The Psychology of Sexual Harassment – It’s About Power

Ask any employment lawyer to speak about the sexual harassment cases they handle, and chances are good they’ll tell you most claims are filed by women against men. But if you’re the type of person who prefers the rigor of numbers and not mere anecdotal evidence, the statistics also show what most of us know already—women are all too commonly the targets of sexual harassment. While this is an unfortunate fact, and a sad reflection on our society at large, it also overshadows the issue of men, who sometimes also, experience sexual abuse.

A USA Today article published December 18, which looked at the issue of why men don’t file sexual harassment claims, cited federal statistics showing that slightly more than 16 percent of sexual harassment claims were filed by men. The overwhelming majority of claims, more than 80 percent, are filed by women. The reasons for this could be analyzed endlessly by social psychologists and other experts, but there are basic factors that offer some explanation.

The Psychology of Sexual Harassment

You’ve probably heard it said before that sexual harassment and assault has less to do with the act of sex and more with power. A quick look at the distribution of gender and power in the workplace might give some insight to one of the driving forces behind sexual harassment.

Speaking to USA Today about this issue, Abigail Saguy, a professor of sociology and gender studies at UCLA explained, “One of the reasons it is men who harass women, and sometimes other men, is that this is about power and overwhelmingly (workplace) upper management is male, so the positions of power are disproportionately occupied by men and the bottom is disproportionately occupied by women.”

When it comes to the type of person that harasses others, psychologist Ellen Hendriksen examined several years of research on the issue and pointed out several traits common in harassers. These include: Moral disengagement, working in a male-dominated field, hostile attitudes toward women, and a cluster of psychological characteristics known as the “dark triad.”

These involve an individual who is limited in his capacity for empathy and holds a strong need for the admiration of others. As Hendriksen point out in her article, when these traits combine in a person “you essentially get a gleeful enthusiasm for exploitation, deception, and manipulation combined with a callous blindness to the feelings of others, all tied together with a bow of grandiosity.” She adds, “In other words, a perfect recipe for sexual harassment.”

To learn more about a hostile work environment, as compared to sexual harassment, click on the appropriate link.

Women Are Frequent Targets, But Men Can Suffer as Well

While it’s a sad commentary on the state of our society that so many women are forced to file claims against their male coworkers, another unfortunate facet to the issue is that the men who genuinely deal with harassment of their own are often overlooked.  In many cases, a man who is harassed, be it by a female or male coworker, will just endure the behavior rather than report it. An employment attorney interviewed by USA Today pointed to the male ego as a possible hindrance to more men filing harassment claims.

“Pride gets in the way,” the attorney said. “Most good plaintiffs’ attorneys who handle discrimination and harassment claims take on female to male harassment and the same laws apply. It’s just a matter of whether the men who are victims want to come forward.”

Whatever Your Situation, Harassment is Wrong, Fight Back

Regardless of whether you are a man or woman, if you’ve experienced harassment, you have the right to file a claim against your harasser. This is best done with the aid and guidance of a qualified employment attorney. Harassment can include a wide range of behaviors including unwanted: comments, sexual advances, jokes, epithets, as well as comments about a person’s pregnancy status, sexual identity or orientation. Requests for sexual favors in return for career advancement also falls under the state’s harassment laws and is known as quid pro quo harassment.

In addition to protecting employees from these behaviors, state and federal laws also protect workers who speak out against harassment and standup for fellow employees. In other words, it is unlawful for an employer to retaliate against an employee who blows the whistle on sexual harassment in the workplace. Retaliation can include demotion, suspension, termination or other punishments.

Those who file claims against harassers might be eligible to recover lost wages, back pay, pain and suffering damages, and in some cases, punitive damages.

If you’ve experienced harassment, or retaliation stemming from harassment, contact a qualified employment attorney to help you explore your options. It could be well worth your time and effort to fight back.

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Parental Leave Expands for California Workers

California workers with blossoming families got an extra bit of good news this month. On October 12, Governor Jerry Brown signed a new law expanding the state’s leave of absence rules so that more workers can spend time and bond with their newborn babies. The law, which will take effect January 2018, expands the California Family Rights Act (CFRA) to cover smaller businesses with fewer employees.

