Tuesday, November 26, 2013

California Teacher Claims Harassment, Retaliation by Public School District

Harassment based on sex can take many forms.  The most commonly thought of form of sexual harassment actually has a sexual motive and may include unwanted propositions, inappropriate remarks, conduct, or physical conduct.  However, some sexual harassment does not have to be sexually motivated and may simply be due to a person’s gender, such as making offensive comments about men or women in general.  Furthermore, harassment based on sexual orientation, gender identity, or nonconformity to gender stereotypes is also included under the sex harassment umbrella.  One California teacher has recently filed a lawsuit against a public school district, alleging harassment and retaliation based on her sexual orientation.

Julia Frost worked as a probationary English teacher at Sultana High School in the Hesperia Unified School District in San Bernadino, CA.  Frost is openly lesbian and also worked as a sponsor for the Gay/Straight Alliance, an extracurricular group intended to provide a supportive and safe group for LGBT youth and straight allies.  Frost was ultimately terminated and filed a lawsuit against her former employer for harassment and retaliation.

Harassment Claims

In her complaint, Frost alleges that school administrators generally created a hostile environment for all LGBT persons, students and teachers alike.  She claims that when gay students complained to administrators of bullying because of their sexual orientation, administrators discouraged the complaints and instead threatened to “out” the students to their parents.  Frost claims that the Gay/Straight Alliance was purposely left out of a school activities handbook and that the announcements of the group were heavily censored.  In addition to harassment and discrimination against the students, Frost experienced similar discriminatory actions herself.  The alleged harassment against Frost includes:

·         Coworkers asking if she was the male or female in her same-sex relationship
·         Being accused and investigated for “teaching homosexuality”
·         Having administrators frequently observe her classroom to make sure she was not teaching “gay things”

Frost claims that school officials’ actions against LGBT teachers and students were discriminatory, offensive, and created a hostile environment that meets the standard for harassment.

Retaliation Claim

A student came to Frost and told her that another teacher had made the statement “That’s so gay” in a disparaging way and had instructed him to “take the gay headband off.”  Frost helped the student print out, complete, and file a complaint form against the teacher for the homophobic comments.  Shortly thereafter, the principal called Frost into his office and stated she was not a “good fit” for the school and that her contract would not be renewed.  Frost claims she was terminated in retaliation for helping to lodge a complaint against another teacher.  Both the American Civil Liberties Union and Lambda Legal are helping Frost file the lawsuit and we will wait and see the outcome of the case.

Discrimination, harassment, and retaliation based on a person’s sex is illegal and is never acceptable in the workplace.  If you believe you have been the victim of any type of unlawful discriminatory action at work, you should contact the employment attorneys at Pershing Square Law Firm as soon as possible for help.

Tuesday, November 19, 2013

Will Automatic Gratuities Disappear in 2014?

 The restaurant industry has traditionally been a hot bed for wage and hour violations.  Restaurants across the country have recently attracted a lot of attention from the Department of Labor (DOL) due to investigations of possible violations of the Fair Labor Standards Act (FLSA), which regulates wage and hour requirements on the federal level.  In a recent crackdown in Portland, Oregon, the DOL discovered FLSA violations in an incredible 79% of the restaurants investigated.  Many violations in the restaurant industry stemming from confusion and complications regarding tipped employees.  Though many servers and bartenders receive an hourly wage below the standard minimum wage, their hourly wages plus tips must add up to at least the mandated minimum wage.  Furthermore, many restaurant owners regularly miscalculate overtime rates for these employees as well.

New Tip Regulations for 2014

Distinguishing tips from wages has also been a controversial practice for both wages and for tax reporting purposes.  Because of the tax implications, the Internal Revenue Service (IRS) released an advisory bulletin last year that goes into effect as of January 2014, clarifying the tip-wage distinction for restaurant employees.  The bulletin states, in short, that any mandatory gratuities added on to a restaurant bill should be counted and taxed as wages, not tips.  Specifically, the bulletin reasons that a tip is defined as the following:

·         A payment by a customer free of compulsion
·         The amount of the payment is determined freely by the customer
·         Payment must not be negotiated or required by an employer’s policy
·         The customer may decide to whom they directly give the payment

Mandatory gratuity does not fit any of these four requirements for “tips.”  Therefore, the IRS has deemed that mandatory gratuity is instead a service charge, which would be considered a wage under federal tax guidelines.

Why is Wage v. Tip important?

Currently, service industry employees report their own tips to their employer for tax withholding purposes and employers must not withhold taxes on any unreported tips.  However, since mandatory gratuities are considered wages, employers must keep track of all of these gratuities, withhold taxes, and report them to the IRS.  Any failure to do so could result in penalties.  Additionally, if an employer does not factor such wages from mandatory gratuity into an employee’s hourly rate, overtime compensation rates may be inaccurately low.  Not providing enough overtime pay can result in FLSA violations.

In response to the IRS bulletin, many restaurants are choosing to eliminate mandatory gratuities, even for large parties.  First, most restaurant owners do not want to deal with the additional tracking of the gratuities.  Furthermore, because the Department of Labor is already keeping a close eye on restaurants, looking for possible FLSA violations.  Therefore, there is a greater chance that violations be discovered and will result in claims and penalties against the restaurant.

If you work in the service industry, you should know that you are entitled to all mandatory gratuities and must pay taxes on those wages as of January 2014.  If you believe your employer is not complying with the new laws or with any other tax laws, contact the Pershing Square Law Firm to discuss a possible case.

