Los Angeles Employment Attorney Blog

As an employer, do you seem to have a lot of internal complaints by employees claiming they are being mistreated because of race? Do the complaints point the finger at the same supervisors? Are there common themes in the complaints such as denial of promotions, denial of training, harassment? If you answered "yes" to any of these questions, your company should pay attention now rather than later. If you answered "yes" to more than one of these questions, you are probably just seeing proverbial "tip- of-the iceberg".

How an employer handles internal grievances charging racial discrimination is critical to employee morale as well as the financial bottom line. Employment litigation results in diversion of important human resources and money earmarked for advancing the business mission to fighting alleged illegal discrimination.

Just why employers allow racial discrimination grievances to get out of their hands and into the courts is a mystery to me. Sure, some lawsuits can't be prevented by early intervention, but many can be.

Why aren't employers more effective at preventing lawsuits? It's not really complicated. In fact, based on my 26 years of litigation experience in the field of employment law, the answer is simple. Human ego. People want to be right. American business mentality is to fight for the top spot, be the best in the field, make more profit, be recognized or develop a strong brand. While most large employers have policies prohibiting discrimination, rarely do they have effective methods to address allegations of racial discrimination. And, it is even rarer for the employer to correct the racial discrimination that is occurring. It is easier to make the employee wrong and label that person a "problem" employee than it is to admit that something is wrong.

Here is the conundrum - by fighting the employee, the opportunity to settle goes stale. And that means the company will most assuredly spend precious resources fighting claims of unlawful racial discrimination instead of improving itself. It is common for me, as a litigator, to have a client say at the outset "All I wanted was the discrimination to be addressed" or "I just wanted to be transferred to another department that was begging to have me transfer."

Here is a suggested approach - Solve the problem. Solve as soon as possible. Don't allow allegations as serious as racial discrimination get stuck in the log-jam of bureaucracy. When there are easy solutions, take them. Don't engage in non-sense approaches such as hiring outside investigators who always find in favor of the company and dismiss the employee's grievance no matter how strong the evidence is.

Teach tolerance, the strength of diversity, and, of course, the mandates of the law to provide discrimination free workplace. Take prompt, fair, remedial action. Resolve grievances as quickly as possible. Most employees ask for simple and inexpensive remedies when the grievances are first filed. The remedies sought enlarge as time goes on without relief. And then the remedies sought geometrically increase when an employment litigator is retained.

Avoid the trouble and expense of litigation. Do the right thing as soon as possible. Don't let employees suffer unlawful discrimination in the workplace. Take care of your employees and watch your business become strong and prosperous.

In anticipation of a discrimination lawsuit, many employers try prove the company is right and spend tremendous resources to accomplish that goal. Some employers use harsh tactics to squash the victim. A victim may be squashed, but if that approach continues, other victims may rise up and strike a harsh blow against their employer.

From my 26 years of experience litigating employment dsicrimination cases in Southern California, employees are most open to quick and reasonable resolution when they first report an alleged unlawful employment action. So, that is when action should be taken.

Unlawful employment discrimination must be promptly stopped. Employers should consider an employee's complaint about discrimination as an opportunity to protect the company, establish a defense, and help the employee. That is a win-win approach.

The following are two things that every employer should do after an employee complains about unlawful workplace discrimination and before a lawsuit is filed:

1) Promptly and fairly investigate the complaint. Interview the employee, the alleged wrongdoer, and witnesses. Review relevant writings. Document all efforts undertaken. Don't rely upon policies, rely upon action. "Well done is better than well said." Benjamin Franklin.

2) Secondly, take remedial action. Even before all the facts have been ascertained, take reasonable steps to protect the employee and the company. If it later turns out that the allegations are unfounded, you will have lost little by having implemented fair and objective action to protect the company and the employee. If, on the other hand, no action is taken and the employee's allegation of wrongful conduct is established, you will have surely anatognized an already upset employee and have lost an important, early chance to start building a defense against a lawsuit. If you decide to neglect your employees, set aside a budget for defense counsel. You are going to need it.

In summary, prompt investigation and fair treatment of employees will save tens of thousands of dollars in litigation costs, improve workforce morale, and keep company resources applied for the company good. An employer that is fair, leads its employees instead of managing them. Be fair and keep your employees happy; it's a great way to improve the success of your company.

