Archives for July 31, 2024

ā€‹Am I Being Sexually Harassed at Work?

Most people know what sexual harassment means and understand it is wrongful. However, some employees who experience sexual harassment canā€™t tell when it happens to them.Ā 

If you believe youā€™re facing sexual harassment at work, it helps to review the other personā€™s actions, the frequency of these behaviors, and how they make you feel with an experienced San Diego employment lawyer. An experienced employment lawyer can provide adviceĀ about whether what you are experiencing is workplace sexual harassment and guidance on how to proceed.Ā 

What Is Sexual Harassment?

Sexual harassment is behavior directed at you that makes you feel awkward or uncomfortable. When sexual harassment happens at work, it can make your work environment feel unwelcoming and even intolerable.Ā 

Both men and women can be targets of sexual harassment, with harassers also being either men or women. Sexual harassment in the workplace can happen to anyone, with harassers being supervisors, coworkers, or customers.Ā 

Sexual harassment can occur regardless of sexual orientation or gender identity, although these factors could lead to different or additional types of harassment like targeted harassment. All employees, regardless of orientation, have the right to a safe work environment free from unwelcome sexual advances or harassment.

Sexual harassment is unlawful, and several laws exist to protect victims. However, it is critical to not only understand the signs of sexual harassment, but also what sexual harassment is not.Ā 

Sexual Harassment in the Workplace

The Fair Employment and Housing Act (FEHA) covers sexual harassment in the workplace in California, as this is a form of discrimination based on gender. The FEHA describes two types of sexual harassment: quid pro quo harassment and hostile work environment.

Quid Pro Quo Harassment

Quid pro quo means ā€œin exchange forā€ or ā€œa favor for a favor.ā€ This type of harassment usually concerns supervisors or others in a position of power.

Quid pro quo harassment involves a higher-up asking for sexual favors or other sexual behaviors in exchange for a work benefit.

These benefits may include:

  • Jobs
  • Promotions
  • Pay increases
  • Favorable transfers

In the alternative, the harasser might put you in a position that makes it difficult to say no to the request because of potential consequences. For example, ā€œSleep with me if you want this promotion.ā€

To establish quid pro quo harassment, itā€™s particularly helpful to have proof of your bossā€™s harassing communications or witness statements from individuals who can corroborate your claims.

Hostile Work Environment

A hostile work environment means the harasserā€™s unwelcome behaviors are so bad that they interfere with your work performance or create safety concerns for yourself. These actions can involve everything from catcalling and making sexual jokes to explicit comments and physical touching or other physical harassment.

This type of sexual harassment can be a little more challenging to prove than quid pro quo harassment since some of the harasserā€™s behaviors can be subjective. Nonetheless, the right attorney can help you collect evidence and build your case to prove sexual harassment.Ā 

Signs of Sexual Harassment

Sexual harassment behaviors vary greatly. Your potential harasser may exhibit one or a mixture of the acts associated with sexual harassment.Ā 

The list of potential behaviors that can constitute sexual harassment is endless, but the following are some of the most common. If you are experiencing or have experienced any of this conduct or any behavior aimed to make you feel objectified or uneasy, discuss your situation with an attorney as soon as possible.Ā 

Unwelcome Physical Touch

Physical touch is one of the most significant actions that can be sexual harassment.

Some of the acts of physically touching you that may make you uncomfortable include:

  • Laying a hand on the small of your back
  • Touching your leg, thigh, or buttocks
  • Trying to hold your hand
  • Grabbing you in a restrictive or aggressive manner
  • Purposely rubbing up on you
  • Stroking your hair, body, or clothing

It helps to decipher the potential intent behind the personā€™s actions. Some behaviors are easier than others to identify as sexual harassment, while others are a little more ambiguous. For instance, someone may try to kiss you on the cheek or hug you because itā€™s a cultural thing, not because theyā€™re attempting to make you feel weird.

