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Category: Employment Law

Categories
Employment Law

10 Common Legal Issues in the Workplace

California Employment Law covers a wide range of employment topics as a way to prevent legal issues from occurring in the workplace. Still, legal issues do occur from time to time so it’s a good idea to brush up on your understanding of what’s considered illegal.

Here are 10 of the most common legal issues in the workplace today.

Legal Issues in the Workplace

Companies today must be very aware of the legal issues involved in employer-employee relations and the responsibilities companies have to establish and maintain a safe and fair environment.

Companies have to establish a clear set of policies and practices that guide corporate behavior toward its workers and its business partners. Companies that produce products and services for the consumer also need to stand behind what they produce and meet common expectations for product reliability and consumer safety.

The laws governing workplace culture are changing all the time, and both employer and employee need to keep up with current trends in society as they may apply to the workplace.

Here are some of the more common legal issues seen in the workplace.

1. Defective Products

There is an implied warranty that goes with all products under which consumers can expect those products to work as advertised, without being faulty or causing injury. There are also express warranties that companies offer to cover certain problems within specified time limits. These warranties must be honored as well.

If several customers experience similar problems with a company’s products, these dissatisfied customers can file class action lawsuits against the company that can affect the company’s short-term financial status and longer-term brand image.

Companies need to practice quality management in developing their products to ensure reliability and safety and, should any problems be found, immediately notify customers of any needed recalls or preventative steps needed for safety.

2. Workplace Safety

Safety applies to the workplace as well.

Workers should feel safe in the workplace, especially where hazardous chemicals or working with dangerous equipment may be involved. Proper protective equipment and procedures should be used to minimize any injuries.

Even in workplaces with offices and meeting spaces need to be careful about worker safety. Injuries from trips and falls are a major reason for workplace lawsuits and are typically due to employer negligence over the conditions that caused the injuries. Companies should provide adequate warnings over wet floors or slippery sidewalks or weak stairs, etc.

3. Wrongful Termination

Employers who are unaware of labor laws can easily violate them. If workers are fired, there need to be good legal reasons for doing so. And workers need to be aware of those reasons. Terminating an employee for the wrong reason can lead to lawsuits.

A worker can make a case against the company if he or she is terminated for a variety of reasons including being treated differently from other employees, or for complaining about safety issues, or for being too old, or for reporting illegal activities. And there are more reasons like these that can get a company in trouble.

Employers need to know federal and state laws concerning their responsibilities to workers before, during, and after termination including proper notification, advanced warnings, documentation, and policy conformance.

4. Breaking Privacy Laws

Many employers may be unaware that they cannot use employee names or photos in advertisements or other promotions without employee approvals. This a violation of privacy and also possibly infers employee endorsement of the company’s products.

Just because employees work for a company doesn’t give the company a right to use their identity for commercial gain. Taking photos or videos in public may be legal but recording conversations without permission is not. This includes phone calls where someone is recorded without their knowledge.

5. Social Media

The use of social media is growing all the time. People use Facebook and Twitter in their private lives to exchange ideas and feelings and events. They share photos and discuss everyday life – including their work life. This is where the danger comes.

Comments about a worker’s company can lead to serious consequences. Workers have been legally terminated for damaging remarks about their employer. Everyone should be aware that they are not immune from consequences from using social media even in their private lives. There have been many legal precedents to demonstrate this point.

6. Employment Status

It’s a common practice for companies to hire interns. It’s a great way for these people to come in, learn a business, and do some minor work to help the company. But hiring an intern can be a double-edged sword. It helps the intern, possibly to the point of being hired in the future as a permanent employee, but it also raises a question. Is the intern doing too much work and not getting paid fairly?

If the intern is really doing the job of a permanent employee, he or she may not be legally considered an intern but instead a regular employee who should be paid like one.

Sometimes a company will make the mistake of hiring an intern to replace a regular employee and do the same work. This is obviously illegal if that intern is not paid the same for the same work.

The purpose of hiring an intern is to help that person learn a new business or skill, more so than actually doing meaningful work for the company. If that is not the right balance, it is very likely that the law is being broken.

7. Working Overtime

Pay for time or overtime is an ongoing debate that has political overtones. The law enacted in 2016 may or may not be the law of 2020 or even the law of 2019. Adding to the confusion is the research that shows about half of the employees in some industries do not know how many hours they have worked in given week.

The current law says that unless exempt, employees covered by the Fair Labor Standards Act must receive at least time and one-half their regular pay rate for all hours worked over 40 in a work week.

The FLSA provides minimum wage and hour standards but states can provide more protective standards. Companies need to be aware of current legal definitions and requirements regarding fair employee compensation.

8. Discrimination

Workplace discrimination comes in many forms. The federal government has laws expressly forbidding discrimination on national or ethnic origin, sex, age, religion, disability, gender preference, and retaliation. But even if employees are treated differently from other employees, they may be victims of workplace discrimination.

Sexual harassment or some form of intimidation is also illegal and examples of discrimination. Companies must be very aware of discrimination and work positively to prevent it, through established company policies and awareness meetings and practices.

9. Illegal Labor

Companies should make sure that their employees can work legally in the United States and do the background checks or identification checks needed. There can be illegal immigrants signed on with falsified documents, and surprise immigration audits can cause major problems for unaware companies. Child labor can also be a subject of legal action.

10. Patent Infringement

Start-up companies come up with new techniques and new technologies all the time. But sometimes there are challenges from existing companies for patent infringement of their ideas or products. This challenge leads to lawsuits.

There are similar issues possible in the areas of copyrights and trademark violations. Companies need to follow legal guidelines for establishing their original content and avoid creating anything similar to the work of others while claiming it as their own.

Categories
Employment Law

When Can You Sue for Wrongful Termination?

