Discrimination, Harassment, Holiday Parties, Minimum Wage

Holiday Parties and the Law

The holiday party season is upon us, so, do employers and employees have any special concerns with holiday office parties?  Of course they do.  Luckily, employers can take steps to limit their liability exposure, and employees can keep an eye out to protect themselves.

Around holiday time, alcohol often influences how people behave.  As a rule, employees should watch how much they drink, and employers should contain the influence of alcohol during their company sponsored parties.  Common types of cases related to office holiday parties include: third party claims against intoxicated employees, sexual harassment claims, worker compensation claims, and wage claims.  As you can probably guess, the first three categories often have alcohol consumption involved with them.

For example, in Harris v. Trojan Fireworks Co., (1981) 120 Cal.App.3d 157, an intoxicated employee caused a terrible car accident while driving home from his employer’s party.  The people in the other car were terribly injured.  In fact, one person died in the accident.  The appellate court said that California laws generally bar liability for social hosts when a guest gets into a car accident after a party.  However, the court found that the work party situation was different, at least in this case, because, among other things, the party was held at the work place and during work hours, the employer paid the employee to attend, and that employee was encouraged to drink excessively.

Watch out for naughty Santa Clauses at holiday parties.  In one California case, Brennan v. Townsend & O’Leary Enterprises, Inc., (2011) 199 Cal.App.4th 1336, the plaintiff sued partly because of activities at two different parties.  At the first one, the Santa had female employees sit on his lap.  He then proceeded to ask them about their love lives.  At the second party, a different Santa wore a cap with vulgar words.  Ultimately, the employer was able to escape liability, but only after convincing an appellate court to overturn $250,000 jury award.  Employers, make your Santa’s behave!

When an employer requires attendance at a party, the employers may be exposing itself to wage claims.  Often the Courts find that required attendance is a function of employer control.  When an employer exerts control, usually the employee must be paid for the time under which he or she was being controlled.  My advice: Do not require attendance at a holiday party.

The following is a list of things that an employer can do to help contain liability for holiday parties:

  1. Attendance should be voluntary.
  2. Limit the amount of shop talk at the party.
  3. Don’t ask employees to perform special functions at the party.
  4. Invite the families of the employees.
  5. Hold the party away from the work site.
  6. Make sure that sexual harassment training is up-to-date.
  7. Make clear that sexual harassment at the party will not be tolerated.
  8. Harassment policies should cover off location events.
  9. Hold the event after hours or on a weekend.
  10. Don’t take attendance.
  11. Provide plenty of non-alcoholic beverages.
  12. Investigate complaints about party events as seriously as you would investigate other work place complaints.
  13. Choose to not serve alcohol
  14. If the employer chooses to serve alcohol, limit the amount employees can drink.
  15. Have a professional alcohol caterer screen for intoxication.
  16. Only give out a limited number of drink tickets.
  17. Have employees pay for the drinks they consume.
  18. Arrange for alternative transportation.
  19. Provide discounted rates at the hotel where the party is located.
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Class Action, Discrimination, WalMart

DOES AMERICA LOVE WALMART OR HATE IT?

Undoubtedly, some Americans love WalMart while others have a strong dislike for it.  Many shoppers love the low prices WalMart offers.  On the other hand, labor unions have attacked WalMart repeatedly for fighting efforts to unionize it.  In fact, many employees have sued WalMart because of claimed unfair treatment.  Some of those cases are described below.

Recently in the news, Saturday Night Live actor, Tracy Morgan, sued WalMart because one of its trucks had hit Morgan’s limousine.  The crash killed fellow comedian James McNair.  Morgan suffered serious bodily injury.  Apparently, the WalMart driver, Kevin Roper, had been driving for more than 24 hours consecutively.  Morgan claimed that driving for such a long period of time was negligent and that WalMart knew of that negligent behavior.

Although not an accident case, WalMart settled, in 2009, a case filed by potential driver applicants for $17.5 Million.  (Nelson v. WalMart.)  The applicants claimed that WalMart had denied them positions in the company because they were African-American.  They, and the other applicants, had been required to provide credit ratings.  Apparently, those ratings denied African-Americans positions as  drivers more routinely than non-African-Americans.

In California, twenty-thousand WalMart cashiers claimed that they should have been provided seats to sit on during their shifts.  WalMart appealed after a federal judge certified the case. The parties are now waiting for the Ninth Circuit to decide whether the law in California requires WalMart to provide those seats.  That pending case is: Brown v. Wal-Mart Stores, Inc.

