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San Francisco Employment Law Blog

Wrongful termination in an at-will employment state

California is one of the few states that has what is known as a "covenant of good faith" exception to the at-will employment arrangement that is the law in every state except Montana. At-will employment means that either party can end the relationship at any time with no notice and and for any reason. However, employees are still protected from wrongful termination.

The covenant of good faith exception assumes that there should be fair dealings in every employee-employer relationship and that if a person is terminated, it should be for what is known as a "just cause". When a court determines whether an employer had just cause to terminate an employee, it looks at how long the employee worked there, communication about the employee's performance, the company's policies, any representations about job security and what is fair.

Woman suing employer for disability discrimination

Chobani brand yogurt is sold in supermarkets in California and around the company. The company producing the food has been the target of three lawsuits from employees alleging discrimination. In the most recent case, a woman has claimed that her request for workplace accommodations for her disability led to her dismissal. The Equal Employment Opportunity Commission has deemed her lawsuit worthy of advancing to trial.

Her legal complaint filed in federal court describes how the company immediately terminated her position after she asked for reasonable accommodations for her disability. She made this request in 2017 after trying to return from a medical leave. She had worked for the company as a case pack operator since 2013. The lawsuit accuses the yogurt company of intentionally ignoring her legal protection from disability discrimination. The lawsuit aims to collect a settlement for the woman that includes back pay, front pay, benefits, legal fees and punitive damages. In 2017, two other lawsuits were filed by former employees who said they lost their jobs because of their age. The company has not offered any public comments about the most recent case.

Awareness of sexual harassment may lead to more complaints

Companies in California and throughout the country are expecting an increased number of sexual harassment cases in 2018. The HR Certification Institute did a poll of 200 people who were HR leaders within their organizations to get their feelings about the matter. Of those polled, 79 percent said that sexual harassment training should be a high priority, compared to just 40 percent in 2017.

The awareness that the #MeToo movement brought to the issue is one primary reason why the number of sexual harassment complaints is expected to rise in the short term. According to the CEO of HRCI, the movement should also encourage companies to prevent long-term harassment issues. Of those who took part in the HRCI poll, only 7 percent said that sexual harassment doesn't take place within their organizations.

Many who experience sexual harassment never file reports

Although workplace harassment is illegal in California, some companies may still get away with the behavior. Part of the problem may be that approximately 90 percent of employees who face harassment at work never file a complaint.

For example, a study by the Equal Employment Opportunity Commission found that only about 8 percent of unwanted physical touching was reported. Only about 30 percent of those who experienced sexually coercive conduct reported the behavior. However, harassment involving gender was almost never reported. Ultimately, it was found that only 6 to 13 percent of individuals who experienced any form of harassment actually filed a formal complaint.

What makes a workplace toxic and potentially unlawful?

Employees are undoubtedly under the authority of those in charge of their workplace. It is a known power imbalance that you agree to when you decide to submit to a new job offer. However, there are differences between what is considered a toxic place to work and when it crosses the line into unlawful acts.

Employers and employees may clash in opinions and personalities. However, actions taken to subvert the employee unnecessarily can raise suspicion of illegal discrimination. When this happens, employees need to know their legal rights to protect themselves from being fired or forced into a position to resign.

Former employee files retaliation lawsuit against UCSF

On Feb. 12, a former employee at the University of California, San Francisco, sued the UC Board of Regents for discrimination. It is the third discrimination lawsuit filed by the plaintiff.

According to court documents, the plaintiff alleges that he has faced repeated retaliation for accusing the regents of discrimination during his employment at UCSF. He further claims that UCSF has denied him the total amount of disability compensation he is owed. In 2009, the plaintiff first sued the regents, accusing them of racial discrimination. However, a jury ruled against him in September 2011. A month later, the plaintiff was fired. In 2012, the plaintiff sued the regents for the second time, claiming that he was fired in retaliation for the racial discrimination lawsuit. He won that lawsuit and was awarded $50,000.

Sexual harassment claims fall for white women, not others

The #MeToo movement has cast a spotlight on sexual harassment in California's entertainment industry, drawing national media attention to an important employment issue. However, these high-profile cases fail to tell the whole story of workplace sexual harassment.

Federal statistics show that overall sexual harassment claims have sharply declined over the past 20 years. However, black and Hispanic women aren't experiencing the same relief as white women. According to data from the Equal Employment Opportunity Commission, sexual harassment complaints have dropped by 40 percent since the mid-1990s. In 1996, white women filed around 200 sexual harassment complaints with the EEOC each month. By 2016, that number had dropped to just 60 a month. However, black women reported around 50 sexual harassment claims a month in 1996 and reported around 50 a month in 2016. The agency only began collecting data on Hispanic employees in 2008, but statistics indicate Hispanic women are not experiencing a significant decline in sexual harassment incidents. Meanwhile, age is also an issue. Sexual harassment complaints by women age 50 and older have increased over the last two decades.

Group seeks to improve working conditions in restaurants

About 70 percent of workers in the food and beverage industry who receive tips and a regular wage are women. Tipped workers in many states are entitled to a federal minimum wage of $2.13 before tips are included. However, California and several other states offer what is referred to as the fair wage. Workers in those states are entitled to the full minimum wage before tips. Research has shown that these people experienced lower levels of sexual harassment compared to others who made $2.13 an hour.

States such as Florida and New York pay at levels between the federal minimum wage and the fair minimum wage. The federal minimum wage has not been changed in the past 20 years. The fact that workers may be reliant on customers to supplement their income may make them exposed to sexual harassment from those customers. Increasing a person's income may shift the balance of power toward the worker.

Retaliation claims remain the most common EEOC filings

According to data from the Equal Employment Opportunity Commission (EEOC), California residents alleged fewer claims for workplace violations of their civil rights in 2017 than in previous years. The EEOC is in charge of regulating and enforcing federal laws against workplace harassment and discrimination for most employers. Golden State claims are in line with national numbers which have been trending downward since 2010.

Allegations of retaliation remain the most popular claim and were a component of 48.8% of all EEOC filings in fiscal year 2017, which ended in September. Employers are not allowed to retaliate against employees for making complaints or filing benefit claims under workers' compensation or civil rights laws. Any backlash against employees can lead to retaliation claims. Since retaliation is a non-specific claim, it is often combined with other claims related to race, age, gender, religious or other discrimination. The EEOC helped workers recover $398 million from misbehaving employers in 2017. While overall numbers declined, gender-based claims saw a slight uptick in the percentage of overall complaints with 30.4% of the total alleging sexual harassment or gender-related discrimination.

U.S. House strives to reform handling of sexual harassment cases

The passage of a bill by the U.S. House of Representatives represents an overhaul of how the legislative body treats workplace claims of harassment or discrimination. For decades, the Congressional Accountability Act has guided the treatment of these claims from staff members and interns, but critics described that process as secretive and difficult for victims. The new bill attempts to streamline the process and hold legislators responsible for the money paid to victims that come from the U.S. Treasury.

The reform ends the 30-day waiting period imposed previously on employees and interns who made complaints. Additionally, members of Congress involved in financial settlements with victims must repay the money to the Office of Compliance within 90 days. This requirement applies even if they leave office. The bill would also inform the House Ethics Committee about members who had to settle complaints with staff.

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