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.

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.

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.

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.

UPS Changes Employees’ Spouses’ Healthcare Coverage Because of Affordable Care Act

Employees at United Parcel Service (UPS) will not be able to receive healthcare benefits for working spouses who are eligible for coverage through their own employers, according to recent reports. UPS stated that it made this change because of rising costs caused by the Affordable Care Act.  This change is an example of ways that employers might attempt to lower costs under the new healthcare law.  However, employees should be aware of changes that might subject them to harassment, retaliation, or discrimination.

New Employee Benefit Policy

A spokesman for UPS stated that the company’s new policy is part of an effort to keep employees’ healthcare premiums from rising above current levels.  Importantly, the change would only apply to working spouses who are eligible for healthcare through their own employers.  UPS stated that the new policy was based on the fact that the Affordable Care Act requires all employers to provide health coverage to their employees, including working spouses of UPS employees.  When the change goes into effect on January 1, an estimated 15,000 to 33,000 spouses will be dropped from coverage for medical benefits, though they will still be eligible for dental and vision benefits.

Legal Ramifications?

However, according to a study done by two law professors at the University of Illinois, the Affordable Care Act might cause employers to make changes that could be unfair to employees or could even amount to harassment or discrimination.  One of the possible changes that has received the most press is that employers might slash employees’ hours so that they are not full-time employees who must be covered.

Another potential employer action might lead to discrimination against some employees.  Employers might start asking employees or prospective employees about their plans for healthcare coverage.  Employees who will receive healthcare coverage through a spouse might receive preference over employees who intend to seek coverage through their employer.

Another possibility is that employers may retaliate against employees who subject them to fines under the Affordable Care Act.  Employers will have to pay fines under the healthcare law if they do not provide coverage to employees or if they provide inadequate coverage that causes employees to purchase subsidized healthcare through the state.  Therefore, if an employee purchases healthcare through the state because an employer’s healthcare coverage is inadequate, that employer may face fines under the healthcare law and might retaliate against that employee.

The Bottom Line

The new healthcare law may cause employers to change their practices in order to keep costs down.  However, employees should not have to face harassment, retaliation, or discrimination based on the new healthcare law.  It is possible that unfair practices could lead to an employment lawsuit or other legal measures.  If you would like to learn more about this issue, feel free to contact an employment lawyer for information or advice. 

Supreme Court Makes Landmark Decision in Workplace Retaliation Case

Workplace Retaliation in the U.S.

Many employees are fearful about coming forward with a complaint when they are experience harassment or discrimination in the workplace. The thought of losing workplace privileges, being subjected to worse harassment, or even being fired all cross the minds of employees who are thinking about speaking out against this conduct. However, both California and federal law prohibit an employer from taking such adverse action against an employee for asserting his or her rights against workplace discrimination or harassment.

In fact, the federal law regarding workplace retaliation claims was clarified by the Supreme Court this summer.

Landmark Retaliation Case Considered by Supreme Court

Retaliation claims—that is claims that are brought against employers or organizations for taking adverse action against an employee for asserting his or her rights, including bringing complaints for harassment or discrimination—fall under Title VII of the Civil Rights Act of 1964. The law can be developed by interpretation by the courts, as it was in the most recent decision in June. The Legal Information Institute at Cornell University Law School reports that the plaintiff-employee in University of Texas Southwestern Medical Center v. Nassar had originally brought a claim for retaliation after his employer denied him a position. He previously wrote a resignation letter that alleged that the University of Texas Southwestern Medical Center had discriminated against him on the basis of his Middle Eastern descent.

According to Mondaq.com the case was appealed to the United States Supreme Court, and a landmark decision was reached with Justice Kennedy delivering the opinion.

Ultimately, the Supreme Court held that when a plaintiff-employee brings a suit for retaliation under Title VII, he or she must prove that the adverse action would not have occurred “but for” the employer having a retaliatory motivation. That is, the employee-plaintiff must prove that in absence of the motive to retaliate, the retaliation would not have occurred. The Court differentiated this standard from discrimination claims, which only require that the employee-plaintiff show that a discriminatory motive was a “motivating factor” in an employment decision.

Implications of Supreme Court’s Decision

What the Supreme Court’s decision means is that it may be more difficult for employee-plaintiffs to prevail on a retaliation claim under the “but-for” analysis.

However, the dissent, in the case argued that the more onerous “but for” burden of proof should motivate Congress to enact legislation updating the Civil Rights Act.  The dissent also noted that retaliation and discrimination have always “traveled together” and that the causation standards for both should not be split.

While, at least for now, the “but for” standard may make it more difficult for plaintiff-employees to prevail on a claim for unlawful retaliation, the law still prohibits employers from firing, demoting, harassing or otherwise acting adversely to an employee based on the fact that he or she has filed a charge of discrimination or has otherwise opposed discrimination or harassment.

If you are or have been a victim of harassment or retaliation, you should immediately seek the assistance of an experienced employment law attorney. The law limits the time you have to file a potential claim, so contact the attorneys at Pershing Square Law Firm today.