Discriminating against a pregnant employee because of her pregnancy is against the law (California Government Code Sections 12920 - 12965) However, proving an employer's discriminatory intent is challenging. Employers are not known for admitting such unlawful conduct. So, to prove that the employer has discriminated against a pregnant employee because of her because pregnancy may require trying to establish that the employer has an history of discriminating against women because of pregnancy.

Federal District Courts of Appeal are almost uniform in agreeing that evidence of how an employer has discriminated against other employees is admissible.  This is called "me too" evidence. And, Los Angeles employment attorneys have been asking Los Angeles judges to admit such evidence based on federal cases.

Things have just gotten worse for employers and much better for pregnant employees.  In a great decision last Thursday, April 30, 2009, the California Court of Appeal in Johnson v. United Cerebral Palsy/Spastic Children Foundation of Los Angeles and Ventura, ruled that "me too" evidence was admissible to establish a triable issue of material fact in opposition to a summary judgment. While the decision pertained to a pre-trial summary proceeding, it paves the way for "me too" evidence being admissible at trial.

Now, if an employer has discriminated against pregnant employees in the past, a plaintiff claiming pregnancy discrimination may call as witnesses at trial women who were discriminated against by the same employer because they were pregnant. This is important because discriminatory intent is generally established by circumstantial evidence. What does this mean It means that employers may be able to get away with discriminating against someone once.

But, if they keep discriminating against their employees, a plaintiff is going to come along and bring in those previously discriminated employees to court and make a good case that she was unlawfully discriminated against too. In fact, its seems totally reasnable and consistent iwth the decision that this "me too" evidnece" will be admissible in any type of discrimination case. And, that type of evidence is powerful to establish discriminatory intent. Employers, discriminate once, maybe you will get away with it. Discriminate twice and you can be sure some Los Angeles employment attorney is going to make you pay the price.

It is really great when our courts issue decisions that support decency and respect for working people. Moral of this story - our future mothers have a right to work free of disrimination.The Abel Law Offices, employment law attorneys, with offices in Los Angeles, Irvine, Woodland Hills, and Westlake Village represent pregnant women who have been unlawfully discriminated against in the workplace. If you have been the victim of unlawful discrimination because of pregnancy seek the assistance of an employment law lawyer.

In my 26 years as a Los Angeles employment law attorney, it still surprises me how many just can't believe they are being unlawfully discriminated against at work. People respond to ads, get hired, and think they will have the opportunity to flourish and grow professionally. In some cases that ends up being true. However, there are many who still fall victim to repugnant discrimination in the workplace despite our California and Federal laws enacted to protect employees from discrimination.

Victims of discrimination experience a range of emotions such as anger, frustration, humiliation, anxiety, and depression. The subtle acts of discrimination become a harsh reality that keeps the victims up at night and irritable during the day. Their work life becomes a living hell and frequently the more they speak up, the worse it gets. Employers may have the right policies, but not the right attitudes or the right managers and supervisors. So what should you do if you are the victim of unlawful discrimination in the workplace? Here are a few things that you can do so that you will not feel like a helpless victim. 

1) React decisively on the first unlawful discriminatory act. Email or write your supervisor detailing the unlawful employment discrimination. If the dsicrimination has been on-going, then document your plight.  Documentation may help you if you later file a lawsuit.  Request a written response.

2) If your employer has a Human Resources Department, make a formal complaint and make sure you keep a copy. In your complaint, you should be specific and state the precise nature of the discrimination. For example, if you are being discriminated against because of your age, you might state that you are over 40 years old and that employees under the age of 40 are routinely picked for promotion and you are denied promotion even though you earned it.

3) Keep a diary marked "for my lawyer". Write down what, when, how, who, and where regarding the race, national origin, gender, disability, age or religious discrimination.

4) Even though your job is important, stand up for your rights. Utilize all resources offered by your employer to try to get relief.

5) If you are suffering emotionally, get counseling.

6) If others witness the discriminatory acts, try to get the witnesses to sign a writing memorializing what was observed or heard.

7) Make a copy of your personnel file.

8) File a charge of discrimination with the California Department of Fair Employment and Housing (DFEH). You would be well advised to seek the counsel of an experienced Los Angeles employment lawyer becasue the way charges are written can make a difference if a lawsuit is filed. If you want to file a lawsuit instead of having the DFEH investigate, request a Right-To-Sue Letter from the DFEH.

9) Consult with a Los Angeles employment law attorney who is familiar with the Los Angeles courts and judges, the local court rules, and understands the jury pool.

