Question:
Recently we read in the paper that the U.S. Supreme Court decided 2 cases where the employers in the cases were able to win against hostile environment claims. How were the employers able to win these cases?
Answer:
You are probably referring to the recent cases of Faragher & Burlington Industries. In these cases, the Court said that employers may be able to defend hostile environment claims by showing two things:
- The employer must demonstrate it exercised "reasonable care" to immediately prevent and correct any behavior that appeared to be sexual harassment.
- The employer must show that the employee did not take advantage of corrective or remedial measures provided by the employer.
As a result of these cases it is very apparent that employers must take the lead to provide a discrimination-free and harassment free work environment. One of the ways of accomplishing this objective is to obtain a commitment from employees to follow both the spirit and letter of the employer's policies against harassment and discrimination by promptly reporting any violations of the employer's policies. This takes some of the burden off the employer which former case law sometimes put on the employer. It also does not seem totally unfair to the employee since the employer obviously is not expected to be a mind reader and know anything and everything that goes on in the work place.
Question:
Can an employer introduce the disciplinary history of an employee terminated for sexual harassment?
Answer:
Yes, the disciplinary record of such an employee may be relevant to justify a more severe penalty than otherwise would be the case if the prior incident did not exist. Additionally, the past record may be helpful in showing that the employer has complied with contractual requirements of progressive discipline -meaning that the employer has tried to be fair with the employee and warn the employee by more severe discipline each time the employee commits an offense that continued inappropriate behavior will not be tolerated.
Likewise an employee may wish to show that other employees have not been penalized as severely for similar conduct. But if the employer can show that other employees have been given the same level of discipline in a similar situation, the employer will probably prevail. On the other hand, if the employee can establish that he or she was singled out for harsh treatment when others have "gotten away" with the same type of behavior, the employee will probably prevail.
Question:
My buddy and I work for a small company in Monterey County. Recently, we made what one of our female co-workers considered to be an inappropriate comment and sexually offensive to her personally. She was annoyed and felt we were out of line. We thought she would just take it as a joke, but apologized to her anyway. The apology wasn't enough for her; she told our supervisor. Our company thought we were wrong and suspended us for 3 days each. Our union filed a grievance stating that we had apologized, but the company wouldn't change the suspensions and the matter ended up in arbitration because of our union contract. Much to our relief, the arbitrator did not back the company but ordered the company to pay us for the 3 days pay the company took away from us. We feel that sometimes companies and employees react too quickly in these matters and get carried away.
Answer:
I would tend to agree with you based on what you have stated; we don't want to get into a situation where we are all walking on egg shells and afraid to say anything or have good natured kidding. Unfortunately, the environment we all work in and the results from the courts make us all a little gun-shy. Employers are afraid if they don't take action they will end up in a lawsuit and likewise some employees take advantage of this atmosphere and are too zealous in complaining. Generally speaking, the comments that are offensive and made in the workplace must be part of a repeated pattern of behavior and generally not a one-time occurrence. However, the decisions that have come from the court make it clear that what is offensive in one work environment may not be held to be offensive in another work environment. Each decision handed down by an arbitrator or a court will be based on the history of the case, the union contract, testimony given and other related and pertinent facts.
Question:
We understand there have been some changes in the overtime provisions in California that say that overtime will now be paid again when an employee works more than 8 hours in a day? Could you clarify this for us?
Answer:
Yes, you are right. The Governor has signed a law which is effective January 1, 2000 which provides that employees will get time and a half for hours worked in excess of 8 hours a day, 40 in a workweek and the first 8 hours worked on the 7th day in a workweek. Employees who normally receive overtime will also be entitled to double time for working more than 12 hours in a workday or over 8 hours on the seventh day.
Exemptions from this provision will apply to employees who qualify for the state executive, administrative, or professional exemption. Among the other exemptions are employees who are covered by an "alternative workweek schedule" that satisfies the law and administrative procedural policies such as a 4 day 10 hour a day schedule but 12 hour shifts at straight time pay probably won't pass muster.
