One former substitute teacher from a school district in California recently filed a lawsuit against her ex-employer citing wrongful termination. The woman claims that the school fired her after she made anti-Semitic remarks during an interview about her participation in the Occupy L.A. rally last fall.
Because the teacher's remarks were made while the teacher was off duty, her lawsuit states that the school district violated her First Amendment rights to free speech by firing her over the comments.
]]> According to the lawsuit, the substitute teacher for the Los Angeles Unified School District was interviewed on Oct. 12, 2011, for a story that was covering the Occupy L.A. rally. On video, the woman explained that she was participating in the rally to protest budget cuts in public education. But during the interview, the woman also made an anti-Semitic remark. The video was later posted on YouTube, and the woman was fired on Oct. 18.The woman's lawsuit argues that the school should not have fired her over the comments because she was not working at the time the comments were made. She claims that by firing her, the school deprived her of her rights under the California Constitution and the U.S. Constitution. She is hoping to get her job back. She is also hoping to be compensated for other damages ensuing from the wrongful termination including emotional distress.
Source: Courthouse News Service, "Teacher Wants Her Job Back After Anti-Semitic Comments," Matt Reynolds, May 17, 2012
]]>The U.S. Equal Employment Opportunity Commission recently reminded employers that they cannot discriminate against job applicants or employees who have criminal histories or arrest records. Employers can ask for this information -- and criminal histories may affect whether or not an individual can be hired or promoted -- but employers must follow specific guidelines when asking for this type of information from employees and job applicants.
]]> If employers ask about arrest records or learn that an individual has been convicted of a crime after performing a background check, the EEOC has set out some guidelines employers can follow to ensure that applicants and employees are not denied jobs or promotions solely on this information.To avoid violating Title VII of the Civil Rights Act, if it is learned that a potential worker has a criminal past, employers must conduct an "individualized assessment" that considers the nature of the offense, the amount of time that has passed since the criminal offense happened, and the type of job and responsibilities the individual would be accountable for if hired. For example, if an individual was convicted of theft, he or she could be denied a job if the responsibilities include working with money or the private information of consumers.
To ensure that the rights of employees and job applicants are not being violated, the EEOC also suggests that companies train managers about Title VII and what types of actions may be considered employment discrimination. If a company believes that it is important to ask for criminal background information, the company should have very detailed policies in place in order to make sure that this information is not used illegally.
Source: Business Management Daily, "EEOC urges caution on criminal background checks," May 4, 2012
]]>In order to make sure that employees' and job applicants' privacy protections are not being violated in the workplace, California lawmakers hope to introduce a new law that would clearly define what employers can and cannot ask to see on an individual's personal social media account.
]]> The proposed bill would ban employers from asking potential job candidates and current employees for their user names and passwords in order to gain access to personal accounts on Facebook, Twitter and other social media sites. According to supporters of the proposed bill, gaining access to personal social media accounts is no different than an employer asking to read an individual's diary or personal e-mails.According to national surveys, more than half of the employers polled have admitted to looking up an employee's or job applicant's information on social media sites. However, it is not known how many employers have actually asked to gain access to an employee's or job applicant's password-protected information.
This issue first gained national attention after one U.S. employee filed a complaint with the American Civil Liberties Union. The employee had taken a leave of absence because his mother had passed away. But when he returned to work, his employer asked to gain access to his password-protected information on Facebook. The employee complied, not knowing how else to respond to the request. The employee now claims that his privacy rights were violated and that employers do not need access to this personal information.
California could be one of the first states to introduce such a ban to protect employees' and job applicants' privacy rights.
Source: Mercury News, "California poised to bar employees from peeking into private information on social media sites," Steven Harmon, May 3, 2012
]]>It is easy to let the little things bug us, but every now and then we are reminded of how awful things really can get for some employees in California and throughout the entire U.S. when employers fail to protect the rights of their workers. Fortunately, these workers can take legal action if their employers have violated any employee rights and protections.