If someone continuously touches you in an unwelcome manner, you can address it kindly and directly. If they disregard your feelings and continue to touch you, it is more than likely sexual harassment.Ā 

Verbal Comments

Sexual harassment doesnā€™t just have to be physical, as it can be verbal as well.

Verbal sexual harassment can involve:

  • Catcalling
  • Calling you nicknames or pet names
  • Comments about your body or physical appearance
  • Sexually explicit comments
  • Making sexual innuendos
  • Spreading rumors
  • Pressuring you to engage in sexual acts
  • Jokes of a sexual nature
  • Asking about sexual preferences or history
  • Sharing sexual stories or fantasies

With verbal sexual harassment, the harasser may make these comments directly to you or involve others and make comments about you. These comments can make you feel uneasy, humiliated, or threatened and make your workplace a very difficult place to be.Ā 

Nonverbal Sexual Harassment

Communication can be verbal and nonverbal, sexual harassment included. Sexual harassment doesnā€™t just have to involve physical touch or verbal communication. It can also include nonverbal acts to make you feel uncomfortable.

Some of the most common nonverbal sexual harassment behaviors include:

  • Staring
  • Sexually suggestive signals
  • Facial expressions (winking, licking their lips, blowing kisses)
  • Sexual gestures with hand or body movements
  • Whistling at you
  • Looking you up and down
  • Inappropriately touching themselves while looking at you

These actions alone can make someone feel tense or self-conscious, especially if they occur repeatedly.Ā 

Sexually Explicit Text Messages, Emails, Photos, or Videos

Written communication, whether in or out of the office, should remain strictly professional. When your harasser crosses the line and starts sending you non-work related messages, especially of a sexual nature, that is considered sexual harassment.

The situation escalates when they also include inappropriate photos and videos in your communications. Even simply showing you explicit photos and videos can be harassment.Ā 

If your harasser sends you written or visual communication, your first instinct may be to delete everything. However, if possible, retain these pieces of communication, as they can be helpful to your future case.Ā 

Stalking

In some serious cases, your harasser may take it outside of the office and begin stalking you.

Stalking involves many behaviors that are unsolicited and unwanted, which can include:

  • Following you
  • Repeated communication, like phone calls, emails, texts, and even giving gifts that are not work-related
  • Showing up to your home or other location you frequent
  • Threatening you
  • Any other form of undesired contact

In the absolute worst cases, victims of stalking have to get protective orders against their stalkers. Stalking can be serious, sometimes even leading to serious physical harm.Ā 

Pressure for Dates

Asking someone on a date isnā€™t necessarily a behavior associated with sexual harassment. However, that can quickly change if the individual does not stop asking you out or making you feel pressured to date them.

If a person has asked you out and youā€™ve clearly said no, they should leave the situation as is. If the same individual continues to ask or even gets mad when you refuse to go out with them, this is a form of harassment.Ā 

Requests for Sexual Favors

Requests for sexual favors are common to quid pro quo sexual harassment from a boss, but they can also happen with any other individual, which can cause a hostile work environment.

Asking for sexual favors is more often than not followed by either a promise to do something if you comply, or a threat against you if you fail to follow through.

What to Do if Someone Sexually Harasses You

What to Do if Someone Sexually Harasses You

When youā€™re the target of sexual harassment, it can bring up plenty of unwanted feelings. You might feel bad about yourself, depressed, angry, stressed, and frustrated. You may also feel as though there is no out, especially if you genuinely enjoy your job or canā€™t afford to leave your position.Ā You may worry about the consequences if you report sexual harassment.

It is important to know that you have options if youā€™re experiencing sexual harassment. You are not alone, and there is a way out, even if it doesnā€™t seem like it.Ā 

If youā€™re the victim of sexual harassment or think you might be, the following steps can help you in your pursuit of justice.Ā 

Collect Proof of the Harassment

Begin gathering evidence of sexual harassment as soon as possible. The more proof you have, the stronger your case against your harasser.

