Orange County Employment Lawyer Blog

The Equal Employment Opportunity Commission (EEOC) announced the simultaneous filing and $70,000 settlement of a disability discrimination lawsuit brought against Gemmel Pharmacies Inc., doing business as B&B Pharmacy, on behalf of a pharmacist who was denied a reasonable accommodation and fired due to his disability.

According to the Equal Employment Opportunity Commission, the pharmacist was hired at B&B Pharmacy in Bellflower, California in January 2007. The pharmacist was known to have severe diabetes, including renal failure. In August 2007, the pharmacist learned that a donor kidney had become available for him, requiring an immediate kidney transplant. He quickly advised B&B management of the impending surgery and his need for two to three months of unpaid leave of absence to recover. Instead, according to the EEOC, B&B Pharmacy fired and replaced the pharmacist instead of giving him reasonable accommodations. This is an example of a wrongful termination.

Most California employees are "at-will" employees. This means they may be terminated by their employers with or without cause, with or without prior notice. By the same token, "at will" employees may resign from their employment with or without cause, with or without prior notice. There are a few exceptions to "at will" employment, including the following: (1) Where the employee has an employment contract for a specified period of time; (2) Where the employer, by its own conduct, has essentially nullified an employee's "at will" employment status by making certain statements, promises, or representations; and (3) Where the employee engaged in certain legally-protected conduct.

Examples of Legally-protected Conduct:
•An employee may not be lawfully terminated for legitimately reporting sexual harassment (See also "Retaliation");•An employee may not be lawfully terminated for participating in an investigation into allegations of unlawful discrimination or harassment;
•An employee may not be lawfully terminated for filing a worker's compensation claim;
•An employee may not be lawfully terminated for "blowing the whistle" on certain unlawful conduct (See also "Whistle-blowing");•An employee may not be terminated for complaining internally about not receiving overtime pay, proper rest breaks or lunches, or proper wages;
•An employee may not be terminated for filing a complaint with a governmental or administrative agency, such as the Labor Board or DFEH

Continue reading "Equal Employment Opportunity Commission Finds Bellflower, California Pharmacist Was Wrongfully Terminated" »

In Part I and Part II of "How to Successfully Litigate Your Sexual Harassment Claim in California Courts," we discussed all the mitigating factors that play a role in successfully litigating your sexual harassment claim and/or retaliation claim. The amount of calls we receive from prospective clients at Our Orange County Law Firm regarding Sexual Harassment is concerning. In deciding whether or not it is a case that our firm will take, we examine among other things, the mitigating factors involved in their claim.

Examples of conduct committed without consent that may give rise to a viable Sexual Harassment claim, include but are limited to, the following:

1. whether or not the conduct was specifically stated, meaning that it is an element of every offense whether the conduct was committed without consent of the employee

2. Examples of instances where their consent is lacking;
A. Forcible compulsion
B. Incapacity to consent

Forcible compulsion means to compel by:
A. Physical force ; or
B. A threat, expressed or implied, that places an employee in fear of their immediate well being or losing their future employment.

The following is a hypothetical story that mimics real life events:

Courtney goes to work on a beautiful sunny Tuesday morning. She arrives at the office at 8 a.m. Upon arriving at her office she runs into Andrew, her immediate supervisor. Her supervisor asks if they can have a meeting in his office at 10 a.m. Without hesitation she responds "yes". He has weekly meetings with her to discuss the work flow and the status of projects, so she isn't expecting anything different from this meeting. She steps into Andrew's office about 2 minutes before the meeting is scheduled too begin. He closes his office door. He gives her a hug and whispers in her ear, "thank you for taking the time to meet with me." She pushed him away from her, as she no longer felt comfortable at all. He responds to her in an aggravated tone, "don't you ever push me away when I hug you."

Continue reading "Part III: How to Successfully Litigate Your Sexual Harassment Claim in California Courts; what is conduct committed without consent?" »

In our previous blog, "How to Successfully litigate your Sexual Harassment Claim In California Court" we discussed a few factors that play a role in litigating your sexual harassment claim and/or your retaliation claim. It is unfortunate that retaliation is far more common than we can imagine. Our Orange County Law Firm receives an abundance of calls wherein people feel they were retaliated against by being wrongfully terminated for reporting to their employer an incident or incidents of sexual harassment.

Examples of conduct that may give rise to a Viable Retaliation claim include, but are not limited to, the following:
•reporting sexual harassment or other legally-recognized harassment or discrimination.
• filing a complaint with (or who otherwise discloses information to) a government or law enforcement agency (Example: Filing a complaint with the Labor Board or disclosing information to the Labor Board during the investigation of another employee's complaint).
•complaining internally about not receiving overtime pay, proper rest breaks or lunches, wages or generally any other wage and hour related matter.
• intendending to file a worker's compensation claim.

The above examples illustrate a few types of conduct which may give rise to claims for retaliation. Please note that these examples are not all-inclusive. There are other circumstances which may protect you from retaliation.

When an employee files a claim for retaliation generally gives rise to the following damages:

• compensatory damages
• emotional distress damages
• punitive damages
• In some cases, reimbursement of attorney fees and costs.