While the FMLA/CFRA have long provided job-protected time off for workers in order to spend time with newborns, until now, it’s only applied to companies with at least 50 employees.  The new law expands leave protection to California workers employed by companies with 20 to 49 workers. This is a huge deal for women seeking to take maternity leave but who work for smaller employers.

According to an article published on October 12 by the Orange County Register, the expansion will cover 16 percent of the state’s labor force that had heretofore been neglected by existing law.

“This is a great victory for working parents and children in California,” said the bill’s author, Senator Hannah-Beth Jackson. “With more parents struggling to balance work and family responsibilities…no one should have to choose between caring for their newborn and keeping their job.”

CA Parental Leave Expansion Bill

What the Expansion Offers

The new expansion will specifically allow employees to take up to 12 weeks of job-protected leave in order to bond with newborn children, newly adopted children, or a recently placed foster child. This means an employer cannot fire, fine, suspend or otherwise discriminate against an employee for exercising their right to parental leave – that would be pregnancy discrimination.

While the law doesn’t require the employer to provide the employee’s salary during the leave, the employer is prohibited from refusing to maintain or pay health coverage supplied under a group plan during the leave.

Who Qualifies?

In order for an employee to qualify under the new act, just like under FMLA or CFRA, he or she must meet the following requirements:

  • Have Been Employed by the Company for More than 12 Months
  • Have at Least 1,250 Hours of Service with the Employer During the Previous 12 Months

What Happens if an Employee is Denied Leave?

While the expansion has yet to go into effect, an employee who is denied their rightful leave under the law will have a number of different options. A good attorney will look at the facts of the case and seek the best outcome for the client. This could involve seeking lost wages, back pay, pain and suffering damages and possibly punitive damages.

An employee who wins their case might be reinstated at their job if wrongfully terminated, or entitled to monetary compensation. If you have questions about changes to the family leave law, or some other employment issue, contact this office for more information.

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False Promises of Employment – Fraud in the Inducement

This page is about fraudulent hiring. It details California’s employment laws on when employers tell prospective employees false promises in the hiring process – to induce them (trick them) into quitting their current job for a new one. These types of intentional misrepresentations (fraudulent inducement) are extremely common. But so are negligent misrepresentations – where an employer is reckless with the truth to the prospective employee’s detriment.

You are sitting around after work when you receive a phone call. It is the HR hiring manager for a business in San Francisco and they are looking for someone just like you. You love San Francisco and they are offering you 10% above your current salary, and you will be their new Vice-President of Operations. So you sell your LA home and move to SF. Upon arrival, you are handed a mop, a bucket and told you will be making minimum wage. Surely this cannot be legal? This is an extreme example, but it happens. People move for a job and it is not what they were sold on.

The below video and the rest of this article presents the legal basics of fraudulent inducement. Make sure you read the rest of this page after watching the video!

Fraudulent Inducement Attorney

First and foremost, there are two ways that fraudulent inducement can occur: intentionally and negligently. The difference between the two is as simple as the job offeror knowing that he or she is lying to you versus recklessly ignoring the truth of the information he or she is giving to you. If in the scenario above the HR manager knew that they were going to pay you minimum wage and have you mopping floors despite providing a description resembling a VP of Operations position, it is intentional. If the HR Manager honestly believed that you would be the VP of Operations, but should have known that was not going to be the case, then it may be negligently induced.

What do the Courts Look at in False Promise Cases

To figure out if you were induced into taking the job, the court is going to look at several things:

  1. Did the defendant tell you that an important fact was true (i.e. “You’ll be paid 10% above what you are currently make.”)?
  2. Was this information false?
  3. Did the defendant know it was false information and say it anyways, or did they honestly believe it was true despite having no reason to know?
  4. Did the defendant intend for you to rely on that information in making your decision?
  5. Did you rely on that information in making your decision and was it a big factor?