Last week, AT&T was finally held accountable for fostering a hostile work environment after one woman filed a religious discrimination lawsuit against the company. The employee claimed that she endured years of harassment while working at the company before she was fired.
]]> According to the lawsuit, the woman had worked at AT&T for several years before she converted to Islam in 2005. After she converted, she began to experience religious discrimination and harassment by co-workers and supervisors.The woman called the company's help line for employees shortly after converting to Islam. Despite requesting better training for employees regarding discrimination in the workplace, the woman claimed that nothing was done to improve the environment. After months of discrimination, she even requested to be transferred to a different location, but AT&T failed to respond to the employee's requests.
In 2008, the woman said that she could no longer go to work because the discrimination and harassment continued. She was eventually fired by AT&T.
Last week, a jury concluded that AT&T had failed to protect the woman's rights. The jury awarded the woman $5 million in punitive damages, lost wages and other damages. According to reports, AT&T will appeal the jury's decision.
Source: The Kansas City Star, "AT&T to pay Muslim woman $5M in harassment case," May 5, 2012
]]>Employees throughout the state of California and the U.S. are protected under the Family and Medical Leave Act, which allows employees to take time off of work for childbirth, surgery or to care for an ill family member with a serious condition. In addition, the employee does not have to worry about being terminated from his or her position during this medical leave. In some cases, an employer may even need to make special accommodations for an ill or injured employee when the worker returns to his or her job.
However, an assistant at a car dealership in New York said she was fired after helping her administrator get a new a kidney by donating her own kidney.
]]> The employee donated her kidney to another transplant patient so that her supervisor could receive a perfect match from another donor. The employee did take some time off of work to recover from the surgery. But when she returned to the workplace, she began to experience painful side effects from the operation. One day she went home due to increasing symptoms from surgery complications, and her boss called her and said she could not miss work.The woman claims her boss brushed off the issue as a personal problem and became angry when she mentioned the surgery. The woman was then transferred to a dealership that was miles away and then terminated. The employee said the reasons she was given for the dismissal included making mistakes and a lack of performance at her job. However, her lawsuit argues that she was fired because of her poor health, which is unlawful.
Source: CBS News, "Suit: Woman fired after donating kidney for boss," Jim Axelrod, April 24, 2012
]]>In California, employees have a right to file a complaint with their employer if they believe that they have been a victim of sexual harassment or discrimination in the workplace. When a complaint is filed, it is then the responsibility of the employer to handle the complaint appropriately. Failing to do so not only may foster a hostile work environment, but failing to properly address and investigate a worker's complaint is also a violation of an employee's rights under state and federal laws.
]]> After settling a sexual harassment lawsuit that was filed by several female officers more than a decade ago, the city of Concord settled another sexual harassment lawsuit earlier this month. The recent case involved a civilian employee who claimed that she was harassed by one of the department's female police officers.According to the recent lawsuit that was settled, a female employee claimed that the officer made sexual comments and advances that were unwanted. The officer allegedly kissed the employee and hugged her. As part of the settlement, the city of Concord and the plaintiff have agreed not to disclose any details about the lawsuit. However, it was reported that the employee will receive $150,000 from the city.
Sexual harassment cannot always be prevented in the workplace, but employers can make sure to put an end to any inappropriate behavior that has been brought to the employer's attention.
Source: San Jose Mercury News, "Concord agrees to pay $150K in sex harassment suit," April 25, 2012
]]>In California, an employer cannot discriminate against an employee based on his or her medical condition. Additionally, an employer cannot fire an employee because of a disability or other health problems. Employers have an obligation to make reasonable adjustments in the workplace to better accommodate the needs of disabled or ill employees.
A lawsuit filed last month by the former restaurant employee claims he was fired after he gave the restaurant a note from a doctor from the Jeffrey Goodman Special Care Clinic. The clinic is known for providing treatment to patients with HIV. The note stated that the man had a "chronic medical condition requiring on-going, life-long treatment."
