California employers have an obligation to conduct proper workplace investigation of harassment or discrimination allegations by an employee and taking all reasonable steps to remedy and prevent future harassment. As the court recently reiterated in Nazir v United Airlines, a poorly conducted, biased investigation can intself be evidence of discriminatory motive against the alleged victim of discrimination or harassment. While every situation has its own unique aspects that call for an investigation process tailored to that situation, there are three common mistake that employers make when conducting a workplace investigation that may cast doubt not only on how reliable the conclusions are, but also on whether the investigation was conducted in good faith, and whether the employer really intended to get to the bottom of the incident/s in question.
1. Failing to interview both the accused and his witnesses as well the accuser and his witness.
Interviewing only one side or neglecting to interview potentially critical witnesses for one of the sides will make the investigation look particularly unfair and biased. It is the employer's duty to interview and gather information from all the available sources on both sides, before making any conclusion or taking action against an employee.
2. Delaying the investigation
While there is no bright line rule on how long it should take for the employer to start and complete the investigation, the sooner you start the better. This is especially true in cases where the employer is a large and well-funded company with resources specifically allocated for ensuring workplace safety. Waiting for weeks to initiate investigation may be unacceptable, especially if the alleged conduct is egrigious enough, such as sexual harassment, or violence / threats of violence at workplace.
3. Having the investigation conducted by a manager who is biased
To be fair, the investigation has to be conducted in an unbiased manner. If the investigation is run by the manager who dislikes or favors the accused or the victim for personal reasons, that investigation is likely to be skewed and lead to unfair conclusions. An employer should consider having an investigation conducted by an impartial investigator or an attorney in order to make sure that the results of the investigation are actually useful.
Employees can use one of the above issues in workplace investigations in proving their discrimination or retaliation. For instance, consider a situation where an employee applies for FMLA or disability leave. Shortly after making that request, a complaint of harassment is submitted against him, and he is terminated without any investigation or after a very shallow and incomplete investigation takes place. The employee can later argue that along with timing of his termination relative to the medical leave request, the fact that the employer didn't bother to verify the accusations before terminating him further evidences that the real reason for termination is medical leave discrimination and not the harassment complaint.
One of the advantages of a retaliation claim, as compared to other claims, including discrimination and harassment claims, is the fact that even if you can't prove the underlying harassment or discrimination claim, you might still be able to prove the retaliation claim. A recent case McCoy v Pacific Mar. Ass'n (2013) is a classic example of that situation. In that case, an employee McCoy, who was working as a marine clerk filed a discrimination lawsuit. After the lawsuit was settled, she claimed that during the job training that took place afterwards, the vessel planners retaliated against her by giving her a less desirable room, which increased her isolation from the rest of the vessel planning staff. She presented additional evidence of retaliation in a form of sexual harassment during training and other unfavorable treatment toward her by the same key managers who she brought her earlier claims against.
Although the court actually rejected the jury's substantial verdict to McCoy on discrimination claims and determined that there is not evidence to support a discrimination claim, the court also found that there was substantial evidence supporting the conclusion that the employer unlawfully retaliated against McCoy for engaging in a protected activity, and that McCoy suffered damages as a result. This allowed McCoy to recover significant award despite having her discrimination claim tossed out.
One of the common mistakes that aggrieved employees make prior to being terminated when they feel that they are being retaliated against, is that they lose their temper when they feel that their rights are being violated. This often hurts them makes their potential legal claims for retaliation and wrongful termination much weaker.
Imagine you request a medical time off under FMLA, your manager mistakenly believes that you are not entitled to it because somehow he/she determined that your medical condition is not serious enough to qualify or even worse - the employer thinks you are faking it. You then give your that manager a peace of your mind, telling them that they are not good and they are incompetent. Perhaps you raise your voice and you also use some inappropriate language. At the same time, you go to his/her superior and complain about denial of your rights. You might even send a nasty e-mail or two on top, to other managers to tell them how unhappy you are about your bosses ignorance. These actions give your employer an independent, and perfectly legal reason to terminate you - being rude, verbally violent and insubordination.