People are terminated from work for a variety of reasons, most of them legal and probably deserved. But there are a number of situations where being fired is not deserved and not legal. If you feel you were wrongfully terminated, you may have cause for legal action against your employer. Here is some information that may help you decide.

Most employment is at-will

Most employers and employees in the U.S. agree to an at-will arrangement where either party may terminate the agreement at any time and for any reason. That means your employer may decide to let you go for any legal reason or no reason at all.

If you had a contract with your employer, that would be different. An employer cannot fire an employee under contract if such firing breaches the contract, nor can the employee be fired for any illegal reason.

But in an “at-will” situation, there is no contract to honor. Most employment falls under this at-will arrangement. And many employers state this understanding in their handbooks. Termination of employees is generally done “for cause” and this cause is usually explained to employees and documented by the employer.

But similar to contract agreements, an employer cannot fire an at-will employee for illegal reasons. Knowing these situations may help you decide if you have a case for bringing a lawsuit against your employer for terminating you.

Wrongful termination reasons

Among the many reasons for wrongful termination are the following:

  • Firing breaches a contract
  • Discrimination on the basis of gender, age, disability, national origin, pregnancy, race, religion, or sexual orientation
  • Firing as a form of sexual harassment
  • In violation of labor laws
  • Retaliation for a complaint against the employer (whistle-blowing)
  • Failing to follow company policy
  • Differential treatment
  • Forming or being part of a union

Employment contracts are normally compiled with provisions that state responsibilities and are usually written. But the law recognizes oral contracts as valid also. You may have been promised you wouldn’t be fired except for performance-based reasons or may have promised you a long tenure. If you were fired for non-performance-based reasons, you may have a case.

If you were terminated due to stated performance problems, your attorney will want to find out whether this was differential treatment and if other employees were terminated for the same stated performance problems.

Your attorney will also want to know if the stated reason for termination is false and really just a pretext or coverup for an unlawful reason.

If you made a complaint in good faith regarding an illegal activity or safety hazard at work, and you were fired or think you will be fired, an attorney can advise you of your rights against retaliation.

If you took time off to serve jury duty, perform military duty, or take medical leave, you are also protected from wrongful termination for those actions.

Many companies have handbooks that spell out policies for poor performance or disciplinary problems. Often, there are a specified series of steps that must be followed before an employee can be fired, like documented evidence and issued warnings.

In the case of performance issues, usually, an employee is given a performance review of some kind with required improvement communicated to the employee. If a policy like that is stated for a given company and not followed, you might have a case for wrongful termination.

An attorney can help

An attorney will work with you to evaluate your case by reviewing any employer documentation that is available including your employee file with performance information and stated reasons for your termination.

Performance reviews and comments along with other company employment records and documented policies will be helpful in determining whether you were given differential treatment or terminated without regard for labor laws or those company policies.

If your past performance reviews were positive but you were still fired for poor performance, your employer may be covering up for an unlawful termination. If there were witnesses to your positive performance and termination, your attorney will want to know about them or any other evidence you can present.

Your attorney will also consider any financial loss or other damages you suffered as a result of the unlawful termination. Those can include lost pay, lost benefits, possible damages from emotional distress or possible punitive damages.

There are other reasons you may want to hire an employment attorney. You may want to negotiate a better severance package, ask for (or demand) a settlement, or file administrative charges.

It’s important to note that in many severance offers, employers require their employees to sign a waiver agreement that releases the employer from future claims and prevents the employee from suing the employer. If you face this situation, an attorney can advise you what’s in your best interests. Once you sign the form, it is difficult to challenge the terms.

It’s also important to know that you can be fired for doing something outside of work that violates your company’s business code of ethics. This might include things you post on social media. If the company considers your action damaging to its business, it may fire you.

However, some states including California have passed laws which prohibit discrimination against an employee for participation in legal activities outside work hours. As long as the activity does not conflict with the employer’s business, the activity should be permitted.

Steps to help protect yourself

There are some things you can do to help protect yourself in the event of being fired. You should document the circumstances under which you were fired including who talked to you, what they said, and any accompanying conduct that occurred by both parties. You can use emails to preserve a record but make sure to have backups or copies.

You can also keep personal records of performance reviews, commendations, conversations of approval, or salary changes. Record the date, time, location, comments, and people present.

You can also ask to see your personnel file which may include documents that you added along the way showing any self-reviews or achievements made. Most states require employers to make personnel files available upon request.

Also, acquire any documents or materials that may be relevant such as company policy statements or handbooks, HR memos, company brochures, orientation materials, or any public recognition or written evaluations of your work.

Be sure that whatever you keep or acquire for defense purposes is legally obtained and is not company confidential or for internal use only. Your employer can challenge these materials. In any of these situations, a qualified attorney will advise you on what you should do.

Categories
Employment Law

Sexual Harassment In The Workplace

A sexual harassment attorney will help you prove you were harassed, handle litigation, and negotiate a settlement with your employer.

The wave of sexual harassment allegations in 2017 shed light on just how big of a problem unwanted sexual attention, harassment, and assault by powerful men (or women) in the worlds of entertainment and politics is today.

These stories and the growing national movement called #MeToo are shining a light on what has been hidden from the public for so many years: sexual harassment in the workplace.

Today, we’re taking a closer look so you know what to do if you’re sexually harassed in the workplace.

Let’s get started …

Continue reading “Sexual Harassment In The Workplace”
Categories
Employment Law

What to Do If You Are Fired Because of Age In California

An experienced attorney will evaluate your situation and help you form a strong claim that you were fired because of age.

Were you fired because of age?

The state of California protects employees from all types of discrimination, including age discrimination. If you believe you were fired from your job because of your age, you may be able to file a lawsuit against your employer and seek compensation.

So, where do you start?

The smartest thing you can do is contact an attorney who specializes in age discrimination.

