Los Angeles Employment Attorney Blog

Today, March 31, is Cesar Chavez Day - a California state holiday. In honor of Cesar Chavez's life and work, California declared March 31 to be a state holiday to promote community service. Cesar Chavez became a labor leader and civil rights activist fighting for farm workers rights and safety. His work and life have profoundly influenced California and our Nation. Among other things, he urged Mexican-Americans to vote, organized strikes to bring public attention on the deplorable conditions and pay of California farm workers.

In 1958, Cesar Chavez became the national president of a Latino civil rights group known as Community Service Organization. Around 1962, Cesar Chavez founded the Farm Worker's Association. A few years later, in 1965, Cesar Chavez supported the Delano grape strike by the Filipino American farm workers. This issue reached the U.S. Congress in when the U.S. Senate committee held hearings on Migratory Labor issues. It was in these hearings that Senator Robert. F. Kennedy declared his support for farm workers and those farm workers who particpated in the strike for better pay and working conditions.

For example, he was successful in organizing farm workers and brought to light the dangers of pesticide use to farm workers and consumers. Colleges, parks, recreational sites, schools, buildings, libraries, and roads have been named after Cesar Chavez. He changed history and advanced the cause of working men and women.

The name Cesar Chavez is now symbolic for standing up for workers' rights. His dedication to the cause of workers has not gone unnoticed. President Clinton posthumously awarded the U.S. Medal of Freedom to Cesar Chavez.

Everyone wants tips. Tips on the stock market. Tips on the real estate market. Tips on losing weight. Everyone wants tips. Dishwashers want tips, but they are in the back of the restaurant and are not in a position to receive a tip from a restaurant patron. And, cooks, who work so hard to make the food tasty and right, want tips too.

What to do with tips left by customers in restaurants has been the subject of not only restaurant owners and restaurant workers, but the California legislature and courts. Los Angeles restaurant goers are known to routinely give a tip on top of the restaurant bill. I know I do.

But some waiters and waitresses don't like to share. So, restaurant owners have imposed mandatory tipping pools which provide dishwashers, cooks, and bartenders a share of the tips left at the dining table. It seems fair. All of these people are in the chain of service, so why shouldn't they share in the tips?

California enacted Labor Code Section 351 reads in part "Every gratuity is hereby declared to be the sole property of the employee or employees to who it was paid, given, or left."

But just what does that mean? Who is the tip left for? Is it left for the waiter or waitress only? What about the bussers who bring napkins, utensils, water, and attend to the customers' needs? And, of course, the list goes on.

Well, don't sweat the tip stuff. On March 27, 2009, the California Court of Appeal in Brad Etheridge v. Reins International California, Inc. ruled that an employer can impose mandatory tip pools which can be shared by the bussers, bartenders, cooks, and dishwashers. This is not a happy day for a lot of waiters and waitresses.

Let me give you a tip on tips - they are for everyone in the chain of service. Really, where would the servers be if the bartenders, bussers, cooks, and dishwashers didn't do their jobs? And, who would the customer complain to if one of these other restaurant workers dropped the ball? You got it - the servers. Come on now, tips are for everyone.

In California the unemployment is now above 10%. The unemployed are not worried about a pay increase, they are worried about finding work. Even Los Angeles law firms are being hit by the economic crisis. (See Los Angeles Times).

The United States Congress has established minimum wages. Currently, the federal minimum wage is $6.50 per hour. Even though Congress gets automatic pay raises, the last increase of $4,700.00 boosted pay to $174,000.00 per year, it took 10 years (from 1997 to 2007) for Congress to increase the federal minimum wage from $5.15 to $6.50. There will be another increase as of July 2009 which will increase the minimum wage to $7.50.

Doesn't something seem out-of-wack? The hard working tax payers slave every day to make a a few hundred dollars a week and our servants, the elected politicians in Congress, get $3,500.00 dollars a week. Unless someone is willing to say that the average minimum wage employee makes little or no contribution to our society, it isn't right.

Congress should roll back its pay and eliminate the most recent $4,700.00 pay increase that went into effect January 2009. Everybody was outraged that AIG executives were paid huge bonuses after receiving an historic bailout out of billions and billions of dollars. How come the AIG executives should be taxes 90% on their bonuses and union members had to agree to have their pay scale sliced, but Congress goes merrily along in the bliss of pay increases when our country is broke?

You don't get a raise by working hard. No, that's for chumps. The best way to get a raise is to become a member of Congress. They just vote themselves raises. Try it, you'll like it.

It is always hard for a person to cope with being fired. A person's job is a big part of his or her life. Getting fired takes a huge emotional toll on the person who was fired and almost always causes financial hardship. Additionally, once a person has been fired, it is more difficult to find other employment. And, getting fired in violation of federal and state law is even more distressing.