The new legislation also sets forth the meal period rules which require meal periods of at least 30 minutes when the employee works more than 5 hours. Other meal period regulations may apply to employees who work over 20 hours a day.
The employee must be given one day off after 7 days of work and the employer cannot demand that the employee work more than 6 days in a 7-day period. However, if the job reasonably requires that the employee work 7 or more consecutive days, the employer must give the employee equivalent time off each month so that the net effect is one day off in seven.
In general, alternative workweek schedules may not exceed 10 hours a day. Whatever alternative schedule is adopted must be passed by a 2/3 majority of the work unit by a secret ballot.
If an employee who receives overtime is not able to work because of personal obligations, the employee may make up the time missed at a straight time rate under certain circumstances.
An employer who violates a provision of the law is subject to various civil penalties. The employer is subject to $50 for each underpaid employee in addition to the recovered wages; subsequent violations are $100 for each underpaid employee plus the wages that are underpaid.
Question:
I hear a lot about sexual harassment on the job, but what about general harassment, where an employee works in a work environment that makes it very difficult to do her job properly and is constantly under stress?
Answer:
Federal law is violated if there is discriminatory treatment on the job because of race, sex, national origin, disability, age, color, and religion. This does not mean that one has to walk around in a straight jacket and with a gag in their mouth. Good natured kidding once in a while or isolated situations that are not serious probably won't violate the law, but here again one has to be careful because what is good-natured with one person is not necessarily good-natured to someone else. The best rule to follow is probably using good common sense, and if you sense that someone is offended by what you say, better back off.
An employer is legally responsible for actions of a supervisor that resulted in some type of adverse effect on the employee, such as withholding a raise, failure to promote, etc. If a harassment action is reported to the employer such as human resources or management, and the employer takes no action, the employer may be liable.
The employee must report the incidents of harassment. If the employee merely tolerates the harassment and doesn't tell anyone, the employee is probably wrong, and the employer is not able to do anything about it, assuming the employer does not know about it.
It is prudent even for a small employer to set forth in writing what their policy is on harassment and what the employee should do about it if it occurs. Many employers are holding meetings about sexual harassment but limiting the discussions to only sexual harassment. If the employer conducts an immediate investigation of what has occurred and takes prompt action to correct any problem, it probably has discharged its responsibility to take appropriate action.
In its policy statement, the employer must spell out that harassment will not be tolerated and there can be no retaliation or harassment against anyone who files a report about harassing actions.
Question:
I was fired from my previous job. Without going into all the details to defend myself, I now can't get a job in the same line of work, because my former boss is "bad mouthing" me by giving unfavorable references to people who ask about my job performance. Is there anything I can do so I can get a job?
Answer:
Assuming you were fired for questionable reasons from the former job, you may want to explain that fact to the new employer and explain to the prospective employer that your former boss seems to be overly active in preventing you in getting a new job.
Some employers refuse to provide references to prospective employers on the basis that such actions on their part may expose them to possible liability for defamation. Some employees have even gone as far as filing actions for unlawful reprisals and retaliation.
However, in your case the former employer seems to be going too far in stating his version of why you were fired if the circumstances were in doubt. If an employer provides unfavorable information which is misleading about a former employee that fails to disclose material information about the former employee's conduct, the employer may be exposed to claims for intentional or negligent misrepresentation.
Thus many employers will only give out information confirming the employee's former employment, the dates of that employment, and the job the employee held.
Consider a recent case from the California Appeals Court. In this case a police department received information about the employee from a former employee while conducting a background investigation on the employee's application with the police department. The police department had obtained a release and waiver that ostensibly released any former employer from liability for furnishing information about the employee. The former employee indicated to the police agency that the former employee had employment problems with them based primarily on a drinking problem. The employee sued the former employer but the Appeals Court said that the communications to the police agency were absolutely protected while the police agency was engaged in a background investigation. Additionally, the release the employee signed barred any contract claims.
