Hot Employment Issues Going into 2014

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

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

Wage and Hour Cases

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

·         Misclassification of employees vs. independent contractors

·         Non-payment of interns

·         Failing to pay full overtime wages

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

·         Not paying workers on time

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

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

Social Media Cases

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

Whistleblowing

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

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

New California Employment Laws for 2014

As we enter 2014, it is important to be aware of the new and amended employment laws that go into effect in the new year.  As an employee, you should always stay up to date on your employment rights and protections so you will be able to recognize violations on the part of your employer.  The following are some of the new employment law developments for 2014.

Minimum wage:  The minimum wage in California will go from $8.00 per hour to $9.00 per hour in 2014.  The minimum wage will increase again to $10.00 in 2016.

Sexual harassment clarification:  California’s laws against sexual harassment will be amended to clarify that offending behavior need not be motivated by actual sexual desire to constitute harassment.

Whistleblowing protection:  The whistleblowing laws currently prohibit retaliation against an employee who reports violations of state or federal law.  The amended law will also go further to protect employees who reports violations of local rules and regulations.

Military protections:  Anti-discrimination laws will now include military and veteran status to the list of protected categories.  This means that employers may not discriminate, harass, or retaliate against an employee based on their current or former military action.

Immigration protections:  The law prohibits employer from retaliating against an employee by threatening to report their immigration status to authorities because the employee complained of or reported employment law violations.  State agencies will be able to revoke business licenses or file charges of criminal extortion against employers that violate this law.

Overtime for domestic employees:  The wage and hour requirements of the Fair Labor Standards Act usually do not apply to domestic workers.  The new law, the Domestic Worker Bill of Rights, requires overtime compliance for certain domestic workers that qualify as “personal attendants.”  Employers of domestic workers should examine the definitions in the law to see if it applies to them and their employees.

Heat illness recovery time:  Employers may not require employees to perform work during recovery time for heat illness or exhaustion.  The penalties for violating this law will be the same as for failing to provide required meal or break times.

Leave for crime victims:  Employers will be required to provide job-protected time off work for victims of certain crimes to attend court proceedings that involve victims’ rights.  Additionally, the law that allows leave time for victims of domestic violence or sexual assault will be expanded to protect victims of stalking, as well.

Paid family time:  The Paid Family Leave laws will be expanded to provide wage-replacement benefits for employees who take qualified leave time to care for a seriously ill or injured sibling, grandchild, grandparent, or parent-in-law.

Criminal background checks:  State and local agencies will be prohibited from requiring information regarding criminal convictions before determining that they meet minimum qualifications for the position, unless certain exceptions apply.

Emergency duty leave:  Emergency rescue personnel and reserve peace officers will be entitled to time off work for necessary training.  This law previously only applied to volunteer firefighters and law enforcement.

If you have any questions or concerns regarding new employment laws for 2014, do not hesitate to contact Pershing Square Law Firm as soon as possible for help.

The Unpaid Intern Question

Unpaid internships are sometimes very helpful for young people to gain training and experience in a particular industry.  In exchange for work, unpaid interns gain the opportunity to improve their resumes and be a more desirable job candidate in that field.  Companies, however, may sometimes take advantage of free labor without providing educational benefits in return.  This problem has become the focus of numerous lawsuits and has consistently made headlines over the past year.

Intern or Employee?

The Fair Labor Standards Act (FLSA) requires that anyone classified as an “employee” must be paid a minimum hourly wage and overtime.  Unpaid interns do not fall under the “employee” label, and thus FLSA requirements do not apply to them.  However, companies may not simply call someone an unpaid intern and expect to gain free labor.  In fact, the United States Department of Labor (DOL) sets out six main criteria for defining unpaid interns:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If these criteria are not met in an internship program, the company should be paying its interns.

Glatt v. Fox Searchlight Pictures, Inc.

The entertainment industry is particularly notorious for using unpaid interns to complete mundane tasks that would otherwise be completed by paid employees.  Recently, this potentially unlawful trend has come to light in many lawsuits, led by Glatt v. Fox Searchlight Pictures, Inc., otherwise known as the “Black Swan” lawsuit.  A group of unpaid interns for Fox who worked on the Academy Award-winning movie, Black Swan, claimed in the lawsuit that their tasks primarily consisted of running errands, fetching coffee, and other mundane tasks.  The interns stated they received no specialized training or other educational benefits and, therefore, should have received minimum wage for their work under FLSA.

A lower court decided that the Black Swan interns did not meet the DOL criteria for unpaid internships and should have been classified as employees.  The case is now under review by a Court of Appeals, and the decision could set the stage for many other unpaid intern lawsuits against companies such as Hearst Magazines, Major League Baseball, Atlantic Records, Conde Nast, and the Charlie Rose Show.  In the meantime, companies should take a look at their internship programs to see if they meet the DOL criteria.   If not, those interns deserved to be paid a minimum wage.

If you have any questions regarding unpaid internships or any other wage and hour concerns, do not hesitate to contact the Pershing Square Law Firm today for help.

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.

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.