Employment Law

California Law Protects All Employees, Regardless of Immigration Status, From Discrimination, Harassment, and Retaliation in the Workplace

Federal immigration law prohibits the employment of “unauthorized aliens” in the United States; but the reality is, there are over 1.85 million undocumented workers in the California workplace. That’s nearly 10% of the total workforce who, unfortunately, experience workplace violations to a higher degree than most. This is in part because employers take advantage of workers’ fears of immigration consequences, and in part because these workers do not know their rights.

A recent California Supreme Court case recognized this reality and held that all employees – whether or not they are legally authorized to work in the United States – have the right to a workplace free of discrimination, harassment, and retaliation, and have the right to bring suit if their rights are violated.

In Salas v. Sierra Chemical Co., Vicente Salas was a seasonal production line worker for Sierra Chemical, a manufacturer and distributor of water-treatment chemicals for swimming pools, among other things. Due to the rise and fall in demand, Sierra Chemical generally laid workers off over the winter and re-hired them in the spring and summer. After working for Sierra Chemical for a few years, Mr. Salas injured his back while lifting crates and had to be taken to the hospital on two separate occasions. Mr. Salas filed a workers’ compensation claim and was placed on modified work duties (including restrictions against heavy-lifting and prolonged standing). Though the company initially accommodated Mr. Salas, it eventually laid him off and refused to re-hire him until his doctor cleared him to work without modifications.  Mr. Salas then filed a lawsuit for disability discrimination and for retaliation for filing his workers’ compensation claim.

Sierra Chemical fought the lawsuit by providing evidence that Mr. Salas had used a fraudulent Social Security Number on his employment documents. Basically, their claim was that even if they did discriminate and retaliate against Mr. Salas, they would have refused to re-hire him anyway because of his undocumented status.

Ultimately, the Court determined that regardless of whether Mr. Salas was authorized to work in the United States or not, he was still entitled to the protections of California’s Fair Employment and Housing Act, which prohibits discrimination, harassment, and retaliation in employment. Any other ruling would give employers a free pass to discriminate against undocumented workers.

If you have experienced discrimination, harassment, or retaliation in your workplace, you may have a case against your employer, regardless of your immigration status. For more information about your rights, please call us at (619) 342-8000.

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

Did Your Employer Misuse Your Credit Report?

A federal consumer protection statute, the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§1681, et seq., protects employees against employer misuse of an employee’s credit report.  Do not be fooled by FCRA’s title – the statute reaches far beyond the realm of credit reporting and governs, among other things, how credit reports are used in the employment context.

How do you know if there has been a misuse of your credit report?  To answer this, ask yourself the following questions:

First, has your employer or potential employer sought to obtain and use your credit report, which broadly includes any information from a consumer reporting agency bearing on your credit, character, reputation, personal characteristics, or mode of living, for any “employment purpose”?  The term “employment purpose”, when used in connection with a credit report, means a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee.  15 U.S.C. §1681a(h).

If the answer to the first question is yes, then ask yourself whether your employer disclosed its intention to obtain your credit report and obtained your authorization to do so prior to obtaining the report.  The FCRA provides that ordinarily an employer may not request or obtain a credit report until “the consumer has authorized in writing … the procurement of the report.”  15 U.S.C. §1681b(b)2)(A)(ii).  As to disclosure, the FCRA generally requires that, prior to procuring a credit report, the employer make a clear and conspicuous disclosure that a credit report may be obtained for employment purposes, and that the disclosure is set forth “in a document that consists solely of the disclosure.”  15 U.S.C. §1681b(b)(2)(A)(i). If your employer or potential employer failed to follow these requirements, you may be entitled to recover any actual damages, a statutory damage award of up to $1,000, punitive damages, and recovery of attorneys’ fees and costs.  15 U.S.C. §1681n (civil liability for willful noncompliance); 15 U.S.C. §1681o (civil liability for negligent noncompliance).

Moreover, an employer cannot take an “adverse action” (e.g., decline employment, terminate employment, etc.) based on a credit report without first providing the above disclosures to the prospective or current employee.  If the employer fails to provide this information or fails to give you a reasonable amount of time to review the disclosures, it could be in violation of the FCRA, again, entitling you to damages.

If you feel there has been a willful or negligent misuse of your credit report by an employer or prospective employer or if you have any questions or concerns about the same, contact the attorneys at Haeggquist & Eck, LLP.

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

Calculating Overtime Compensation In California

If you are a non-exempt employee working in California, you may be entitled to overtime compensation.  In order to determine whether you are being paid the proper amount of overtime compensation, use a step-by-step approach:

First: Identify those hours that must be paid on an overtime basis.  In California, any work in excess of eight (8) hours in one workday and any work in excess of forty (40) hours in one workweek and hours worked on the seventh day of work consititute work that must be paid on an overtime basis.

Second: Determine your “regular rate” of pay.  When calculating overtime pay in California, your “regular rate” of pay is used, not the normal hourly amount.  Generally speaking, “regular rate” is a term used to mean your normal hourly amount plus other types of compensation you may recieve (e.g., bonuses).

Third: Determine the applicable overtime rate of pay.  Any work in excess of eight (8) hours in one workday and any work in excess of forty (40) hours in one workweek and the first eight (8) hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the “regular rate” of pay.  Any work in excess of eight (8) hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the “regular rate” of pay of an employee.  In addition, any work in excess of twelve (12) hours in one day shall be compensated at the rate of no less than twice the “regular rate” of pay for an employee.

Your employer should be providing you with properly itemized wage statements every pay period that you can use to cross-check with your time records.  Then use the step-by-step approach above to determine whether you are being paid the proper amount of overtime compensation.

If you feel you have been improperly denied overtime compensation, contact the attorneys at Haeggquist & Eck LLP.

Employees Have the Right To Receive a Copy Of Their Personnel File and Records

Effective January 1, 2013, California law provides that current and former employees (or a representative) have the right to inspect and receive a copy of the personnel files and records that relate to the employee’s performance or to any grievance concerning the employee. Labor Code Section 1198.5.

Inspections must be allowed at reasonable times and intervals, but not later than 30 calendar days from the date the employer receives a written request. Upon a written request from a current or former employee or a representative, the employer shall provide a copy of the personnel records, at a charge not to exceed the actual cost of reproduction, not less than 30 calendar days from the date the employer receives the request.

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

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!

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