People have very different ideas of what is an “important fact,” and rightfully so, so California Labor Code § 970 has cleared this up for us. Important facts recognized include the kind, character, or existence of work; the length of employment, compensation, the sanitary or housing conditions surrounding the work, and any labor disputes that are represented (or not for that matter!).

Did you Move? CA Labor Code § 970 is Powerful

Fraud in the Inducement, False Promises of Employment, Employment Lawyer

It becomes especially egregious when an employee moves from one location to another to take a job based on false promises. LC § 970-972 directly address this problem. If an employer induces someone to move based on false promises, that employer may be liable for double damages and guilty of committing a misdemeanor.

Though fraudulent inducement is not as common as discrimination, harassment, or a variety of other claims, it is still a huge hassle for someone who comes across it. People have uprooted their entire lives, changed their kids’ school, and usually have left a job, because they trusted their new employer. If you feel as though you have been given misrepresentations about a job you recently changed locations for, you should to contact a good employment lawyer as soon as possible.

 

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How to Get More Severance – Negotiate for More Without a Lawyer

This whiteboard video is how people can increase their leverage and negotiate for more severance after a termination. Sometimes its very difficult for people to find an employment lawyer to help with their severance agreement issue. I made this video to help folks who either don’t have the means to hire a lawyer, or can’t find one to help them.

There was more that I wanted to include in the video. I’ve added some information in this blog post to further flush out the bargaining chips that employees can negotiate over with their employer.

Offered Severance? Beware!

While it’s practically a taboo subject in our modern, work-driven world to admit to being fired by an employer, there’s something to be said about knowing the right way to be fired. This is particularly true if there’s a severance package being offered as part of the termination. What you do at the moment a severance check is slid across the desk toward you along with legal documents to sign could turn calamity into financial opportunity — depending on how you play your cards.

That said, there are those of us in the employment law business who probably wouldn’t object to schools teaching a class on how to get fired correctly. But barring that, the video attached to this post might just be the next best thing.

The truth of the matter is, whether we’re talking about sports, personal relationships or career, there are going to be days when we win, and days when we  lose. What matters most when we lose is how we handle the situation. If it all possible, the goal should be to turn a negative into a positive.

While an employer might offer a severance package as a means of  buying cooperation from a difficult employee, if you’re that employee the goal shouldn’t be to act like a big jerk in the hopes of getting a bigger severance.

Take a look at the video accompanying this blog post to learn more about how to handle a severance situation. The following is a list of things an employee should consider before signing a termination agreement.

More Severance Negotiation Tips

Remember, You Don’t Have to Sign

When an employee is terminated and they are given legal documents to sign, the company is looking to cover its rear and avoid a lawsuit. There could be any number of reasons an employee is fired. In an “at-will” state like California, it could be for no reason at all.

But employers know that lawsuits, even if they can be won, are expensive. So they often ask terminated employees to sign legal documents giving up their right to sue before leaving the premises. This can seem demeaning and dehumanizing. The good news is, you are not legally required to sign. You can refuse if you want.

But as mentioned earlier, the termination process should be seen as an opportunity to turn a negative into a positive. If you don’t sign, you’re basically closing the door on any severance pay – but you can pursue legal action. So if you plan to sign, be prepared to negotiate.

Don’t Rush It

There are times when companies will tell an employee he or she is fired, and place a severance check in front of them and pressure them to sign the termination contract immediately. If at all possible, tell them you’d like to take a day or two, or even a week to consider the terms. If necessary, if you find something fishy with your firing, you might take this time to discuss the terms with an lawyer.

Non Disparagement 

Those who follow silicon valley news might remember in 2011 when Yahoo fired  then CEO Carol Bartz. She was granted a large severance package—around $14 million. Not surprisingly, there was a non-disparagement clause in Bart’z termination contract.

But in an interview with Fortune Magazine following her termination, Bartz publically referred to Yahoo’s board as “doofuses” with some other expletives sprinkled in for good measure.

Now, this was an incredibly risky move on Bartz’s part. and, the company was probably within its rights to withhold her severance. It doesn’t look like that happened, but with that kind of money on the line, was it really worth it to risk the loss just to take a couple parting shots at the company?

