California's Employees
SAN FRANCISCO EMPLOYMENT LAW BLOG
- On Behalf of Le Clerc Le Clerc LLP
- Workplace Discrimination
Across the country, women face thousands of challenges in their working life every day. But few things are as professionally devastating as coming back from having a child to find your entire workplace different.
A few weeks back, a famous female politician related the story of how she had been fired from her job in 1971 after getting pregnant. It was met with dozens of stories from women recounting similar circumstances. Those stories highlight a sad fact: while outright pregnancy discrimination has been illegal since 1978, the practice is not eradicated. It’s just changed.
Disguised discrimination
Employers still discriminate. If they did not, then there would never be a need to vigorously protect the rights of any worker. What has happened is that the methods for discriminating against any one group, such as pregnant women and women who have recently given birth, have become much more subtle.
Quiet hostility
As a fact, maternity leave and pregnancy can leave a staff short-handed. But there is a right way and a wrong way to deal with that. If your managers constantly use your absence as a reason for the difficult situations your coworkers face, it can lead to a hostile environment on your return.
Changing circumstances
Even without an overt campaign against you, your workplace may change drastically in staffing or organization while you’re out. The job you return to may not be anything like the job you had before you gave birth.
Assumptions about your priorities
In ideal circumstances, your workplace will have banded together and stayed relatively stable while you were away and everyone is very understanding. But there is such a thing as being too understanding. If your duties change because your bosses and coworkers assume you have a new priority, that is a form of discrimination.
If you didn’t ask to change how you did your job, then you shouldn’t have your role reduced. If you didn’t ask for a new set of responsibilities, then you shouldn’t have new ones foisted on you. Just because you are a mom now doesn’t mean you are only a mom.
Keeping focus
After you have a child, and indeed throughout your pregnancy, you deserve to work in the way you are accustomed to. You do not deserve to have your job changed on you just because you had a child. If that happens to you, there are options available.
- On Behalf of Le Clerc Le Clerc LLP
- Pregnancy Issues
I read this article about pregnancy discrimination (I Was Fired for Being Pregnant – Yes, Really) the other day on the internet and I thought it was unfortunate that the author did not consult with us. Many times employers misclassify employees as independent contractors – hence all the anti-discirmination laws that apply to employees may have applied to her. Yet even if she was properly classified as an independent contractor, there are many other laws that apply to discrimination in the formation and performance of contractual relationships that may have let her recover for the loss of her work. We have successfully represented many employees/independent contractors in pregnancy discrimination cases, and her case has the makings of particularly potent case.
Additionally, it is worth watching the “related video” that appears after the article regarding the woman terminated by text message. Many cases of pregnancy discrimination involve such outrageous conduct as a manager texting a pregnant woman to inform her that she is terminated. In fact, bad actors often send text messages to say things that they would not otherwise write and can be particularly valuable evidence of discrimination.
If something like this happens to you, you should give us a call to discuss.
- On Behalf of Le Clerc Le Clerc LLP
- Pregnancy Issues
How do you know if you’ve been discriminated against at work?
Sometimes it is obvious, because your employer overtly tells you something. For example, your employer might tell you that it won’t let you work because you are pregnant.
Sometimes, it is less obvious. For example, your employer starts micro-managing you after you revealed that you are pregnant. Or, for example, after disclosing your pregnancy, your managers begin providing you with negative feedback when before it was only positive. Another example might include writing you up for being late, when your co-workers arrive at the same time and they are not written up.
The New York Times did a very interesting piece on how pregnancy discrimination can manifest, and if you are not sure whether your employer is discriminating against you, we recommend reading the article.
If you believe that you may be the victim of discrimination and would like to discuss your situation with one of our attorneys, let us know. We are happy to discuss.
- On Behalf of Le Clerc Le Clerc LLP
- Workplace Discrimination
Many women in California and across the country face unnecessary stigmas when it comes to their work-related abilities. It is not unusual for women to be wrongfully considered less intelligent or less capable than their male co-workers. Unfortunately, even woman well-qualified and experienced can face workplace discrimination that can hold them back.