]]> According to the lawsuit, the busboy began treatment after being diagnosed with HIV in December of 2010. The man began to experience adverse side effects after starting his new treatment, and he told his employer that he was experiencing some health problems. His employer told him to go home for a week, but he was fired when he returned the next week with a doctor's note explaining that he was suffering from a serious illness.In response to the wrongful termination and discrimination lawsuit, the Ivy claims that management was not even aware that the man had HIV when he was fired and that the employee was fired for other reasons.
The former busboy has received a significant amount of support and help from the community. Recently, a group of protesters led by the executive director for the group Las Memorias appeared at the restaurant to rally for the man and to let the restaurant know its actions are not appropriate.
Although the man is supported by many as he fights his case and his illness, he has also had to fight other personal battles since losing his job. The man no longer has an apartment to live in or a car to drive. He is now homeless because he has not been able to find another job since he was fired from the Ivy.
Source: NBC Los Angeles, "Protesters Rally Around HIV-Positive Busboy Suing For Wrongful Termination," Irene Moore, April 12, 2012
]]>But times have obviously changed since this law was enacted, and one's biological sex might not match the gender the individual identifies with. This issue has raised new concerns in the workplace regarding whether or not employers can discriminate against employees or job applicants who are considered transgender.
Some have argued that the federal Equal Employment Opportunity Commission has not been very consistent with reprimanding companies who have been accused of transgender discrimination. However, a new ruling this week may help to serve as a stern warning to employers in California and throughout the entire U.S. that transgender employees and job applicants are protected under Title VII of the Civil Rights Act.
]]> This week's ruling stems from a complaint that was filed in California with the EEOC. The individual who filed the complaint stated that she had applied for a job at the U.S. Bureau of Alcohol Tobacco, Firearms and Explosives in Walnut Creek in 2010. At the time of applying for the job, the individual was a man. ATF did hire the man, but before the new employee started, the individual, who identified as a female, made her official transition to female.ATF was notified of the new employee's transition to female. But after the woman moved to start her new job, she was told that the position no longer existed because the ATF was forced to make budget cuts. The transgender woman later discovered that someone else had been hired for the same position.
When the complaint was initially filed by the woman in 2011 citing sex and gender discrimination, the EEOC rejected the claim. The EEOC claimed that the Civil Rights Act did not protect transgender employees or job applicants. Now the EEOC has clarified that transgender people are protected, and the woman can pursue her discrimination lawsuit against ATF.
This ruling will allow other transgender people to file complaints with the EEOC if they believe that they have been denied a job or fired as a result of transgender discrimination.
Source: Los Angeles Times, "Ruling allows transgender woman to sue for job discrimination," Sam Quinones, April 24, 2012
]]>Earlier this month on our San Diego employment law blog, we mentioned that vague and complex meal-break laws in California have led to several lawsuits in the state against employers who were accused of failing to provide workers with meal and rest breaks. One lawsuit was filed by five Chili's employees in 2004 who claimed that Chili's failed to make sure employees were taking breaks they were legally entitled to take during their work shifts.
The plaintiffs in the case, as well as other workers' attorneys, argued before the high court that companies often abuse meal-break laws and take advantage of employees who feel obligated to continue to work through breaks.
]]> In its ruling last week, the California Supreme Court agreed with Chili's and other companies saying that employers should not have to make their employees take their allotted meals breaks. If an employee decides they want to use some of that time to do tend to additional work, an employer should not be blamed for that decision.While employers will not step in and force California employees to take their meal breaks, employees need to know their rights to make sure they are being treated fairly. All companies are required to provide employees with a 30-minute window of time to serve as a meal break, free from the duties of the job.
The vice president of the company that owns Chili's said he was pleased with the recent opinion because his company utilizes the flexibility of allowing employees to spend their meal breaks as they wish.
