Archives for October 2020

How Is the California Fair Pay Act Different from the Equal Pay Act?

California has been center stage for some of the most groundbreaking and important breakthroughs in workers’ rights. This has earned the state with a reputation as being among the most innovative and progressive states when it comes to employment law issues. This is especially the case when we look at some of the ways California has designed its own laws to push ideas and issues addressed in federal law more toward providing employees with better protections.

We can see this in a number of laws, such as the California Fair Housing and Employment Act, the Family Leave Act, the Pregnancy Leave Act, and other important statutes with federal counterparts. One such law that stands out among the rest, however, is California’s Fair Pay Act of 2015, which does even more than the Equal Pay Act of 1963 in what it provides for workers.

Starting with the older law, let’s look at both of these, in turn, to understand how California’s statute better protects employee’s fair pay.

The Equal Pay Act of 1963

An immense wave of social change in the United States came to pass during the 1960s. A year before the landmark Civil Rights Act of 1964 would pass, however, the Equal Pay Act of 1963 would become law.

It was signed into law by then-President John F. Kennedy as part of his New Frontier Program and was intended to address the widespread disparity in what men and women working in the U.S. were making at their jobs. Key to this was a mandate that someone’s sex could not be considered when determining their wages or as a reason to pay them more or less than their coworkers.

Under the Equal Pay Act of 1963, employers would be in violation of the law if three conditions were present:

  • Employees of the opposite sex are paid different wages
  • The employees being paid differently perform essentially the same job in terms of required effort, skill, and responsibility
  • The employees being paid different are working under the same or similar working conditions

While the gender pay gap was narrowed to some degree by the Equal Pay act, a gap that was based in little more than discrimination still existed. That’s why California sought to enact its own legislation and expand upon what federal law provided.

The California Fair Pay Act of 2015

As important as the Equal Pay Act of 1963 was toward making progress that ensured equal pay for all employees regardless of sex, its effect began to stagnate in the 1990s. By the early 2010s, it became clear to California lawmakers that closing the pay gap would require intervention to close a loophole in the state’s labor code that bypassed some of the federally mandated protections in various industries and professions.

In this spirit, the California Fair Pay Act of 2015 requires the following:

  • Employees cannot be paid different wages except with regard to seniority or a merit system, a variation in the quality or quantity of work, or another bona fide factor that isn’t sex, race, or ethnicity. The bona fide reason, if one is present, must be a job-related concern aligned with the company’s needs.
  • Employees cannot be punished for or prohibited from discussing their rate of pay with another employee. Employers are barred from using a previous salary as the sole reason to extend an offer or not, and employers are additionally prevented from asking a candidate’s previous salary history or use external sources to determine this amount.
  • Equal pay must be calculated based on the notion of “substantially similar work,” not necessarily a requirement that two employees must work in the same location.

Do You Have a Complaint?

If you are an employee who believes your rights under either the Equal Pay Act or California Fair Pact Act are being violated, turn to Haeggquist & Eck, LLP for assistance. Our lawyers have helped employees hold their employers accountable for violations of employment law. If you need help, take advantage of a free consultation with our attorneys to learn more about our services.

Get in touch with Haeggquist & Eck, LLP by visiting us online or calling (619) 342-8000.

5 Things People Often Don’t Know About Sexual Harassment Cases

Like many topics in employment law, there’s a lot of nuance with regard to sexual harassment at work. While this is an often-discussed topic – especially in light of the #MeToo movement – and activists have done much to raise awareness, there are many things about sexual harassment that a lot of people don’t know.

Some of those lesser-known facts can make a difference in whether or not a new claim is filed and another step toward seeking justice is made. It’s in this spirit that we wish to present five things that people don’t often know about sexual harassment cases.

If you wish to speak with an attorney about a potential sexual harassment claim – especially after reading this list – don’t hesitate to contact our lawyers at Haeggquist & Eck, LLP for a free consultation.

1. The Incident You Report Doesn’t Have To Involve You

While many sexual harassment lawsuits center on claims the plaintiff makes about what happened to her or himself, it doesn’t necessarily have to work like that. There are a number of reasons why people who are targeted for sexual harassment won’t take action – and a lot of it comes down to the fear of what can happen to them if they do.

The individual directly experiencing the harassment doesn’t need to be the person who reports it to management or, in some cases, even files a lawsuit. This is because sexual harassment is often so frequent or pervasive that it creates a hostile work environment – and the thing about such an environment is that it can create a threatening or distracting atmosphere that all employees must live within.

This is, in essence, why you can file a sexual harassment claim even when you’re not the targeted individual. Bear in mind this doesn’t mean you would file on behalf of that person. Whether or not they want to pursue their own case is entirely up to them.

2. Harassment Doesn’t Have To Be Verbal or Physical

Sexual harassment is all about the things people can do or say to you or someone else – right? Most cases involve these two elements of abuse, but there’s a third option most people don’t consider because it can hide in plain sight, so to speak.

