights for emotional distress damages and likely punitive damages if the racial discrimination the workplace were made at a high degree by Warner Horizon. That is, aside from the possible economic damages that could be proven during the litigation process.

Forcing an Employee to Sign Release Paper Could Lead to Wrongful Termination of Employment Charges

2012-04-13T22:53:06Z

Requesting an employee to sign a release paper right at the very moment of the termination meeting could actually lead to allegations of wrongful termination of employment.

Termination of employment is actually something that an employer must handle very carefully since it may significantly affect future dealings with the terminated employee.

Employers must take note that when discussing termination to an employee, certain concerns like whether termination policies have been followed, how to handle the employee’s last few days on the job, and whether such awkward moments permits a call to any employment law attorneys before the termination meeting, must all be delivered unmistakably to the employee.

Before the termination meeting, an employer must also decide whether to provide the employee with an option to release any possible legal claims in exchange for separation pay. Once the employer had decided to do so, the employer otherwise should not require the employee to sign the release paper at the termination meeting. The employer should provide enough time to the employee to consider the bargain.

Under the federal law, an employer must provide the terminated employees several weeks to consider a separation agreement. Nevertheless, even if an employer is not obligated to make such offer, the employer should still provide the concerned employee sufficient time to think over and consider the agreement. The reason is that some people don’t have the presence of mind to review such release documents at the very moment after an employer dropped the bed news. Thus, forcing an employee to sign a release paper, as well as the separation pay agreement, on the spot could lead to allegations that the employee was wrongfully terminated.

In such difficult situations, it is still best to have employment law attorneys to ask for an advice on how to resolve the legal predicament and to provide assistance with the agreement.

Restaurant Faces Multiple Employment Violations for Creating Hostile Environment

2012-03-30T22:27:31Z

A Wisconsin–based restaurant now faces racial discrimination and retaliation lawsuit after allegedly firing an African–American employee for complaining about a racist image that its management posted in the workplace.

The former employee, Dion Miller, from Sparx Restaurant recently filed a complaint before the office of the Equal Employment Opportunity Commission (EEOC) regarding the hostile work environment he experienced from the said company.

In his lawsuit, Miller claimed that he was terminated from his job after he complained about a racist image that showed a picture of African–American actor, Gary Coleman, and a dollar bill wherein George Washington was blackened and vandalized in a way that a noose was around his neck. Moreover, Swastikas and an image of a man in a Ku Klux Klan were on the said dollar bill.

Miller was told by the restaurant’s manager that they had posted the images a night before Miller complained. The restaurant management eventually insisted that it was just a joke after Miller reacted to the image. Weeks later after the retaliation, Miller was fired from his job.

The EEOC found a reasonable cause to file for an employment discrimination lawsuit based on race and retaliation following the provisions stated under the Title VII of the Civil Rights Act of 1964.

The said lawsuit that is seeking for injunctive relief and well as back pay, damages, and reinstatement was filed before the office of the US District Court for the Western District of Wisconsin. Said prayers are asked to prevent such future discrimination.

Sparx, on the other hand, denied the claims and affirmed that Miller was fired because of bad attitude. The restaurant never even admitted that they created a hostile work environment for Miller.

Ironically, despite the said misconduct that the Sparx committed, it still claims that it is a “family restaurant”.

In California, the Supreme Court decides on the workers’ side–all guilty employers who practice serious and intentional misconducts should burden the additional benefits for the aggrieved employee from his/her own resource. The EEOC, in its press release, expressed its great appreciation to Miller for standing up against his employers’ misconduct.

What Do the 4 New California Labor Laws Say?

2012-03-23T23:26:25Z

On the previous year, several changes were made with the existing rules of California Labor Law. In fact, such changes have been implemented this current year after the local government approved the bills.

However, not all employers and employees affected by the bills appreciated the news that much. Therefore, it went into a great extent of controversy before it reached its final resolution.

The four new controversial California Labor Laws are briefly explained below to further understand its changes as well as its effect to the employment world:

SB299 – this law merely affects women on pregnancy disability leave. The law permits employees to refrain from paying group health plan on behalf of the employee on such kind of leave. If such conditions were met, the business could be barred from doing so. In the former law, employers with 50 and more employees were affected; but in this new law, even employers with as few as five employees are already covered.

SB222 – the law primarily affects health insurance companies that do business in California, since they are now required to provide maternity coverage. Insurance coverage includes prenatal care up to post-partum care, neonatal, and even involuntary complications brought by pregnancy and hospitalization.