It was recently reported that a lawsuit has been filed by the Equal Employment Opportunity Commission on behalf of a woman in another state. The woman works for an automotive group as a sales manager and has been hoping to move up to the general manager position. However, reports indicate that she has been denied the promotion nine times in favor of male employees, even though they were less-qualified than the woman in some cases.
It was also reported that she was passed over despite outgoing managers providing recommendations for her to receive the position as she was the most qualified person for the job. The woman and the EEOC are hoping that the lawsuit will result in the automotive group using programs and policies to promote equal opportunities for women and to stop gender discrimination. They are also seeking compensation for back pay and other damages.
Workplace discrimination that mistreats a worker based on gender can easily result in a person missing out on valuable employment opportunities. If workers in California believe that they were not hired, passed over for a promotion or otherwise treated unfairly based on their gender, they may want to look into their legal options. Some cases, such as this one, may warrant legal steps to address the misconduct.
- On Behalf of Le Clerc Le Clerc LLP
- Workplace Harassment
Many California residents work in competitive environments. There may only be a few positions available at a particular place of employment, or only employees in certain roles will obtain particular benefits. As a result, it can take a lot of hard work to be promoted to one of those positions. Unfortunately, the feeling of accomplishment that may come with a promotion may be short lived if workplace harassment takes place.
“Workplace mobbing” is a term used for group bullying that occurs at places of employment. Typically, several other employees may bully someone in an important position or who simply performs his or her job well in efforts to get that person to leave the job. While bullying itself is not necessarily an action that is specifically against the law, harassment is.
In many cases, bullying can easily escalate into harassing actions, and workplace mobbing is considered a form of social harassment. Often, individuals who are subjected to this type of harassment can suffer negative impacts like post-traumatic stress disorder and anxiety, and they may even leave their jobs due to the toxic environment the actions create. It is also not unusual for people of color, workers considered “different” and women to especially face this workplace behavior.
Many people may think of bullying as something that happens on playgrounds and school yards. However, anyone of any age could suffer negative effects from bullying actions. If California workers believe that they have been the victims of workplace harassment due to the extent of such actions, they may want to explore their legal options to seeking justice and recompense for damages.
- On Behalf of Le Clerc Le Clerc LLP
- Wage and Hour Claims
Generally, unless an employee is exempt, he or she is entitled to overtime pay. The default is rule is that overtime is calculated at 1.5 times an employee’s regular rate of hourly pay, or “time and a half,” for each hour worked beyond 8 hours per workday or 40 hours per workweek.
For salespeople, comission pay exemption may apply. However, the exemption applies only to employees who are paid on a commissioned basis who:
- Earn at least one-and-a-half times the minimum wage,
- Earn more than half their income in the form of commissions, and
- Work in the mercantile industry (which includes retail jobs), or work in certain professional, technical, clerical, mechanical, and similar occupations.
The commissioned sale exemption only exempts employees who satisfy all three conditions during a pay period.
This means that if an employee earns less than one-and-one-half times the minimum wage during a pay period, the employee must be paid overtime compensation for overtime hours worked during that pay period. Thus, if an employee is regularly paid an hourly wage in one pay period and a combination of hourly wages and commissions in the next pay period, the employee cannot be classified as exempt during the pay period in which no commissions are paid (and is therefore owed overtime wages for hours worked beyond 8 hours/workday and 40 hours/workweek).
This last rule is important for salespeople who do not collect a commission until the customer pays for a purchase. They may be exempt during pay periods in which customers pay for purchases but nonexempt during pay periods when they collect no commissions.