An experienced attorney will evaluate the evidence pertaining to your situation and help you form a claim that you were fired because of age. In addition, your attorney will assist you through the entire legal process.

It’s important to consider the experience of your attorney, which is why we recommend using an Attorney Referral Service in Los Angeles.

First, let’s take a closer look at age discrimination in the workplace …

Fired Because of Age

People get fired for a lot of reasons.

They might be slow to adopt new technology or new company policies. They might do something illegal. They may be insubordinate or not follow directions very well. They may cause disruptions in the workplace.

Or they may be considered too old or making too much money or both.

If you feel that you were fired because of age discrimination, you may have a legal case to sue your company.  And you would not be alone. Age discrimination is a common complaint, according to the AARP, whose recent survey said that 34% of respondents claimed they faced discrimination in the last four years of work – or at least knew of someone who did.

If you feel hurt or angry about being fired, this is a normal reaction that happens to most people in your situation. Your job has been your personal identity.

But now that it has happened, what should you do about it? What CAN you do about it? The first thing you need is evidence.

Gathering Evidence to Support Your Claim

The best proof you could have is a virtual “smoking gun” like a memo from your boss that says something dumb like “Don’t hire anyone over 40 (or 50).” Another dumb policy might be to “Let’s replace older workers with younger ones so we can pay them less.”

You probably won’t find anything like these, but any documents you can gather that reflect a bias toward age would be helpful.

You should look for anything that could be related to age such as the firing or forced retirement of workers that eliminates higher paid employees. This kind of action is called “facially neutral,” a phrase used by the EEOC.

It means that the action might look neutral, but its impact is not.

Related: How to Find an Employment Lawyer

How to File A Claim in California

If you decide to sue your employer, you cannot go straight to court with a lawsuit. The first thing to do is file a written complaint with an administrative agency. This is called “exhausting” your administrative remedies.

If you are bringing claims under California law only, you should file a complaint with the California Department of Fair Employment and Housing (DFEH).

If you are bringing claims under federal law, you should file with either the DFEH or the U.S. Equal Employment Opportunity Commission (EEOC). If you file with the DFEH, the courts will consider that you have also filed with the EEOC.

Once you file, if your claim is not resolved by either the DFEH or the EEOC, you will be issued a document called a “right to sue” letter. You may then bring a lawsuit to court.

Where to Find An Age Discrimination Attorney

Finding an experienced age discrimination attorney can take time and energy.

Most attorneys will offer a free initial consultation to discuss the matter you’re interested in pursuing, which gives you the opportunity to explore their credentials, experience, and specialization. However, you need to make a decision whether or not to continue forward with them once that time is concluded.

For this reason, we recommend trusting those who have a network of trusted employment attorneys to refer.

This is where we can help.

The SFVBA Attorney Referral Service will connect you with an experienced age discrimination attorney in your area, so you don’t have to waste time looking.

Fill out this form to get started.

We’ll take a look at your submission and reach out to you shortly.

If you have questions about this process, you can always give us a call at 818-340-4529.

Settling Your Claim

There are a couple of ways you settle your claim by waiving your rights. You could have done so when you were participating in an employment termination program or an exit incentive program.

If you received a severance package from your former employer, you have

“knowingly and voluntarily” waived your right to sue, according to the EEOC. But the EEOC also states that “your education and the complexity of the statement” play a deciding role in the validity of that agreement.

There is another way to settle, and that is through mediation.

The Option of Mediation

It can take years for your case to get to court, and you may not want to wait that long.

You can take advantage of the EEOC offer (“dispute resolution”) of no-cost mediation. Many employers will accept an offer of mediation because, if your case were to go to trial, the cost to the employer to defend could be as high as $250,000. It’s a lot cheaper for your employer to mediate.

You bring your evidence to the mediation session and your employer brings his.

The mediator decides and may award you money or something else positive like a letter of reference. At the very least, your employer will have to listen to your case and respond. That alone should make you feel better and restore some sense of dignity.

Categories
Employment Law

How to Find an Attorney for Wrongful Termination

An attorney for wrongful termination will evaluate the events leading to your termination, documentation, and help you seek appropriate compensation.

You have just been let go from a job you loved and really needed, and you aren’t sure why it happened. You don’t think it was fair, and you’re not sure what to do about it.

There are reasons a company can legally fire you, but there are also reasons why your firing may be illegal and you do have recourse.

What you should not do, after being given that “pink slip” is to vent at work, lash out at your manager or coworkers, make threats, or send angry emails. The situation calls for being calm and rational, and thinking through the process, considering what steps you should take to move forward.

If you do need to let out your frustrations, do it away from the office. Talk to your spouse and friends. Make some notes about what happened to refresh your memory later on. But don’t include them in emails.

Then, put together an action plan for yourself.

Learn About Wrongful Termination

What is wrongful termination?

First, do some legal research on the subject of wrongful termination. There are various federal and state laws that apply to employment issues. Learn about the federal laws as well as those in your own state.

Find out if any of the legal descriptions fit your particular case. There are many kinds of wrongful terminations, and you just might find that you have a case.

Here are a few examples:

  • Discrimination: you cannot be terminated on the basis of the employee’s race, gender, national origin, disability, religion or age.
  • Retaliation: you cannot be fired for “asserting your rights.”
  • Refusal to take a lie detector test: you cannot be fired for refusing to take a lie detector test.
  • Alien status: you cannot be fired on the basis of your alien status, as long as you are legally able to work in the U.S.
  • Employee complaints about OSHA violations: you cannot be fired for making a complaint about an OSHA violation, like unsafe or unhealthy working conditions. This has been referred to as the “whistleblower” protection.
  • Violations of public policy: most public policy laws protect you from being fired because you refused to commit an illegal act, complained about an employer’s illegal act, or exercise your legal rights.