Another California case, and probably the most significant case involving WalMart, is WalMart v. Dukes.  The Plaintiff, Dukes, was a female employee.  She said that WalMart had wrongfully denied her promotions because of her gender.  She alleged that WalMart had an institutional bias against women.  Statistically, WalMart’s labor force was made up of approximately 70% women, while only about 30% of its managers were women.  Regardless, the United States Supreme Court ruled that the case could not proceed as a class action on behalf of 1.5 million women.  According to the Supreme Court, WalMart store managers had much discretion in determining the amount of money each employee could earn and the criterion used to promote employees.  Because of that discretion, the managers had likely decided to promote or not to promote  women employees for many various reasons, depending on the circumstances.  Thus, no single reason for not promoting women could be consistently applied throughout all the WalMart stores, and, according to the Court, the case could not be certified as a class action because the reasons for not promoting women would vary too much.

Later, the potential California class members tried to certify a much small class that was only made up of female employees in California, rather than employees from across the country.  The federal judge denied certification again and cited the Supreme Court holding in Dukes to support his decision.  Essentially, the Court said that the class, even though smaller, still suffered from the same problem.  There was no common reason for denying women promotions amongst all the stores in California.  The Court denied certification even though it said that the employees “had amassed substantial evidence of discrimination against women that occurred at Wal-Mart stores”.  Regardless, that was not enough to allow Dukes to represent the entire class against WalMart.  Presumably, the female employees would need to file each of their cases separately.

 

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Discrimination, Harassment

UNBELIEVABLE SEXUAL HARASSMENT CASES

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Sexual harassment is a bad thing and certain types of work place situations are clearly intolerable.  On the other hand, the complaining employee can abuse the process.  Courts try to balance fairness to both the employer and employee.  The cases described below illustrate how the Courts try to balance the fairness.  Notice that in two of the three cases that the appellate court reversed the trial court’s dismissal, even though the unfairness of the situation appears to be obvious.

Sometimes the biggest battles fought in sexual harassment cases are over what evidence the court will allow to be admitted in the trial. In Pantoja v. Anton, the trial court did not allow me too evidence. (Pantoja v. Anton, (2011) 198 Cal.App.4th 87.)  Me too evidence is evidence of sexual harassment that happened to employees other than the one who filed the lawsuit.  Pantoja worked for Anton.  She said that he frequently called her a “bitch”, “stupid bitch” and “f****** bitch”.  He flew off the handle regularly and used those swear words.  Other female employees said they heard him use those words, saw him get mad regularly, and were called those things too.  Anton admitted that he got mad and swore, but he said that he got mad at both men and women, swore at both sexes, and cussed at the situation but not at people.  The trial court dismissed Pantoja’s case, but the appellate court reversed saying that the trial court should have allowed Pantoja to use the me too testimony of other female employees.

Harassing language, by itself, may not create a hostile work environment.  Sometimes, an unusual employment situation may allow harassing language in the work place, as happened on the set of the famous TV show “Friends”.  (Lyle v. Warner Bros. Television Productions, 38 Cal4th 264.)  Before Lyle took a job on the crew of “Friends”, she had been warned that the writers creatively used vulgar, sex based language to help them write scripts.  They openly discussed “blowjobs”, described the types of women they liked to have sex with, drew pictures of naked women, simulate masturbation, described how they would have sex with female caste members, etc.  However, neither the foul language nor unseemly acts were directed toward Lyle.  She did not complain about the language or behavior either.  The California Supreme Court said that Lyle had no claim for sexual harassment because she knew of the work atmosphere before starting the job, it was not directed at her, and the writers used the vulgar behavior creatively.

In contrast, similar acts and language in a different context certainly can be sexual harassment. Reeves was the only women employee who worked with 6 other male employees on the sales floor of the shipping company, C.H. Robinson Worldwide, Inc.  (Reeves v. C.H. Robinson Worldwide, Inc., (11th Cir. 2010) 594 F.3d 798.)  The sales men swore and talked vulgarly.  They constantly said things in front of Reeves like: bitch, f*** that bitch, cunt, f***, and whore.  They discussed the size of women’s breasts, masturbation, bestiality, etc.  They described other women as whores and bitches.  There was computer porn in the work place.  Reeves complained about hearing and seeing these things daily.  The trial court dismissed Reeves’ case because it was not directed at her, but the appellate court said that even though the language and acts were not directed at her, the harassment was so sever and pervasive that it altered the conditions of employment and created a hostile work environment.

