How to File a Complaint with the California Labor Commissioner

The office of the Labor Commissioner at the California Division of Labor Standards Enforcement (DLSE) reviews claims of employees regarding employers who violate laws related to employment. Filing a complaint may involve strict deadlines, accurate completion of a number of forms, and collection and submission of evidence supporting your claim. The following includes some information regarding how to file a complaint with the Labor Commissioner.

Discrimination Complaints

Specific procedures must be followed in order to file a complaint regarding unlawful discrimination based on protected factors, harassment, retaliation for reporting discrimination or harassment, wrongful termination, or other related matters. To file a complaint, you must:

• Be an applicant, employee, or former employee who suffered adverse employment actions (denial of job, demotion, termination, or other discipline) due to unlawful discrimination or retaliation.
• File your complaint within six months of the discriminatory action (this deadline can vary for other specific types of claims, so always check with an attorney regarding the deadline in your case).
• Complete and mail the correct form, including your personal information, employer information, your allegations, the remedies you are seeking, and witnesses who can attest to your allegations.
• File your claim by mail or in person at the office of the DLSE that handles discrimination claims in your area.

Wage Claims

These requirements apply to filing a wage-related complaint:

• You must be an employee or former employee who has suffered one of the following:
  • Unpaid wages;
  • Unauthorized deductions from your pay;
  • Failure to reimburse you for business expenses;
  • Inadequate meal or rest break periods;
  • A paycheck that bounced;
  • Not receiving your final paycheck; or
  • Not being allowed to inspect your pay records.
• You must file your claim within three years of the alleged violation (or within one year for certain types of violations).
• You must accurately complete and mail the correct wage claim form, including detailed information regarding your hours worked, wages received, and unpaid wages. You must also complete any additional necessary forms if your claim involves irregular hours, commission, or vacation wages.
• You must submit a copy of your time records, pay statements and checks, dishonored checks, notice of employment information, and collective bargaining agreements, if applicable.
• You must file your claim by mail or in person at the office of the DLSE that handles wage claims in your area.

If you make errors on your paperwork or do not send in the correct supporting documents, your claim may be significantly delayed or even denied. You should never risk a denial by incorrectly following procedures for filing a complaint.

Contact an Experienced Employment Law Attorney for Help Today

Filing a complaint or claim with the Labor Commissioner in California can be complicated. In order to make sure you do not make a mistake and reduce your chances of recovery, you should always seek out the assistance of an experienced employment law attorney as soon as possible. At the Pershing Square Law Firm, we have successfully assisted numerous employees receive the compensation they deserve, so please do not hesitate to call today at (213) 377-5796 to discuss your case.

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.

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.

Forbes.com 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.

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.

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.

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.

Workplace Social Media Policies Cannot be Overbroad

As social media sites gained popularity, employers often disciplined or terminated employees who made negative remarks regarding their workplace online.  In fact, many companies instituted policies that specifically limited the kind of information that employees could post on their personal social media profiles.  Violating these policies has resulted in terminations, and many former employees have brought cases claiming they were wrongfully terminated in violation of their rights to free speech.

Traditionally, employees have had the legal right to discuss workplace matters or express dissatisfactions with one another.  This type of expression used to happen in company cafeterias or at work happy hours, however in recent years, social media has largely become the new “water cooler.”  Many Americans who have social media profiles are connected or “friends” with fellow co-workers online.  Often times, one disgruntled employee may complain about the workplace on a status update and other employees will chime in by commenting or re-posting.  This situation has become commonplace.  However, a large number of companies had put in place social media policies that generally prohibited employees from discussing company matters or from making disparaging comments regarding the company, managers, or co-workers online.

Recent NLRB Advice

This situation is illustrated by a recent case examined by the National Labor Relations Board 

(NLRB) regarding employees of a non-profit company in New York.  One employee had taken to Facebook to complain about working conditions and several other colleagues posted angry comments in agreement.  The company fired five of the employees involved for the Facebook activity.  The NLRB found that the employees were wrongfully terminated for concerted activity that is protected by the National Labor Relations Act (NLRA).  Even though these employees were not in a union, the NLRB said these protections expand to non-unionized private sector employees, as well.