Document Your Case

If you are considering finding a lawyer to help you, and you have done some research to have a pretty good feeling that your firing may have been illegal, you should start gathering the information a lawyer would find valuable.

Did you have a written contract or another statement that promised you job security? You may have been given a document that stated you could only be fired for good cause or for reasons stated on the contract. If you were fired for any other reasons, you probably have a good case.

If you think you were fired to prevent you from collecting sales commissions, or you think the boss just wanted to replace you with a lower pay employee, you may have a case of what is called “breach of good faith and fair dealing.”

If you were falsely accused of sexual impropriety or harassment or falsely accused of failing to do your job or failing to follow safety rules, you could have a case.

Write a timeline of events as you remember them and include all relevant information including computer files, memos, documents, and any comments your boss may have made to you. Include names of any witnesses and write down any comments they may have made. Any evidence you can gather will help your attorney build your case.

Find An Attorney Near You

Now that you have information that you think will back up your case, it’s time to get legal representation. A lawyer can help you determine what your losses are, also called damages, from the termination. These may include lost pay, lost benefits, increased medical expenses, and possibly emotional distress. Lost pay includes the period of unemployment until you are (or expect to be) rehired, and at the same rate of pay. Benefits include medical plan coverage, bonuses, stock options, 401K plans, and more.

Your attorney can help you calculate an estimate of your losses in each category.

There are many areas of law that are related to employment and many law firms that specialize in handling wrongful termination.

When you start looking for the right attorney for you, make sure to ask about fees. There is certainly a financial strain when someone is fired, and many wrongful termination attorneys will represent you on a contingency basis, meaning you owe no money up front but agree to pay a percentage of any settlement.

If you are looking for a single service, like having an attorney look over a severance agreement or filing a claim for unpaid wages, you may want to find one who charges an hourly fee.

While attorneys also work on a retainer basis and handle all legal matters for their clients, this is most often done with businesses, although some individuals do retain attorneys for all legal assistance.

Many law firms offer unbundled services and perform specific legal actions on request. Some attorneys use mixed charges of hourly and specific action. When looking for a lawyer, ask what services are provided and how fees are structured.

Your attorney can help you calculate an estimate of your losses in each category.

The best way to find the right attorney in the field of employment law and wrongful termination is through a certified attorney referral service that can hear your complaint and suggest the most qualified attorney who can help you.

Find an attorney referral service near you to begin the dialogue that will turn your wrongful termination into a positive recovery for you.

Plan for the Future

After your legal situation plays out and is resolved, you should consider what happens going forward. You will be talking to new companies and potential new employers. You will want to explain what happened at your previous company.

You may want to ask your attorney to help you draft a brief letter of explanation you can present to potential employers, sharing enough information without using any that is confidential.

Now that you have gone through the process, maintain your awareness of your new employment situation and the laws that govern the workplace. You may be in a better place, knowing what to look for and how to protect yourself with a full knowledge of the law and your rights.

 

Categories
Employment Law

What Is Wrongful Termination in California Anyway?

What is wrongful termination in California anyway? Today, we’re exploring what the state considers wrongful termination so you’re informed and prepared.

Like many other states, California is an at-will state, meaning employers can discipline or fire workers any time (at will) without providing a reason to the worker. Workers do not have contracts, and employers are not obligated to keep them employed.

However, there are situations where the firing of an employee could be considered wrongful termination. Terminating an employee for an unlawful reason is wrongful termination.

Wrongful termination occurs whenever an employer terminates an employee for any one of many protected characteristics covered by California’s Fair Employment and Housing Act (FEHA).

Here are some of the ways wrongful termination can occur.

Discrimination

Federal law prohibits an employer from firing an employee based on a protected characteristic including race, color, national origin, sexual orientation, pregnancy, religion, age (at least 40), disability, genetic information, citizenship status, marital status, AIDS or HIV status, medical condition, military and veteran status, political activities or affiliations, or  status as a victim of domestic violence, sexual assault, or stalking.

This would be considered discrimination.

It is also illegal for an employer to retaliate against employees for asserting their rights. If you feel you are passed over for a promotion because of your age, and you complain to your HR department, your employer may not discipline or fire you for making that complaint.

Similarly, your employer cannot discipline or fire you for participating in any investigation of a discrimination complaint, testifying in court, or trying to change or stop discriminatory practices.

Breach of contract

While most employees have at-will employment, some have contracts that promise job security for a period of time and promise not to fire them without good cause. The contract can be written, oral or implied.

In an implied contract, the employer doesn’t make promises but acts in a way that leads to a reasonable expectation by the employee that he will remain employed.

Sometimes an employee handbook or set of corporate policies will include information on discipline and outline the steps to be followed before an employee may be terminated. If an employee is fired without these steps being followed, he may have a case for wrongful termination under breach of contract.

Wage and hour laws

California employees are entitled to a minimum wage along with the right to overtime pay when they work more than eight hours a day, 40 hours a week, or seven workdays in a row. They are entitled to overtime pay of time-and-a-half or double time depending on the number of hours worked.

There are many other laws covering meal breaks and rest breaks designed for the health and safety of workers. Employers may not terminate employees for their complaints about their company’s failure to follow wage and hour laws.

Time off and protected leaves

Federal and California state laws allow employees the right to take time off for certain family and civic responsibilities. Employers may not fire or discipline their employees for exercising these rights. They include the following:

Family and medical leave

Federal and California state laws protect employees when taking care of family and medical issues. The federal law is the Family & Medical Leave Act (FMLA). California has a similar law but includes a domestic partner in the definition of “family member.” Employees who take the FMLA leave are entitled to return to their previous position following the leave.

Military leave

Federal law gives employees the right to take up to five years of leave to serve in the military and be reinstated when they return to work. The law protects employees from discharge without good cause for up to one year after they return from duty, and it protects them from discrimination based on their military service.

