Employee Rights Advanced Again in California

California is a great state when it comes to employee rights.   Recently a California appellate court, struck down the terms of one of those pesky form contracts that companies force on new employees. The case is Narayan v. EGL, Inc. and the Labor & Employment Blog has a nice post on the case. 

In Narayan v. EGL, several California based truck drivers sued EGL claiming that they were not paid overtime wages or reimbursed for business expenses and more under the California Labor Code. EGL argued that the drivers were independent contractors and therefor were not entitled to overtime pay or other benefits.   It is true that genuine independent contractors are not entitled to overtime pay or most of the other benefits that employees enjoy.   The real issue in Narayan came down to wether or not the drivers werer independent contractors or employees. 

This is where that pesky form contract came into play.   When the drivers were hired, they each signed a form contract that said they were indeed independent contractors and that the laws of Texas would apply to any dispute.   So EGL said that the drivers already agreed that they were not employees and told the California court that the laws of Texas should apply.   

But the California court held that the form contract did not govern these issues.  First, the court held that the laws of California would apply because the drivers worked in California and their claim for benefits did not arise under the contract. 

Second, the court held that the truck drivers were  not necessarily independent contractors just because the form contract said so.  The California Labor Code has a test to determine if a worker is an employee or an independent contractor. The court held that the acknowledgement in the form contract of independent contractor status is "simply not significant under California's test of employment."  Therefore the California test must be applied to determine the drivers status. 

This is a win for employee rights because this decision shows that an employee cannot be forced to waive certain rights in a form contract.  Importantly, employees should not assume that they are independent contractors just because a contract says so.  These employement contracts do not determine an employees real status.  Instead, the California Labor Code governs.          

Jerk Bosses Die Younger

A new report confirms what we have always thought about those annoying perfectionist bosses - no one that uptight can live long.  The study by Trinity Western University in Canada found that perfectionists have a 51% increased risk of death.  

How many of us have worked for one of these nut cases?   I think we all have at some point and the experience is miserable. 

At our law firm, we get calls almost every day from someone suffering a "Martha Stewart" like boss.   These perfectionist bosses usually lack patience and often fire at will.   Stunned and feeling abused, the fired employees look for answers from the law.   So when the fired workers call us, they want to know about their employee rights.  Bottom line is they want justice. 

Sadly, it is not illegal to be a jerk at work.  It is perfectly legal to be fired for an unfair reason or even no reason. But even though we cannot sue these rotten souls, they will not get away with it.   Karma will get them (we hope).   

What Sexual Harassment Looks Like

The Wait A Second! blog recently wrote about a new sexual harassment case in the Second Circuit.  The case, Kaytor v. Electric Boat Corp.,is unique because it involves not only sex, but threats of violence and what is more amazing is that the case was once dismissed.  Fortunately the higher court reinstated the case. 

The court held that sexual harassment cases can be based on certain non-sexual conduct.  This case focused on Ms. Kaytor's crude and perverted boss.  Here are some of the things he did to her at work:

- Sexually suggestive comments about her body and clothing.

- Leering at her and trying to smell her body.

- Said he wanted to see her dead and in a coffin.

- Threatened to kill her if she complained about him.

- Gave her a sexually suggestive gift (a pussy willow).

- As she was leaving for gynecologist appointment he said that her doctor was going where men would love to go.

- Threatened to choke her.

The court held that these facts add up to a classic sexually hostile work environment even though not all of the conduct was sexual.  The combination of sexual comments and threats of violence were illegal.   The Court cautioned other courts to resist dismissing sexual harassment cases because they usually involved questions of fact that only a jury can decide.  

Employment Discrimination Charges Hit High Mark in 2009

In 2009, over 93,000 employment discrimination cases were filed with the EEOC (Equal Employment Opportunity Commission).   The only year that had more filings was 2008 with 95,000 complaints.  The economy no doubt is a major factor.