Finally, “commission” has a specific meaning under California law. An employer may designate pay as a “commission” when in fact it is something else. A “commission” is a payment that is based on the amount or value of the sale of the employer’s goods or services that are sold by the salesperson. “Commission” pay may be based on the number of sales made by the salesperson, the value of the sales, or the employer’s profit on the sales. As a contrast, a payment based on production of a good or rendering of a service is not a “commission” even if an employer calls it that. Thus, for example, a construction employee who receives a percentage of a fee charged by the contractor for performing the job is not being paid a “commission”. Similarly, a mechanic who received a percentage of a fee charges by the shop to a customer is not being paid a “commission”.
This may be considered advertising in some jurisdictions. It is intended to provide general information about legal developments and is not legal advice.
- On Behalf of Le Clerc Le Clerc LLP
- Workplace Harassment
You undoubtedly know that if you report workplace discrimination to your California company’s management and/or the Equal Employment Opportunity Commission, federal law forbids your employer to fire you or retaliate against you in any other discriminatory manner. Title VII of the Civil Rights Act of 1964 strictly prohibits such adverse employment actions.
While some adverse employment actions, such as termination, are easy to spot, other kinds of retaliatory discrimination are subtler and not always recognized for what they are. For instance, your employer likewise cannot retaliate against you by means of any of the following:
- Reduce or threaten to reduce your salary or wages
- Reassign your work duties to other employees
- Take away your supervisory responsibilities
- Examine your work excessively
- Threaten to report you or one of your family members to immigration authorities
- Criticize you in public, especially in the media
Objective standard
The U.S. Supreme Court considers “adverse employment action” an objective standard even though the act(s) that constitute it must be determined on a case-by-case basis. In other words, whether or not you have a valid adverse employment action claim depends on the circumstances surrounding what your employer did to you. In various cases throughout the decades, the Court has held that all of the following acts amounted to adverse employment actions in their respective situations:
- Relocating the employee to a less favorable job site
- Scheduling the employee’s hours or work abusively
- Putting the employee under surveillance while at work
- Sabotaging or undermining the employee’s work
- Assigning the employee more work than that assigned to other employees who held the same job description or were part of the same pay grade
- Holding team lunches and disinviting the employee, even though (s)he was a team member
Bottom line, an adverse employment action is any retaliatory act your employer commits for the purpose of dissuading you and your co-workers from reporting workplace discrimination in the future.
- On Behalf of Le Clerc Le Clerc LLP
- Workplace Discrimination
California protects employees who serve as volunteer emergency responders and are called into action during natural disasters.
California law makes it unlawful for an employer to fire or otherwise discriminate against employees who take a temporary leave of absence to respond to an emergency in their roles as volunteer firefighters, emergency rescue personnel, or reserve peace officers.
Generally, the law does not require advance notice, except for certain health care workers. Employees who are health care providers must inform their employers both when they become designated as emergency rescue personnel and when they are notified of their duty in an emergency.
- On Behalf of Le Clerc Le Clerc LLP
- Sexual Harassment
When a person faces harassment on the job, it can be difficult to know where to turn for help. In particular, sexual harassment can be a struggle to face head-on, even in the wake of the #MeToo movement. While many California employees are advised to go to their human resources department to file complaints regarding such harassment, not every company has an HR department.
Fortunately, individuals in this type of situation do not have to feel as if their hands are tied. They can first attempt to talk to the harasser in hopes of getting the undesired actions to stop. By making it clear that the actions are unwanted and unacceptable, a harasser may stop the unwanted behavior. Of course, if a person feels that confronting the harasser would put the person in danger, it may be best to first file a complaint with a manager.
Whether the situation is discussed with a harasser first or not, if the actions continue, the employee may want to go to the highest-ranking person in the company. This person should investigate the situation. If a worker faces a situation where no internal action is taken against the harassment despite filing complaints, the person may wish to contact the Equal Employment Opportunity Commission.
Even without a human resources department, sexual harassment victims still have options for making their complaints known. Of course, addressing the misconduct is not always easy. Fortunately, California workers in this type of situation do not have to face their cases alone, and consulting with knowledgeable attorneys may help them understand their legal options.