Question:
We are a small employer in Monterey County, but we have most of the same electronic devices as any large employer such as e-mail, access to the Internet, voice mail, etc. Are there any laws or court decisions that we should be aware of to protect our company from liability in this area?
Answer:
If you don't already, you should have a policy in this area covering the position your company is taking in this sensitive electronic communications field. For example, the policy should prohibit any commercial use of the electronic communications devices that are not for the direct benefit of the company. The policy should indicate that any of these electronic devices should reflect the non-discriminatory policies of the Company having to do with race, national origin, age, and other protected categories. Consistent with your company's sexual harassment policies, you want to make sure that e-mail, voice mail, etc. is not used for employees to interject sexually harassing comments, offensive downloaded material from the Internet, etc. Employers should not use these devices in any way that infringes on the confidential or trade secret material of others.
There also is the possibility that e-mail messages can be transmitted to someone for whom the message is not intended. It therefore may be helpful to identify such messages as confidential and privileged in your policy. Additionally, the company should make it clear in its policy that the information stored in the computers of its employees are not confidential as respects the company's right to access that information. The company should have the right to gain access to that information stored by the employee in their computers at any time - announced or unannounced.
Question:
I have been partially disabled because of an on-the-job injury. My doctor is planning to release me to go back to work after the first of the year, but I am no longer able to perform the job duties of my old job. As a result my employer is apparently planning to terminate me according to the company grapevine. Assuming this is true, what recourse do I have? Doesn't the company have to find a job for me that I can do since I have worked for them for over 10 years?
Answer:
According to a recent California Supreme Court decision, you can probably sue your employer if the employer terminates you for not attempting to reasonably accommodate you. This means depending on the facts of your particular case, you could probably sue under both California State and Federal law. Furthermore, there is an advantage to suing under State law because your damages would not be limited, as they would be under Federal law.
In this particular case cited above, the employee injured her knee on the job and filed a workers' compensation claim. After she recovered she was released to go back to work, but it was found she could not fully perform her old job. The employee sued, saying the employer failed to accommodate her under the California Fair Employment Act. Thus, the employee could also sue for wrongful termination alleging that the termination violated the fundamental public policy against disability discrimination. The California law also applies if the employer has five or more employees.
Not knowing all the facts in your case, you need to be aware that an injured employee must satisfy the following requirements: they must have an injury that substantially limits a major life activity and they must be able to perform their essential job functions unaided or with a reasonable accommodation.
Question:
We are a medium sized employer in the area and want to make sure that our policies are in keeping with the current state of the law on sexual harassment. How strict do we need to be in telling employees what they can say and what they cannot say on the job so that other employees who might be more sensitive or more easily offended can't claim that we have a "hostile work environment"?
Answer:
The law in this area, as we have stated in previous articles, is constantly evolving and is far from settled. What might be considered perfectly acceptable conduct and language on a construction job outside may be totally unacceptable to some employees in an office setting. Because the law is so indefinite, many employers may be too cautious and thus be too restrictive on their employees. There even could be some free speech issues under the First Amendment involved here. In other words, how far can an employer go in the workplace in telling an employee what he can and cannot say in the work environment.
A recent article in a midwest newspaper advises that you should not say or do anything that can be interpreted as sexual in nature to anyone at work or near the workplace. If you literally follow this advice, the author advises that you don't have anything to worry about. Another article states that offensive comments could translate into big liability for the employer.
Is there a conflict between the First Amendment (free speech) and so-called evolving sexual harassment law and opinions about it in the media? The Supreme Court has not decided this question but may be called upon soon to do so. The vagueness and ambiguity of harassment law makes it a good target for constitutional attack such as from constitutional law proponents who argue that employees should not have a muzzle put on them in the workplace. The law has begun to put straight jackets on speech in the political arena, religious speech, art and just about any references to sex.