On April 17, 2000, the California Labor Commissioner, Angela Bradstreet, and the Attorney General, Edmund Brown, announced that they had joined forces and obtained a default jugment for $13,640,819,00 against two janitorial services (Excell Cleaning and Building Services Inc. and M.O. Restaurant Cleaning of California Inc.) operating in Los Angeles and two other southern California counties. The action was brought and won because the companies didn't pay payroll taxes and failed to pay minimum wage and overtime to approximately 300 janitors. Congratulations to the State of California Labor Commissioner Angela Bradstreet and Attorney General Edmund Brown! 

Penalties and liquidated damages were included in the $13,640,819.00 judgment. Before the lawsuit was begun, California conducted an investigation that uncovered that the janitors were required to work 8 hours a day, 7 days a week for $50.00 per day and were misclassified as independent contractors so the companies wouldn't have to pay payroll taxes. The default judgment was entered after both companies were served with the summons and complaint but failed to respond.

If you are working overtime and not getting paid, you can contact the California Division of Labor's Worker's Information Hotline at 1-866-924-9757 or consult with an experienced employment law attorney.

Congratulations janitors of Los Angeles. Great clean-up job!

For the full text of the California Labor Commissioner and State Attorney General press release, click here.

Recently, the California Supreme Court denied review of Brewer v. Premier Golf Properties (2008) 168 Cal. App. 4th 1243. Brewer sued her former employer for Government Code violations and Labor Code violations pertaining to meal and break times. The trial resulted in a verdict in her favor including $195,000.00 in punitive damages.

Premier Golf Properties filed an appeal. The appellate court ruled that because the violation of the statutory provisions for meal and break times arose out of the employment contract, tort damages (punitive damages) were not available. But, the real basis for meal and break times, is public policy. This public policy was enacted into law in the Labor Code. Employers must give employees meal and break times. It is the decent and right thing to do.

Likewise, it is the decent and right thing not to discriminate against employees because of the employees race, religion, age, gender, sexual preference, medical condition, or physical disability unless it is a genuine, bona fide criteria that excludes someone. What is important, is that like legislatively mandated meal and break times. California has legislated public policy by mandating employers provide a discrimination free workplace. If the employer violates the public policy mandates embodied in the Fair Employment and Housing Act (FEHA), the employer may be held liable for punitive damages. The same should be true for violations of California Labor Code dealing with meal and break time violations. Such a change will not harm employers that comply with the law.

Punitive damages act as a deterrent to wrongful, unlawful conduct. It just isn't worth it for an employer to violate the law because of the risk of punitive damages being imposed for violation of the law. The prohibition against employment discrimination is based on public policy and codified in the Government Code Section 12940 et seq.. The requirement for meal and break time is based on the public policy codified in the Labor Code. Real life needs to hold people and employers responsible for their actions. When those actions are fraudulent, coercive or in conscious disreagrd of an employee's rights and welfare, punivitve damages are appropriate. 

The California legislature should amend the Labor Code to allow punitive damages for violations pertaining to meal and break times. Most employees live from paycheck to paycheck. They need protection from employers. And, in order to make sure that employees get their meal and break times, employers should face punitive damages if their failure to comply with the law constitutes fraud, coercion, or is in conscious disregard of their employees' rights. While employers may have sighed a sigh of relief when Brewer was decided, it was on the backs of every day workers. It is time to take another swing for punitive damages.

In the meantime employees, insist on your meal and break times. If you are retaliated against, harassed or wrongfully terminated because of asserting your right to meal and break times, in this writer's opinion, that would be a tort for which punitive damages are available. Los Angeles employment law attorneys who represent plaintiffs are among the most courageous and zealous advocates practicing law today. If your rights are being violated consult with an experienced employment law attorney or contact the Local California Labor Board office. 

When an employee is discriminated against, retaliated against for having engaged in protected activity such as reporting unlawful workplace discrimination or is wrongfully terminated, they want justice. They want to be vindicated. They are mad and they are hurt.  And, you can't blame them. Who wouldn't be?

"I'll take this to the Supreme Court" is a frequent refrain. Employment lawyers in Los Angeles, as do employment lawyers in most jurisdictions, have the option to file in a nearby state or federal court.  There are many similarities between federal and state anti-discrimination and anti-retaliation laws. But there are differences in the law and also differences in the federal and state litigation procedures, juries, and appeal outcomes.

