What Constitutes Sexual Harassment In The Workplace In California?
May 5, 2023
| By Ottinger Employment Lawyers
| Read Time: 5 minutes
An executive at Wells Fargo. An Orange County golf club attendant. Fourteen male crew members on ABC’s TV production team. Professionally, they don’t seem to have much in common — except that in the past year, all have spoken out about the pervasive sexual harassment they experienced in their jobs. These three cases are an unfortunate testament to the widespread prevalence of sex-based harassment in California today — regardless of industry or employment level. In this blog post, we’ll walk through what kinds of workplace misconduct are considered sexual harassment, the legal channels available to respond to it, and the steps to take if you’ve experienced sexual harassment at work in California. If you have questions, please contact our California employment attorneys online or call (866) 442-6755. What Does Sexual Harassment Look Like? Sexual harassment can take a variety of forms. Broadly, it’s defined as offensive or discriminatory treatment toward an individual based on their sex. This discriminatory treatment includes unwanted advances or sexual conduct. But workplace harassment doesn’t necessarily have to be motivated by sexual desire, or even to be sexual in nature. Harassing or offensive treatment that targets an individual for their gender, sexual identity, pregnancy, childbirth (or related medical conditions) is also considered sexual harassment under California law. Both federal and California state law classify sexual harassment into two categories: “quid pro quo” and “hostile work environment” harassment. Quid pro quo is a Latin phrase that means “this for that.” Generally, it describes a situation where an exchange is taking place. As a type of harassment, it’s applied to incidents when someone is compelled to take part in unwanted sexual acts in exchange for some kind of benefit in the workplace: e.g. hiring, promotion, or just continued employment. It doesn’t matter whether or not you ultimately receive this benefit. Any time unwanted sexual conduct is made a condition for achieving professional benefits — or a threat for withholding them — that is legitimate grounds for a claim of sexual harassment. Alternatively, an employee might experience sexual harassment when they’re subject to offensive behavior that’s so pervasive or severe that it interferes with their ability to do their job. This is called “hostile work environment” sexual harassment. In these situations, misconduct doesn’t have to be linked to an offer of economic or professional benefits. Instead, it’s defined as any behavior(s) that creates an intimidating, hostile, or offensive work environment and significantly impacts an individual’s ability to do their job. This could look like: What Protections Do California Employees Have From Sexual Harassment At Work? Both U.S. federal and California state law considers sexual harassment to be a type of employment discrimination. Offensive, prejudicial, or hostile treatment directed at a worker because of their sex is a violation of an individual’s right to a safe work environment. For that reason, federal law governing sexual harassment is outlined in Title VII of the Civil Rights Act of 1964. At the state level, California’s Fair Employment and Housing Act (FEHA) handles workplace sexual harassment charges. Under both federal and state anti-harassment and -discrimination law, employers have an affirmative duty to maintain a work environment that is free from unlawful harassment and discrimination (on the basis of sex, or otherwise). This means that it’s your company’s responsibility to do all they reasonably can to prevent sexual harassment in the working environment. California’s Fair Employment and Housing Act specifically requires that all employers provide their workers with basic information about sexual harassment, as well as information about discrimination and retaliation prevention. Importantly, California’s state-level laws provide a broader scope of protections than federal sexual harassment law until Title VII. For one, California’s FEHA protects all individuals who could experience inappropriate treatment in the workplace. This includes not only employees but job applicants, unpaid interns, volunteers, and contractors or third-party vendors. Even more critically, California state law applies to all private, state, and local employers — regardless of the size of the company, or an individual’s immigration status. By contrast, the anti-harassment protections in Title VII of the Civil Rights Act apply only to employers with fifteen or more workers. Because of this, California’s Fair Employment and Housing Act is generally seen as the stronger legal framework for pursing claims of sexual harassment in California — and the one more favorable for employees seeking recovery. What Should I Do If I’ve Been Sexually Harassed At Work In California? The first thing to do if you’ve experienced inappropriate behavior in your workplace is to report it to your employer. Under California law, your employer is required to document, evaluate, and respond to all complaints of harassment, while preserving as much of your confidentiality as possible. This means thoroughly investigating your complaint and taking appropriate remedial measures in response, if the misconduct is verified. You can also file harassment charges with a state or federal agency, such as California’s Department of Fair Employment and Housing (DFEH) or the U.S. Equal Employment Opportunity Commission (EEOC). Since the DFEH and EEOC automatically cross-file complaints, you only need to submit it to one of them. The agency will then investigate the harassment complaint and determine whether or not to bring civil charges on your behalf against the offending party: Even if the DFEH or EEOC chooses not to file charges, you can still sue in civil court for the harassment you’ve suffered. In fact, California law requires anyone looking to bring a lawsuit for cases of sexual harassment to file their complaint with the California DFEH first. The DFEH will then give you what’s called a right-to-sue notice, after which you can take your case to court. Be aware: Harassment complaints filed with the DFEH must be submitted within one year of the last offending incident. Similarly, the EEOC requires that sexual harassment claims are filed no later than 300 days after the event. It’s important to make sure that you thoroughly document your experience with misconduct and not to wait too long to start the process of filing your complaint, […]
