Magnanimo & Dean, LLP’s attorneys represent employees who have suffered employment discrimination, harassment and other injustices in the workplace, including:
- Wage and Hour Disputes Information
- Workplace Discrimination Information
- Workplace Harassment Information
- Wrongful Termination Information
What Is Workplace Discrimination?
Discrimination means treating an employee differently based upon his or her lawfully protected status or category. Protected categories of employees recognized in California include:
- Sex (gender)
- National origin or ancestry
- Medical condition
- Religion (religious creed)
- Marital status
- Sexual orientation
- Veteran status
- Political activity
What Does California Law Say About Employment Discrimination?
California’s laws, statutes and Constitution prohibit various forms of employment discrimination, including discrimination on the basis of race, age, sex (gender), national origin or ancestry, disability, pregnancy, medical condition, religion (religious creed), marital status, sexual orientation, veteran status and political activity. It is the public policy of California to prohibit unlawful discrimination in terms, conditions and privileges of employment.
- The California Fair Employment and Housing Act (“FEHA”) (California Government Code Sections 12900 et seq.) is the major statutory scheme prohibiting employment discrimination under California law. The FEHA prohibits harassment, discrimination and wrongful termination when an employer’s conduct is motivated by the employee’s race, age, sex (gender), national origin or ancestry, disability, pregnancy, medical condition, religion (religious creed), marital status or sexual orientation. The federal equal employment statutes are found in Title VII of the United States Code. Often, it is necessary for government agencies known as the California Department of Fair Employment and Housing (“DFEH”) and federal Equal Employment Opportunity Commission (“EEOC”) to investigate these claims prior to filing a lawsuit.
- The California Family Rights Act (“CFRA”) protects employees who need time off from work to take leave for the birth of a child; for placement of a child in the employee’s family for adoption or foster care; for the serious health condition of the employee’s child, parent or spouse; or for the employee’s own serious health condition.
- The Pregnancy Disability Leave Act (“PDL”) protects women who are disabled during pregnancy. This law allows women to take up to four months of leave for a disability related to pregnancy, childbirth or a related medical condition. Severe morning sickness is just one example of a disability covered by this law.
What Does California Law Say About Pregnancy Discrimination?
Pregnancy Disability Leave differs from leave under the Family and Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”). All California employers with at least five employees are covered by the Pregnancy Disability Leave Act. Even if your employer does not offer FMLA or CFRA leave, you may still be entitled to time off from work to accommodate a pregnancy-related disability.
If your employer is a covered employer under the FMLA or CFRA, you may also be entitled to an additional 12 weeks of leave from work to bond with your newborn child after you take time for a pregnancy-related disability. This means some women may be entitled to up to 28 weeks of leave if they have a pregnancy-related disability and then choose to take time to bond with their newborn.
What Federal Laws Protect Employees?
In addition, there are federal statutes and laws that protect employees from unlawful employer discrimination. For example, federal statutes that protect employee rights include:
- Title VII of the Civil Rights Act (“Title VII”), which prohibits employment discrimination based on race, color, religion, sex or national origin
- The Equal Pay Act (“EPA”), which protects employees who perform substantially equal work from sex-based wage discrimination
- The Age Discrimination in Employment Act (“ADEA”), which protects employees who are 40 years of age or older from discrimination
- The Americans with Disabilities Act (“ADA”), which protects employees who are disabled and requires employers to provide reasonable accommodation
- The Family and Medical Leave Act (“FMLA”), which provides similar leave protections as the California Family Rights Act
What Types of Harassment Cases Do You Handle?
Our law firm handles court litigation of employment harassment claims, including claims involving sexual assault, sexual abuse or rape. The most common type of harassment claims are for sex harassment, sexual harassment and gender harassment. Magnanimo & Dean, LLP’s attorneys handle such claims in Southern California, including the counties of Los Angeles, Santa Barbara, Ventura and Orange.
What Is Sexual Harassment?
“Sexual harassment” includes the following types of comments and conduct:
- Unwelcome sexual advances and propositions
- Requests for sexual favors
- Other verbal, visual or physical conduct of a sexual nature, including sexual assault, sexual abuse or rape
- Hostility directed at an individual because of his or her sex
What Is Unlawful Harassment?
Actions or comments based on racial bias that demean or offend someone of a particular race or ethnicity may also create a hostile work environment.
Examples of unlawful harassment include when:
- Submission to harassment is explicitly or implicitly made a term or a condition of an individual’s employment
- Submission to, or rejection of, harassment is used as the basis for adverse employment decisions such as demotion, suspension or discharge
- The harassing conduct negatively impacts the individual’s work performance, or creates an intimidating, hostile or offensive work environment
While unlawful employer harassment is often associated with abuse by a supervisor, illegal harassment may also occur between persons of the same status and between persons of the same sex.
What Is Quid Pro Quo Harassment?
“Quid pro quo” harassment occurs when submission to sexual activity or conduct is made either an explicit or implicit condition of employment benefits, and submission to or rejection of such conduct by the employee is used as the basis for employment decisions.
What Is Hostile Environment Harassment?
“Hostile environment” sexual harassment exists when unwelcome sexual advances, requests for sexual favors, or other gender-related verbal or physical conduct occurs; where such conduct has the purpose or effect of interfering with work performance or creating an intimidating hostile or offensive working environment. An employee can show he or she is working in a hostile work environment when the unlawful conduct is severe or pervasive and interferes with the employee’s ability to do his or her job.