Two Cornell University School of Law professors, Kevin M. Clermont and Stewart J. Schwab, wrote and published an interesting article about the employment cases in the federal court compared to those in state court. The law review article Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse contrasts the trial and appellate outcomes in employment cases in state and federal cases. Moral of the story - don't make a federal case out of your employment case.  Statistically, plaintiffs have much better outcomes at both the trial and appellate level in state court than they do in federal court.

When thinking about pursuing an employment discrimination, retaliation or wrongful termination case, consult with an experienced employment law attorney. 

Employment litigation is an active field of law in Los Angeles, California. Los Angeles employment law attorneys are frequently called upon to determine when to file a case and whether or not the the statute of limitations has expired which means that time within which to bring a case has passed. These questions often come up because the employee, before hiring an employment law lawyer, filed an internal grievance with his or her employer.

Under the California Government Code Section 12960 subdivision d, which is a part of the California Fair Employment and Housing Act (FEHA), a charge of discrimination must be filed within one year of when the discrimination occurred. There are doctrines that extend the time; however, the California Supreme Court recently ruled that the FEHA statute of limitations could be equitably tolled during the time an employee's internal grievance was pending.

This is good news for Los Angeles employees and employees through out the State of California. Employees try, as they often instructed at work, to resolve a problem at the lowest level. And, many people don't really want to sue their employer. So, starting with an internal grievance is a reasonable step. This has approach has been approved and now has the seal of approval by the California Supreme Court in its decision McDONALD v. ANTELOPE VALLEY COMMUNITY COLLEGE DISTRICT (2008) 45 Cal. 4th 88. What does this mean for Los Angeles employees and Los Angeles employment law attorneys? First of all it means, that the California Supreme Court analyzes the law and the facts of employment cases, and fashions results that consistent with sound legal principles and take into consideration practical realities. Secondly, it means employees are not deprived their day in court because the employer took time to resolve an internal grievance. Third, It's okay to file an internal grievance. Employees, you never know, maybe your employer will actually listen and remedy the situation. However, if the employer doesn't, you will still have time to get your day in court.

Almost 50 years ago, President John F. Kennedy signed groundbreaking legislation known as the Equal Pay Act (EPA) into law. The EPA prohibits unequal pay to women and men who do the same job. But, today, women still get paid less than men for doing the same job, National Women's Law Center. Now there is new legislation pending which passed the U.S. House of Representatives on January 9, 2009 known as H.R. 12: Paycheck Fairness Act and is going on to the Senate.

HR 12: Paycheck Fairness Act would put teeth into the EPA. It would add compensatory and punitive damages and allow class action lawsuits, which is, apparently, why the U.S. Chamber of Commerce has fought against the bill. (The U.S. Chamber of Commerce is the largest business federation in the world which represents more than 3 million businesses). The concern is frivolous lawsuits.

That is total hogwash, baloney, scare tactics. No employer needs to worry about punitive damages if the employer complies with the law. Generally, for punitive damages, the plaintiff has to show that an employer acted in conscious disregard of the plaintiff's rights,  with coercion or fraud. Punitive damages and class action lawsuits should help keep employers in-line and encourage them to pay equal pay to women and men. People who are treated fairly aren't after their employer to sue. From my 26 years of employment law practice in Los Angeles, California, it is the abused employee, the employee who has been or is being unlawfully treated, not the happy, well treated employee that wants to sue.

Shame on you U.S. Chamber of Commerce. Compensatory damages, punitive damages, and class actions are just what we need to get equal pay for equal work.  The law hasn't worked without it. Women workers are vital and dynamic contributors to the U.S. workforce. If they aren't paid fairly, they should have the right to powerful legal redress. I vote for the Paycheck Fairness Act. Got carried away there for a moment, my vote doesn't count. I forgot. It isn't necessarily about fairness, it is about politics.

The Abel Law Office Offices, Los Angeles employment law attorneys, counsel employees and employers on equal pay for women and gender discrimination.

April 1, 2009 the United States Supreme Court decided 14 Penn Plaza LLC et al v. Pyett et al which involved the enforceability of an arbitration clause in a contract that the Service Employees International Union, Local 32 BJ (Union) had entered into. The Union, under the federal statute 29 United States Code Section 159 ( 29 U.S.C Section 159 a) is the exclusive bargaining representative for employers in the building-services industry in New York City. It negotiates and enters into agreements with the Realty Advisory Board (RAB) on Labor Relations for New York City.  And, the agreement that had been reached between the Union and RAB was memorialized in the Contractors and Building Owners (CBA) agreement.