Both federal government and the State of California have laws that prohibit employment discrimination based on a person's race, national origin, gender, age, medical condition, and physical disability. If you have been fired because you complained about employment discrimination, sexual harassment, or retaliation for having complained such unlawful employment, you have the right to sue your former employer.

Is it worth it for you to sue your former employer? Absolutely. The law provides remedies for those who have been wrongfully terminated. For example, a person who was wrongfully terminated in violation of California's Fair Employment and Housing Act and prevails in a lawsuit, is entitled to economic damages and possibly punitive damages, Gantt v. Sentry Ins. (1992) 1 Cal 4th 1083, 1101. Economic damages include lost wages and general damages for emotional distress. And the damages for emotional distress not only cover the past emotional distress, but also for emotional distress reasonably certain to occur in the future, Bihun v. AT & T Info. Sys. (1993) 13 CA4th 976, 995. Punitive damages may also available except against government entities.

Is it worth to sue if you have been wrongfully terminated? Oh yeah. You need a Right-To-Sue Letter before filing a lawsuit. There are Department of Fair Employment and Housing offices throughout California and in Los Angeles.  It is a good idea to consult with an experienced employment law attorney for assistance in filing for a Right-To-Sue letter because the contents of the letter may be admissible in the lawsuit.

The United States Equal Employment Opportunity Commission (EEOC) tracks charges of employment discrimination. Recently, the EEOC released charge statistics reflecting the individual charge filings for the time period covering 1997 through 2008. Well, with the laws in place and government enforcement of violations of the law, wouldn't you think there would be less discrimination? Despite the laws and the on-going efforts to enforce the law by EEOC, the number of charges in all categories have increased.

Individual employment discrimination charges increased almost 20% from 2007 to 2008. In 2007 there were 82,792 discrimination charges compared to 95,402 in 2008. Of the 9 categories of discrimination tracked, each and every category reflected an increase of filings from 2007 to 2008. For example, race discrimination filings increase from 30,510 race discrimination charges in 2007 compared to 33,937 in 2008. And there was almost a 20% increase in sex discrimination charges from 2007 to 2008. There were 11,000 more individual filings in 2008 than there were in 2007 (approximately a 20% increase) alleging retaliation for engaging in protected activities or some other type of retaliation.

Having laws isn't enough. Then, what is the solution? We need to educate employers, supervisors, and employees on the importance of diversity in the workplace and providing a discrimination free work environment. We need to train our employers, supervisors, and employees on effective and efficient methods to redress employee grievances and minimize discrimination in the workplace. Sexual harassment training is already a mandate, but it obviously that is not enough.

Employers could save tens of thousands of dollars or even millions of dollars by implementing effective training and educational programs to ensure their employees know, understand, and implement the laws mandating discrimination free workplaces. For example, a Phoenix, Arizona company, Wheeler Construction, agreed to settle claims by two individuals who alleged both had been the victims of natinoal origin harassment and then had been retaliated against for complainting about about the national origin harassment. Wheeler Construction will pay $325,000.00 to settle the EEOC lawsuit filed in the U.S. District Court for the District of Arizona.  Chester V. Bailey, the director of the Phoenix EEOC office said "These victims attempted to speak out and address their unlawful treatment, and their comlaints were ignored."

Employers should spend more resources on preventing and promptly addressing employee greivances alleging discrimination in the workplace instead of marshaling assets to fight claims. A discrimination free workplace means a more productive workforce and high morale. It's time to get smart.  Educate against hate.

Bruce Abel, Attorney-At-Law, is a 26 year veteran handling employment discrimination cases for employers and employees. Mr. Abel has offices in Los Angeles, Orange, and Ventura Counties. He is available to consult with businesses on effective training methods and resolution protocols regarding employment discrimination laws.

Sew - if you work overtime and don't get paid for it, the business you work for could be the next target of the Economic and Employment Enforcement Coalition (EEEC). The EEEC is California's watchdog and enforcer of California laws regarding worker's compensation insurance, overtime and minimum wage pay, and the requirement for itemized deduction statements for employees. EEEC is part of California's arsenal to fight against the underground economy by making surprise, unannounced sweeps of businesses that are known to avoid labor laws.

The garment industry is a regular target for the EEEC. Recently, the EEEC did a two day sweep of 21 Los Angeles garment businesses and found 14 violations. Garment businesses may think it is cheaper to fail to carry worker's compensation insurance or not pay minimum wage, but it isn't. If a garment business gets caught violating labor laws, they will pay the price.

