Monday, December 30, 2013

New California Employment Laws for 2014

As we enter 2014, it is important to be aware of the new and amended employment laws that go into effect in the new year.  As an employee, you should always stay up to date on your employment rights and protections so you will be able to recognize violations on the part of your employer.  The following are some of the new employment law developments for 2014.

Minimum wage:  The minimum wage in California will go from $8.00 per hour to $9.00 per hour in 2014.  The minimum wage will increase again to $10.00 in 2016.

Sexual harassment clarification:  California’s laws against sexual harassment will be amended to clarify that offending behavior need not be motivated by actual sexual desire to constitute harassment.

Whistleblowing protection:  The whistleblowing laws currently prohibit retaliation against an employee who reports violations of state or federal law.  The amended law will also go further to protect employees who reports violations of local rules and regulations.

Military protections:  Anti-discrimination laws will now include military and veteran status to the list of protected categories.  This means that employers may not discriminate, harass, or retaliate against an employee based on their current or former military action.

Immigration protections:  The law prohibits employer from retaliating against an employee by threatening to report their immigration status to authorities because the employee complained of or reported employment law violations.  State agencies will be able to revoke business licenses or file charges of criminal extortion against employers that violate this law.

Overtime for domestic employees:  The wage and hour requirements of the Fair Labor Standards Act usually do not apply to domestic workers.  The new law, the Domestic Worker Bill of Rights, requires overtime compliance for certain domestic workers that qualify as “personal attendants.”  Employers of domestic workers should examine the definitions in the law to see if it applies to them and their employees.

Heat illness recovery time:  Employers may not require employees to perform work during recovery time for heat illness or exhaustion.  The penalties for violating this law will be the same as for failing to provide required meal or break times.

Leave for crime victims:  Employers will be required to provide job-protected time off work for victims of certain crimes to attend court proceedings that involve victims’ rights.  Additionally, the law that allows leave time for victims of domestic violence or sexual assault will be expanded to protect victims of stalking, as well.

Paid family time:  The Paid Family Leave laws will be expanded to provide wage-replacement benefits for employees who take qualified leave time to care for a seriously ill or injured sibling, grandchild, grandparent, or parent-in-law.

Criminal background checks:  State and local agencies will be prohibited from requiring information regarding criminal convictions before determining that they meet minimum qualifications for the position, unless certain exceptions apply.

Emergency duty leave:  Emergency rescue personnel and reserve peace officers will be entitled to time off work for necessary training.  This law previously only applied to volunteer firefighters and law enforcement.

If you have any questions or concerns regarding new employment laws for 2014, do not hesitate to contact Pershing Square Law Firm as soon as possible for help.

Thursday, December 19, 2013

The Unpaid Intern Question

Unpaid internships are sometimes very helpful for young people to gain training and experience in a particular industry.  In exchange for work, unpaid interns gain the opportunity to improve their resumes and be a more desirable job candidate in that field.  Companies, however, may sometimes take advantage of free labor without providing educational benefits in return.  This problem has become the focus of numerous lawsuits and has consistently made headlines over the past year.

Intern or Employee?

The Fair Labor Standards Act (FLSA) requires that anyone classified as an “employee” must be paid a minimum hourly wage and overtime.  Unpaid interns do not fall under the “employee” label, and thus FLSA requirements do not apply to them.  However, companies may not simply call someone an unpaid intern and expect to gain free labor.  In fact, the United States Department of Labor (DOL) sets out six main criteria for defining unpaid interns:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If these criteria are not met in an internship program, the company should be paying its interns.

Glatt v. Fox Searchlight Pictures, Inc.

The entertainment industry is particularly notorious for using unpaid interns to complete mundane tasks that would otherwise be completed by paid employees.  Recently, this potentially unlawful trend has come to light in many lawsuits, led by Glatt v. Fox Searchlight Pictures, Inc., otherwise known as the “Black Swan” lawsuit.  A group of unpaid interns for Fox who worked on the Academy Award-winning movie, Black Swan, claimed in the lawsuit that their tasks primarily consisted of running errands, fetching coffee, and other mundane tasks.  The interns stated they received no specialized training or other educational benefits and, therefore, should have received minimum wage for their work under FLSA.

A lower court decided that the Black Swan interns did not meet the DOL criteria for unpaid internships and should have been classified as employees.  The case is now under review by a Court of Appeals, and the decision could set the stage for many other unpaid intern lawsuits against companies such as Hearst Magazines, Major League Baseball, Atlantic Records, Conde Nast, and the Charlie Rose Show.  In the meantime, companies should take a look at their internship programs to see if they meet the DOL criteria.   If not, those interns deserved to be paid a minimum wage.

If you have any questions regarding unpaid internships or any other wage and hour concerns, do not hesitate to contact the Pershing Square Law Firm today for help.

