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Santa Barbara Employment Law Blog

Know your rights with age discrimination

You may be going silver at the temples, but you are still at the top of your game. Your age and experience give you a perspective that provides an advantage over competitors or younger employees, but what if employers have biased beliefs about older workers? Some employers may believe older workers are not as sharp as younger workers, or may be slower and less likely to perform well in demanding situations. If you feel that you have been discriminated against on the job or in the California employment market due to your age, we at Anticouni & Associates fully understand your frustration.

Under the California Fair Employment and Housing Act (FEHA), it is illegal to discriminate against workers over the age of 40 based on their age or any biases inherent. The California Department of Fair Employment and Housing provides a detailed breakdown of law regarding age discrimination in the workplace, but the general idea of FEHA is that employees over the age of 40 must not be denied opportunities for jobs "commensurate with their abilities." What this means is that if you have the capability, experience, and training to perform a job, your age should not be a factor in whether or not you are given fair consideration for the role.

Do "at-will" laws also apply to employees in California?

You have likely heard of at-will employment laws, or laws that allow employers to terminate employees at will at any time and for any reason without opening themselves to legal retaliation, even if that does not protect them from suits for discrimination or other acts of wrongful termination. But does the at-will clause also protect an employee and allow them to leave an employer at any time and for any reason?

The Society for Human Resource Management states that yes, the clause goes both ways. According to California state law, employees do not even need to provide prior notice, although it is considered good professional practice to do so nonetheless. Under California's employment at will laws, employers are expected to abide by an implied contract that any terminations will happen with just cause, operating on good faith, but employees have no such obligations. Employees are further protected by "just cause" clauses included in certain public sector employment contracts and contracts for working with labor unions.

Are offensive sexual comments sexual harassment?

No one wants to feel uncomfortable or unsafe in the work place, and you dread the day you have to face the possibility of a coworker sexually harassing you. However, if you are involved in an untenable situation at work, you may already be dealing with sexual harassment in the form of verbal abuse or verbal assault. Under California law, does a harasser have to actually physically touch you for it to count as sexual harassment in the workplace?

According to California's Office of Civil Rights, verbal harassment counts as sexual harassment. Any number of verbal comments can fall under a sexual harassment claim, including derogatory remarks, verbal abuse, verbal propositions, inappropriate jokes, slurs related to your sexuality or gender, remarks on your appearance or anything about you that could be construed in a sexual context. For instance, were someone to remark that they have a preference for someone of your ethnicity, the harassment could be considered both racial and sexual.

Can I work "off the clock" legally?

Working "off the clock" is a reality for many employees in various businesses, depending on the nature of the job and the area of employment. While there are some exceptions, working off the clock is not generally acceptable under modern employment law.

If you believe that your employer unfairly requires you to work off the clock, or refuses to properly compensate you for work you've done by claiming that it is unauthorized, then you may have grounds to consider legal action. Of course, there are many factors that may affect whether or not you are actually allowed to work off the clock without compensation.

California's unique laws regarding employee termination

While facing the possible of wrongful termination in any state is a difficult matter, the state of California takes a significantly different approach to monitoring and enforcement of the typical at-will employment clauses employed by most states. While there exists overarching federal law regarding employee termination, employee protections, and at-will employment, California's special cases have gained it the reputation of one of the most employee-friendly states in the United States.

The reason for this, the Society of Human Resources reports, is that most California state legislation is geared toward protecting employees over employers. Although California operates under general at-will principles that state that employers may terminate any employee at any time for any reason without prior legally binding agreements, California's laws offer a wide range of benefits to individuals who fall into certain protected classes, allowing them to pursue recourse in the event of a potential wrongful termination case. California's strong anti-discrimination laws provide protections that may not be available in other states, atop other protections generally afforded and mandated by overarching federal labor law.

Understanding religious discrimination and accommodations

California law requires that employers make reasonable accommodations for employees to fairly and equitably practice their faith. According to the Society of Human Resource Management, the California Workplace Religious Freedom Act of 2012 protects all religious creeds, observances, beliefs, dress and practices and requires employers to make an effort that does not fall under the qualification of "undue hardship."

What constitutes undue hardship may require determination by a court, but can generally be judged as something beyond a negligible minimum. Employers often use factors such as cost, availability of accessible accommodations, business requirements and the nature of the facility where work is performed to determine what is possible when it comes to religious accommodations. If an employee seeks religious accommodation and the employer declines when they have the capacity without undue hardship, the employee may have a case for religious discrimination.

Pros and cons of a higher minimum wage

Workers in California will see an increase in their hourly wage come January 1st. The first state to approve a minimum hourly wage of $15, the state is steadily increasing the rate annually, and everyone, with some exceptions, will be paid this amount as of January 2023. Although employees are happy about this, there are arguments on both sides as to whether a higher wage is beneficial for everyone.

According to the California government, the hourly rate will be $10.50 for employers with 25 or fewer workers and $11.00 for those with more than 25 workers. Employees of larger businesses will see a $15 hourly rate starting January of 2022, while those of smaller companies will not see this amount until 2023.

Another media loss due to sexual misconduct

Another television personality has been terminated due to allegations of sexual misconduct. This morning, NBC's Today show announced their co-anchor, Matt Lauer, was terminated late Tuesday night after a detailed account of his misbehavior was brought forward by a staff member.

The New York Times states the woman and her attorney met with NBC's legal and human resources department Monday evening. The network investigated the accusations and deemed them credible, resulting in the firing of the well-known, and well-liked, host. While NBC admits it is the first complaint against Lauer since he began working for the network, it wanted to be clear the behavior strongly violated the standards set forth by the company.

Workplace discrimination: Information for employees

Even if you enjoy your job and the people you work with, there could come a point in the future when you are the victim of discrimination. Since this can come about at any time, it's imperative that you know your legal rights.

Here are some tips to follow if you have reason to believe that you have been the victim of workplace discrimination:

  • Talk to your employer about what you think is going on. This will give you a clear idea of where things stand.
  • Tell your employer that you are serious about your feelings regarding discrimination.
  • Consult with the Equal Employment Opportunity Commission (EEOC) if your employer is non-responsive.
  • Take notes regarding what has been happening. Any evidence you can collect will work in your favor in the future. This can be something as simple as en email that a supervisor sends you.
  • Review your employee handbook for more information on the company's anti-discrimination policy. This will give you a better idea of the way things are supposed to work.
  • Learn more about both state and federal laws. It's easy to believe that you are on your own as the victim of workplace discrimination, but nothing could be further from the truth. There are state and federal laws to protect you, such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA).

Dealing with unsafe work conditions

Employers in California are required by law to provide employees with safe working conditions. Workers who recognize hazardous conditions can report them to regulatory agencies, which also protect them from retaliation from their employer for doing so.

According to FindLaw, OSHA lays out a number of safety regulations that employers must follow. These include:

  • Providing safety training for specific jobs, tools or equipment
  • Providing a work environment that protects workers from serious injury or death
  • Recording hazardous exposures, injuries, illnesses and deaths
  • Posting safety notices for each job 

Contact

Anticouni & Associates
201 N. Calle Cesar Chavez
Suite 105
Santa Barbara, CA 93103

Phone: 805-699-5968
Phone: 805-845-0864
Fax: 805-845-0965
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