Instead, you should always act like a "politician" , so to speak. You should never lose your cool or be rude or inappropriate with your boss. Most of the times, employee's right are violated not on person but because the employer simply doesn't know better or because the company has to deal with certain financial or productivity pressures that push them in the wrong directly legally. This is not to justify their actions but to make you realize that there is absolutely no point and no benefit in raising your voice or becoming aggressive toward your employer.
Further, when you remain civil at all times, and the employer does violate the law by discriminating or retaliating against you, your potential legal case will be much stronger, as the employer will not have the "insubordination" excuse for retaliating or firing you. The more calmly you act in any legal proceeding, including your deposition or your testimony in court, the more likely you are to do better, and in large part because people who are calm are also more believable.
There is little doubt in my mind that as our population becomes older, the incidents of discrimination and harassment based on age and related claims (such as disability discrimination) will be on a rise. San Francisco workforce will not be an exception. I believe that at least three major reasons for age discrimination are: (1) the perception among the young and the bright in the technology world that the peers of their generation know better and are more up to date when it comes to progress and the most current trends in the industry; (2) older workers are likely to work slower, be more prone to taking time off for illnesses and other health related reasons; and (3) the obvious - employers have to pay more to employees with longer resumes.
The first two reasons mentioned above are nothing other than generalizations that attempt to sweep the entire age subgroup or multiple age groups into the same category of stagnant, slow and unwilling to learn workers. In reality, many experienced workers are both willing to learn as much or more than their younger peers, and they benefit from their past experience in computer science and other fields as well. They might not be aware of every new gadget or every new social media app that comes out, but they have other qualities that well make up for that "gap". Many older workers are far more responsible and attentive to their work because often have more at steaks - they have families and children who they have to provide for. They also know that if they were to lose a job at an older age, finding a new one would be much harder than to someone who was in his 20's or 30's. Thus, their tend to value their work more than a young hot shot who might be bouncing from one company to another, constantly looking for a better deal. Also, many older workers are quite healthy and they don't take more time off for illness then their younger colleagues.
Age discrimination lawsuits will continue to be filed by employees who feel betrayed and kicked to the curb by their employers, especially in those cases where the older workers are particularly hurt by discrimination because they had a lengthy career at the same company (10 years or more) and they feel they gave so much of their time and their mind to the company. Many age discrimination cases involve a compelling story of a dedicated employee, whose life has been derailed due to a discriminatory firing at a critical stage, and will result in substantial settlement and verdicts in favor of employees.
Unfortunately, many employers still don't know that Post Traumatic Stress Disorder (PTSD) is a fully recognized disability under ADA and FEHA (Fair Employment and Housing Act). An employee suffering from PTSD may be entitled to reasonable accommodations as any other employee with the better known disabilities. Many human resources managers till this day believe that the only employee who they have to consider disabled are the ones who have several physical injuries or limitations, such as missing a limb or being wheel chair bound. This kind of extreme incompetence leads to egregious disability laws violations in both small companies and larger corporate employers.
If you are suffering from PTSD and related psychological/mental symptoms, it is critical that you inform your employer of your medical condition, your specific diagnosis and your limitation, and request a meeting to discuss the accommodations that you might need in order to allow you to continue performing your job duties.
Keep in mind that under the law the employer does not have to read you mind and assume that you need a particular accommodation, and not worry so much about medical confidentiality. Therefore, it is to your great benefit to share all the necessary information about your condition and limitations, so that the employer has an opportunity to explore what accommodations may be available to you and how to make sure that you are able to continue being park of the employer's workforce. And if the employer asks for further clarification of your condition and your restrictions after receiving your original medical paperwork, you should be willing to provide it.
Certain California Wage Orders authorize alternative workweeks of workdays exceeding eight hours without overtime pay, if specified criteria are met. Such flexible scheduling requires full disclosure to affected employees and the affirmative vote of at least two-thirds of the employees in the affected work unit voting in a secret ballot election before performance of the work. See Lab. Code sec. 511.
