Employment Law

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.

New Law Protects Losing Employees in Wage and Hour Cases From Paying Attorneys’ Fees

As of January 1, 2014, a new law (SB 462) makes it more difficult for prevailing employers in wage and hour cases to collect attorneys’ fees and costs against their employees.

Prior to the new law, Labor Code §218.5 required courts in wage and hour cases to award the prevailing party attorneys’ fees and costs. Under the new law, however, a prevailing employer will only be awarded attorneys’ fees and costs if it can convince the court that the employee brought the action in bad faith. Bad faith is a difficult standard to prove, so the new law will likely result in few employers recovering attorneys’ fees from their employees in wage and hour cases.

The amendment of Labor Code §218.5 does not affect a prevailing employee’s right to attorneys’ fees and costs in wage and hour cases.

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

California Supreme Court Depublishes Three Decisions Interpreting Brinker

Last April, the California Supreme Court resolved long-standing confusion regarding the definition of the word “provide” in Labor Code §512, which requires employers to provide meal breaks to employees who work for more than five hours. In the landmark Brinker decision, the Court clarified that an employer must relieve its employees of all duties during a meal period. The decision was haled as a victory for employers because the Court did not require employers to police meal breaks, but was also looked at as a boon to employees, because employers must go beyond merely maintaining a policy permitting meal breaks.

Since Brinker, several California appellate court cases have interpreted the decision. Recently, however, the Supreme Court depublished three of these decisions. The Court’s depublication of the decisions indicates that the Court wants lower courts to use Brinker as precedent, rather than these appellate court decisions. The Court’s depublication strongly signals that these decisions improperly used an outdated definition of the word “provide,” which fails to take into account that employers must now take affirmative steps to relieve employees of all duties during breaks.

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

New Amendments To FEHA Clarify Religious Accommodation Requirements

Recent amendments to California’s Fair Employment and Housing Act (“FEHA”) provide clarity regarding an employer’s duty to provide religious accommodations to its employees. FEHA protects employees from discrimination and harassment based on religion and requires employers to reasonably accommodate employees’ requests for religious accommodation unless such accommodation would cause “undue hardship” to the employer.

Under the 2013 amendments, to prove undue hardship, an employer must demonstrate “significant difficulty or expense” associated with the religious accommodation. This definition requires an employer to make every practical effort to provide religious accommodations to its employees, including considering alternative accommodations rather than simply denying an employee’s request for accommodation.

FEHA also protects employees’ “religious observances.” The new amendments clarify that religious clothing, dress, and grooming practices fall under the category of religious observances. Therefore, if a dress or grooming practice is an essential component to an employee’s religious practice, then an employer must accommodate the practice unless doing so would cause an undue hardship. Practically speaking, this means that employees may be entitled to religious accommodations from their employers’ official dress code policies.

Finally, the new amendments prohibit California employers from segregating employees from customers to accommodate employees’ religious beliefs. Thus, employers will now have to suggest alternative reasonable accommodations that do not include relocating employees to a back office or away from public view.

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

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