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.

Will Automatic Gratuities Disappear in 2014?

 The restaurant industry has traditionally been a hot bed for wage and hour violations.  Restaurants across the country have recently attracted a lot of attention from the Department of Labor (DOL) due to investigations of possible violations of the Fair Labor Standards Act (FLSA), which regulates wage and hour requirements on the federal level.  In a recent crackdown in Portland, Oregon, the DOL discovered FLSA violations in an incredible 79% of the restaurants investigated.  Many violations in the restaurant industry stemming from confusion and complications regarding tipped employees.  Though many servers and bartenders receive an hourly wage below the standard minimum wage, their hourly wages plus tips must add up to at least the mandated minimum wage.  Furthermore, many restaurant owners regularly miscalculate overtime rates for these employees as well.

New Tip Regulations for 2014

Distinguishing tips from wages has also been a controversial practice for both wages and for tax reporting purposes.  Because of the tax implications, the Internal Revenue Service (IRS) released an advisory bulletin last year that goes into effect as of January 2014, clarifying the tip-wage distinction for restaurant employees.  The bulletin states, in short, that any mandatory gratuities added on to a restaurant bill should be counted and taxed as wages, not tips.  Specifically, the bulletin reasons that a tip is defined as the following:

·         A payment by a customer free of compulsion

·         The amount of the payment is determined freely by the customer

·         Payment must not be negotiated or required by an employer’s policy

·         The customer may decide to whom they directly give the payment

Mandatory gratuity does not fit any of these four requirements for “tips.”  Therefore, the IRS has deemed that mandatory gratuity is instead a service charge, which would be considered a wage under federal tax guidelines.

Why is Wage v. Tip important?

Currently, service industry employees report their own tips to their employer for tax withholding purposes and employers must not withhold taxes on any unreported tips.  However, since mandatory gratuities are considered wages, employers must keep track of all of these gratuities, withhold taxes, and report them to the IRS.  Any failure to do so could result in penalties.  Additionally, if an employer does not factor such wages from mandatory gratuity into an employee’s hourly rate, overtime compensation rates may be inaccurately low.  Not providing enough overtime pay can result in FLSA violations.

In response to the IRS bulletin, many restaurants are choosing to eliminate mandatory gratuities, even for large parties.  First, most restaurant owners do not want to deal with the additional tracking of the gratuities.  Furthermore, because the Department of Labor is already keeping a close eye on restaurants, looking for possible FLSA violations.  Therefore, there is a greater chance that violations be discovered and will result in claims and penalties against the restaurant.

If you work in the service industry, you should know that you are entitled to all mandatory gratuities and must pay taxes on those wages as of January 2014.  If you believe your employer is not complying with the new laws or with any other tax laws, contact the Pershing Square Law Firm to discuss a possible case.

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.

Some Legal Implications of Social Media in Business

Many businesses, especially relatively small ones, use social media as an avenue for free and widespread advertising and exposure.  Information on social media sites can potentially extend to millions of people, therefore smaller businesses have the opportunity to advertise alongside large corporations for very little or no cost.  The opportunities presented by social media and the internet should not be passed up, however businesses need to be aware of the legal risks and implications that may accompany the use of social media in the workplace.  The following are some legal issues that arise out of social media use by a business.

Vicarious Liability

Business owners often enlist the help of one or more employees to implement social media campaigns and manage the company’s social media presence.  However, even qualified and responsible employees may accidentally post something that may incite a lawsuit for defamation, copyright infringement, invasion of privacy, among other reasons.  Employees without legal knowledge may not realize the wrongfulness of their actions.  However, whether the post was unintentional or whether or not the employee had permissions for the post may not shield a business from liability if the employee was carrying out a work-related task.  Businesses should therefore have clear policies and guidelines for any posts by employees published on behalf of the company.

Ownership Disputes

If you are an employee who posts on behalf of your employer, you may gain a popular and/or regular following for blogs, Facebook, or Twitter posts.  If you decide to leave the company, you may wish to take your online followers and content that you have created with you.  Many companies will not allow you to do this for fear of losing customers.  Therefore, many employees in this situation find themselves in a legal ownership battle with their former employers.  If you are charged with creating original and popular content for social media or other websites, make sure you know your employer’s policy on ownership before you hand over any valuable material.

Litigation Evidence

If your company or any employees become involved in a lawsuit, online content may be admissible against you under the category of electronic business records.  Such online content may include blog articles, emails, status updates, video posts, instant messages, Tweets, etc.  Furthermore, if you are an employee or former employee bringing legal action against your employer, that employer may be penalized by the court for improper record retention if they delete any relevant online content.

These are only a few of the legal risks that come with social media usage for both employers and employees.  If a company allows employees to post on social media on its behalf, the best policy to is thoroughly train the employee on social media procedures and limitations.  If you are an employee who regularly manages your employer’s social media presence, it is always a good idea to have a very clear understanding of the company’s policies in order to avoid future conflict. Most importantly, if you are involved in a dispute with your employer that you may escalate to legal action, always call an experienced employment attorney at Pershing Square Law Firm 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.