An employer proposing the alternative workweek schedule must make a written disclosure to the affected employees before the secret ballot vote, including disclosure of the effects of the proposed arrangement on the employee's wages, hours, and benefits.
Under a duly adopted alternative workweek schedule, the employer must pay overtime at one-and-a-half times the regular rate after 10 hours of work per day in a 40-hour workweek, and at double the regular rate after 12 hours per day. If the alternative workweek schedule is adopted, as noted above, it may require employees to work more than 10 hours per day and more than 40 hours per week (provided overtime is paid for each hour after the tenth hour). The purpose of Lab. Code sec. 511 is not to limit the overall number of hours in an alternative workweek shift, but rather limit the alternative schedules to not more than 10 hours per day without triggering daily overtime. Mitchell v Yoplait (2004).
Both the employer and an employee may benefit from the alternative workweek arrangement, especially in the most common alternative workweek arrangement, where an employee works 3 days per week for 10 or more hours a day. In this situation, the employee obviously benefits from having extra two days off per week. In exchange, the employer is partially relieved from paying over time (for the 9th and 10th hour on any given workday) that the employer would otherwise have to compensate at 1.5 the regular rate.
Retaliation in Santa Clara County government offices and hospitals is as common as it is in many others private and public employers. The are two common reasons for retaliation that seems to be in play over and over:
1. The tension between Latin workers and workers of other races. When Latin workers are a majority in the office or at a particular department, workers of other ethnicity are more likely to complain about experiencing discrimination and favoritism toward Spanish speaking employees. When Latin workers are a minority, they are the ones who are more likely to complain about being discriminated. Either way, this leads to filing complaints and subsequent retaliation issues.
2. The second common reason for retaliation is the budget pressure that many offices in San Jose and Santa Clara County experience. A supervisor or head of the department that's already struggling with shortage of funds is more likely to be frustrated if its employee files a workers comp claim or goes on disability/medical leave. As a result, that manager is more likely to suspect that the employee is faking or exaggerating his injury or medical condition and retaliate against him, by as subtly as starting to scrutinize his work, micromanage him, to more significant steps such as issuing unfairly negative performance reviews and writing that employee up, or even worse - suspending or terminating that employee.
If you believe you experience retaliation at work, it can be critically important for you to take certain steps before you are suspended or terminated in order to either protect your job or enhance your future wrongful termination claim, if and when you wish to pursue it. An experienced employment attorney can help you gather all the evidence that will be necessary to prove your claim and help you in court, in arbitration of a union grievance, if you are a member of the union, in pursuing your workers comp claim or in any other administrative forum and hearing.
Last month, Governor Brown signed California's Healthy Workplaces, Healthy Families Act of 2014. This new law takes effect on July 1, 2015 and will require all public and private employers, regardless of size, to provide sick leave to California workers. Employee who work more than 30 days a year in California, including part-time, temporary, exempt and non-exempt employees are covered by this law. There are several exceptions to this coverage, including home health care and air carrier employees and employees governed by collective bargaining agreements.
Under the new law, employees will accrue one hour of sick leave for every 30 hours worked. For full-time employees (2080 hours or work per year), this equates to about 69 hours, or just over eight days a year. If an employer has a paid leave or paid time off (PTO) policy that provides for at least 24 hours (three days) per year that may be used as sick leave, and otherwise complies with the new law, then no additional paid sick days have to be provided.
Covered employees may use sick leave for preventive care or an existing health condition for the employee himself or a family member (child, parent, spouse or registered domestic partner, grandparent, grandchild, or sibling), or for employees who are victims of domestic violence, sexual assault or stalking. An employee may use accrued paid sick days as early as on the 90th day of employment.
Unlike vacation, accrued, unused sick leave is not treated as vested wages that must be paid out upon termination along with other final wages. However, if an employee is rehired by the same employer within 12 months of separation, any accrued, unused sick leave must be reinstated.