Outplacement Services

Another thing you might consider negotiating for is outplacement services. Outplacement companies, which are located all over, help employees with career transitions.  These companies often help employees who have had a difficult time at a previous employer articulate the reason for their departure so that they can find more success when interviewing with the next company. They also provide resume and other coaching services. If your former employer can help you move on with your life, why not take advantage of that.

Cell Phones and Laptops

Often times terminated employees don’t see the company laptop or cell phone as something to be bargained for. But as anyone who’s purchased these items knows, they can be expensive. Companies will often let these gadgets go with the terminated employee. Depending on your specific situation, it could be something worth taking a look at.

Employer Reference

If your employer does agree to give you a glowing reference, you’ll definitely want to get that in writing in some form. Whether the employer agrees to offer a positive reference as part of the severance contract, or just provides you with a signed letter of recommendation.  Whatever the case, it’s important to get it in writing. A reference is the kind of thing that can be agreed to in a casual conversation, but when the time comes to actually provide that reference, days weeks, months down the road, it’s easy for an employer to brush it aside.

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August 16, 2017 · 7:10 am

Tough Times for California’s Truckers – Work Breaks

For years, drivers in the trucking industry have had to contend with government regulators as well as powerful corporate interests who have no compunction about making rules that largely favor companies. Anyone who works in the trucking industry has at one time or another, dealt with a less than ethical employer, or at least knows another driver who has. Unfortunately, these rules not only affect driver’s wallets, but also driver safety—as well as the safety of other drivers on the road. Namely, here we’re talking about the break laws being changed.

New Federal Legislation on Breaks?

An article published Thursday in the Mercury News took a closer look at federal legislation, currently under consideration, that could have wide-ranging effects on the breaks truck drivers statewide would be entitled to. Under current state law, California’s truck drivers are entitled to 30-minute breaks for every five hours of work, as well as a 10-minute break for every four hours of work. It’s worth noting that California truckers are entitled to more breaks than other drivers in most other states. I’ve written about trucker meal & rest breaks in the past.

However, legislation written by U.S. Congressman Jeff Denham, a Republican representing California’s 10th Congressional District, currently making its way through Congress, seeks to prevent states from setting their own rules for truck drivers’ hours. Instead, a federal standard would be applied. The federal regulation would allow drivers only a 30-minute rest break after eight hours of driving.

California Trucker Work Breaks | Branigan Robertson

 

The People Behind the Federal Regulation

Not surprisingly, some of the interests vocally supporting the rule are those that either work for the benefit the trucking companies, or the companies themselves.

Speaking to the Mercury News, Joe Rajkovacz, an executive with the Western States Trucking Association bemoaned the California laws that offer more benefits to drivers than other states. “It is beyond belief that we can live in a country where every state you cross can decide when a driver has to take a break, “Rajkovacz said, adding that this legislation change is among the top priorities for the trucking industry.

So much for states’ rights.

While not all California truck drivers may oppose this proposed rule change, it isn’t the only issue facing truckers that should be a cause for concern.

Lawsuits, Lawyers & Frustration

A recent year-long investigation by USA Today, found that 1,150 short haul truckers, many of whom are classified as independent contractors operating near the ports of Long Beach and Los Angeles, have filed suits against trucking companies in civil court or with the California Labor Commission.

The investigation found that many short-haul truckers lease their rigs from employers, and as a result are leveraged into what can best be described as indentured servitude. Such treatment included forcing drivers to work up to 20 hours per day, withholding payment, and requiring drivers to falsify inspection reports tracking the hours they spent on the road.

Some drivers, exhausted and unable to continue with the work, saw their trucks repossessed by the companies when they sought to drive elsewhere. While these disturbing incidents certainly aren’t representative of the experiences of all drivers statewide, there’s no denying that there are a lot of bad actors in positions of power the trucking industry.

While drivers who are classified as independent contractors may be subject to different rules regarding payment, they still have rights — as do full time drivers.