Think about the trope of the office swimsuit calendar. This relic from a bygone era is indicative of sexual harassment that passively impacts employees. When posters, calendars, mousepads, screensavers, desktop backgrounds, and other decorative items around the office feature sexual or sexualized imagery of any body – male or female – they can create a hostile work environment that makes it difficult or impossible for certain employees to feel safe or focused enough to do their work.

It’s worth noting here that passive sexual harassment isn’t limited to imagery. The same can be true for quotes or sayings that are sexually offensive or discriminatory. When these are printed and posted on surfaces or included in email signatures, these too can create a hostile work environment.

3. Your Employer Can’t Retaliate Even If Your Claim Isn’t Proven

It is illegal under any circumstance for your employer to retaliate against you with regard to your sexual harassment report, claim, or lawsuit. Even if you lost the lawsuit, your employer is prohibited from terminating or otherwise enacting punishment against you for costing them time and money in court.

If employers could retaliate against employees who could not legally prove that sexual harassment occurred, it might discourage other employees from reporting their experiences in the future.

4. Even If You Quit Your Job, You Can Still Sue

An important myth we wish to dispel is that you can’t sue your former employer for sexual harassment if you voluntarily quit your job. Many people believe this, and it has two unfortunate outcomes: It leaves people feeling like they must stay with employers that abuse them and it leaves employees who quit feeling like they lost their chance to fight back.

Neither of these is true. If you experienced sexual harassment at work in California, you have one year from the date of the last incident to file a claim and pursue legal action.

This time limit is known as the statute of limitations, and it’s crucial to know and understand for any employment law matter. Depending upon the type of claim you have, the amount of time you have to file a lawsuit may be different than other kinds of claims.

5. Sexual Harassment Is a Form of Gender Discrimination

People might think about sexual harassment and gender discrimination as two things that are sort of related but ultimately deal with separate matters.

The truth of the matter, however, that sexual harassment is a form of gender discrimination and prohibited under Title VII of the Civil Rights Act of 1964. We may attribute certain activities or behaviors under the umbrella of sexual harassment, but that itself falls under the umbrella of gender discrimination.

Do You Need Legal Assistance?

If you were sexually harassed at work, turn to the employment law attorneys at Haeggquist & Eck, LLP for assistance. Our firm is dedicated to helping clients fight for what they deserve after they have experienced sexual misconduct and abuse in the workplace.

We can help you fight for fair and just compensation that can help you move forward with your life after enduring sexual harassment. If you want to learn more about what we can do for you, please reach out to us today and request a complimentary initial consultation with our attorneys.

Get in touch with us by filling out our online contact form or by calling (619) 342-8000. Remember to ask about your FREE initial consultation with our attorneys.

Are Employers Liable For Sexual Harassment Caused By Clients & Customers?

When people think about sexual harassment at work, they typically imagine it within the confines of people employed by the same company. While this is not a misconception about the dynamics of most cases of sexual harassment at work, it’s an incomplete picture.

Employees can and do experience sexual misconduct and abuse from their employer’s customers and clients. Known as third-party sexual harassment, this phenomenon isn’t often spoken about during the same breath as what occurs between coworkers or employees and their supervisors. While that may be the case, the employer may be no less liable for failing to take action if an employee reports harassment coming from someone with whom the employer does business.

As with sexual harassment occurring among those employed by the same company, instances involving third parties must be so severe or pervasive enough that a hostile work environment is created. This can easily be the case if a client who frequently visits the company propositions a receptionist or even just once inappropriately touches the project manager assigned to their account.

When Does an Employer’s Liability Begin?

While third-party sexual harassment is different because of the people involved and the employer’s level of authority (or lack thereof) over them – and those are important differences – it’s not much different otherwise.

When employees experience sexual misconduct or abuse from their employer’s customers or clients, they must report the activity so that the employer has a chance to resolve the issue. It’s only when the employer becomes aware of the problem that they assume liability to address and correct it.

Employees may fear that reporting someone with whom their employer does business will affect their employment, but under no circumstances can an employer legally retaliate against the employee for filing a sexual harassment claim – even if it’s against someone who represents a revenue stream to the company.

Just as with internal cases of sexual harassment, the employer must elevate the sexual harassment report above all other business priorities and take action to correct the issue.

In some cases, such corrective action may include:

  • Directly addressing the matter with the client by making it clear that the behavior is inappropriate and won’t be tolerated
  • Changing the location of the employee’s workstation to limit interaction with the client
  • Placing another employee on the client’s account
  • Asking the client to send over a new representative
  • Dropping the client

These are merely a few of the possible ways that an employer can and should intervene to protect their employee – and again, doing so ought to be the employer’s priority.

Employers Must Avoid Unintentional Punishment For Reporting

While employers are prohibited by law from overtly retaliating against employees who report sexual harassment, they must also take care to ensure that any corrective actions they pursue to address the misconduct don’t unintentionally punish the employee.