In sum, retaliation can be hard to prove if you do not have the proper legal representation. Every county and every courthouse handles cases differently. It is very imperative to have an experienced attorney who is familiar with employment law in California so that you may achieve the best outcome possible.

Continue reading "Part II: How to Successfully litigate your Sexual Harassment Claim in California Courts; what is retaliation ?" »

As you may already know from reading previous posts, In the state of California, it is unlawful to harass a person (an applicant or employee) because of that person's sex. It is unfortunate that when it comes to sexual harassment women and minorities are subjected to workplace harassment and discrimination.

Recently in the news two women (a current staffer and a former staffer) filed a lawsuit against a city parking authority claiming sexual harassment. Both plaintiffs claimed in their separate lawsuits that they were sexually harassed and suffered retaliation in connection with a lawsuit filed by another former employee. One of the plaintiffs alleged that the director of enforcement touched her breasts and buttocks, attempted to assault her in her home, and even suggested that the baby she gave birth to should have been his. Her suit contends that she was harassed by watching the defendant harass others. The case was settled for $300,000.

In order to have success in litigating a sexual harassment or retaliation case, one must establish that the conduct was committed without consent and the conduct was pervasive and offensive. Other contributing factors concern whether the offender was a co-worker or supervisor and whether the employer had reasonable notice of the conduct. Retaliation occurs when an employer, with notice of the offensive, fails to take action to prevent the conduct or responds unlawfully by terminating or disciplining the aggrieved party.

Continue reading "How To Successfully Litigate Your Sexual Harassment Claim in California Courts" »

It is an unfortunate fact that more and more female employees are subjects of sexual harassment at their place of employment. Recently, our Orange County Law Firm has consulted with several employees who have been the subject of workplace harassment and discrimination. Recently, a school bus company agreed to pay $150,000 to settle allegations that a male supervisor at its Los Angeles, California facility sexually harassed at least four women, including bus drivers and a human resources assistant, as reported by the Beverly Hills Courier.

According to the U.S.Equal Employment Opportunity Commission, four female employees of First Student were sexually harassed, retaliated against or forced to quit. First Student builds itself as North America's leading school bus transportation services company. According to an EEOC lawsuit alleging civil rights violations, the supervisor made constant explicit remarks about the employees' body parts and the sexual acts he wanted to perform on them.

The harassment turned physical when the supervisor exposed himself, grabbed the breasts of a bus driver and rubbed his private parts against her body, according to the EEOC. The harasser cut another bus driver's hours upon refusal of his advances and promised extra hours to female employees who might submit, according to the EEOC, which reported that three of the victims felt forced to resign as a result of the ongoing harassment.

According to the EEOC, aside from the monetary relief, the parties entered into a consent decree, valid through 2012, which requires First Student to hire an outside employment consultant to revamp the company's policies, complaint procedures, investigations and training of its employees on sex discrimination, harassment and retaliation.

Continue reading "Los Angeles School Bus Company To Pay $150,000 To Settle A Los Angeles California Sexual Harassment Lawsuit" »

A Riverside County Superior Court jury awarded $25 million in punitive damages to the nearly $1 million in compensatory damages they had awarded the previous day to a former Kmart manager for age discrimination. In the case of Harkins v. Kmart, the plaintiff alleged that Kmart's unlawful conduct was part of a sequence of events designed to get him to retire. Plaintiff had provided exceptional service to Kmart for 20 years, and claimed he was being terminated solely due to his age (64). He alleged that in the months before his termination, he was unlawfully demoted and disciplined in veiled attempts to "work on him" to quit or retire. When he did not "retire" or quit, he was fired. This firing, plaintiff alleged, was retaliatory due to his refusal to quit and due to his age.

My Orange County Employment Law Firm was recently retained on a case where age discrimination was the primary claim. In assessing such cases, it is sometimes difficult to distinguish between a company's need to reduce its work force due to budgetary concerns and a company using that reason as a pretext for its true motive, ridding itself of an "old" employee. Factors that tend to sway the scales in one direction or the other tend to be things like whether other job positions were eliminated, if other employees lost their jobs (and their ages in comparison to the rest of the workforce) and if the company intends on hiring (or has hired) new employees to replace or fill the holes left by the dismissed employees.

In California, tips are the sole property of the employee for whom it is left. However, tip-pools that share all the tips with non-supervisory employees is acceptable ONLY if those receiving a share of an employee's tips provided direct service to the customer. As an example, a lawful tip-pool at a restaurant could be for waiters/waitresses, hostesses, and bus boys. However, this pool could not include cooks or dishwashers, as they did not provide any direct service to the patron. Owners, managers, and supervisors can NEVER share in the tip pool.

Employees are entitled to recover all tips unlawfully pooled or taken from them, and also may be entitled to recover penalties. If an employee complains to their employer about an unlawful tip-pooling policy and is in turn treated adversely, the employee may also have a separate claim for retaliation.

Employers cannot require employees to waive their rights to tips. As such, any documents that employees have signed wherein they agreed or consented to sharing a portion of their tips with management or other supervisors, as well as employees who do not provide a direct service to the patron, is invalid.

RELATED LINKS

Division of Labor Standards Enforcement (DLSE)