S. Ward Heinrichs, Esq.
BACKSTROM & HEINRICHS
Attorneys at Law
A Professional Corporation
4565 Ruffner Street, Suite 207
San Diego, CA 92111
(858) 292-0792
(858) 408-7543 (fax)

http://bestemploymentattorneysandiego.com/

http://twitter.com/#!/WardHeinrichs

www.facebook.com/BackstromandHeinrichs

http://www.linkedin.com/pub/ward-heinrichs/45/806/83b

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Discrimination, Harassment

Discrimination in the Work Place

 

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Workplace discrimination is illegal under both federal and California law.  Congress passed Title VII in 1964.  About 30 years later, the California legislature passed the Fair Employment and Housing Act (FEHA).  It actually combined previous California anti-discrimination laws that predated Title VII.  They both make adverse employment actions (termination, demotion, failure to hire, etc.) illegal when an employer takes the adverse action because the employee is a member of a protected class.    In most cases Title VII and FEHA work together.  In fact, very often an employee can sue under either law.

For the majority of California employees, FEHA provides greater protection than Title VII.  For instance, Title VII only protects the following classes: race, color, national origin, religion, and sex.  In contrast, FEHA has a far greater list of protected classes: Age, Ancestry, Color, Religion, Denial of Family and Medical Care Leave, Disability, Marital Status, Medical Condition, Genetic Information, Military and Veteran Status, National Origin, Race, Sex, Gender, Gender Identity, and Gender Expression, Sexual Orientation.  To be fair, other federal laws protect some of the FEHA classes.  For instance, the ADA is the federal law that protects disabled persons.

Another advantage of FEHA is it does not restrict damages.  Under FEHA, compensatory and punitive damages are unlimited.  Depending on the size of the business, federal law limits them to amounts between $50,000 and $300,000.

FEHA also requires more employers to follow its requirements than does Title VII.  FEHA applies to employers who only have 5 employees.  Harassment laws apply to all employers, even if they only have one employee.  In contrast, Title VII only applies to employers who have 15 or more employees.

Courts decisions cause work place discrimination laws to constantly evolve.  For instance, a series of court cases over the past few decades have broadened and strengthened employer liability for third party discrimination.  Both federal and state laws clearly require employers to protect employees from supervisors and co-workers who discriminate.  On the other hand, over the years, case law has employers must protect its employees from discrimination at the hands of non-employees who interact with employees during the work day.  The cases say that because the employer controls the conditions of work, employers have a duty to protect employees from unwanted discrimination by non-employees.

In other instances, the law has become more restrictive.  For instance, in California the courts have made it harder for employees to sue when an employer may have had a mixed motive for firing an employee.  A mixed motive case is one where the employer has more than one potential reason for terminating, demoting, or taking other adverse action against an employee.  At least one of the reasons is based on discrimination, and at least one is a legitimate business reason for taking the action.  Typically, the employee claims that the employer discriminated against him or her under FEHA, and the employer claims that it had a legitimate, non-discriminatory reason for punishing the employee.  In the past, lawyers who represented employees said that an employee only needed to show that the discriminatory reason was a factor that could have motivated the action.  Now, the California Supreme Court has made clear that the discriminatory reason must be a “substantial” factor that caused the employer to act.  Further, even if the employee proves that discrimination was a substantial factor, the law allows the employer to present facts to show that it still terminated the employee for a non-discriminatory reason.  If an employer can convince a judge or a jury of that, then the employee will not be able to collect compensatory or punitive damages under FEHA.  Injunctive relief and attorneys’ fees are still available though.

Work place discrimination laws are very complicated to apply.  Employers should make sure they have expertise at their disposal to help analyze each situation as it arises.  Employees often need help analyzing the law to understand whether they have suffered discrimination or harassment as those terms are defined under the law.

S. Ward Heinrichs, Esq.
BACKSTROM & HEINRICHS
Attorneys at Law
A Professional Corporation
4565 Ruffner Street, Suite 207
San Diego, CA 92111
(858) 292-0792
(858) 408-7543 (fax)

http://bestemploymentattorneysandiego.com/
http://twitter.com/#!/WardHeinrichs
www.facebook.com/BackstromandHeinrichs
http://www.linkedin.com/pub/ward-heinrichs/45/806/83b  

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