Such can be the case when an employer immediately decides to remove an employee earning a commission from a high-performing account without consulting with the employee. Sending the employee elsewhere in the company where he or she would be making less of a commission than before could be viewed as retaliation for reporting sexual harassment.

Under circumstances such as this, an employer wouldn’t be wrong to open a discussion with the employee about how the problem can be agreeably mitigated without adversely impacting the employee. Regardless, employees should not find themselves in the place of making concessions to avoid being mistreated by their employer’s customers or clients – if the problem absolutely cannot be otherwise mitigated, the employer may be left with no option but to drop the client.

Contact Haeggquist & Eck, LLP for Assistance

At Haeggquist & Eck, LLP, we proudly represent employees who need to hold their employers accountable for violations of their rights at work. Sexual harassment is a key issue in employment law, and our attorneys frequently assist clients who have experienced it and decide to pursue fair and just compensation from their employers.

Get in touch with us today to schedule a free initial consultation with someone who can help. Call (619) 342-8000 or fill out our online contact form to reach someone at our firm.

Lactation Accommodation in California: Your Rights & What Employers Must Provide

In years past, nursing mothers have found it exceedingly difficult or impossible to manage lactation at work. Whether it was a lack of sufficient breaks or a proper space to do so, it was simply infeasible for many to find the time or place to breastfeed their children or pump breastmilk.

The California legislature initially passed a 1998 resolution that merely encouraged employers to accommodate the needs of nursing mothers by providing a space for them to express breastmilk for their children. Four years later, it became state law to provide these employees with breaks and other important accommodations.

When the Affordable Care Act (ACA) passed in 2010, it became federal law for employers to provide lactation breaks for nursing mothers when the employer is subject to the Fair Labor Standards Act (and most are). Additionally, this federal statute mandated providing employees with reasonable unpaid breaks needed to express breastmilk for up to one year after their child’s birth.

At the beginning of 2020, however, California passed a new series of requirements in SB142 that exceed the ACA’s federal protection for lactation accommodation nationwide.

What SB142 Provides To Nursing Mothers as of 2020

Signed into law almost a year ago, SB142 is an act that amends sections of California’s labor code to expand protections for nursing mothers and provide a greater level of accommodation than ever before.

Lactation Location

While California employees have long enjoyed a requirement to provide a place other than the bathroom where nursing mothers can breastfeed or pump breastmilk, SB142 specified new requirements for this type of space at a worksite.

Under California law, a lactation location must:

  • Be safe, clean, and free of any hazardous materials
  • Be shielded from view and free from intrusion while an employee is using it to express breastmilk or feed
  • Have a surface where the employee can place lactation gear (such as a breast pump) and other personal items
  • Have a place for the employee to sit
  • Have access to electricity by means of an outlet, extension cords, or battery power so as to power or charge a breast-pump

An employer must also provide a sink with running water and a refrigerator for storing milk (or a cooler) within a reasonable proximity to the employee’s workstation. Should a room with multiple uses include lactation as one such use (such as a meeting room), lactation must be considered its primary use and the room must be equipped as such.

Number & Duration of Lactation Breaks

California doesn’t explicitly state how many lactation breaks an employee may take or how long they are permitted to last. Instead, employers are required to provide a reasonable amount of time for employees to express breast milk. Breaks that can align with a non-exempt employee’s scheduled breaks are treated as such, however, the employer may not restrict the number of additional unpaid rest breaks the employee needs to express breast milk.

Employers Must Have Stated Lactation Policies

Another new requirement provided by SB142 requires employers to have a policy on lactation accommodation. Employees must be made away of this policy at the time of hire and when they ask about or request parental leave.

An employer’s policy must provide the following:

  • A statement affirming the employee’s right to request accommodation for lactation
  • Information about how the employee can request accommodation
  • The employer’s obligation to respond to the request for lactation accommodation
  • A statement that affirms the employee’s right to file a complaint about any violation of the law

Exceptions To Lactation Requirements

There are, of course, certain exceptions to California’s lactation accommodation laws that apply to certain employees and employers. These are typically applicable to smaller employers who are operating their businesses out of multi-tenant office buildings that may not be built with certain amenities.

When providing accommodation for lactation would provide a hardship upon the employer, only those with 50 or few employees can apply for an exemption. A hardship cannot be mere inconvenience – employers may only successfully obtain an exemption if they can prove that lactation accommodation would cause significant problems considering the employer’s size, nature of work, structure of business, or available financial resources.

Do You Need To Fight For Lactation Accommodation?

Haeggquist & Eck, LLP fights on behalf of employees whose rights were violated by their employers. We can assist nursing mothers who aren’t being given the time they are entitled to express breastmilk at work fight back for fair and just compensation from their employers. Rest assured that your rights are protected by law, and our attorneys can help you hold your employer accountable should you not be given the reasonable amount of time you need or any other reasonable lactation accommodation.

Schedule a free consultation with Haeggquist & Eck, LLP today to learn more. Contact us online or call (619) 342-8000 to get in touch with someone who can help.

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