Civic duties: voting and jury time

California allows up to two hours of paid time off to cast their ballots. While this time may be taken at the beginning or end of the employee’s shift, it may not be taken if there is sufficient time to vote during non-work hours.

California also allows employees unpaid leave for jury service. Employers may not penalize employees for jury service or they may face wrongful termination penalties as well as criminal sanctions.

Pregnancy disability leave

California employers with at least five employees must provide those eligible with up to four months disability leave for pregnancy. This is given in addition to time off provided under the family and medical leave laws. A California employee can take four months off for pregnancy leave and another 12 weeks for nurturing and bonding.

Other protected leaves

There are other areas of protected leave in California including giving eligible employees up to 10 days of unpaid leave to visit with a spouse who is on leave from active military duty.

California also provides time off for participation in a child’s school or daycare activities, for violence or domestic abuse, alcohol or drug rehabilitation, bone marrow or organ donor leave. Employers in California may not terminate an employee for taking advantage of these protected leaves.

Workplace issues

There are various workplace issues which can also affect wrongful termination. These include worker’s compensation and workplace safety. Employers may not fire an employee for filing a worker’s compensation claim. And an employer cannot terminate an employee for complaining about health or safety conditions in the workplace.

If an employee feels that a federal, state or local law is being violated in the workplace, and she discloses that violation to a government agency, her employer may not retaliate against her. This is known as whistleblowing protection.

If an employee feels she can no longer remain at work because of intolerable conditions such as constant harassment for gender or sexual orientation or physical disability and resigns her job, this is considered “constructive termination.”

Constructive termination is considered the same as involuntary termination and is a cause for a wrongful termination suit.

How to file a wrongful termination claim

If you think you were wrongfully fired, you should consult with an employment lawyer for advice. An attorney is familiar with local, state and federal laws as they apply to wrongful termination claims. The attorney can help you with options for getting your job back, negotiating a strong severance package, or going to court.

Before filing a lawsuit, you must file a complaint with the appropriate government agency. In California, you can file a complaint with the  California Department of Fair Employment and Housing.  You can file at the Department’s offices in Elk Groveor you can file online. You may also have to file with Equal Employment Opportunity Commission (EEOC). An employment lawyer will make sure your case is filed with the agencies that give you the protection you deserve.

 

Categories
Employment Law

9 Types of Age Discrimination in the Workplace

If you’re not being treated fairly at work because of your age, you might be experiencing age discrimination in the workplace. This is considered a serious issue in California, so you may want to consider seeking legal guidance to evaluate your situation. To help you get started, we’re taking a closer look at some of the most common examples of age discrimination.

Here are 9 types of age discrimination in the workplace.

Types of Age Discrimination in the Workplace

One research study involving more than 1,500 older adults showed that almost two-thirds of them said they have seen or experienced age discrimination in the workplace. And of those, over 90 percent said it is a common occurrence.

The federal government recognized the seriousness of discrimination and in 1967 created the Age Discrimination in Employment Act (ADEA) which forbids age discrimination against people aged 40 and older. This Act protects workers from personnel decisions based solely on age in hiring, layoffs or firing, promotions or demotions. The act applies to all private-sector employers with at least 20 workers. And it applies to all government organizations of any size.

Examples of Age Discrimination

So what is age discrimination? How can you recognize it? And what can you do about it?

Here are several common examples of age discrimination.

  • Harassment
  • Favoritism
  • Unfair Discipline
  • Denied Promotion
  • You Stop Getting Raises
  • Sudden Performance Review Issues
  • Discriminatory Policies
  • Age-specific Notices or Ads
  • Age-specific Apprenticeships

If you believe you have experienced any of these examples of age discrimination, you may want to consider finding an employment lawyer. This type of lawyer specializes in the area of law pertaining to employment and will be able to guide you through the legal process.

1. Harassment and Unwelcome Comments

Employers sometimes joke with their employers in a light-hearted manner about getting older. Your boss might call you the “old man” or “grandma.” You may or may not go along with it. If you don’t like it, you should make a note of it. Write down the names of the people involved, the dates, times and places as well as the comments. Add the names of any witnesses. This can be age discrimination.

It can also be a sign of harassment – another category covered by discrimination laws. If discrimination does not affect your income (does not affect your wallet), it is called harassment. Making you feel uncomfortable or even miserable, especially with the idea that you will quit, is age discrimination.

It’s one thing for simple teasing or isolated incidents that you don’t consider serious. These are not necessarily discrimination. However, if the incidents are repeated often enough that it creates a hostile or offensive work environment, that’s something else.  And if it results in demotion or dismissal, it is definitely a case of discrimination.

Harassment can come from your supervisor, another supervisor, a company officer, a coworker, or even a customer or client of the company. Any time it happens, wherever it happens, you should document it.

2. Favoritism and Unfavorable Comparisons

Are younger workers treated more favorably than you? Do you see older workers being laid off while less qualified younger workers are kept employed? This can be age discrimination, and you should document this as well.

Similarly, have you or other older workers been excluded from meetings where younger workers attended? Do you see younger employees getting better assignments, better leads, better territories or better equipment? These are also possible examples of age discrimination.

3. Unfair Discipline

If you see older workers being disciplined for doing the same things as younger workers (who were not disciplined) or if this happened to you, make a note of it because this could be classic age discrimination.

4. Denied Promotion

If you were passed over for that promotion you expected and felt you were more qualified than the younger person who was promoted, write it down with appropriate notes. This could be age discrimination.

5. You Stop Getting Raises

If you experienced performance issues during the year and didn’t get a raise but others did, it may be a reflection of your performance. However, if you had a great year and didn’t receive a raise but your co-workers did, it may be a sign of age discrimination.