Like what exactly? Like $183,600.00 for example. That's right, the EEEC fined Los Angeles garment businesses $183,600.00 for 14 violations involving violations of worker's compensation insurance, failure to provide itemized deduction statements to employees, and failure to pay minimum and overtime wages.

We want businesses to be successful, but not on the backs of the hourly workers who are the unsung heroes of the industry. Employees with concerns about work conditions can call a toll free Information Hotline 1-866-924-9757 which provides information in both English and Spanish. For more detailed information visit the EEEC website or contact an experienced employment law attorney.

In 2007 the United States Supreme Court decided Ledbetter v. Goodyear Tire & Rubber Company 550 U.S. 618 (2007). Lilly Ledbetter sued Goodyear because she had been paid less then men doing the same job. The Court held that an employee could not sue an employer because she had not received equal pay if the first unlawful act of unequal pay occurred more than 180 days before a charge of discrimination had been filed. Over the course of her working career, Lilly Ledbetter had been paid $200,000.00 less than men doing the same job.

Although Lilly Ledbetter did not prevail in her lawsuit, her name and the new law named after her are beacons of hope.The Lilly Ledbetter Fair Pay Act signed by President Obama on January 29, 2009, nullified the U.S. Supreme Court's holding in the Ledbetter case.  Now, a person has 180 days to file a charge of discrimination after each and every paycheck in which the person is paid less for the same work.

Finally, an elected official keeps an important campaign promise. Equal pay for equal work. Thank you Lilly Ledbetter and thank you President Obama.

In 1996 the voters of California passed The Compassionate Use Act which allows people with a valid doctor's prescription to cultivate and use marijuana for medicinal purposes such as migraine headaches, AIDS, and for mitigating the side effects of cancer treatment. Throughout Los Angeles, there are doctors who prescribe marijuana for medical use and marijuana distribution sites. However, marijuana is a prohibited substance under federal law.

The Act, among other things, provides that there shall be no sanction for one who cultivates or uses marijuana prescribed by a physician. One might think that if a person who used marijuana at home in compliance with a valid doctor's prescription could not be fired from his or her job for testing positive for marijuana. Even if the person was not high at work, showed no effects of the use of marijuana, had no marijuana on his person at work, agreed to never use marijuana or posses it at work, the person should not get fired, right? Wrong.

Last year, the California Supreme Court decided Ross v. Raging Wire Telecommunications, Inc. (2008) 42 Cal. 4th 920.(audio of argument). In that case, after Ross was fired, he sued his former employer, Raging Wire Telecommunications, for wrongful termination alleging that even though he tested positive for marijuana, the employer violated the Compassionate Use Act of 1996 and California's Fair Employment and Housing Act (FEHA) which protects employees from being discriminated against or fired because of a medical condition. The court held that the termination was not unlawful or in violation of FEHA and the employer was not obligated to make any accommodation for the employee.

So much for the Compassionate Use Act of 1996. You may get high, but you may get fired.

On February 26, 2009, The U.S. Equal Employment Opportunity Commission (EEOC) issued a press release announcing that a Maryland athletic club, Big Vanilla Athletic Club, has to pay $161,000.00 to settle an EEOC lawsuit for sexual harassment. Four women were the victims of repeated, unwanted sexual advances and sexually offensive remarks and then 3 women of the women alleged they were fired in retaliation for complaining about the sexual harassment.

As is so often the case, the company denied the allegations, refused informal settlement offers, and instead chose to fight.  The EEOC filed a lawsuit and the company was ordered to pay $161,000.00 to the women and are subject to a three year decree enjoining the company from allowing harassment on the basis of sex and from retaliating against those who complain of such unlawful employment practices.

So the EEOC won, the victims were compensated, the company is under a court decree to comply with the law, and the company had to spend a lot of money on defense legal fees. Wouldn't it have been easier to comply with the law in the first place?  Or, after the unlawful conduct was brought to the company's attention by the EEOC, why didn't it save time, resources, legal fees, and bad publicity by taking care of the problem voluntarily.

Sexual harassment and retaliation for reporting sexual harassment violates Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act. Employers are obligated by these laws to make sure their employees enjoy a discrimination and harassment free workplace. Employers who ignore complains of sexual harassment and then punish those who complain are violating the law. The victims of such unlawful employment practices may be able to recover damages including lost wages, emotional distress damages, punitive damages, and attorney fees. Charges of discrimination may be filed with the EEOC or the California Department of Fair Employment and Housing (DFEH). Some victims of sexual harassment and retaliation may want a private employment law attorney to help them. Most employment law attorneys handling discrimination and sexual harassment handle these types of cases on a contingency basis, which means the attorneys are paid only if there is a recovery.