Source: The Associated Press, "Court: Managers don't have to ensure lunch breaks," Jason Dearen, April 12, 2012
]]>According to two former employees who worked for Tata Sons Ltd., thousands of non-U.S. citizens who worked for the company in the U.S. were forced to give the firm all of their state and federal tax refunds. The two employees accused the Indian firm in 2006 of breaching the contracts of its employees who were working in the U.S. and of violating California labor laws.
]]> The employees have since asked to file a class action lawsuit against the India-based firm, alleging that more than 10,000 workers and former employees for the company in the U.S. have been affected by the company's violations. Earlier this month, a California judge ruled that the employees can file a class action lawsuit against the firm.In addition to the accusations that the company forced workers in the U.S. to give up any refunds from state and federal taxes, the firm is also being accused of unlawfully deducting employees' wages between 2002 and 2005.
The federal judge ruled that employees and former employees affected by the alleged violations will be separated into two different groups. One group can sue the company for employment contract breaches. A second group can sue the company for allegedly violating labor laws in California.
The Indian firm claims that the company has not violated any U.S. wage laws or the employment contracts of any of its employees. According to the AFP, the firm has more than 200,000 employees who work in 42 different countries.
Source: Reuters, "U.S. judge grants class action status to Tata wage suit," Terry Baynes, April 3, 2012
]]>This month, Aflac was required to shell out nearly $17,000 in a labor dispute over an employee's medical leave request. The U.S. Department of Labor reported that the company had been investigated for violations of medical leave rights when it fired a sick worker. Aflac had reportedly terminated the employee after the person took too many days off for a "serious health condition" between May 2011 and August 2011.
]]> Under the Family and Medical Leave Act, U.S. employees may take as many as 12 weeks off of work during a one-year or 12-month period for a serious medical condition that the employee or one of the employee's family members suffers from. This time off is unpaid, but the federal law ensures that an employee's job will be protected.In the recent case involving Aflac, the company claimed that the employee was fired because the employee had forfeited protections under FMLA laws after the employee failed to submit the proper paperwork in a timely manner.
After investigating the complaint, the labor department ruled in favor of the employee, saying that the paperwork had in fact been submitted in time. Aflac had reportedly extended the period for submitting the documentation, but the company later argued that the submission deadline had expired before the employee submitted the necessary paperwork to take a medical leave under FMLA protections.
Source: Ledger-Enquirer, "Aflac pays nearly $17,000 to former employee to settle Family and Medical Leave Act violation case," Tony Adams, April 2, 2012
]]>The workers were all fired on the same day. According to the employer, the workers planned to wear orange to work on the same day in order to show their disapproval of the way their manager was running the office. A new set of strict rules had recently been imposed at the law firm, which prevented workers from speaking over the tops of cubicles to discuss issues concerning their work-related tasks. Employees were also required to clock out if they wanted to get coffee from the break room.
]]> Previous case law has determined that firing workers for using their attire in order to protest work conditions is generally unlawful. A case involving AT&T resulted in a valid wrongful termination claim against the company that had been filed by employees after they were fired for wearing shirts that read, "Prisoner of AT$T." Those employees were shielded by the National Labor Relations Act. Under the National Labor Relations Act, workers jobs are protected if they choose to discuss, comment or complain about the conditions in their workplace.Although the law firm employees might be protected under the National Labor Relations Act, their employer might also be protected by "at will" rules. In some states, including California, one's employment may be considered at will unless an employer specifies otherwise. This means that an employee could be fired at any time for any reason -- even for wearing an orange shirt to work -- as long as the employer's reasoning does not violate other state or federal laws.
California employment and labor laws can be confusing, especially if one's employment is presumed to be at will. If an individual believes that he or she was fired illegally, the individual may want to consider seeking assistance from an attorney in order to determine if he or she should pursue a wrongful termination claim.
Source: abc news, "Fired Orange Worker Couldn't Speak Over Cubicle Walls?" Susanna Kim, March 27, 2012
]]>Some employment and labor law issues that have been the cause of much confusion and litigation in California are state laws that regulate the types of meal breaks and rest breaks employers are required to offer to employees.