6. Sudden Performance Issues

When conducted properly, a performance review can accurately reveal when an employee needs to improve their performance on the job. However, if you have been consistent in your performance and notice your performance is suddenly evaluated more negatively without explanation, it may be a sign of age discrimination. This may happen for a variety of reasons but this most often occurs under the supervision of a newly appointed supervisor.

7. Discriminatory Policies

Company policies and procedures should apply to everyone in the company, regardless of age.  Some policies or practices may be different for different age groups if they are based on reasonable factors.

However, age discrimination laws prohibit policies that have a negative impact on workers aged 40 or older if they are not based on a “Reasonable Factor Other than Age” (RFOA).

8. Age-related Job Notices and Advertisements

According to ADEA, it is generally illegal to include age preferences, limitations or specifications in any job notice or advertisement. If age is mentioned, it may only be in rare situations where age is a reasonably necessary factor in the normal operation of the business.

There are more and more job sites and job opportunities appearing on the Internet. Some of these sites have age discrimination built-in because they limit the tools that can be used on those sites to younger applicants. Sometimes these limitations are inadvertent. But you should be aware of their existence.

9. Age-specific Apprenticeships

ADEA prohibits age discrimination in apprenticeship programs, including joint labor-management apprenticeship programs. However, ADEA does allow some exceptions as does the EEOC.

More Legislation Possible

The ADEA law was passed in 1967, but some advocates say it was weakened in 2009 when a U.S. Supreme Court decision made it more difficult for workers to prove their age discrimination case.

The decision put the burden of proof for age discrimination on the worker, who must now show that age was the primary or deciding factor in an adverse action such as demotion or dismissal.

Some organizations including AARP are supporting a new act, Protecting Older Workers Against Discrimination Act, to amend and clarify federal anti-discrimination laws. Legislation to this effect was recently introduced in Congress.

What to Do If You Face Age Discrimination

If you feel you are being harassed on the job because of your age, and you find out that your company has a harassment policy, you need to report the issue – according to the Supreme Court. Your report will give the company a chance to fix the problem first.

If the company does not correct the issue, you may file a complaint with the Equal Employment Opportunity Commission (EEOC) or with your state agency.

If you feel you are being targeted for layoff because of your age, and perhaps you have been offered a severance package, you should contact an employment attorney to see how to proceed with a discrimination claim or at least to negotiate a better severance agreement. You might be giving up some rights that you don’t need to.

Finding an Age Discrimination Lawyer

It’s not always easy finding the right lawyer if you don’t know where to look. However, lawyer referral services make this process easy so you can focus on the real issue.

The SFVBA Attorney Referral Service is certified by the State Bar of California and meets the American Bar Association standards for lawyer referral. With a comprehensive membership of over 150 well-established attorneys in the San Fernando Valley area of Los Angeles, we can help connect you with the best age discrimination lawyer for your needs.

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Employment Law

Examples of Wrongful termination: 5 Reasons to File A Claim

The state of California protects employees from a variety of discrimination and other wrong-doing, including wrongful termination. So, what is wrongful termination exactly and what can you do about it?

Today, we’re taking a closer look at five examples of wrongful termination so you’re prepared.

Examples of Wrongful Termination

Employees and employers alike are often in the dark as to what constitutes wrongful termination. An employer who fires an employee without regard to termination laws leaves himself open to strong legal action.

An employee who doesn’t know his or her rights in the workplace can lose an opportunity to file a legal complaint along with any chance of compensation for being fired illegally.

So how do you know if you are wrongfully terminated?

Here is some basic information that will help you understand the employment laws regarding the subject.

At will employment

At will employment means you can quit or be terminated at any time and without cause. However, there are certain conditions that might still apply for wrongful termination. If the employer terminates the employee because of discrimination or retaliation, there is a case for illegal termination.

“Good faith and fair dealing” is a principle which applies to all contracts, whether stated or implied. Some terminations may be a breach of this contract principle and subject to an illegal termination claim. Forcing employees to quit without collecting sales commissions, severance pay or other benefits may also be breaches of contract.

There is another scenario during “at will” employment, or even contractual employment, where an employee decides to resign because of unacceptable working conditions. The reason could be that the job is unsafe or unhealthy. Working conditions have become intolerable.

This situation is called “Constructive Dismissal.”

Constructive Dismissal

Constructive dismissal results from an employee quitting but in an involuntary way because the employer’s working conditions really violated the express or implied contract. The resignation is really treated as firing in this case.

There are conditions which must be met for the situation to meet requirements for constructive dismissal. For example, in California, the employee must prove that the conditions were so bad that any reasonable person would have felt compelled to quit. The second condition is that the employer knew the conditions were intolerable or he intended to force the resignation of the employee.

Generally, a single negative occurrence is not enough to warrant a judgment of constructive dismissal. More often than not, it is the pattern of adverse conditions that can lead to such a judgment.

Contractual employment

If you signed a contract or entered into a verbal agreement with your employer, then that employer is obligated to honor the agreement, written or not. A verbal promise becomes an implied contract. If for example, your employer tells you he will give you six months to prove yourself and then lets you go after three months, he is breaching the implied contract.

Unfair labor practices may include misleading or deceiving employees about their chances for raises or promotions. It is also wrong for employers to lie about the reason to replace someone when the real reason was to replace that person with cheaper labor. It is wrong for an employer to transfer an employee or reassign him or her to avoid paying a sale commission.

Whistleblower retaliation

If you are fired after you report an unethical or illegal act by your employer, he may be guilty of whistleblower retaliation. The same would be true if you reported wasteful spending or other actions that led to a retaliatory termination. Different states have different regulations, however, so you should check with your own state for guidance.

Illegal act retaliation

You cannot be legally terminated if you refused to perform an illegal act, for example, or work unpaid hours or double shifts in violation of labor laws. In such cases, you may be able to make a claim for retaliatory termination.