Some evidence that can strengthen your claim include:

  • Communication with your harasser, including emails, texts, and voicemails
  • Witness statements from others who have witnessed the harassment first-hand
  • A detailed account of every harassment encounter

Additionally, when you formally report the harassment to your employer or human resources department, you should retain copies of anything submitted as proof. This is especially helpful to prove you did, in fact, follow your companyā€™s policy on reporting the harassment, but they did nothing to stop it.

Collect anything and everything you believe your attorney can use to build your case.Ā 

Confront the Harasser

Some individuals feel comfortable enough confronting their harassers head-on about their behavior. You donā€™t have to be aggressive or defensive but can instead try to approach them in a calm and kind manner to avoid any negative situations. You may also consider having another person in the room as a witness to your interaction.Ā 

If your harasser does nothing to stop their behavior, you can proceed to formally report their actions to your company.Ā 

If you donā€™t feel comfortable discussing the situation with your harasser for fear of how they might react, do not feel obligated.Ā 

Formally Report the Harassment at Work

Typically, companies have policies regarding sexual harassment and reporting these behaviors. Your employment lawyer can help you review your employee handbook for instructions.

In many situations, your lawyer can help you submit a written sexual harassment complaint to your Human Resources (HR) department. Your employer can then review your complaint and any evidence provided and conduct an investigation.Ā 

File a Lawsuit

If your employer does not take appropriate action, you should consult a sexual harassment attorney about your options, including filing a lawsuit.Ā  Before you file a lawsuit, you need to file a complaint with the CRD, formerly the DFEH, and obtain a Right to Sue. Your attorney can do this for you.

While you are not legally required to have an attorney help you with your sexual harassment claim, it is often the wisest choice.Ā 

Sexual harassment cases can be challenging to navigate, but an employment lawyer has the right knowledge and skills to help you from beginning to end. Not only can an attorney give you peace of mind, but they can also help you reach the most favorable outcome for your case.

Therefore, if you believe youā€™re the victim of sexual harassment, do not hesitate to seek assistance from a qualified San Diego sexual harassment lawyer. You are already dealing with a stressful situation and serious concerns about your future. Allow an attorney to protect your legal rights.

Should I Sign the Severance Agreement My Boss Gave Me?

Evaluating Whether It Makes Sense To Accept a Severance Package Offered by Your Employer

Losing your job is often a frightening experience, and you may feel financially vulnerable if you are unsure of where you will find your next employment opportunity. When you are being laid off, your employer might ask you to sign a severance agreement ā€“ a contract, which typically includes some level of monetary compensation, or severance pay, in exchange for a release of your legal rights.

Should IĀ Sign a Severance Agreement?

Signing a severance agreement to obtain a much-needed payout can be understandably tempting, but you should always be careful to protect your interests. Employers will often use severance agreements to restrict your rights in pursuing legal action against them in the future. Consequently, you must thoroughly review the terms of any severance agreement and weigh the pros and cons of signing.

For this reason, it’s a good idea to talk to experienced employment lawyers before agreeing to the terms of any proposal for severance compensation or taking any severance payment.Ā Below, we review many of the questions you should be asking, what to watch out for, how and when you should negotiate, and other important factors to consider.

Why Are You Being Offered a Severance Package?

It is important to understand that businesses operating in California are in no way obligated to necessarily offer you a severance package when you are being terminated. This is true even if you are being dismissed due to factors outside your control, like a company-wide layoff. Therefore,Ā you must evaluate why your company has chosen to offer you a severance package and what they hope to gain from you signing a severance agreement.

Also, in California, the terms severance agreement and separation agreement are often used interchangeably, but there can be subtle differences depending on the context and specific situation. However, in practice, many employers and legal professionals use these terms to refer to the same type of document. The specific content and terms of the agreement are more important than the title.

