Archives for May 2014

California Employment Laws Protect A Mother’s Right To Breastfeed

California law protects a mother’s right to breastfeed by ensuring nursing mothers have time and space to express breast milk at the workplace, and by prohibiting discrimination and harassment on the basis of breastfeeding.

Under California law, “every employer, including the state and any political subdivision, is required to provide a reasonable amount of time to accommodate an employee desiring to express breast milk for the employee’s infant child.” Labor Code §1030. The break should be paid (if the employee is entitled to receive a 10-minute paid rest period under the relevant Industrial Welfare Commission Wage Order). If the employee isn’t entitled to receive a 10-minute rest break, then the break to express breast milk will be unpaid.

The law also requires employers to ensure that the employee has the use of a private area, other than a bathroom, to express breast milk. Employers are only exempt from these requirements if granting such a break would seriously disrupt the operations of the employer.

California law also protects employees from discrimination and harassment based on sex, which includes breastfeeding and pregnancy.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

Supervisors Can Be Liable for Harassment and Retaliation

In California, employers aren’t the only ones who face liability for harassment, including sexual harassment, and retaliation in the workplace. Individual supervisors are also liable for their own harassment and retaliation against employees.

Who Is Considered a Supervisor?

The law regarding sexual harassment makes employers strictly liable for sexual harassment committed by a supervisor. Therefore, it is important for employers, supervisors, and employees to understand who is considered a supervisor under the law.

The Fair Employment and Housing Act defines “supervisor” as “any individual having the authority to:

  • Hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees
  • Direct them, adjust their grievances, or effectively to recommend a course of action based on their independent judgment.

Essentially, a supervisor is an employee who has the authority to make decisions on behalf of his or her employer relating to hiring, firing, promotions, rewards, and discipline. If a supervisor knew or should have known about harassment but failed to take actions to correct it, the employer can also be held liable.

Can Supervisors Be Held Personally Liable?

Depending on the case, an employee of a company can hold personal liability for acts of harassment, discrimination or retaliation. In addition to a supervisor’s personal liability, the employer is usually held liable for misconduct as well.

Your Right To Report Harassment and Discrimination

Under the law, you have a right to report workplace misconduct such as harassment or discrimination, and participate in workplace investigations of such conduct without fear of retaliation. If an employer or supervisor is making threats or engaging in retaliatory acts against you, contact an employment attorney immediately.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

Just Because You Are a Manager Does Not Mean You Are Exempt from Receiving Overtime Pay

A commonly held myth is, “I am not entitled to overtime pay because I am a ‘manager’.”  However, because you are a “manager,” does not automatically mean you are exempt from overtime and minimum wage compensation.

Under California law, exemptions from statutory mandatory minimum wage and overtime provisions are narrowly construed.  One of the more common categories of exemptions apply to those persons employed in the “administrative, executive, or professional” capacity.  This is the category many employers use to classify “managers” as exempt from the overtime and minimum wage provisions.  The fact that you are a manager is not the test.  Rather, to be exempt under this category, an employee must: (1) be “primarily engaged in duties that meet the test of the exemption; (2) “customarily and regularly exercise discretion and independent judgment in performing those duties; and (3) earn “a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.”

Generally, to qualify for the exemption, the employee’s duties must be directly related to management policies or general business operations of the employer or its customers.   An employee is “primarily engaged” in exempt duties only if more than one half of the employee’s work is devoted to such duties.   With respect to “discretion and independent judgment,” an employee who merely applies his or her skills and knowledge in following prescribed procedures is not exercising “discretion” and “judgment” of the independent sort associated with administrative work.

In short, simply because you have the title of a “manager,” does not mean you are not entitled to certain wage and hour protections, such as overtime and minimum wage compensation.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

Men Can Be Victims Of Sexual Harassment in the Workplace

In a common sexual harassment scenario, a male supervisor sexually harasses a female subordinate by making sexually explicit comments, touching her inappropriately, or engaging in other harassing behavior. But sexual harassment isn’t just a “women’s issue.” Men are frequently victims of sexual harassment in the workplace, and California and federal law protect men and women from sexual harassment equally.

In a federal sexual harassment case brought under Title VII, the federal law which protects employees from sexual harassment and other forms of discrimination, the Ninth Circuit Court of Appeal found that men can be victims of sexual harassment. “It cannot be assumed that because a man receives sexual advances from a woman that those advances are welcome … whether one person welcomes another’s sexual proposition depends on the invitee’s individual circumstances and feelings. Title VII is not a beauty contest, and even if [the sexual harasser] looks like Marilyn Monroe” the victim might not be receptive to sexual advances in the workplace. EEOC v. Prospect Airport Services, 621 F.3d 991, 997 (2010).

In the Prospect case, a male employee was sexually harassed by his female co-worker. The female co-worker sent the plaintiff a series of love notes which ranged from merely flirtatious to sexually explicit. Despite the plaintiff repeatedly telling the harasser that he was not interested in her romantically, the harasser escalated her efforts, giving the plaintiff a semi-nude photograph of herself, and recruiting co-workers to pressure the plaintiff to go out with the harasser. The plaintiff was embarrassed and hurt by the harasser’s actions, and complained several times to several different managers, all of whom did not reprimand or discipline the harasser. Incredibly, one of the managers told the plaintiff he should feel flattered and sing to himself “I’m too sexy for my shirt.” Other co-workers began speculating that the plaintiff wasn’t interested in the harasser because he was a homosexual.

As a result of the sexual harassment, the plaintiff’s work performance suffered and he began seeing a psychologist. After failing to stop the harasser from sexually harassing the plaintiff, the defendant company terminated the plaintiff’s employment for performance issues. The Ninth Circuit found that the company was liable for the female sexual harasser’s behavior because “[m]en, as well as women, are entitled under Title VII to protection from a sexually abusive work environment … [and] the company knowingly denied [the plaintiff] protection.”

If you have been a victim of sexual harassment in the workplace, call Zeldes Haeggquist & Eck, LLP for a free case evaluation at (619) 342-8000 or contact us online.

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