Discrimination

Discrimination means treating an employee differently based upon his/her lawfully protected status or category. Protected categories of employees recognized in California include race, age, sex (gender), national origin or ancestry, disability, pregnancy, medical condition, religion (religious creed), marital status, sexual orientation, veteran status and political activity. Protected status also may extend to association with someone in a protected category. Examples of prohibited employer discriminatory conduct include adverse employment actions, such as termination of employment, suspension, failure to promote, failure to hire, or layoff, if this conduct is motivated by the employee’s protected status.

California’s laws, statutes and Constitution prohibit various forms of employment discrimination, including discrimination on the basis of race, age, sex (gender), national origin or ancestry, disability, pregnancy, medical condition, religion (religious creed), marital status, sexual orientation, veteran status and political activity. It is the public policy of California to prohibit unlawful discrimination in terms, conditions and privileges of employment.

The California Fair Employment and Housing Act (“FEHA”) (California Government Code Sections 12900 et seq.) is the major statutory scheme prohibiting employment discrimination under California law. The FEHA prohibits harassment, discrimination and wrongful termination when said conduct is motivated by the employee’s race, age, sex (gender), national origin or ancestry, disability, pregnancy, medical condition, religion (religious creed), marital status or sexual orientation. The federal equal employment statutes are found in Title VII of the United States Code. Often, it is necessary for government agencies known as the California Department of Fair Employment and Housing (“DFEH”) and federal Equal Employment Opportunity Commission (“EEOC”) to investigate these claims prior to filing a lawsuit.

The California Family Rights Act (“CFRA”) protects employees who need time off from work to take leave for the birth of a child; for placement of a child in the employee’s family for adoption or foster; for the serious health condition of the employee’s child, parent or spouse; or for the employee’s own serious health condition.

The Pregnancy Disability Leave Act (“PDL”) protects women who are disabled during pregnancy. This law allows women to take up to four (4) months of leave for a disability related to pregnancy, childbirth, or a related medical condition. Severe morning sickness is just one example of a disability covered by this law.

Pregnancy Disability Leave differs from leave under the Family and Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”). All California employers with at least five (5) employees are covered by the Pregnancy Disability Leave Act. Even if your employer does not offer FMLA or CFRA leave, you may still be entitled to time off from work to accommodate a pregnancy related disability.

If your employer is a covered employer under the FMLA or CFRA, you may also be entitled to an additional twelve (12) weeks of leave from work to bond with your newborn child after you take time for a pregnancy related disability. This means some women may be entitled to up to twenty-eight (28) weeks of leave if they have a pregnancy related disability and then choose to take time to bond with their newborn.

In addition, there are federal statutes and laws that protect employees from unlawful employer discrimination. For example, federal statutes which protect employee rights include:

1. Title VII of the Civil Rights Act (“Title VII”), which prohibits employment discrimination based on race, color, religion, sex, or national origin;
2. The Equal Pay Act (“EPA”), which protects employees who perform substantially equal work from sex-based wage discrimination;
3. The Age Discrimination in Employment Act (“ADEA”), which protects employees who are 40 years of age or older from discrimination;
4. The Americans with Disabilities Act (“ADA”), which protects employees who are disabled and requires employers to provide reasonable accommodation; and
5. The Family and Medical Leave Act (“FMLA”), which provides similar leave protections as the California Family Rights Act.

ABM’s attorneys represent employees who have suffered employment discrimination in the workplace. If you have reason to believe you were not hired, not promoted, or terminated for discriminatory reasons (based on your protected category), you may have a case for employment discrimination.

If you believe you are a victim of discrimination, please fill out our Intake Questionnaire, or contact ABM for a free consultation with an attorney.

Sexual and Other Unlawful Harassment

Our law firm handles court litigation of employment harassment claims. The most common type of harassment claims are for sex harassment, sexual harassment, and gender harassment. ABM’s attorneys handle such claims in Southern California, including the Counties of Los Angeles, Santa Barbara, Ventura and Orange.

Unlawful harassment can be based on same gender or different gender, sexual orientation, gender identity, race, national origin, age, martial status, disability, and other bases protected by federal or state law, including Title VII of the Civil Rights Act and the California Fair Employment and Housing Act.

While unlawful employer harassment is often associated with abuse by a supervisor, illegal harassment may also occur between persons of the same status and between persons of the same sex.

“Sexual Harassment” includes the following types of comments and conduct: unwelcome sexual advances and propositions, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature. Actions or comments based on racial bias that demean or offend someone of a particular race or ethnicity may also create a hostile work environment.

Examples of unlawful harassment include when:

1. Submission to harassment is explicitly or implicitly made a term or a condition of an individual’s employment;
2. Submission to, or rejection of, harassment is used as the basis for adverse employment decisions, such as demotion, suspension or discharge;
3. The harassing conduct negatively impacts the individual’s work performance, or creates an intimidating, hostile, or offensive work environment.

