Employers Must Watch Out for Workplace Cyber-Bullying

Cyber-bullying is the use of the Internet or related technology to harass, stalk, or otherwise harm other people.  While most cyber-bullying headlines tend to involve school-aged children and teens, adults are not at all immune to being the target of cruel online activity.  Employees may post Facebook status updates, tweets, or blog entries that disparage other co-workers, and other employees may then (and often do) chime in on the discussion by commenting or replying.  If this type of behavior is repetitive or causes emotional distress to its victim, it could constitute online harassment.  Though this online activity may take place on personal accounts or even after work hours, an employer may still find itself facing liability for harassment under certain circumstances.

Espinoza v. County of Orange

A Court of Appeals of California decided a case last year that demonstrated how an employer may be held responsible for certain types of online harassment.  Ralph Espinoza was born with no fingers on his right hand and often kept his hand in his pocket out of self-consciousness.  Despite his disability, Espinoza was fully capable of performing all of his job duties as a juvenile corrections officer for the County of Orange.

In August of 2006, fellow co-workers anonymously created two personal blogs from a personal computer that targeted Espinoza.  The blog referred to him as the “one handed bandit,” referred to his right hand as “the claw,” and offered a cash reward for pictures of his hand.  Different employees began regularly accessing the blog from work computers and also contributing to the blog by commenting or creating their own posts using fictitious names.  The harassment began to extend beyond the blog, as Espinoza reported coworkers regularly taunting him, mocking him, and otherwise acting with hostility.  Furthermore, the word “claw” was written throughout his work space and his car was keyed. 

Espinoza had reported the activity numerous times, and the County of Orange did not initiate an adequate investigation or meet with Espinoza for over a year.  In the meantime, the harassment caused Espinoza to have medical problems that required him to take medical leave.  When he tried to return from leave, he had been replaced and opted not to work there in any capacity.

When Espinoza filed suit for harassment and retaliation, the County of Orange argued that it was not liable because the harassment on the blog took place on a personal account and was created outside of the workplace.  However, the court therefore rejected that argument and stated an employer is liable for the conduct of non-supervisory employees if the employer was, or should have been, aware of harassment and did not take remedial measures.  Since the employer did not take action for an extended period of time, it was liable for the harassment and Espinoza was awarded $820,000.

This is only one example of why employers should pay attention to any potential workplace cyber-bullying, even if it takes place on personal account or after work hours.  If you have any question regarding social media in the workplace, contact the Pershing Square Law Firm for help.

California Law Protects Employees’ Social Media Privacy

In the past, employers commonly used social media to get a glimpse into the behaviors of their applicants and monitor any possible employee misconduct.  In recent years, however, employers have had a much more difficult time accessing information about their employees online as social media users began utilizing strict privacy settings on their profiles. 

To get around these privacy settings, many employers were requesting—or demanding—usernames and passwords for their employees’ social media profiles or accounts in order to access their personal information.  State legislators across the United States have been recognizing the need to protect employees against this invasion of online privacy.  The large majority of states have pending legislation related to online privacy and the Password Protection Act of 2013 has been introduced to the United States House of Representatives on the federal level.  California became one of the first states to pass such a law in 2012, and Section 980 of the Labor Code went into effect on January 1, 2013.

How Section 980 Affects Employers

California law now prohibits employers from demanding usernames or passwords for personal social media accounts from applicants or employees.  The law states that “social media” is defined as any electronic service or account, or electronic content.  This definition includes, but is not limited to:

●     Videos

●     Still photographs

●     Blogs

●     Video blogs

●     Podcasts

●     Instant messages

●     Text messages

●     Email messages

●     Online services or accounts

●     Internet profiles on sites such as Facebook, Twitter, LinkedIn, Pinterest, Tumblr, or Instagram

In addition to passwords and usernames, the law also protects any information related to an applicant or employee’s personal social media presence, such as the content of blogs or status messages.  Furthermore, under California law, employers may not demand that an applicant or employee access their own social media profile or site in the presence of the employer or a supervisor so that the employer may view the content of the personal social media account.  Finally, it is unlawful for an employer to discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an applicant or employee for refusing to produce social media usernames and passwords or to divulge any personal social media content.