For example, restaurant workers are required under California law to take a meal break after every five hours of work. But in 2004, five Chili's employees sued the restaurant's parent company for denying them their meal breaks. Attorneys for the parent company argue that California's laws do not specify that employees must be forced to take these breaks. Instead, state laws only specify that employers must offer breaks to eat and to rest.
]]> A ruling is expected to be made next week by the California Supreme Court in the case involving the Chili's workers. Many believe that the Supreme Court's ruling will help to provide more clarity regarding meal breaks and rest breaks. The court may determine whether employers are to force employees to take these breaks or to simply provide workers with the option to take a break or not.Although current laws regarding employee breaks may be clarified next week by the Supreme Court, some have pointed out that a ruling in favor of the Chili's employees will not necessarily mean that other employees can take legal action against employers who committed similar violations in the past. We will revisit this topic when the Supreme Court issues its ruling in the case.
Source: Restaurant News, "Meal break lawsuit could affect California restaurants," Lisa Jennings, March 30, 2012
]]>High unemployment rates continue to plague U.S. workers who were laid off during the recession and still looking for new work. According to the U.S. Department of Labor, nearly 13 million Americans remained unemployed as of February. Landing a job has certainly been tough for many individuals, but those who have been unemployed for months or years claim that they are finding it to be even more difficult to find work because employers do not want to hire individuals who have been unemployed for a long period of time.
One woman who was laid off for over 13 months told the Washington Post that she applied for a job that she was qualified for and was even contacted by a recruiter to schedule an interview. However, when the recruiter learned that she had been unemployed for more than six months, the interview was canceled.
]]> Bias against the jobless has become a concerning issue that many states are attempting to address. The National Conference of State Legislatures reported earlier this year that California and several other states were attempting to pass new laws that would ban employers from preventing the unemployed from applying for open positions.However, proving that an employer has discriminated against an applicant simply because the applicant has been out of work can be challenging. One professional noted that those who have been unemployed for a long period of time might seem too desperate for a job or not very interested in a particular position. Employers also might argue that they want to hire employees who have held stable and consistent jobs.
While employers may still be able to take an applicant's unemployment status under consideration during the interview process, professionals suggest that the unemployed keep their resumes current by volunteering or using other skills in the community.
Source: The Washington Post, "As high unemployment persists, states seek to protect jobless against claims of hiring bias," March 23, 2012
]]>Unfortunately, employees' complaints are not always addressed appropriately. This only perpetuates a hostile work environment in which employees may feel helpless or too afraid to stand up for their rights. After working in an environment described by several production plant workers for Coca-Cola to be a "cesspool of racial discrimination," more than a dozen workers have decided to file a lawsuit against the company.
]]> The lawsuit was filed against Coca-Cola earlier this month by 16 workers from two different production plants on the east coast. All of the plaintiffs are either black or Hispanic. One plaintiff commented that she was looking forward to working for the company when she was first hired because of its reputation. However, she claims that after she was hired, she was subjected to numerous demeaning comments made by white workers at the plant.The lawsuit accuses the company of delegating "less favorable" job duties to minority workers. The lawsuit also claims that the company did not take appropriate actions when workers complained about the discrimination. Some plaintiffs claim that they experienced retaliation in the workplace for raising their concerns about the discrimination. "I thought this was a fair and honest company," one worker stated.
Since the lawsuit was filed, Coca-Cola has issued a statement claiming that the company does not tolerate discrimination at its plants and that it will investigate the workers' complaints of racial discrimination. When workers' complaints are not addressed properly by their employers, employees who believe that their rights have been violated in the workplace may be able to take legal action in order to hold their employers accountable for fostering hostile work environments.
Source: New York Daily News, "Coke's not it: suit 16 workers call giant 'cesspool' of racial bias," John Marzulli, March 16, 2012
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