Classes protected from discrimination

Anti-discrimination laws prevent employers from taking adverse action against any employee considered to be in a protected class if that action is based on a protected characteristic. Adverse action includes termination. Protected characteristics include race, color, religion, age, gender, pregnancy or disability.

Some states have other protected categories including sexual orientation, immigration status, and gender identity. Anti-discrimination laws protect all these classes of employees from targeted termination based solely or predominantly on protected characteristics.

Protected time off

There are certain times and situations that allow time off from work, and during these times employees are protected from being terminated. For example, the Family and Medical Leave Act allows employees to recover from illness or care for a family member. The Act also covers time to serve on a jury or go to vote. Military service members who are called to duty may not be terminated for this reason.

In California and possibly other states, protected time off includes taking time for medical treatment or legal proceedings in cases of domestic violence, sexual assault or stalking. Employers should explain these rights to their employees.

Disciplinary steps

Many companies have a published set of rules covering possible disciplinary policies. Often these rules are in an employee handbook or in a set of Human Resources documents. Once an employer publishes or discusses these policies with employees, the employer is bound to follow them.

If the policy says that an employee shall have two warnings before being terminated, then if that employee is fired after one warning, there may be a case for wrongful termination. If the employee was told he would get a written warning but did not, and was terminated, there may be another case. In the case of formal disciplinary guidelines, both sides should follow them.

Filing a discrimination claim

An employee who feels he or she was terminated because of discrimination can file a complaint (also called a charge) with the federal agency, Equal Employment Opportunity Commission (EEOC). This agency handles most of the legal claims made in discrimination cases.

Employees can file a complaint against their employers only after they appeal to the EEOC and are granted a Notice of Right to Sue.

Penalties can be heavy

There are monetary penalties that may be determined as well as possible punitive damages depending on the motive of the employer or reckless disregard for the protected rights of employees.

Settlements for wrongful termination can cover attorney fees and lost wages as well as punitive damages that can total several hundred thousand dollars. The average out-of-court settlement is $40,000. Ten percent of wrongful termination cases, including discriminations, reach a settlement figure of $1 million.

If you feel you have been wrongfully terminated, you should consult an attorney to get the best advice on how to proceed with filing a claim including learning about federal and state laws as they apply to your situation.

Categories
Employment Law

California Workers Compensation Law: 5 Things You Need to Know

California workers compensation law requires employers to provide their employees with workers’ compensation benefits in the event of injury. These benefits protect employees from lost wages in the event of an injury experienced on the job.

Here are five things you need to know about California workers compensation law.

California Workers Compensation Law

Most people have some idea of what Workers Compensation Law entails. You get hurt at work and somehow you are compensated. This is basically true but there are many different scenarios that affect not only how you get compensated but even “if” you get compensated at all.

There is a lot to know about Workers Comp.

Here are a few important aspects.

1. Workers Compensation Benefits Covers Injuries

What does this mean? You could suffer any type of physical injury on the job, such as:

  • slip or fall
  • twist an ankle
  • hurt by machinery
  • pulled muscle
  • back strain from lifting
  • be injured while traveling on company business

But there are also non-physical injuries that may be covered by Workers Comp when they occur due to work:

  • psychological trauma
  • chronic illnesses
  • exposure to a toxic substance or chemical
  • mental distress

So Workers Comp covers both physical and psychological ailments that are tied to normal working conditions. What are some situations that may not be covered?

  • You suffer intentionally self-inflicted injury
  • You participate in a volunteer off-duty activity

There is also something called an “idiopathic” fall where a fall is particular to that worker that may not be covered by Workers Comp.

In fact, there are three classifications of “falls”:

  1. Explainable falls obviously associated with employment
  2. Unexplained falls
  3. Idiopathic falls

Similarly, there are three categories of risk:

  1. Risks distinctively associated with employment
  2. Neutral risks
  3. Idiopathic risks personal to the worker

Workers are encouraged to report any injury to their employer as soon as possible, and employers should contact their insurance carrier in a timely way to avoid penalties.

Since the definitions and legalities of Workers Compensation Law cases are so diverse, it is wise to consult an attorney where Workers Comp may be invoked.

2. Eligible Claims Cover Lost Wages and Medical Bills.

When employees are not able to work while covered by Workers Comp, they will receive a portion of their income. The benefits for temporary wage loss provided during the healing period include temporary partial disability or temporary total disability.

Eligibility for these temporary disability compensations is determined by a doctor. Coverage will probably include all reasonable and necessary medical expenses along with any needed vocational rehabilitation or retraining.

3. Employees Can (Sometimes) Sue the Employer

If a worker gets injured on the job and receives Workers Comp, and therefore receives wage compensation and medical benefits, he or she cannot sue the employer.  Workers Comp is set up as a kind of compromise between employer and worker to handle these situations.

Can the worker ever sue the employer? If the employer was reckless or if there was some intentional harm to the employee, then a suit is possible.

The other way a worker could sue is if the employer did not have Workers Comp as a company policy. An injured employee could sue and the employer would be liable for a settlement. The employer would have to pay, even if the company went out of business.

Workers Comp avoids legal situations like this. Companies should have this policy, but not all companies do. They are governed to some extent by state regulations, and these vary state to state.

4. Not All Employers Have Workers Compensation

It may depend on the kind of business involved, but many firms do not have Workers Comp. States may not cover it for farmers, volunteers or seasonal help.

Workers Comp policies are dictated by state laws, and states look at various facts like type of work, type of business and number of employees. These may be unique to the locale being governed.

State governing boards are responsible for overseeing the different Workers Compensation Law systems within their state boundaries. They also watch over claims and actions that may be taken against companies that do not have Workers’ Comp.

Most states require this type of insurance, but some states also have public funds available in the event someone is injured at a company where there is no coverage.