- On Behalf of Le Clerc Le Clerc LLP
- Pregnancy Issues
Former Walmart store associates Leigha Klopp and Kaitlyn Hoover last week filed a class-action lawsuit in state Supreme Court claiming the Arkansas-based company’s absentee policy penalized them after they had to take time off for unscheduled pregnancy-related hospital visits, and violated their rights under state law.
Their suit joins a growing chorus of similar complaints nationwide, claiming that America’s largest retailer and numerous other large companies systematically punish pregnant employees with discriminatory policies and practices.
Walmart’s policy in particular “flouts New York’s pregnancy accommodation law by punishing pregnant workers for lawful absences,” said Dina Baskt, co-president and co-founder of worker advocacy group A Better Balance, which filed the suit July 24 on behalf of Klopp, Hoover and any other pregnant woman affected by what the suit claims is Walmart’s policy in New York state. “No pregnant worker, many fearing miscarriage, should be fired for seeking emergency medical care,” she added.
At issue in the suit is New York’s Pregnant Worker Fairness act, enacted in 2016, which requires employers to make “reasonable accommodations” for medical needs related to pregnancy unless such accommodations would create “undue hardship” on the employer. Those accommodations include providing limited time off or an altered schedule for medical visits.
This suit is the first class-action suit brought under the new law.
Baskt called on the company to “immediately change its policies to comply with this law and ensure that no pregnant worker is forced to choose between a healthy pregnancy and a pink slip.”
In an emailed statement on Thursday, Walmart spokesman Randy Hargrove disputed that company policies codify discrimination but said the company would look into the women’s claims.
“We take these issues seriously and do not tolerate discrimination,” he said. “Like any company, we have an attendance policy that helps ensure we are taking care of our customers. We understand associates may have to miss work on occasion and we have processes in place to assist them. This includes legally protected and authorized absences, such as medical-related accommodation, FMLA leave, pregnancy and bereavement that are not counted against our attendance policy.”
Leigha’s story
A 2015 graduate of Albion High School, Leigha Klopp landed a job at Walmart in October 2016, making $9.75 per hour. She worked in the apparel department, typically folding and organizing clothing during her shifts and filling in at other departments on an as-needed basis.
According to the lawsuit, Walmart’s disciplinary policy at the time was that employees would accumulate so-called “points” each time they missed a scheduled shift, arrived late or left early without advance approval from a supervisor. Under the scheme, hourly employees like Klopp and Hoover would get one point for each full shift missed, and a half-point for each incomplete shift or tardiness.
If an employee accumulated four points during their first six months of employment, they could be fired. After probation, employees who accumulated nine points during any rolling six-month period were at risk of being fired, according to the court documents.
Although Klopp and fiancé Jakob Kenward hadn’t been trying, it was a happy surprise when they learned she was pregnant in late December 2016.
“It was scary because it wasn’t planned, but we were making the best of the situation,” she said.
On a Friday afternoon in mid-January 2017, while organizing her store’s shoe department, Klopp was suddenly overcome by dizziness and started having cramps.
“It got to the point where I couldn’t stand, I couldn’t physically work, I was in tears,” said Klopp. “I was terrified. I was scared something was wrong, and my first instinct was that I had to go to the hospital.”
A coworker summoned her supervisor.
“I told the supervisor I was pregnant and having a lot of pain and cramps and I’m worried that I’m miscarrying,” she said.
The manager told her to go, but said she’d be docked a half-point for leaving early.
She went to an area hospital, where doctors provided her intravenous fluids and anti-nausea medications and gave her a note putting her out of work for the next three days.
When she returned to work, according to the suit, managers refused to accept it and gave her a half-point for leaving early on Friday.
A few weeks later, Klopp said, she awoke nauseated, thinking she’d only throw up, and then go in to work.