Note that severance packages can sometimes be obligatory if there are provisions requiring one in your employment agreement. A mandatory severance offer is often included for senior executives and other salaried employees. Unions can also sometimes require some level of severance be offered. An employer might openly have a policy to offer severance packages as a reward for company loyalty.

Absent an existing contract or company policy, however, an employer is most likely to offer a severance package when they seek to protect themselves from future legal action. To accomplish this, the company will attempt to incentivize you to sign a severance agreement, which will voluntarily restrict some of your rights.

If all of this sounds a bit dubious, be aware that severance agreements in most circumstances are considered perfectly acceptable by California courts.Ā Many severance agreements have common provisions that are legally enforceable.Ā In some cases, employers may attempt to include terms that are notĀ enforceable and will not hold up to scrutiny in court. You must also sign the severance agreement voluntarily.

What Are the Terms of the Severance Agreement?

In order to receive the monetary incentives of a severance package, you will first have to sign the severance agreement. It is critical you understand that these terms are seeking to protect the company, not you. Never sign a severance agreement without carefully reviewing its contents. Make every effort to understand what each item means and how it can impact your future rights.Ā Better yet, speak with a lawyer well-versed in employment law and severance benefits before signing any type of termination agreement.

Common provisions of severance agreements include:

  • Non-disparagement requirements.Ā This means you will not be permitted to publicly speak negatively about, or ā€œdisparage,ā€ the company or its employees.
  • Restrictions on your rights to pursue legal action against the company. Signing a severance agreement can mean voluntarily relinquishing the ability to file or participate in lawsuits against the employer, even in situations where there is a legitimate offense. These types of clauses typically preclude you from pursuing cases involvingĀ wrongful termination,Ā employment discrimination,Ā sexual harassment, andĀ retaliation.
  • Non-disclosure agreements. In many cases, you will have already signed some form of a non-disclosure agreement, or NDA, as a condition of your past employment. A severance agreement will often reaffirm, renew, or modify the terms of a previously signed NDA. Additions often include restrictions on speaking about why you were dismissed and the terms of your severance package.

Generally, these types of severance agreement terms are considered legally enforceable. This means that if you violate the agreement, your employer has the option of filing a lawsuit against you.

Are There Any Red Flags in Your Severance Agreement?

As we mentioned above, there are some terms that employers will sometimes insert into separation agreements that are neither lawful nor enforceable. In these situations, an employer is banking on an employee not understanding their legal rights and not having the resources to litigate the matter should it later become a point of contention. Consequently, it is important to identify problematic terms and address them before an agreement is signed.

Examples of terms an employerĀ cannotĀ enforce in a severance agreement include:

  • Requirements that force you to lie under oath. An employer cannot force you to lie if called to testify in court.
  • Requirements restricting your ability to report crimes. A company cannot prevent you from reporting crimes committed by the company or its employees.
  • Non-compete clauses. There are some very limited situations where an employer may be able to specify you cannot work within a given industry for a certain amount of time after your dismissal. California has historically rejected any attempt to enforce these provisions.
  • Any relinquishing of owed wages. An employer cannot lawfully deny you wages that you have earned, including overtime, and unused vacation days. It should also be noted that an employer cannot delay the payment of final wages due to an ongoing severance negotiation.

If one or more of these types of clauses appear in your severance agreement, proceed with extreme caution. Do not sign the severance agreement without first consulting with an experiencedĀ employment lawyer.

What Is Included in Your Severance Package?

There is no reason to sign a severance agreement without a robust severance package to justify your relinquishing numerous rights. Companies typically set their own policies on the monetary size of a given package or determine them on a case-by-case basis.

In most cases, the amount offered in a severance package will scale with the number of years that you have been employed at the company. On the lower end, terminated employees can expect to receive a weekā€™s pay for each year worked at the company. For example, if a person worked at a company for 5 years, they would potentially be offered 5 weeksā€™ pay in their severance package.