Some states, like South Carolina and Florida, require coverage in companies with four employees or more. In Texas, the coverage is optional but companies are still held responsible for worker injuries. No two states have the same regulations.

5. Occupational Safety and Health Administration (OSHA)

While the states have regulations and requirements for Workers Comp and policies and procedures for making claims, they are not alone in seeking worker safety.

The Occupational Safety and Health Administration (OSHA) has its own federal regulations for workplace safety. Business owners and management need to know what those are, because they govern much of the operational policies needed by companies to protect their workers.

 

OSHA has policies that enable workers to have access to medical and (hazardous) exposure records, be eligible for personal protective equipment, have access to file complaints, and be given notices about workplace health and safety.

Smaller companies are excused from having to keep OSHA records. But it they have 10 or more employees, they still need to report worker fatalities or any needed hospitalization.

Unless required by another federal department, small businesses with 10 or fewer employees don’t have to keep OSHA records, but you’re still expected to report employee fatalities and hospitalization.

Worker and Employer Alike Should be Aware of Their Options

No employee goes to work thinking he or she will be injured on the job. But when starting to work for a new company, especially one that might have hazardous working conditions, it is a good idea to understand the company policies regarding injury.

Does the company have a Workers Comp plan? Is there an HR handbook or an HR representative who can explain existing policies and what to do in case of injury?

Workers should be somewhat aware of what OSHA does and learn how to file a claim if needed. Seeing unsafe working conditions that are not attended to should be a red flag for any worker involved.

Employers, on the other hand, do not want to run the risk of losing their business. A single claim could bankrupt that business. Employers should consult with their insurance carriers to review terms and conditions of their policy so they also understand what can happen and how to not only handle claims properly but work to avoid them by providing a safe working environment.

These are general guidelines regarding Workers Compensation Law. Workers should consult their company HR official and or/ a personal attorney for specific advice. Employers should consult their insurance company and/or their corporate employment law attorney for company advice.

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Employment Law Immigration Law

Employment Visas in California: What You Need to Know

In Silicon Valley and elsewhere in California, startup companies are king. That means being able to employ highly talented people off the bat and as the company grows, a task that has proven challenging given the H-1B visa lottery. That’s the visa entryway for talented foreigners with specific skills to be green-lighted into the country, but only 65,000 of them are given each year.

It’s a problem for California companies like Veritas. Executives note there are not enough qualified applicants in Silicon Valley, making access to H-1B visas essential not just to the company’s growth but to its very survival. The American Competitiveness Alliance previously stated that strict immigration rules or the continued inability to get workers through the H-1B visa lottery could force companies to move overseas. A recent study conducted by that group found that 71 percent of U.S. businesses would consider relocation if it becomes too hard to find talent within U.S. borders.

While the H-1B visa isn’t the only opportunity for someone to enter the U.S. on employment grounds, it’s one of the most popular in California. Below, we’ll go over some of the basics of employment-based visas, how they work, what’s in store for the future of visas, and how to get help applying for an employment-based visa.

Types of Employment-Based Visas and How They Work

There are several different employment-based visa categories in the United States. These visa categories have been approved by the federal government due to a belief that admitting foreign employees with valuable skills is beneficial to the U.S. economy.

Immigration law in the United States currently allows several different paths for individuals to enter the United States on a temporary or more permanent basis for employment purposes. In general, the total count for temporary employment-based visas awarded has grown since fiscal year 2000. Currently there are nearly 800,000 temporary employment-based visas issued on an annual basis.

These are split among those in religious occupations, foreign media, temporary workers, treaty investors, those with extraordinary abilities, intra-company transferees and artists, athletes, and performers. The five major types of temporary employment-based visa classifications are H-1B, H-2A, H-2B, and L-1A and L-1B.

H-1B visas are available to foreign professionals in certain occupations. There are 65,000 of these limited every single year and 20,000 more for individuals who have the equivalent of a U.S. master’s degree or higher. Individuals are approved for up to three years.

H-2A visas are eligible for agricultural workers coming on a temporary basis from particular countries; there is no annual limit. They are limited to the period of employment and can get renewed for qualifying occupations.

H-2B visas refer to seasonal non-agricultural temporary workers — up to 66,000 per year. Initially, individuals are admitted for up to one year and can get renewed twice for a maximum of three years.

Other foreign workers who are employed by particular entities related to U.S. employers may be eligible to come in under L-1A and L-1B visas. There are no limits to these; an individual may be approved for up to three years.

Immigration in the News: What it Means for Workers and Companies

Immigration has become a hot-button issue from a public policy perspective in recent years. President Trump recently signed an executive order being referred to as the “Hire American” order that could affect company abilities to hire foreign professionals.

While no immediate changes have yet to be presented to existing visa programs, Trump has suggested that the random lottery system for H-1B visa applicants is too random. Government agencies will now be instructed to ensure that the visas go to applicants earning the highest pay and with the best skills. Previous data from the Labor Department shows that up to 40 percent of those getting visas in the lottery are for entry-level employees. Up to 70 percent of H-1B visas from fiscal year 2015 went to Indian workers, and the biggest hiring sector for those workers has been technology outsourcing.

Every April, the government receives hundreds of thousands of H-1B visa applications for the year ahead. In 2017, they received 199,000 for the 65,000 available. Companies like Facebook and Qualcomm rely heavily on H-1B visas to ensure they are able to function and grow. The H-1B visa program requires that companies show they have tried to hire an American first and failed.

While the removal of the lottery could mean good news for California-based firms who need top talent, international students at UCLA are concerned about Trump’s review of the program and being able to find jobs in the U.S.

Get Help from an Immigration Attorney

Anyone who uses H-1B visas and employees concerned about their future should continue to pay attention to the news as further information is revealed about employment-based visas. You also can speak to a qualified immigration law attorney who handles employment visa applications, along with everything else from obtaining citizenship to deportation proceedings.

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