The agreement provided that a union member who claimed any employment discrimination had to submit to binding arbitration.  That same agreement permitted the employer to use its discretion to reassign members from one type of work to another. Initially, the Union filed an arbitration claim alleging Age Discrimination under the federal Age Discrimination Act (ADEA) embodied in 29 U.S.C. Section 621. That claim was withdrawn by the Union because of the agreement with CBA that its employers had the right to reassign workers.

The impacted employees then obtained Right-To-Sue letters from the U.S. Equal Employment Opportunity Commission (EEOC) and filed a lawsuit alleging that they were discriminated against because of their age. The federal District Court and Court of Appeals denied the employers' petition to arbitrate based on a previously decided U.S. Supreme Court decision Alexander v. Gardner-Denver Co. 415 U.S. 36 which prohibited enforcement of arbitration of Age claims even if the collective bargaining agreement required arbitration.

Step in U.S. Supreme Court. These decisions were reversed. The Court noted that arbitration agreements allow the parties to avoid litigation costs. The Court then held "... that a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law." Moral of the story - if you agree to arbitrate, that is what you will be doing. Beware Los Angeles Unions, if you want to preserve your members' rights to pursuing claims of discrimination in a court of law with the right to a jury and the right of appeal, don't agree to arbitrate.

Retaliation in the workplace is against the law. Because Los Angeles is a melting pot of races and cultures, there are clashes in the workplace. Some employees simply can't take it anymore and report unlawful discrimination. Employees who engage in such protected activity are often the targets of retaliation in the workplace the report; and, it ain't right. In fact, it's illegal.

California's Government Code Sections 12900-12996, commonly known as the Fair Employment and Housing Act (FEHA), and, in particular, Government Code Section 12940 (h), prohibits an employer from retaliating against an employee who objects to unlawful discrimination in the workplace. In practice, that means if an employee engages in protected activity such as complaining about discrimination or sexual harassment, it is unlawful for the employer to take adverse employment action against the employee.

It is sad, but employees who engage in protected activity are often labeled as a "problem employee", subjected to unique discipline, given the lousy assignments, if any at all, and basically have stuck a spoke in the wheel of their career progress. Employees who are the victims of this kind of retaliation suffer deeply. The emotional toll cannot be contained in the workplace and spills over into the home and social life.



If you engaged in protected activity protected by FEHA, the suffered adverse employment actions, and there is a link between your engaging int he protected activity and the adverse employment actions, you have what is referred to as a "prima facie" case of retaliation. Employees have rights under the law. Contact the Department of Fair Employment and Housing or an experienced employment attorney for help. If it ain't right, do something about 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.

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.

Employment litigation is generally hard fought, particularly in Los Angeles. Each party becomes more entrenched in his or its respective position as litigation moves forward. The employee is determined the employer is cheating and hiding relevant documents or intimidating witnesses. Employers spend tens of thousands or hundreds of thousands of dollars defending themselves and trying to mutilate an employee's character. Both out to win, at almost any cost.

Employers, even when they win, generally have expended untold man-hours and precious resources to "win" the litigation. Perhaps the employer believes that by remedying a morale issue, it will set a precedent for other employees to come forward. Really, why would that be bad? If one's workforce is troubled and the employer can fix it, why not? Rather than recognizing the power of happy and productive employees, it is all too common for the employer to put on the gloves.

There are, however, much more efficient and economical ways to control the damage. First of all, try to resolve every dispute at the lowest level possible. Train supervisors to recognize and remedy problems. Employers, take the lead to ensure that your employees are not discriminated against, not retaliated against for engaging in protected activity, not sexually harassed. Don't turn the other way and let unlawful practices continue or try to hide them. Expose the evil and defeat it. In many cases, even an employee who has been the victim of an unlawful employment practice, only needs to be treated with respect.

Try it. Respect your employees. Remember, an action under the Fair Employment and Housing Act can be financially costly and the employer can recover attorney fees only if it on a showing that the discrimination claim was frivolous, unreasonable or groundless, Cummings v. Benco Bldg. Servs. (1992) 11 CA 4th 1383and California Government Code Section 12965 (b). And, even if an employer was awarded attorney fees, the likelihood of collecting from an employee is generally remote because the employee doesn't have the financial resources to pay.

Instead, try giving your employees respect. Listen to your employees and help them. You, as the employer, will save a lot of money and have a much more productive workforce. Look for opportunities to settle before litigation begins and throughout the litigation process if pre-litigation efforts fail. Save time and money by aggressively seeking practical solutions.