Unfortunately, a driver who believes he or she has experienced discrimination, been denied rightful rest breaks or pay, or is forced to violate safety regulations, will often hesitate to discuss their situation with a lawyer out of fear of retaliation. But it’s important to remember that employers are not privy to conversations between attorneys and clients.

A good attorney should be able to listen to the circumstances of a driver’s work situation, and quickly determine whether or not a case can be filed. In some cases drivers may be entitled to back pay, as well as lost wages, and occasionally, punitive damages are sought.

If you are employed as a truck driver and believe your employer has violated your rights as a worker, consult a qualified attorney to consider your options.

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Convalescent Homes and Overtime Violations

All too often, when stories of employers who fail to pay overtime pop up in the media, the victims end up being workers in convalescent homes. It’s a sad state of affairs for the people who have chosen to work so hard toward the care of society’s elderly and vulnerable citizens. Stories abound of convalescent and other care workers being forced by employers to log long hours, being denied lawful rest breaks, and having overtime wages withheld or denied altogether.

Nursing Home Overtime Abuse Example

For an example of the issues workers face regarding overtime, one need look no further than last week’s superior court ruling involving five caregivers in a Northern California convalescent home.

In that case, the five workers went to the California Labor Commissioner with complaints that they had been withheld wages for overtime work.  The workers argued they virtually worked 24-hours a day while covering evening shifts. The home’s owner, Lynn Ventura, who spoke to the Daily Republic, said the caregivers were free to do what they wanted during the time they were required to be on site and presumably not technically working. She argued that the workers held personal birthday parties and invited guests to the homes they were working in, presumably a justification for withholding overtime wages.

But a hearing officer at the Labor Commissioner’s office disagreed, and in February of 2017 ordered Ventura to pay the employees a total of $483,495. Ventura appealed the commissioner’s decision, which led to last week’s dismissal by a Solano Superior Court judge. The workers are now in a position to collect their lost wages.

Sadly however, the worker’s attorney Richard Taguinod, suggested the road to recovering the money could still be a difficult one. The process will involve going to the county sheriff and filing a writ of execution for levy of future income. That is not a fun process.

“The sheriff, in turn, will ask for her bank accounts of the care homes, and by law, we can only get 25 percent of the monthly income of the care homes until the caregivers all are paid the full amount of award due each of them,” Taguinod said.

Why Does This Happen So Often in Convalescent Homes?

Why this type of employment issue seems to be so prevalent in the nursing home care industry is a broad question, no doubt with several complex reasons. However, Taguinod noted that part of the reason could stem from the fact that so many immigrants seek employment in this particular industry. It’s no secret that immigrant communities are often targeted for financial and other crimes.

“Those most prone to abuse are the undocumented caregivers who do not have close friends or relatives they can seek shelter with if they decide to sue their employers,” Taguinod said.

He also suggested that many convalescent homeowners know what they’re doing when they deny their employees rightful wages.

“I almost want to believe that their mindset is that when they settle their cases with the caregivers, they can do so with a smaller amount than what they would have properly compensated them,” Taguinod said.

While Taguinod makes some good points about the sad state of employment in the care industry, rather than discourage workers, it should be a call to those who have been denied their rightful wages to fight back.

How to Get Unpaid Overtime

It’s important to remember that employment lawyers like Mr. Robertson in California typically take cases on contingency. This means they will usually examine a client’s case for free, and if a decision to file a lawsuit is made, the attorney won’t usually be paid until a settlement is reached. It is also totally free to contact the Labor Commissioner (commonly known as the “labor board”).

If you are an employee of a convalescent home or other health care facility, and have been denied proper overtime compensation, or have encountered some other workplace violation (denied rest breaks, patient safety, whistleblower retaliation, etc.) it might be well worth your time to contact a qualified employment attorney and determine whether or not you have a strong case.

A worker who wins a judgment against an employer could be eligible to recover back pay in addition to lost wages. In some rare cases, punitive damages, which are designed to prevent employers from engaging in certain behaviors in the future, may also be awarded.

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Is Wage Theft Still a Problem in California?