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What’s the Supreme Court’s Decision on Overtime for Highly Compensated Executives Means for Employees
May 5, 2023
| By Ottinger Employment Lawyers
| Read Time: 5 minutes
Overtime pay is designed to ensure that employees are adequately compensated for working beyond their standard hours. But employees often have a number of misconceptions about who is entitled to it, and when. As a result, it’s all too easy to lose out on compensation you’re legally owed because of an employer’s oversight — or their malicious opportunism. A recent Supreme Court case is a prime example. Michael Hewitt, an employee on an offshore oil rig based in Houston, sued his former employer for unpaid overtime accumulated from three years of 80-hour workweeks. His employer, Helix Energy Solutions, argued that since Hewitt was receiving around $200,000 annually, he was legally exempt from the right to receive overtime as a “highly compensated employee” under the Fair Labor Standards Act (FLSA), which details national overtime regulations. In this blog post, we’ll take a look at what the FLSA actually says about overtime pay, how the Supreme Court handled the dispute, and what their surprising decision means for employees and employers moving forward. If you have questions, please contact our employment attorneys online or call (866) 442-6755. Who Is Entitled To Overtime Pay Under U.S. Law? The Fair Labor Standards Act (FLSA), passed in 1938, was a landmark piece of national labor legislation. Many of the regulations included in the Act are now familiar features of the employment culture in the U.S. today: for instance, rules around minimum wage, child labor, and overtime pay. The FLSA requires that employees who work more than 40 hours in a week be paid at a higher rate for those additional hours: specifically, 1.5x their regular hourly pay (“time and a half”). Technically, the law assumes that all employees, hourly and salaried alike, are entitled to overtime unless they meet the qualifications to be exempt. For instance, many workers fall under what’s called the “white collar exemption” to the FLSA. This says that employees who receive salaries and whose jobs involve certain non-manual duties are exempted from the right to overtime. The white collar exemption rule breaks down even further to define what kinds of roles it includes: The FLSA also includes an exemption for “highly compensated employees” who meet the following criteria: This rule allows certain employees to be considered exempt in their roles because of how much (and how) they’re paid — even if they don’t meet all of the other requirements for the white collar exemption that applies to their role. For example, someone who’s paid a $200,000 salary and oversees a team of two or more people could be designated a “highly compensated executive,” even if they don’t have the power to hire or fire other employees. Independent contractors aren’t technically “exempt,” but they are also not eligible for overtime pay because the law doesn’t consider them “employees.” What Happened In Helix Energy Solutions Group, Inc. V. Hewitt? From 2014-2017, Michael Hewitt worked for Helix Energy Solutions Group as a “toolpusher” on an offshore oil rig. His role involved overseeing some of the rig’s daily operations, as well as supervising a group of up to 14 workers. The hours were demanding, to say the least. Hewitt normally worked 12 hours a day, seven days a week, in 28-day rotations — 28 days of work, followed by 28 days of rest onshore, then back to work, etc. Helix Energy paid Hewitt by the day, at a rate that fluctuated around $1,000 per day’s work. But although Hewitt ordinarily worked around 84 hours a week — over twice the standard 40 hours — he never received any overtime pay. Why? His company claimed that since Hewitt was earning around $200,000 a year based on this pay rate, he was a “highly compensated employee” and thus exempt from overtime laws. Although Hewitt’s situation initially appeared to meet the requirements for this exemption, the situation was more complicated. Yes, Hewitt supervised other workers. Yes, he made well over the minimum annual amount to be considered “highly compensated.” But the deciding factor in the case turned on whether or not his pay was on a “salary basis.” Under the FLSA, a salary is defined as a fixed, predetermined amount of compensation paid to an employee on a regular basis regardless of how many hours they work in a given week. Hewitt argued that since he was paid on a daily rate, his weekly take-home pay was subject to change based on the amount he worked. Even if he worked fairly consistent hours (enough to take home $200k a year) he had no guarantee of compensation for the days and weeks he didn’t work — unlike a salaried employee. To the surprise of many, the Supreme Court sided with Hewitt, finding that he did not meet the strict regulations for the highly compensated executive exception, and thus was owed four years of overtime back pay. What Does This Ruling Mean For Employees? Although this ruling is certainly an exciting win for Hewitt himself, it’s questionable how much of an impact it will have on other highly compensated employees. For one, the Court’s decision hinged on the technical details of a very specific situation. Outside of the energy industry, it’s rare for employers to use a day-rate pay structure for individuals who could be considered “highly compensated” exceptions to the overtime rules. Generally, employees with executive, administrative, or professional responsibilities are far more often paid on a fixed salary basis — as required for FLSA exemption rules. The Court also pointed out that in certain situations, employees who are paid on a daily or hourly basis could still be considered exempt, and thus not entitled to overtime. For example, if an employer were to guarantee workers a weekly payment greater than the required $684, “regardless of the number of hours, days or shifts worked,” that would legitimately exempt them from overtime pay under the FLSA. Nevertheless, this case is an encouraging reminder to employees everywhere: don’t let pressure from your employer get in the way of you getting the compensation you’re owed. […]