Within this definition, two distinct categories of sexual harassment claims are generally recognized: (1) Quid Pro Quo Harassment; and (2) Hostile Environment Harassment.

Quid Pro Quo Harassment

“Quid Pro Quo” harassment occurs when submission to sexual activity or conduct is made either an explicit or implicit condition of employment benefits, and submission to or rejection of such conduct by the employee is used as the basis for employment decisions.

Hostile Environment Harassment

“Hostile Environment” sexual harassment exists when unwelcome sexual advances, requests for sexual favors, or other gender-related verbal or physical conduct occurs; where such conduct has the purpose or effect of interfering with work performance or creating an intimidating hostile or offensive working environment. An employee can show he or she is working in a hostile work environment when the unlawful conduct is severe or pervasive and interferes with the employee’s ability to do his or her job.

Types of Common Sexual Harassment Behavior

1. Unwanted sexual advances or propositions.
2. Offering employment, continued employment, promotion or benefits of employment in exchange for sexual favors.
3. Threatening retaliation after a negative response to sexual advances.
4. Intentional unwanted physical conduct: kissing, touching, groping, patting, hugging, or brushing against a person’s body, and impeding or blocking movement.
5. Visual conduct: Leering, staring, making sexual gestures, and displaying sexually suggestive objects or pictures, magazines, cartoons or posters.
6. Verbal conduct: Making or using derogatory comments, epithets, slurs, jokes, verbal abuse of a sexual nature, commentaries about an individual’s body or appearance, sexually degrading words used to describe an individual, suggestive or obscene letters, memos, notes or invitations, and sexually explicit statements, questions, or anecdotes.

If you believe you are a victim of harassment, please fill out our Intake Questionnaire, or contact ABM for a free consultation with an attorney.

Wrongful Termination/Discharge of Employment

Wrongful termination is a legal term for an unlawful employment termination, or an employment termination in breach of contract. The basis for an employee wrongful termination claim is typically found in state or federal statute or regulation, in an express or implied contract, public policy or constitutional right. The terms wrongful termination and wrongful discharge are used synonymously with other terms to define an actionable claim in employment law, such as unfair discharge, discharge without good cause, unjust termination, illegal termination, illegal firing, illegal dismissal, unlawful discharge, unlawful firing, termination in violation of public policy, wrongful firing and wrongful dismissal. All of the above are terms that describe employment terminations that may give rise to legal claims and lawsuits against an employer. However, not every “unfair” or “unjust” employment termination will give rise to a lawsuit or legal claim.

Generally, for a claim of wrongful termination to be viable, the employee’s discharge must be for an unlawful reason or in breach of a contract or agreement. If the discharge is not illegal or not in breach of contract, then it will most likely not support a claim for wrongful discharge. This is because in California employees are presumptively or contractually employees at-will, and absent a contract (written, verbal or implied) to the contrary no lawsuit may be brought against the employer unless there is a legal restriction or prohibition on terminating the employee. At-will employment generally applies to all California employees, unless there is an applicable exception.

Wrongful termination is a heavily litigated area of law in California. In recent years, lawsuits by employees, who have reported unlawful activity either internally or to government agencies, or refused to engage in unlawful activity, have led to substantial whistle-blower litigation. Such whistle-blower claims may be brought, for example, under the California Labor Code, California common law (case law), and federal employee protection laws, such as the Sarbanes-Oxley Act of 2002. The whistle-blower provisions of Sarbanes-Oxley generally apply to companies who have issued securities registered with the SEC, or are required to file reports with the SEC. Employees may pursue claims for retaliation if they engage in protected activity as defined by the Act.

There are also many other potential bases for a wrongful termination claim, including: (1) discrimination; (2) taking protected medical or pregnancy leaves; (3) taking disability leaves; (4) retaliation for complaining about or opposing discrimination; (5) retaliation for complaining about unpaid or owed wages, including overtime; (6) breach of contract; (7) public policy; (8) engaging in statutorily protected conduct, such as attending jury duty, military service, etc.; and (9) retaliation for complaining about an employer’s unlawful activities.

ABM has successfully represented clients in claims for wrongful termination since its inception in 2003. If you believe ABM’s Los Angeles lawyers can be of help to you, please fill out our Intake Questionnaire, or contact ABM for a free consultation with an attorney.

Employee Overtime Claims

ABM’s Los Angeles lawyers and attorneys litigate wage and other overtime claims in Southern California, including Los Angeles County, Orange County, Santa Barbara County and Ventura County. Employees in California who are paid improperly often have significant claims for wages and penalties against their employers. Overtime pay is required for many employees under both federal law and/or California law, including the California Labor Code and the Federal Labor Standards Act.