When an Employer may Access Social Media

There are two major exceptions to the law, however, that allow employers to access private employee social media accounts under limited circumstances.  First, an employer may request that an employee divulge social media information if it is relevant to an investigation of alleged violations of law or other employee misconduct.  In this case, the information obtained may only be used for purposes of the investigation and nothing more.  Second, employers retain the right to request usernames, passwords, or other information necessary to access any electronic devices issued by the employer, such as computers, PDAs, or company email accounts.

As of now, Section 980 of the Labor Code only applies to private employers, however A.B. 25 is currently making its way through the state legislature and proposes the law also apply to public employers in California.  If you believe your employer has unlawfully requested personal social media information or retaliated against you, you should contact Pershing Square Law Firm to help protect your rights.

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.

Is the ‘N’ Word Acceptable Between Black Employees?

Title VII of the Civil Rights Act of 1964 protects employees from discriminatory actions or harassment based on their race in the workplace.  Generally, the use of the racial slurs would be automatically considered harassing behavior.  However, some people may argue that there could be a gray area when words or terms that would normally be racial slurs are used between members of the same race because, in that context, the words are culturally acceptable.

Employee Harassment  & Wrongful Termination Suit

A federal jury in New York did not buy that argument in a recent case in which a black employee sued her employer for harassment by a black supervisor.  Brandi Johnson was a black employee at STRIVE, an employment agency in Harlem, under supervisor Rob Carmona, who is also black.  In March 2012, Carmona went on a rant against Johnson that included the ‘n’ word eight times.  Johnson secretly recorded the rant on her iPhone, and the jury heard the recording as evidence in the case.  The transcript of the rant as reported by cnn.com is as follows:

"You and (a previous employee) are just alike. Both of you are smart as s---, but dumb as s---. You know what it is ... both of you are n------, y'all act like n------ all the time.  And I'm not saying the term n------ as derogatory; sometimes it's good to know when to act like a n-----, but y'all act like n------ all the time ... both of you very bright, but both y'all act like n------ at inappropriate times.”

Johnson stated that she felt offended and harassed and cried in the bathroom for 45 minutes following the rant.  Furthermore, Johnson sent a formal complaint alleging discriminatory, harassing, and retaliatory acts by Carmona to STRIVE’s CEO Phil Weinberg.  Weinberg accused Johnson of being emotional and out of line, and fired her shortly thereafter.  Johnson therefore also claimed she was wrongfully terminated in retaliation for her complaints.

Is the ‘n’ word ever culturally acceptable?

While Johnson claimed she felt disrespected by the racial slurs, Carmona argued that his use of the term was culturally acceptable because it was in conversation between two black people.  Carmona, who is 61, stated he comes from a different time and believes the ‘n’ word is a term of affection between black people.  He claimed he was only trying to help Johnson and never meant the term in a derogatory manner.

The jury, however, did not agree with Carmona and awarded Johnson $280,000 in compensatory and punitive damages.  The jury decided that the ‘n’ word is never appropriate in an employment context, regardless of the context or of perceived cultural norms.  However, this jury’s decision was based solely on the facts and evidence of this particular case and another jury may easily disagree.  Fashion designer Oscar de la Renta currently faces a similar lawsuit in which he claims he used the ‘n’ word in an affectionate manner.  The outcome of that case has not yet been determined.

If you believe you have experienced any harassment or discrimination at work, you may be entitled to recovery.  Call Pershing Square Law Firm today for help with your case.