What Are Common Types of Sexual Harassment Behavior?
- Unwanted sexual advances or propositions
- Offering employment, continued employment, promotion or benefits of employment in exchange for sexual favors
- Threatening retaliation after a negative response to sexual advances
- Intentional unwanted physical conduct: kissing, touching, groping, patting, hugging or brushing against a person’s body, and impeding or blocking movement
- Visual conduct: leering, staring, making sexual gestures and displaying sexually suggestive objects or pictures, magazines, cartoons or posters
- Verbal conduct: Making or using derogatory comments, epithets, slurs, jokes, verbal abuse of a sexual nature, commentaries about an individual’s body or appearance, sexually degrading words used to describe an individual, suggestive or obscene letters, memos, notes or invitations, and sexually explicit statements, questions or anecdotes.
Do I Have a Claim for Unpaid Overtime?
Employees in California who are paid improperly often have significant claims for wages and penalties against their employers. Overtime pay is required for many employees under both federal law and/or California law, including the California Labor Code and the Federal Labor Standards Act.
In California, the general overtime laws provide that a nonexempt employee shall not work more than eight hours in any workday or more than 40 hours in any workweek, unless he or she receives one and one-half times his or her regular rate of pay for all hours worked over eight hours in any workday and over 40 hours in the workweek. Eight hours of labor constitutes a day’s work, and employment beyond eight hours in any workday or more than six days in any workweek is permissible provided the employee is compensated for the overtime at the proper statutory overtime rates.
There are, however, a number of lawful exemptions from the overtime law, which employers may assert to avoid overtime liability. An “exemption” means that the overtime law does not apply to a particular classification of employees. Employers often misclassify employees as “exempt” even though the employees do not actually qualify for an exemption under California and/or federal law. Importantly, just because an employee is paid a salary does not necessarily mean the employee is exempt from the overtime laws. A salaried employee must be paid overtime unless he or she meets the test for exempt status as defined by applicable federal and/or state laws, or unless the employee is specifically exempted from overtime by the provisions of one of the Industrial Welfare Commission Wage Orders regulating wages, hours and working conditions. The most common types of misclassifications are managers who do not spend more than half their time performing management level duties, managers who do not supervise two or more employees, outside salespersons who do not spend more than half their time on outside sales duties, inside salespersons who are not in the retail or service industries or who are not paid a commission based on the price of a product or service, professionals who do not have a professional license or degree, and/or employees who do not exercise the required independent discretion and judgment.
Employers must pay employees for all authorized and known overtime. However, even if an employee works unauthorized overtime the employer may be obligated to pay for it. California law often requires that employers pay overtime, whether authorized or not because an employee must be compensated for any hours he or she is “suffered or permitted to work, whether or not required to do so.” These claims are sometimes referred to as “off-the-clock” claims.
If you believe you have been improperly denied overtime wages, please contact Magnanimo & Dean, LLP, for a free consultation with an attorney.
What if I Was Denied Meal and Rest Periods?
In addition to overtime, California law provides that employees are entitled to additional pay sometimes referred to as “premium pay” or “premium penalties” for missed, short or late meal periods or rest breaks. California Labor Code section 226.7(b) requires employees to be paid one hour’s pay at their regular rate for each workday they are not provided a meal or rest period that complies with the requirements of the applicable Industrial Welfare Commission wage order.
The requirement for a daily meal period is generally not waivable. A covered California employee must be provided at least 30 minutes for every work period of more than five hours as an unpaid meal period within the first five hours of the workday, with a second meal period for workdays more than 10 hours. During meal periods, employees must be relieved of all duties, and free to leave the workplace. California law places the responsibility on the employer to relieve employees of all duties during meal and rest periods.
A similar requirement exists with respect to rest breaks, which must be provided to employees at the rate of 10 minutes for each four-hour period worked, or “major portion” thereof. Unlike meal periods, rest breaks are paid time, and the employee may be required to remain on the employer’s premises.
If you have been denied meal or rest breaks, please contact Magnanimo & Dean, LLP, for a free consultation with an attorney.
Am I Part of a Wage and Hour Class Action Claim?
Wage and hour class actions are generally formed when a number of employees (called the “class”) have the same legal complaint for wages or benefits based on the employer’s policy or practice, which affects all of them. Class actions in such cases can be more efficient and cost-effective than each employee filing an individual lawsuit.
Magnanimo & Dean, LLP, handles wage and hour class action lawsuits, including:
- Claims that employees have been misclassified as exempt professionals, executives or administrators
- Claims that employees have been misclassified as exempt inside or outside salespersons
- Claims that employees have not been compensated for overtime at the appropriate rate
- Claims that employees were not provided meal periods and/or rest breaks, or that these breaks were not provided at the correct times
- Claims that employees are entitled to unpaid wages for off-the-clock work
- Claims that employees are entitled to other types of unpaid wages and related penalties or damages
What Happens if I Was Misclassified as an Independent Contractor?
Another significant issue for employees and employers is misclassification of an employee as an independent contractor. The factors for determining whether a worker is an employee or employer often favor a finding of employment, especially where the employer exercises the right to control the employee. California has long viewed independent contractor classification with suspicion, and mistaken classification may subject an employer to civil claims as well as give rise to state or federal administrative enforcement actions and/or investigations.
If you believe our attorneys can assist you, please contact Magnanimo & Dean, LLP, for a free consultation with an attorney.