Employers could potentially offer more, with some companies choosing to offer 2 weeksā€™ pay or even a full monthā€™s pay for each year worked.Ā Your employment or union agreement might also specify the minimum amount of a severance package.

High-ranking executives can even potentially receive a ā€œgolden parachute,ā€ a lump sum severance package that is in theory a reflection of their contributions to the company. These larger deals are often negotiated in advance as part of an employment agreement when an executive joins the company.

Can You Negotiate the Size of Your Severance Package?

There is no rule preventing you from attempting to negotiate the terms of your severance agreement or the size of your severance package. You should always know your worth and take the necessary steps to protect your interests.

Keep in mind that severance agreements tend to be inflexible, with companies often refusing to budge on modifying common terms like non-disparagement causes. The only major exception is when concerns about a legally questionable or unenforceable provision are raised. Your employer is likely to take you more seriously if you retain legal representation to assist you in contesting objectionable points.

You may have more luck when negotiating the monetary size of your severance package.Ā Remember that you are under no obligation to sign any severance agreement and can walk away at any time, meaning you may have some leverage in asking for a larger payout. Your employer might attempt to lowball you with a paltry severance despite years of loyal commitment to the company. If you are only being offered one weekā€™s pay per year worked, consider asking for two weekā€™s pay per year. There is generally no harm in countering, and companies are incentivized to do whatever it takes to get a severance agreement signed.

Note that you may have a limited ability to counter depending on your circumstances. Those who belong to a union may have negotiations handled on their behalf by their representatives. An employment agreement might also explicitly lay out the terms of a guaranteed severance offer.

If you have only been at a company for a short amount of time, a severance package may not be offered at all. If you do receive an offer, you will likely not have much room to negotiate, as by that point you will only have made limited contributions to the company.

Are You Considering Legal Action Against Your Employer?

This is perhaps the most important question to consider when evaluating whether you should sign a severance agreement. Most of the rights you give up when signing a severance agreement hinge on your ability to participate in legal action taken against your employer.

If you believe you were wrongfully terminated or retaliated against by your employer, you should not sign a severance agreement without first consulting with a lawyer.Ā It can be tempting to accept the immediate lucrative benefits of a severance package, but it is critical that you not give up your rights in the process. A successful wrongful termination lawsuit can lead to the reinstatement of your job, the recovery of lost wages, and awards for punitive damages. In addition to holding your employer accountable for their actions, you will likely receive more money as part of a successful legal action than you would through a severance package.

Employers understand this, which is why their only priority is to protect themselves by limiting financial liabilities. It is typically more cost-efficient to pay a hefty severance package versus undergoing a legal battle waged by a former employee, even if the matter is eventually settled out of court.

Why You Should Seek Help From an Attorney

First, your attorney can review your severance agreement and advise you of potentially adverse provisions in the contract. If you received a severance agreement, your employer (more likely than not) used an attorney to help them draft the agreement.

In using an attorney to help them draft your severance agreement, your employer likely took every opportunity to insulate themselves from a great deal of future risk. For example, most severance agreements contain provisions that make it so that you cannot disclose what you learned or heard while in the workplace and may include penalties if you violate the provision.

Additionally, most severance packages will have some form of limitation of liability on behalf of the former employer. Once you sign the severance agreement, you can no longer sue your employer for any damages for discrimination or other unlawful conduct, such as wage and hour violations. If your employer violated your rights, you give up your ability to take legal action when you accept the severance.

Legal Assistance Ensures an Honest Assessment for an Informed Decision

If you are not sure whether or not your severance package will fully cover what you thought it should financially, signing means you can likely never do anything about your concerns. The severance agreement will have been carefully constructed by your former employerā€™s attorney so that it limits your rights while maximizing the benefits to your former employer.Ā A lawyer can review the entire agreement to ensure you receive fair compensation in the negotiation process.

Even if your former employer does not have an attorney helping them create the severance agreement, you need your own attorney to help you. Your employer might have included illegal provisions in the agreement or could violate laws or statutes in the language that they used.

