Harmless Banter May Escalate to Harassment

When adults spend an enormous amount of time together, they are bound to have some adult-themed conversation at some point. Much of the time, conversations with sexual content or undertones can be harmless, consensual, and enjoyable. However, when sexually themed comments and conversations become common in a workplace environment, the risk arises that the conversation may escalate and potentially offend some employees. For this reason, managers and supervisors should always try to rein in any type of sexual banter at work.

Consider the following example: a male employee with no ill intentions makes a comedic sexually-themed comment to a female colleague, and the female laughs. Because she laughed, he may be encouraged that she appreciates and is comfortable with that type of humor, and may continue to make similar jokes or comments in the future. The sexual nature of the comments may increase, and though she may become slightly uncomfortable, she does not object or ask him to stop making such comments. Believing his co-worker is completely at ease with sexual conversations, the male employee stops making jokes and begins directing sexual comments at her by inquiring about her sex life or commenting on her body. He reaches out and touches her to illustrate remarks about her body, and begins regularly leering at her. Now highly offended, the female employee files a formal complaint of sexual harassment.

These are the actual facts of a case brought by the Equal Employment Opportunity Commission (EEOC) against the office of the Governor of Alaska for sexual harassment of one Special Staff Assistant against another. Had the original sexually-themed jokes never occurred or been discouraged, perhaps the office could have avoided the case altogether.

Companies should try to avoid harassment lawsuits

Fashion house Gucci recently faced a similar—and unwarranted—sexual harassment claim. After a male employee was legitimately fired due to his demeanor at work, he brought a claim alleging that workplace banter regarding a supervisor’s sexual orientation had created a hostile and offensive work environment for him. Though the court decided that such banter did not, in fact, create a sexually hostile work environment, Gucci still had to dedicate time, money, and energy to defending the claim in court. The company could have possibly avoided the entire ordeal had they worked to control sexually-themed banter to begin with.

Employees may also do their part to avoid escalation to sexual harassment. One employment law attorney advised employees to always pretend they were speaking with their first grade teacher or mother, and to edit the content of the conversation accordingly. If conversations do not have any sexual connotation at all, you will never risk sexually offending someone. Furthermore, if any conversation makes you even slightly uncomfortable, speak up and inform your co-worker immediately that you would like that conversation or behavior to cease, and would not appreciate similar conversations in the future.

Finally, if you do believe you have been sexually harassed at work, it is important to contact an experienced employment law attorney at Pershing Square Law Firm as soon as possible for help.

Can My California Employer Check My Credit?

In previous years, it was common for employers throughout the United States to check a job applicant’s credit to help make employment decisions. If applicants had poor credit, the potential employer would often see that as a sign of irresponsibility and decide not to hire that person. However, in recent years, with the economic downturn, more Americans than ever have credit problems. Unemployment, mortgage foreclosures, and other financial struggles have made it difficult for people to pay all of their bills and have caused a large number of credit scores to plummet. Those lower credit scores have made it difficult for some Americans to secure employment, which only furthers their financial difficulties.

Recent reports, however, have indicated that a low credit score has little to no reflection on whether an applicant has the ability to adequately perform job duties. For that reason, in December of 2013, Senator Elizabeth Warren (D-Mass.) introduced proposed federal legislation, the Equal Employment for All Act, which would amend the Fair Credit Reporting Act (FRCA) to prohibit employers across the United States from using credit information to make employment decisions, all in order to protect applicants and employees from unjust discrimination.

California Credit Check Laws

While the federal legislation is still pending, California job applicants and employees are already protected from discrimination based on credit checks. California is one of ten states that have enacted such legislative protections for employees as of January 1st, 2014. These states include California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, and Washington. Additionally, 35 other states have pending legislation related to employer credit checks.

Generally, most California public and private employers may not use credit information as the basis for any adverse employment action, such as hiring, demotion, rejection for promotion, or termination. An employer may not otherwise discriminate against or harass an employer based on credit information.

Exceptions to the Law

There are certain exceptions in which an employer may use credit information as the basis of an employment decision. Such exceptions are necessary in fields of employment that involve the handling of money or certain financial responsibilities. Some exceptions include applicants for:

·         A managerial position who qualifies for the executive exemption from wage and hour laws;

·         A position that allows the employee to transfer company money, enter into financial contracts for the company, or be a signatory on the company’s credit cards or bank accounts;

·         A position that gives the employee access to large amounts of credit or bank applications or other personal information of customers;

·         A position that gives the employee access to trade secrets or other confidential company information;

·         A position in which the employee handles large amounts of client money.

It makes sense that credit checks would be allowed for such positions that require a large amount of trust or financial responsibility. However, for any other type of position, California employers should never use credit information to make decisions or to discriminate against an applicant or employee.