AB887 – this law talks about the definition of gender in California. It directly affects the Fair Employment and Housing Act. Changes made in the definition of gender in the state now include both gender identity and gender expression. Employers are now prohibited from discriminating employees based on gender, while employees can have all the rights in the world to dress according to their gender expression.

AB1236 – the law covers cities and counties where employers use E-verify. The law allows employers to voluntarily use E-verify. However, a city or county government may not order its use to hold the employment of undocumented employees.

Some of these new California Labor Laws cost a huge amount of fund. Therefore, they became controversial considering that the country is currently in a weak economic disposition to tolerate such expenditures.

Even so, the bills have been approved and are being implemented by California governor Jerry Brown despite the negative opinions from the public. Hopefully, such new laws would bring a positive result to the Golden State.

Music Print Publishing Company Sued for Failure to Correct Harassment in the Workplace

2012-03-16T23:36:19Z

A Minnesota-based music print company was sued by the EEOC after the agency received complaints alleging that the company failed to correct harassment in the workplace despite multiple complaints that the company management received from its employees.

A sexual harassment lawsuit has been filed by the EEOC after the agency learned that Hal Leonard Publishing subjected its female workers to unwanted squeezing and grabbing. Employees were also subjected to sex-based comments and gestures at the company’s facility in Minnesota.

Allegedly, despite multiple complaints filed by the company’s employees, its management failed to do any corresponding action to stop the misconduct.

The EEOC immediately responded to the employees complaints by conducting an investigation. Therefore, the EEOC found a reasonable cause to believe that Hal Leonard violated the Title VII of the Civil Rights Act of 1964.

To settle the complaints, Hal Leonard agrees to pay $150,000 to a class of victims and will ask for apology to the former employees that filed the sexual harassment lawsuit. The company is also required to conduct a yearly anti-discrimination training, and provide a documentation of all harassment in the workplace complaints in the workplace for three consecutive years. Also, said company is further required to provide documentation of a provision regarding accountability in performance evaluation of managers, supervisors and senior employees.

The EEOC warned Hal Leonard, as well as other companies, to strictly implement its sexual harassment policy because if they will not comply with the federal rules, they will definitely put their own company at risk since harassment in the workplace is a very serious matter.

However, despite the sanctions imposed by the EEOC against Hal Leonard, the agency expressed its appreciation to the latter for entering into an agreement with them which will settle the case without the need to go through the long process of litigation.

Sexual harassment in the workplace has been seen as not only an insult against modesty, but more importantly, it is interpreted as a humiliating conduct affecting the well protected rights of employees.

Former Employee Earns Split Decision over Dell’s Gender Discrimination Lawsuit

2012-03-09T23:52:18Z

An ex-employee of Dell Inc., who filed a lawsuit regarding gender discrimination against the company, earned a split decision in a recent federal court ruling last week.

Although the US court for the Western District of Texas found that Dell failed to comply with its incentive bonus agreement with its former employee, Ellen Fleming, the court also ruled that the gender issue has nothing to do with her termination in March 2009.

The court ruled that Dell is required to play Fleming an incentive bonus of more than $50,000 but the same also ruled that Fleming also committed a mistake when she violated the company policy through forwarding e-mails from her company computer to her personal computer at home to secure evidence of the company’s alleged discriminatory practices such as gender discrimination in the workplace. Therefore, Fleming on the other hand, is also required to pay Dell with about $13,000 under the terms of her performance–based stock agreement according to court jury.

The split decision came out after Dell filed a counterclaim following Fleming’s gender discrimination lawsuit and other claims in December 2010.

In Fleming’s lawsuit, she claimed that her annual bonus was withheld because she refused to sign a waiver of rights which would bar her from filing for a claim against the company. While in Dell’s counterclaim, it stated that it is Fleming who violated the company policy when she illegally transferred the company e-mails in her personal e-mail.

Dell is one of the most established and well-known computer makers in the world and houses about 14,000 workers in Central Texas, while Fleming has been employed there for eleven years as an executive.

Meanwhile, Fleming’s lawyer could not be reached for comments.

Under the employment rights, an employee can file for employment discrimination lawsuit against an employer once an employee suffered unfair treatment and discrimination in the workplace. However, employees should take note that in a discrimination claim, a claimant must not only prove that a discrimination has been made by the employer, but must also stress out that the discrimination was made based on either race, gender, or disability.

In Flemings’ lawsuit, she probably failed to provide sufficient evidences to support her complaint for gender discrimination in the workplace; hence, the rather close decision.