Tuesday, November 12, 2013

How to Protect your Rights if you are Sexually Harassed at Work

Sexual harassment in the workplace is unacceptable and against the law.  Sexual harassment is a form of discrimination on the basis of gender, which Title VII of the Civil Rights Act of 1964 prohibits.  Though the law does not protect employees from mere teasing or isolated incidents, if the harassment causes an offensive or hostile work environment, the victim likely has a case.  Furthermore, the victim would also have a good case if the harassment resulted in an adverse employment action, such as turning the victim down for a promotion or terminating the victim.  Whenever you believe you may be experiencing harassment at work, it is always a good idea to contact an employment attorney to discuss a possible case.

Additionally, if you believe you have been sexually harassed, there are a few basic steps you should take in order to preserve your rights.  These include:

Do not simply quit.  Even though you may be embarrassed or uncomfortable returning to work, you should not quit unless you believe your safety is in jeopardy.  You must instead look up the company’s policy on sexual harassment and follow the steps set out in that policy for victims of harassment.  If you quit, it is unlikely you would have adequately followed the company policy and you may lose your right to sue.

Talk to the harasser.  One requirement for sexual harassment is that the actions must have been unwanted.  Therefore, you must make it clear that you are not willing to participate in the sexual behavior and that you did not like it.  Many offenders try to claim that victims “laughed off” their comments, so make it clear that you would like the behavior to stop.  Again, only do this if you feel safe.

Report the behavior.  If nothing changes after you talk to the offender, as mentioned, you must find your company’s policy on harassment and report the offending behavior through all the appropriate channels.  Making an internal complaint lets the company know there is a problem and gives them a chance to remedy the situation.  If the company does nothing in response to your complaints, you will have a stronger case for greater damages in court.

File a charge.  Before you can sue, you must file a claim with the California Department of Fair Employment and Housing (DFEH) or the federal Equal Employment Opportunity Commission (EEOC).  After investigating or reviewing your charge, the agency will issue you a right to sue letter if they believe you have a case.  If you skip this step in the process, any lawsuit your file in court will almost certainly be dismissed.

Make sure you have an experienced employment attorney.  Following company and administrative agency policies for reporting sexual harassment may be confusing, complicated, or simply frustrating.  It is always helpful to have a knowledgeable employment attorney guiding you through the process to ensure all of your rights are preserved and that you have a strong case in court.  If you believe you have been harassed, contact Pershing Square Law Firm as soon as possible.

Monday, November 4, 2013

California Broadens Workplace Sexual Harassment Protections

The California Fair Employment and Housing Act (FEHA) protects workers in this state from sexual harassment at work.  Some of the behaviors that violate FEHA may include:

     Unwanted sexual advances or propositions
     Asking to exchange sexual favors for employment benefits
     Threatening adverse employment action if sexual advances are turned down
     Making derogatory comments, slurs, or jokes
     Verbal commentaries regarding a person’s body
     Discussing a person in a sexually degrading manner
     Leering or making inappropriate sexual gestures
     Displaying suggestive or offensive pictures, posters, or cartoons
     Writing sexually obscene notes, emails, or invitations
     Unwanted touching, groping, blocking, or other forms of physical assault

In August of this year, California Governor Jerry Brown signed Senate Bill 292 into law, which would amend the sexual harassment provision of FEHA.  SB 292 will add the clarification that “Sexually harassing conduct need not be motivated by sexual desire.”

Kelley v. Conco

This new clarification of the law follows the decision in a recent sexual harassment case, Kelley v. Conco Companies.  In that case, Patrick Kelley worked for Conco on various jobsites.  Kelley claimed that a male supervisor made repeated, highly graphic, sexually demeaning comments to him after he made a mistake on the job.  Other male coworkers joined in with the offensive and obscene sexual comments.  Kelley reported the offensive conduct to another supervisor who informed him, “That's just the way these guys are.”  For weeks after Kelley complained about the harassment, many other coworkers repeatedly called him “gay” and a “snitch” and physically threatened him on a regular basis.  Kelley filed a lawsuit for sexual harassment and retaliation under FEHA.

In that case, the trial court decided that Kelley could not show sexual harassment and the Court of Appeals affirmed the decision.  The court reasoned that not all demeaning, crude, offensive, or sexually-related comments automatically fell under the definition of sexual harassment.  The court also stated that Kelley had not shown that the comments came from a place of sexual desire or intent toward him from his supervisor or coworkers.  Furthermore, the court determined the comments did not directly stem from Kelley’s actual or perceived sexual orientation.

New Protections

Wanting to avoid a repeat of the Kelley decision, California Senate Majority Leader Ellen Corbett wrote and introduced SB 292 in an effort to broaden sexual harassment laws and ensure the laws protect all employees from sexually offensive conduct.  No employee should have to endure vulgar or obscene comments or gestures at work, regardless of the motivation behind the conduct or the gender and sexual orientation of the victim.  The new clarification in FEHA aims to guarantee that all California employees better receive full protection under the existing sexual harassment laws.

SB 292 and the revisions of FEHA will go into effect starting January 1, 2014.  Hopefully, the new version of the law will serve as a reminder that to employers that sexual harassment may take many forms and thus employers should have zero tolerance for harassment of any kind.  If you believe that you have suffered any type of harassment at work, do not hesitate to contact Pershing Square Law Firm as soon as possible.