The NLRB issued an advice memo that seems to apply traditional rules of what employees may or may not say to online territory.  The NLRB warned companies that overbroad social media policies will infringe on employees’ rights to criticize work conditions or treatment of employees.  For example, General Motors’ policy prohibited “offensive, demeaning, abusive or inappropriate remarks,” and Costco’s policy disallowed any comments that “damage the company” or “any person’s reputation.”  The NLRB found that such policies prohibited a broad spectrum of possible online communications that employees have the right to engage in under the NLRA.

Furthermore, companies cannot simply disallow the posting of “confidential information,” without further specifying which types of information are considered to fall into that category.  Instead, the policy should state exactly what kind of information is prohibited, such as trade secrets, client information, unreleased product information, or private health details.

Many companies are complaining that the NLRB is applying concerted activity rights typically associated with unions to the private sector in general, however the NLRB responded that all employees have these free speech rights and the rights to converse with fellow co-workers regarding their employer.  These rights do not change simply because the conversation takes place online and not in person.

If you believe your employer has infringed upon your social media rights, contact Pershing Square Law Firm today.

Facebook “Like” is Not a Valid Reason for Termination

An employee cannot be terminated for engaging in activities that are protected by public policy.  Such protected activities include refusing to violate a law, engaging in a legal duty such as jury duty, or exercising a legal or constitutional right.  If an employer fires an employee for any of these reasons, the employee likely has a case for wrongful termination.

Recent Case

Recently, former employees of the Sheriff’s Office in the City of Hampton, Virginia filed a lawsuit alleging they were wrongfully terminated after exercising their constitutional rights.  The plaintiffs included former deputy sheriff Daniel Ray Carter, Jr. and his former co-workers.  They worked for the office during an election in which the incumbent sheriff, B.J. Roberts, was running.  The employees each “liked” the campaign page of Sheriff Brown’s election opponent, which angered the sheriff.  In a speech to the office, the Brown told his employees that he knew of their support for his adversary as demonstrated by their Facebook activity.  The Brown also threatened that, if he were re-elected, any of his opponent’s supporters would lose their jobs.

Sheriff Brown ultimately won his reelection and subsequently terminated each of his employees who had “liked” his opponent’s Facebook page.  Carter and his now former co-workers filed a lawsuit against the Sheriff’s Office, alleging they had been wrongfully terminated in violation of public policy.  Specifically, they alleged they were fired for exercising their rights of free speech protected by the First Amendment of the United States Constitution.

The Court Decisions

At the trial level, the court found for the Sheriff’s Office.  The court reasoned that clicking a single button to “like” a Facebook page was not sufficient activity to qualify as protected speech.  Previous court decisions had held that expressions on Facebook statuses and the like did qualify as speech under the First Amendment, however the district court in this case stated there was a clear distinction between publishing a status message with words and a single click of a mouse.

The case was appealed to the United States Court of Appeals for the Fourth Circuit, which overturned the decision of the lower court.  The circuit court stated that when a person “likes” a particular Facebook page, their “like” is communicated to all of their Facebook connections in several ways through notifications, newsfeeds, and on their own profile page.  Therefore, the court decided “liking” a political page is akin to showing support for a campaign in other ways, such as placing a political sign in your front yard.  Therefore, a click of a mouse to “like” a page could be considered protected political speech under the First Amendment and would then be wrongful grounds for termination.

This precedent sends a warning to employers that they may not simply fire employees for disagreeing or disliking certain online activities, such as “liking” something on Facebook.  Furthermore, activity on social media sites is becoming increasingly protected activity in general.  If you believe you have been wrongfully terminated for protected activity or any other reason, it is important that you contact an employment attorney at Pershing Square Law Firm to discuss a possible case.