What they include could be unenforceable, or it could be enforceable and put you in a negative position. Without legal guidance when drafting an agreement, the agreement could be detrimental to either party signing it.

Non-Disclosure Provisions Could Expose You to Liability

You may be subject to non-disclosure provisions preventing you from disclosing information you learned while you were employed. This could include information essential to the job or trade that you learned and would be valuable to you in your working life after your time with the company.

They may also include penalties and other provisions that could expose you to future liability or litigation. Former employers are not always honest or positive in their intentions. A carefully crafted non-disclosure agreement could make it difficult for you to get a new job in a similar company or the same industry without exposing yourself to costly litigation in the future.

Non-Compete Clauses Could Make You Unemployable

When you are losing your current position and receive a severance offer, you are likely going to be considering what you will do next to earn a living and support your family. Without a steady income, your financial stability might be maintained for a decent amount of time, but not indefinitely.

Keeping this in mind, knowing that you can line up valuable employment that puts your skills and experience to use is important. However, your severance package might include a non-compete clause that prevents you from working for another company in the area or industry for some time.

A non-compete clause might not seem especially intimidating at the moment of signing your severance package, as you are also ideally getting a check alongside your severance agreement. You can rest assured that this check is as low as possible from the perspective of the employer, as they intend to maintain profitability while getting rid of the employee they are breaking ties with.

The severance package might seem to cover some of your lost wages or salary and other benefits for some time, but unless you are getting a platinum parachute like the disgraced executives of corporate American during the banking crisis, your settlement amount will run out, and you will be seeking out additional employment.

Losing Employment Value Can Entitle You to Legal Relief

Some severance agreements prevent you from putting your valuable experience and education to work for you. When this happens, your specialty degree with a high student loan payment becomes a liability, as you cannot work in the field, but you still have to keep making student loan payments.

Employers cannot enforce some non-compete agreements for this reason.

When your non-compete agreement prevents you from finding gainful employment that is equal in value to what you did before, a court may refuse to enforce it.

While you might think that you have to take a lower-paying job in another industry or work a lower position because of the severance agreement you signed, this may not be the case. In fact, if you did not work in gainful employment for a considerable amount of time and missed out on wages and benefits because of an unconscionable severance package and non-compete agreement, you could even seek damages.

Your Employment Attorney Can Help You Collect Your Full Benefits

When you receive a severance offer that seems lower than it should be or fails to effectively cover what it should, your employment attorney can help. Our experienced California employment attorneys have handled many cases involving severance and know the norms.

Employers and their lawyers take advantage of employees who have never gone through a severance negotiation by offering them as little as possible while encouraging them to sign as quickly as possible.

Your employment attorney will step into your shoes, take over all negotiations, and ensure that you receive the fullest possible severance package that your employer is willing to provide. If you already accepted a severance agreement, your attorney might have a solution.

Contact Haeggquist & Ech LLP for Legal Claims Related to Job Termination

A typical severance package includes several key components, usually starting with severance pay based on length of service and possibly salary continuation for a set period. Benefits continuation, particularly health insurance coverage through group health coverage, is often included. The package may also cover bonuses, stock options or equity adjustments, and payout of unused vacation or PTO.

Additional elements can include outplacement services, retirement benefit adjustments, retention of company property, and extension of job-related perks. Some employers offer legal fee coverage for agreement review and provide an agreed-upon reference or recommendation letter. The specific elements in a package vary based on company policy, employee position, length of service, termination date, and the circumstances of the separation.

It’s important to note that in California, certain elements like final wages and accrued vacation pay must be paid out regardless of whether a severance agreement is signed. The overall package is often negotiable and tailored to the specific situation between the employer and departing employee.

If you have questions about whether you should sign a severance agreement or believe you are the victim of wrongful termination, callĀ (619) 342-8000Ā orĀ contact us onlineĀ to schedule a free case evaluation.

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