Religious Discrimination in the Happiest Place on Earth

Both federal and state laws protect Californians from discrimination on the basis of religion.  First, Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination because of a person’s race, color, religion, sex, or national origin.  Further, the California Governor recently signed into law the California Workplace Religious Freedom Act.  This new law, effective since January 1, 2013, expands protections by making clear that “religious dress practice” is a protected activity.  “Religious dress practice” includes wearing religious clothing, jewelry, head or face coverings, artifacts, or other religious items.  The law specifically protects religious grooming practices, such as the growing of head or facial hair.  Common religious grooming practices include wearing a hijab, yarmulke, or other head covering, refusing to wear pants or skirts that do not cover the knees, and wearing a beard, long hair, or dreadlocks.

The Act requires employers to reasonably accommodate dress or other requests of employees based on sincere religious beliefs, unless such accommodation would cause the employer undue hardship.  An undue hardship is considered to be a significant expense or difficulty in accommodating the employee’s request.  Furthermore, the law prohibits employers from segregating an employee from other employees or eliminating an employee’s contact with the public as a means of reasonable accommodation.

Recent Disney Case

Imane Boudlal worked as a hostess at Walt Disney’s Adventure Storyteller’s Café for two and a half years.  While studying for her United States citizenship exam, she realized that she should be lawfully allowed to wear her hijab, or headscarf, to work in accordance with her Muslim religious beliefs.  She began wearing the headscarf to work, and was subsequently asked to remove it several times.  Her managers gave her the option of removing the hijab, working in a different position backstage to avoid contact with the public, or wearing a large bonnet and hat combination in an attempt to hide her hijab.  When Boudlal refused all of these options, her managers sent her home without pay several times, suspended her, and ultimately terminated her employment with the Disney restaurant.  Boudlal then filed suit against Disney for unlawful discrimination.

Disney tried to defend its actions by claiming that wearing a hijab did not fit in with the Disney image, and allowing Boudlal to wear her religious dress would cause undue hardship to the company.  However, concerns regarding the company’s image do not, on its own, constitute undue hardship under the law.  No evidence was presented that showed Disney would suffer hardship or lose business if an employee wore a hijab.  Furthermore, Boudlal was not in costume as a Disney character, but simply wore a white uniform that matched her hijab, so the headscarf would not affect the image of any particular Disney character.  Finally, as previously mentioned, hiding Boudlal from the public does not qualify as reasonable accommodation under California laws, and therefore is not an adequate solution to the situation.

If you have suffered discrimination in the workplace due to your religious beliefs, or if your employer has denied you reasonable accommodation for religious dress or grooming practices, it is important for you to contact a California employment attorney at Pershing Square Law Firm as soon as possible.

Burger Joint Tries to Set Living Wage Example

Much research shows that the minimum wage rarely equals a living wage.  The term minimum wage refers to the minimum amount an employer must pay a worker without violating the law.  The minimum wage in California is $8 per hour.  Different from minimum wage, the term living wage refers to the minimum amount of income a person requires to meet basic needs, such as shelter, food, and clothing for themselves and dependents.  In most cities, minimum wage for a 40 hour work week will not cover a person’s basic needs, and they will likely have to depend on credit or government assistance to survive.

Fast food restaurants are notorious for paying the majority of their employees minimum wage.  However, fast food workers have recently been stepping up and demanding that they receive higher pay—at least a living wage.  On August 29, 2013, many non-union fast food workers nationwide, primarily employees of McDonald’s, walked out and began to strike, demanding a wage of $15 per hour.  McDonald’s executives have responded that the company cannot afford to increase its wages without substantial layoffs or price increases.  However, former secretary of labor Robert Reich has pointed out in a petition on Moveon.org that McDonald’s CEO Don Thompson earned $13.8 million last year.  If the CEO earns such a substantial paycheck, it would seem the company could afford to increase wages.

Setting an Example

A Detroit-area fast food joint wants to demonstrate that companies can pay workers a living wage and still make a profit.  Burger and chicken restaurant, Moo Cluck Moo, already pays its workers $12 per hour and, as of October 1^st, will increase that wage to the $15 per hour that McDonald’s workers currently demand.  The owners believe that the 25% increase in wages is only “human” and sets a higher standard for how fast food businesses treat workers.