If you have any concerns about employer credit checks, or if you believe that a company has violated employment laws, contact the office of Pershing Square Law Firm today for assistance in protecting your rights.

California Supreme Court Asked to Review “Suitable Seating” Law

California labor laws include a “suitable seating” provision, which has recently come under debate in the state courts.  Two different labor laws include suitable seating provisions, one law applies to the mercantile industry and the other applies to the professional, technical, clerical, mechanical, and similar occupations.  In both labor laws, the suitable seating provisions are identical and read as follows:

(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.

(B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.

Recent Suitable Seating Cases

Two proposed class action suits regarding suitable seating violations were dismissed and then appealed in 2013.  The first lawsuit was brought by a former cashier at CVS Pharmacy, who spent 90 percent of her shifts behind the cash register and claimed the company violated the law when it refused to allow her to sit down during this time.  The second lawsuit was filed by four former tellers at JPMorgan Chase Bank, and claimed the corporation unlawfully refused to let tellers sit down.

The trial court refused to allow the class actions suits to proceed, stating that a company may use business judgment in deciding whether employees should sit down based on the “entire range of an employee’s duties.”  Because the companies stated the employees did not spend 100% of their time behind the register, the lower court found that standing may be required to allow them to move about the store.  However, the employees disagree, stating that while they are behind the register, they should be allowed to sit down.

On appeal, the Court of Appeals for the Ninth Circuit had three main questions:

1. Does “nature of the work” refer to the full range of an employee’s duties or to individual tasks?
2. Should courts consider the employer's business judgment as to whether the employee should stand, the physical layout of the workplace, or the physical characteristics of the employee?
3. If an employer has not provided any seat, does a plaintiff need to prove what would constitute 'suitable seats' to show the employer has violated Section 14(A)?

Because this decision could potentially affect a large number of companies throughout California and could possibly result in tens of millions of dollars in penalties, the Court of Appeals requested on January 2, 2014 that the California Supreme Court review the questions and decide the answers.  The individual cases will be put on hold until the Supreme Court makes a decision, and we will be keeping you posted on those decisions.

If you have any concerns about your employer violating state or federal labor laws, you should always contact the experienced employment attorneys at Pershing Square Law Firm for assistance today.

Hot Employment Issues Going into 2014

Many employment cases involve groups of employees coming together to hold their employer accountable for widespread wrongdoing.  Lawsuits that involve large groups of plaintiffs like this are called class actions.  Class action employment cases used to often involve numerous employees who claimed they suffered the same type of discrimination.  However, the Supreme Court recently made it more difficult to qualify as a class in its decision in Wal-Mart v. Dukes.  In that case, 1.6 million female employees of the retail giant claimed they had suffered sex discrimination in the company’s promotion and pay raise practices.  The Supreme Court decided that the women did not have common enough experiences to constitute a class.  As a result of this decision, filing class action discrimination cases will now require prohibitive amount of discovery and other work for the plaintiffs.

Since the decision in 2011, employment law experts expect a drastic decline in the number of class action discrimination lawsuits.  However, this does not mean that employment cases will decline overall, as other hot employment issues are popping up in cases on a more regular basis as we go in to 2014.

Wage and Hour Cases

Wage and hour lawsuits have been on the rise, with the number of cases increasing 10 percent from 2012 to 2013.  Experts expect that number to keep rising, especially in light of the Wal-Mart v. Dukes decision.  Some common bases for wage and hour cases include:

·         Misclassification of employees vs. independent contractors

·         Non-payment of interns

·         Failing to pay full overtime wages

·         Failing to pay for time spent preparing for shifts or cleaning up after shifts

·         Not paying workers on time

·         Not paying workers their final paychecks if a company goes out of business

California is one of the states with the most worker-friendly wage and hour laws, along with New York, New Jersey, Pennsylvania, Massachusetts, and Florida.  Therefore, California is especially expected to see an increase in this type of case in 2014.

Social Media Cases

The use of social media in the workplace has also become a hot-button employment issue.  New laws prohibiting employers from demanding access to employees’ personal social media profiles will be the focus of new cases targeting non-compliant companies.  Furthermore, many cases will likely involve wrongful termination in violation of the employee’s First Amendment rights to free speech, after an employer fires someone for posting certain material on social media sites.

Whistleblowing

The 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) provides several protections, incentives, and financial rewards for whistleblowers who report violations regarding insider trading, corporate disclosure, accounting fraud, dealer-broker violations, and more.  Expect to see several whistleblowing claims arising in the New Year.  These cases will mostly involve claims of unlawful retaliation against protected whistleblowers.

In short, employment cases will not decrease simply because of the difficulties facing potential class action discrimination suits.  Employees still have plenty of reasons to file claims against their employers to receive the compensations they deserve.  If you are facing any employment issue, do not hesitate to contact the Pershing Square Law Firm to discuss a potential case.