In California, the general overtime laws are that a nonexempt employee shall not work more than eight (8) hours in any work day or more than forty (40) hours in any work week, unless he or she receives one and one-half times (1 ½) his or her regular rate of pay for all hours worked over eight hours in any work day and over forty hours in the work week. Eight hours of labor constitutes a day’s work, and employment beyond eight hours in any work day or more than six (6) days in any work week is permissible provided the employee is compensated for the overtime at the proper statutory overtime rates.

There are, however, a number of lawful exemptions from the overtime law, which employers may assert to avoid overtime liability. An “exemption” means that the overtime law does not apply to a particular classification of employees. Employers often mis-classify employees as “exempt” even though the employees do not actually qualify for an exemption under California and/or federal law. Importantly, just because an employee is paid a salary does not necessarily mean the employee is exempt from the overtime laws. A salaried employee must be paid overtime unless he or she meets the test for exempt status as defined by applicable federal and/or state laws, or unless the employee is specifically exempted from overtime by the provisions of one of the Industrial Welfare Commission Wage Orders regulating wages, hours and working conditions. The most common types of misclassifications are managers who do not spend more than half their time performing management level duties, managers who do not supervise two or more employees, outside salespersons who do not spend more than half their time on outside sales duties, inside salespersons who are not in the retail or service industries or who are not paid a commission based on the price of a product or service, professionals who do not have a professional license or degree, and/or employees who do not exercise the required independent discretion and judgment.

Employers must pay employees for all authorized and known overtime. However, even if an employee works unauthorized overtime the employer may be obligated to pay for it. California law often requires that employers pay overtime, whether authorized or not because an employee must be compensated for any hours he or she is “suffered or permitted to work, whether or not required to do so.” These claims are sometimes referred to as “off-the-clock” claims.

If you believe you have been improperly denied overtime wages, please fill out our Intake Questionnaire, or contact ABM for a free consultation with an attorney.

Meal and Rest Period Issues

In addition to overtime, California law provides that employees are entitled to additional pay sometimes referred to as “premium pay” or “premium penalties” for missed, short or late meal periods or rest breaks. California Labor Code section 226.7(b) requires employees to be paid one (1) hour’s pay at their regular rate for each work day they are not provided a meal or rest period that complies with the requirements of the applicable Industrial Welfare Commission wage order.

The requirement for a daily meal period is generally not waivable. A covered California employee must be provided at least thirty (30) minutes for every work period of more than five (5) hours as an unpaid meal period within the first (5) hours of the workday, with a second meal period for work days more than ten (10) hours. During meal periods, employees must be relieved of all duties, and free to leave the workplace. California law places the responsibility on the employer to assure that its employees take their full meal period.

A similar requirement exists with respect to rest breaks, which must be provided to employees at the rate of ten (10) minutes for each four (4) hour period worked, or “major portion” thereof. Unlike meal periods, rest breaks are paid time, and the employee may be required to remain on the employer’s premises.

If you have been denied meal or rest breaks, please fill out our Intake Questionnaire, or contact ABM for a free consultation with an attorney.

California Wage and Hour Class Actions and Other Representative Claims

ABM’s lawyers have successfully litigated and settled wage and hour class actions, and also have experience litigating other types of class actions. In recent years, wage and hour class action litigation has become an important mechanism to protect employee rights to be compensated properly under federal and state law.

Wage and hour class actions are generally formed when a number of employees (called the “class”) have the same legal complaint for wages or benefits based on the employer’s policy or practice, which affects all of them. Class actions in such cases can be more efficient and cost effective than each employee filing an individual lawsuit.

ABM handles wage and hour class action lawsuits, including:

1. Claims that employees have been mis-classified as exempt professionals, executives or administrators;
2. Claims that employees have been mis-classified as exempt inside or outside salespersons;
3. Claims that employees have not been compensated for overtime at the appropriate rate;
4. Claims that employees were not provided meal periods and/or rest breaks, or that these breaks were not provided at the correct times;
5. Claims that employees are entitled to unpaid wages for off-the-clock work; and
6. Claims that employees are entitled to other types of unpaid wages and related penalties or damages.

ABM’s Los Angeles, California class action attorneys welcome inquiries regarding any contemplated employment class action lawsuit. Please fill out our Intake Questionnaire, or call ABM’s Los Angeles office to arrange for a free consultation regarding wage and hour disputes with one of our class action attorneys.

Other Significant Employee Wage and Hour Issues

Another significant issue for employees and employers is misclassification of an employee as an independent contractor. The factors for determining whether a worker is an employee or employer often favor a finding of employment, especially where the employer exercises the right to control the employee. California has long viewed independent contractor classification with suspicion, and mistaken classification may subject an employer to civil claims as well as give rise to state or federal administrative enforcement actions and/or investigations.

If you believe ABM’s attorneys can assist you, please fill out our Intake Questionnaire, or contact ABM for a free consultation with an attorney.

 

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