Thursday, December 12, 2013

Some Common Workplace Retaliation Scenarios

Most employees know that their employers may not discriminate against or harass them based on their race, color, national origin, sex, or religion under Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act.  However, some employees may not realize that the law further prohibits employers from punishing them if they report or file complaints regarding discriminatory or harassing behavior.  Such punishment is referred to as unlawful retaliation, and may include various actions such as demotion, pay decreases, termination, or any other type of disciplinary actions.

However, workplace retaliation is not always as readily identifiable or obvious to other employees as an outright demotion or termination.  Sometimes, it can be as subtle as a change in attitude toward you by your supervisor, reassignment to a less important project, or not receiving the same training or career building opportunities as other employees.  Such actions can work to create a tense and even hostile work environment for employees, and also constitute unlawful termination. reported that the 12 most common forms of retaliation suffered by employees are as follows:

  • Being ignored, given the silent treatment or cold shoulder by supervisors or coworkers.
  • Being left out of certain projects, activities, or decisions.
  • Not being considered for a promotion or raise they deserved.
  • Being demoted to a position with less power or responsibility.
  • Having their pay or hours cut.
  • Having their job security threatened.
  • Being reassigned to another department, office building, or even relocated to another city.
  • Suffering verbal abuse by management or supervisors.
  • Suffering verbal abuse or harassment by coworkers.
  • Experiencing harassment online via social media sites, email, or instant messaging programs.
  • Having another employee destroy their property or physically harm their person.
  • Experiencing harassment and threats outside the workplace, including at their home or in public.

Employees have the right to speak out regarding unlawful discrimination or harassment in the workplace without additionally suffering retaliation from a supervisor, management, or co-workers.  If you believe you have been the victim of unlawful workplace retaliation, you should first document every adverse action taken against you.  The more specific evidence you have of possible retaliation, the greater the chances you will have to win a later claim.  You should also collect any information that shows your supervisor had no problems with your performance prior to your report or complaint.

You should report your concerns to your supervisor or human resources and ask if there is another reasonable explanation for the negative treatment aside from your prior complaints.  If your employer does not provide another reasonable explanation, you should contact an experienced employment attorney as soon as possible to discuss a possible claim against your employer for unlawful workplace retaliation.  You may be awarded job reinstatement, back pay, and other damages to compensate you for the violation of your rights.

No one should have to deal with unlawful workplace discrimination, harassment, or retaliation.  If you believe your employer has violated your rights under federal and state employment laws, do not hesitate to contact the Pershing Square Law Firm as soon as possible.  A dedicated employment lawyer is waiting to help you.

Wednesday, December 11, 2013

Recent News Stories Reveal Sexual Assault of California Agricultural Workers

Both federal and state laws prohibit sex discrimination and harassment in the workplace by way of Title VII of the Civil Rights Act of 1964 and California’s Fair Employment and Housing Act (FEHA).  Under unlawful sexual harassment, the laws include unwelcome sexual propositions or advances, offensive statements or gestures, leering looks, derogatory comments, statements about a person’s appearance or body, and physical conduct, such as unwanted touching, assault, or cornering or blocking movements.

If an employee has been sexually harassed, he or she would normally be advised to oppose the behavior and report the incident to a supervisor or other appropriate superior.  Many companies have human resources departments or other channels through which to file a report, which may be set out in employer policies or employee handbooks.  No one should be expected to tolerate sexual harassment or a hostile work environment and no one should be afraid to report such conditions.

Sexual Harassment of Farm Workers

Unfortunately, not all workers feel able to report offensive and illegal behavior in the workplace.  National Public Radio recently published a two-part series on sexual assault of female farm workers.  Each part focused on a female who experienced sexual assault by a supervisor while working in the fields of California.  Both of these women were brave enough to eventually report the wrongdoing, however the story reveals there are many, many more women whose harassment and assault at work goes unreported.

Recently, advocates from the Equal Employment Opportunity Commission (EEOC) have been using advertisements on rural radio stations to encourage women who have suffered sexual harassment or assault at work to feel safe and come forward to report the unlawful behavior.  However, there are several reasons why female farm workers are afraid to do so.  These reasons include:

·         Many farm workers are undocumented are fear getting deported if they come forward and lodge a complaint with a government or law enforcement agency.

·         They fear they will lose their jobs.  Many farms are run by a single supervisor who has complete control over who gets hired, promoted, paid, and fired.  Since that supervisor is often the harasser or assaulter, the victims fear not being able to feed their families or pay their bills if they speak.

·         They fear they will not find another job.  As NPR reported, word travels quickly among farm supervisors in California.  If other farm supervisors or workers hear that a female worker has complained of or reported sexual mistreatment, no one else in the industry will hire her.

EEOC officials and legal aid attorneys in the rural areas state that the more female agricultural workers come forward, the more consequences the offending supervisors may have to face.  Those supervisors who are in hot water with the law will then serve as a warning to others in the industry that there may be both criminal and civil consequences for continued workplace harassment and assaults.

As previously mentioned, no one should have to endure offensive treatment on the job.  If you believe you have been the victim of sexual harassment or any other type of unlawful behavior at work, contact Pershing Square Law Firm for assistance as soon as possible.