At our law firm, we have seen sharp rise in callers complaining about unfair firings and other mistreatment.   However, after looking into the compaints, there is usually no basis for a claim because it is perfectly legal to fire employees.   Most everyone is an employee at will and this means that an employer can fire an employee at any time for any reason - no matter how unfair. 

It is illegal to fire someone based on a persons sex, race, age, national orgin, disability, sexual orientation, pregnancy or religion.  There are other potential grounds for cases as well - but most of the time the callers are just upset that they were fired and there is no illegal conduct.

It is no surprise that there has been an increase in filings with the EEOC.   However, I would like to see how many of thise filings are cases with merit.  

Employee Rights in South Africa

Meet Sharon Williams.  She is a lawyer based in Cape Town, South Africa.  I met her last week at the J.L. Zwani Center in Guguletu.  She was nice enough to sit down with me and explain how employment discrimination cases are handled in South Africa.  First, she explained that whites, and espcially white men, are the most common victims of employment discrimination in South Africa today and that black woman are the most sought after employees. 

Discrimination cases in South Africa go through a two step process.  First, the case is subject to mandatory mediation and this process helps resolve most of the cases.   If a case is not settled through mediation, then the case goes to court and is tried before a single judge. 

If the employee wins, then the employee is awarded their lost compensation and if the discrimination is severe the judge can fine the employer.  The fine, however, is paid to the government and not to the employee.   Also, the loser is often required to pay the costs and legal fees incurred by the other side.  This means that an employee who loses a case can be forced to pay the legal fees and costs incurred by the employer in defending the case. 

Sharon said that the courts are favorable to employees and will generally find in their favor if the evidence indicates that discrimination occurred.  She said that the employee is not required to prove actual discrimination, instead the employee typically only has to prove that the employers proferred justification for the decision was pretextual. 

Seeing Great Soccer, Poverty and Race Discrimination in South Africa

I just returned from South Africa with my 12 year old Son Jack.   We saw a few great soccer games including the Spain vs. Portugal game in Cape Town's glistening new soccer arena that holds 65,000 people. 

But we did not go to South Africa for soccer only.   We went as guests with Open Arms, a charity that helps feed people who are sick.  They have a global program that focuses on the township of Guguletu in Cape Town.  Guguletu is an all black community that is conveinently removed from beautiful downtown Cape Town.   Back in the days of apartheid, the whites shipped the blacks out of their towns and into townships that consist of tin roofed shack ghettos.  Most people in Guguletu don't have running water, toilets, heat or electricity.   Many are without adequate food and survival is the focus of life in Guguletu.  Approximately 30% of the populution has Aids and unemployment is at 60%.  

I met a lot of people who were dying of aids, TB and suffering from malnutrition.  I visited one room shanty homes were large families lived.  People needed to walk out into a field to relive themselves.   No food was in the house and no one had a job to earn money.  

When you see this side of South Africa it is clear that apartheid is not over.   Politically apartheid is not supported by the government, but economically and realistically it does still exist because blacks still live apart from whites and in horrible conditions.   It is racism at it worst, yet life goes on - it is ignored by most as if it does not exist.    

Age Discrimination: Can Companies Force Employees to Retire?

A company cannot force an employee to retire, even at age 70.   A recent example is the case of Rose Nini v. Mercer County Community College in New Jersey. 

Rose liked her job at Mercer County Community College where she served as a Dean.   She was 73 years old but had no plans to retire.   College officials, however, thought she was too old and pushed her to retire.  When Rose would not retire, the college did it for her by not renewing her employment contract.    

Rose sued the college and claimed she was forced into retirement in violation of the age discrimination laws.  The college argued that it did not discriminate but simply decided not to nenew a contract.  The college claimed that it was not legally obligated to renew her contract. 

The New Jersey Supreme Court did not accept the college's argument.  It ruled that failing to renew an employment contract due to age is age discrimination.  Rose won her case.  This is not surprising as the law clearly prohibits age discrimination and the college's argument was an attempt to use a technicality to hide age discrimination.  