“But when I vomited it was bloody, so I immediately called my OB/GYN and she said you have to go to the hospital,” said Klopp. “I said, but I have to work or I’ll get fired. And she said, ‘It’s not a question.’ ”
In her lawsuit, Klopp said when she called the Walmart store that morning to report that she was going to take her doctor’s advice, the manager told her if she didn’t make her shift that day, she’d have “too many points” and would be terminated.
With a doctor’s note in hand to excuse her absence, Klopp returned to Walmart a few days later for her next scheduled shift. But, she said, the bosses refused to take the document, walked her to the main office and fired her.
“They asked me to hand in my vest and my badge and to clean out my locker,” she said. “It felt very unfair that I was being punished for something that wasn’t in my control and that the employers just didn’t care about me as a person, or my family or what I was going through.”
According to the suit, if company officials had excused Klopp’s pregnancy-related illnesses, she would not have been fired.
Reasonable accommodations
Circumstances were similar for Kaitlyn Hoover, who was fired in March 2017 after severe nausea, vomiting and dehydration in the early weeks of her pregnancy resulted in her missing work due to a brief hospitalization, according to the lawsuit.
When Hoover returned to her store for her next scheduled shift, she too was told her absence was not excusable, that the company doesn’t accept doctor’s notes and was summarily fired.
“I was devastated when Walmart fired me. I had a baby coming and all of a sudden I couldn’t pay my bills,” said Hoover in a written statement. “I am bringing this lawsuit because what happened to me was wrong and I want to make sure that Walmart is held accountable so that other pregnant women won’t be treated like I was.”
New York’s pregnant worker protection act requires employers to make “reasonable accommodations” for medical needs related to pregnancy, unless it would create an undue hardship or if the employee cannot, with accommodation, perform the activities of her job in a reasonable manner. The law says an employer may request a health care provider’s note to verify the existence of the pregnancy-related condition.
Examples of reasonable accommodations include: bathroom, food or drink breaks; allowing an employee to carry a water bottle; dress code flexibility; limits on lifting requirements; transfer to a less-strenuous shift, position or work location; limited time off or altered schedule for medical visits; and a reduced schedule.
The women’s lawsuit alleges that when Walmart employees phone in to report an absence, “they are consistently told that absences for pregnancy-related conditions cannot be authorized and that they will incur points if they cannot appear for their scheduled shift.”
They claim their managers never considered whether they should make accommodations for them even though time off to seek medical attention or recover from pregnancy-related conditions is “explicitly contemplated as a reasonable accommodation under the PWFA,” according to the suit.
In October 2017, Walmart revised its policies to allow employees who are pregnant, breastfeeding or recovering from childbirth to ask for job adjustments, reasonable accommodations or a temporary transfer to a different position.
Walmart has 30 days to respond to the suit filed by Klopp and Hoover.
Not just Walmart
Across the country, Walmart is facing similar lawsuits and other legal actions. A federal judge recently denied the company’s bid to dismiss a different class action suit filed that alleges the company refused to accommodate medically-imposed lifting restrictions for two pregnant employees in Illinois and Florida.
And Walmart is not alone. Other major businesses under fire for alleged pregnancy discrimination include pharmaceutical companies Merk & Co., Novartis, AT&T, Whole Foods, 21st Century Fox, and the auditing firm KPMG.
In June, Gov. Andrew M. Cuomo even directed the state Division of Human Rights to investigate past and present claims made against Walmart, Merck, Novartis and commodity traders Glencore.
“New York leads the nation in advancing equal rights, and these actions will build on our proud record to help ensure women have equal opportunities to succeed in the workplace,” he said in a press release announcing the move. “Discrimination against those who are pregnant is illegal, and we will hold employers who violate the law fully accountable.”
Source, https://leclerclecldev.wpengine.com/wp-contentchicago.suntimes.com/working/walmart-employees-leigha-klopp-kaitlyn-hoover-allege-pregnancy-discrimination, Chicago Sun Times, July 30, 2018.