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What Employees Need to Know about California’s New Wage Theft Law
Apr 25, 2023
| By Ottinger Employment Lawyers
| Read Time: 5 minutes
Workers in California are cheated out of an estimated $2 billion in stolen wages every year. Although California has some of the strongest employee protection laws in the nation, wage theft is unfortunately still pervasive in the state. Especially among low-wage and hourly workers. Many employees don’t even realize that their employers are stealing from them. And those who do are often afraid to take action for fear of employer retaliation. In 2021, California employees sought only $320 million in civil restitution for unpaid wages — a fraction of the estimated $2 billion stolen by employers every year. To combat this epidemic, the state recently adopted a law that takes an aggressive new approach to cracking down on employers who intentionally withhold compensation from their workers. In this blog post, we’ll explain what wage theft is, break down how California’s new law takes a strong stance against it, and outline how workers in California can take action to get compensation for lost wages. If you still have questions or would like to speak with a California employment lawyer, please contact us online today or call 213-204-8002. What Does Wage Theft Look Like In California? Wage theft happens any time an employer fails to give an employee the compensation that they’re legally owed for their work. Wage theft can happen in a variety of different ways, and it doesn’t necessarily have to involve just your wages. Withholding any earned benefits or gratuities, like meal breaks or sick leave, also constitutes wage theft under California law. Here are some more examples of what wage theft can look like, according to the California Labor Commissioner’s office: In 2011, California passed the Wage Theft Prevention Act, which aimed to raise awareness about the extent of wage theft in the state and put the onus on employers to inform workers about their rights to fair pay. Under this law, all private employers have the duty to inform their employees about certain basic but critical information about their compensation and benefits. This includes: Employers have to provide this information to workers in writing (in their preferred language) when they’re hired. They’re also required to disclose any and all alternate names the company might use as part of their business. For example, if a landscaper is incorporated under the owner’s name, but uses different “trade names” for its locations in different cities. If there are any changes to the pay or benefits policy, it’s the employer’s responsibility to provide workers with updated information, if it’s not included in their pay stubs. The 2011 law only applies to employers in the private sector, though. Employees who are considered “exempt” (i.e. don’t receive overtime pay) or who are covered by collective bargaining agreements are also not required to receive pay notice from their employers under the law. What Is Ab 1003 And How Does It Change Wage Theft Law In California? In 2022, a new law went into effect in California that raises the stakes on the battle to prevent the rampant spread of wage theft in the state. Under this law, known as AB 1003, certain incidents of wage theft can now be treated as “grand theft” — a serious offense that poses business owners, managers, and executives with much more serious consequences for stolen wages than before. According to the bill, employers commit grand theft of wages when they intentionally withhold compensation (including wages and gratuities) “in an amount greater than $950 from any one employee, or $2,350 in the aggregate from 2 or more employees, by an employer in any consecutive 12-month period.” The 2022 law applies to all employers in California, regardless of size. Importantly, it also applies to independent contractors as well as direct employees. This is a significant piece of legislation that employers can’t afford to ignore without consequences. Grand theft is considered a felony offense under California law. Prior to 2022, all wage and hour violations were treated as misdemeanor crimes. This meant that if an employee made a complaint or brought civil charges for their stolen wages, companies would be compelled to pay recovery and face fines, but often not much else. Now that employers can be subject to felony prosecution, violating wage laws can mean potential jail time — up to a three-year prison sentence — in addition to severe fines. Access to felony charges also gives California prosecutors more resources to work with during wage theft investigations, such as search warrants and the use of grand juries. This could encourage California prosecutors to investigate wage theft cases as criminal offenses and take legal action against employers. How severe this legal action ends up being will play out on a case-by-case basis. It will also likely hinge on one critical element of the new law: whether or not the wage theft was “intentional.” Proving that an employer was purposefully stealing wages is a bit more complicated than it may seem. Wage violations can stem from miscommunication between employers and workers over policies like break times or payroll scheduling. An employer could even miss an overtime payment due to simple oversight, not out of the intent to deprive a worker their compensation. Demonstrating intentional wage theft in court will require more specific evidence. For example, proof of an employer’s refusal to pay a previously agreed-upon hourly rate of pay. Since AB 1003 doesn’t provide an exact definition of what “intentional” wage theft looks like, interpretations will be determined by the circumstances of each case. What Should I Do If My Employer Is Withholding My Wages Or Benefits? The good news for workers is that you can get restitution for unpaid wages even if your employer isn’t ultimately charged with a crime. Employees who are concerned about missing pay or benefits can take action by filing a wage claim with the California Division of Labor Standards Enforcement (DLSE). This can be done online, by mail, or in person. The DLSE will ask for copies of documents that support your claim and can […]
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