Since becoming a lawyer, I’ve had many casual conversations with family, friends and colleagues about the work I do. I’m asked (more often that I’d like to admit) whether or not things like wage theft are actually a significant problem in today’s modern workforce. Depending on where I’m asked this question, and who’s asking it, I’m often inclined to pinch the bridge of my nose, squint my eyes and let out an audible sigh. Sadly, I do find myself explaining to folks that, yes, in fact wage theft is alive and well in America, and definitely in the Golden State.

Here is a Simple Wage Theft Example

For evidence of this unfortunate business practice, one need look no farther back in history than June 2017, when reports surfaced that Los Angeles City Attorney Mike Feuer intended to take legal action against fast food behemoth Carl’s Jr.

The reason? The company stands accused of failing to pay 37 workers the legal minimum wage of $10.50 an hour at seven Los Angeles locations. According to KCET.com, the city alleged the company engaged in the wage theft between July and December of 2016.

Under the city’s action against the company, Carl’s Jr. is facing a total of $1.45 million in restitution and penalties. The alleged lost wages totaled more than $5,000.

While it might shock some folks that a company with such a high profile as Carl’s Jr. would potentially engage in such shady employment practices, keep in mind that Andrew Puzder, former CEO of Carl’s Jr.’s parent company CKE Restaurants was tapped as President Trump’s first pick for U.S. Labor Secretary. Puzder served as CEO from September 2000 until March of 2017.

Although his nomination was derailed after old allegations of domestic abuse surfaced, it raised unsettling questions about how powerful business interests view workers.

In December of 2016, OC Weekly examined a 2009 interview with Puzder archived by Cal State Fullerton’s Center for Oral and Public History. In the interview, Puzder reportedly lamented the state of the law in California. “I think the big change in California, it’s really become a kind of socialist state,” he said proceeding to disparage business practices such as mandatory breaks for minimum wage employees. “Have you ever been to a fast food restaurant and the employees are sitting and you’re wondering, ‘Why are they sitting?” Puzder asked. “They are on what is called a mandatory break.”

Sadly, and unsurprisingly, Carl’s Jr. isn’t the only company in California to have accusations labor of labor violations leveled at them.

Here is more information on meal breaks and rest breaks. Here is the basics of California overtime law.

Wage Theft from an Economic Point of View

A May 18, article published by the San Jose Mercury News highlighted recent figures compiled by the Economic Policy Institute. The statistics showed California’s low-wage workers losing close to $2 billion a year in minimum wage violations.

The Institute’s report argued that wage theft hurts low-income workers in every demographic category, but particularly young people, women, people of color and immigrant workers. The study’s authors estimated that if California’s numbers were representative of the rest of the country, American workers could be getting cheated out of more that $15 billion a year — enough to build Trump’s border wall.

The above-mentioned examples highlight just some of the more recent examples of wage theft in the Golden State.  Depending on whom you ask, an argument could be made that the problem has been a systemic issue for many years.

In 1988, the Los Angeles Times reported on a contractor in Costa Mesa who allegedly refused to pay three immigrant workers a combined total of $1,800 in back wages. After the workers notified police, the case was referred to the district attorney’s office. A warrant was issued and the contractor was charged with grand theft of labor wages. At the time, a spokesman for the Costa Mesa Police Department said it was the first arrest of its kind in city history.  I can’t help but wonder how many times similar situations had happened before, and have happened since.

Conclusion on Wages

Long story short, I believe wage theft is a big problem in California — probably bigger than even most employment lawyers and other labor experts realize. I personally see the effects this crime can have on my clients, effects that often go unnoticed by media reports. These include stress-related illness, depression and difficulty paying basic bills such as rent and groceries.

If there’s any bit of good news for people who feel they’ve been denied their rightful payment for their hard work, it’s that employment lawyers typically take cases on a contingency basis. Usually there is no fee for consultation. In addition, there are laws to protect workers from retaliation from employers, should they report wage theft. While the decision to go to a lawyer and blow the whistle on an unethical employer isn’t always easy, the option is there, and is something to be considered when the going gets rough.

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