Furthermore, the owners state they will not lose profits, but actually benefit from the pay increase.  First, higher pay inspires harder work and better customer service.  In fact, owners state they regularly receive appreciative feedback regarding customer service in their restaurants.  The fast food industry is highly competitive and consumers have a lot of options if they crave a burger or chicken sandwich.  Quick and friendly customer service helps create customer loyalty.  Second, higher pay keeps turnover low, which means less time spent hiring, training, and supervising new employees.  Finally, Moo Cluck Moo has received a significant amount of free and positive publicity nationwide due to the impending wage increase.  Compared to McDonald’s executives who are on the defensive to justify their refusal to increase wages, the owners of Moo Cluck Moo look almost like heroes.

The battle for the living wage has only begun, and will likely continue for a significant period of time.  Workers believe they deserve a living wage, and seem prepared to fight long-term for one.  If you believe your employer is violating wage and hour laws or you have another type of employment dispute, contact an experienced employment attorney at Pershing Square Law Firm today.

Supreme Court Precedent Creates Difficulty for Undocumented Workers

In July of this year, the Second Circuit Court of Appeals upheld a decision by the National Labor Relations Board (NLRB) to deny an award of back pay to undocumented alien workers in Palma v. NLRB.  The workers’ claim stated that their employer had wrongfully discharged them for participating in activities protected by the National Labor Relations Act (NLRA).  On initial review, an administrative law judge recommended an award of both unconditional reinstatements with reimbursement of back pay for the workers.  The NLRB opted not to follow the recommendation, however, and denied an award of back pay based on a 2002 decision by the United States Supreme Court, Hoffman Plastic Compounds, Inc. v. NLRB.  On appeal, the Second Circuit agreed with the NLRB’s interpretation of Hoffman Plastic and upheld the denial of back pay for the undocumented workers despite their wrongful discharge.

The Hoffman Plastics Decision

The NLRB’s reliance on Hoffman Plastics may constitute a significant barrier for undocumented workers in future wage claims.  In Hoffman Plastics, an illegal immigrant, Jose Castro, used false documents to obtain employment with Hoffman, a small manufacturer in California.  Seven months later, Castro participated in a union organizing campaign by handing out fliers and union authorization cards, activities that are legally protected by the NLRA.  After Hoffman terminated Castro and the others for their protected activities, they brought a claim before the NLRB, which awarded them reinstatement with back pay.  Hoffman Plastics appealed to the Supreme Court, arguing that Castro was not entitled to back pay because his employment was illegal under the Immigration Reform and Control Act of 1986 (IRCA).  The Supreme Court agreed with Hoffman’s argument, holding that the IRCA prevents punitive provisions against an employer under the NLRA that would benefit an employee who knowingly violated immigration laws.  Because Castro had fraudulently obtained employment in violation of the IRCA, he was entitled to no back pay award.

The plaintiffs in Palma argued that, unlike Hoffman, there was no evidence that they used false documents.  However, the Second Circuit held that mere unlawful presence in the United States was enough to be criminally punishable under the ICRA, and therefore bar any back pay awards.  However, the court left open the possibility of reinstatement of employment if the plaintiffs showed proper documentation.

Potential Barriers for Immigrant Workers

The United States Department of Labor stated that the Hoffman decision did “not mean that undocumented workers do not have rights under the U.S. labor laws."  However, the dissent in Hoffman expressed concern that the decision gives employers an avenue to relieve themselves of responsibility for illegal employment actions against undocumented workers, and many employment and immigration experts agree.  Hoffman and the recent Palma decisions significantly limit the availability of relief to immigrant workers in claims for unlawful termination, discrimination, and wage and hour violations.  This may potentially open the door for potential abuses of undocumented workers with few consequences for the employers and many worry that employers will feel free to violate the NLRA without fear of punishment. 

If you believe your employer has violated labor laws, you should contact the attorneys at Pershing Square Law Firm as soon as possible.