Race Discrimination and World Cup Soccer

I am here in Capetown, South Africa with my 12 year old son Jack for the World Cup. The soccer games are amazing and Capetown is an incredibly beautiful seaside city that is full of life. As South Africa hosts the World Cup it is also trying to create a new world image. A new soccer stadium was built in Capetown for the World Cup and it is beautiful. The stadium is just a few miles from Robben Island Prison where Nelson Mandela and other anti-apartheid activists were punished.

Apartheid was legalized race discrimination and it takes on new meaning when you visit South Africa. You see its impact and feel the racism that still exists here. During apartheid, non-whites were only allowed to live in certain areas called townships. These townships still exist and are even more crowded and impovershed. Basic food and medical care is lacking and people suffer. Today we are going to visit a township called Gugulethu.

Jack and I are here in Capetown with a U.S. based charity called Open Arms that helps poor South Africans. Open Arms work in South Africa is focused on Gugulethu and they really help people with serious problems and they need support.

Yesterday we visited the District 6 museum in Capetown which starkly portrays organized government backed racism. District 6 was once a neighborhood in Capetown that was occupied by non-whites. The government forced the residents to leave their homes and tore down the neighborhood. Families were broken up and sent to encampments based on race. If a husband and wife were of slightly different races or even colors they would be sent to different locations and forced to live apart because of their race. Many former residents of District 6 are still living in those townships and they cannot afford to eat much less attend a World Cup soccer game.

Sexual Harassment in the City - A New Law Helps NYC Victims

The sexual harassment law in New York City is different than the federal and New York State laws. The New York City law is excellent and a credit to the City law makers because it provides genuine protection against sexual harassment. The federal and New York State laws, however, are ineffective in preventing sexual harassment because they give companies an easy out. There is one major difference between the New York City law and the Federal and State law.

The New York City law recognizes that sexual harassment victims generally do not report the harassment. If a woman is sexually harassed by a supervisor at work, she knows that reporting the harassment is unlikely to stop the harassment and reporting it will probably ruin her career. The only real option for a sexual harassment victim today is to leave the company. The New York City law recognizes this and there is no obligation to report sexual harassment by a supervisor to the company. Not so under the federal and New York State law.

Under the federal and state law, a woman who is sexually harassed by her supervisor is required to report the harassment to the company. This is an absurd requirement and it proves that federal and state law makers are out of touch with reality. These laws force a woman to commit career suicide just because she is sexually harassed by a supervisor. It almost appears that these laws were created by a bunch of old men who are clueless. Actually, the federal law was created by the US Supreme Court, which until recently was overwhelming male. Now there are two females on the court and maybe they will sway the old men out of their arm chairs and into reality. A more balanced court is needed to create realistic laws. The federal sexual harassment law is a good example of a law that might have good intentions but actually weakens the rights of those it was designed to protect.

Should Sexual Harassment Be Reported?

Sexual harassment cases tend to share two common themes.  First, the sexual harassment victim often becomes a target for retaliation after she reports it.  Second, if a woman reports sexual harassment and human resources investigates, they almost always determine that sexual harassment did not occur.  My advice to sex harassment victims is not to report it until they have sold proof of the harassment and even then, you need to accept the fact that your career will be jeopardized.      

In a case I tried last year, a human resources veteran from Citibank testified that she had conducted over 50 sexual harassment investigations in her 20 year career at the bank and never once found that sexual harassment had occurred.  Also, in that case, the victim was subject to severe retaliation after she reported her boss.  My client's once sparkling career was ruined and she was driven from the bank.  Human resources turned on her.  In the end, my client won at trial but it was a long road.  

Victims of sexual harassment have a tough choice.  If you really want to report the harasser, you first need to make sure you have solid proof like emails, tape recordings of the harassment or reliable eye witnesses.  If you don't have rock solid proof, you run a big risk of ruining your career.