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Los Angeles Employment Law Blog

$6.3 million lawsuit filed over worker misclassification

The California Labor Commissioner's Office filed a lawsuit in August against a construction company after it was alleged that 175 workers were willfully misclassified and for other wage violations. Allegations include the failure to pay overtime, the failure to provide proper wage statements and the failure to allocate pay for sick leave.

According to the court documents, the construction company allegedly forced workers to sign contracts that classified them as independent contractors after threatening termination in August 2016. The company then reportedly used several staffing agencies to make payments to the workers. An investigation into the company was launched in October 2016 as a result.

DOJ claims rights don't extend to LGBT community

According to the Justice Department, LGBT employees in California and elsewhere are not covered by federal civil rights legislation. The department issued its opinion after a New York skydiving instructor filed a lawsuit claiming that he was terminated for being gay. He filed the claim under Title VII of the Civil Rights Act of 1964, asserting that it banned discrimination on the basis of sex. The Equal Employment Opportunity Commission agreed with his interpretation of the law.

The EEOC takes the position that discrimination based on sexual orientation is hard to distinguish from discrimination based on gender. However, the DOJ claims that Congress has failed to amend the law to include protection for LGBT workers. This was despite acknowledging that attitudes have changed toward those in the LGBT community. While this is in agreement with how courts have ruled in similar cases, it is a reversal from positions taken by President Obama.

Female-on-female harassment does happen in the workplace

When California employees think about sexual harassment in the workplace, they probably think about inappropriate conduct involving a man and a woman. Even though it's not as prevalent as the male-on-female variety, female-on-female sexual harassment can and does occur.

In a poll of women who experienced sexual harassment, 10 percent reported that they had been harassed by another woman while at work. Part of the reason that female-on-female harassment is often overlooked may be due to the sheer number of workplace harassment cases from male coworkers and managers. Another reason, however, may be that some women do not report harassment that they just view as "bothersome." In some cases, a female employee may consider the harassment as a boundary issue and not a harassment issue.

Looking for work while being disabled

It can be difficult for some California residents to obtain a job that pays enough to live on. However, it may be even more difficult for those who have a disability, even though employers are required to provide reasonable accommodation for disabled workers under the Americans with Disabilities Act.

For example, a person who suffers a life-impacting injury, such as a traumatic brain injury, may be required to take months if not years off work in order to recover. When that person, who is now potentially disabled and may not be able to complete the same work he or she could before, attempts to look for a job, there will be gaps in his or her resume.

Employers can terminate an employee for FMLA fraud

Many California workers know that the Family and Medical Leave Act is designed to protect them in the event they must take time off work for family or medical reasons. However, a court case showed that a worker can still be terminated from his or her job while on FMLA leave if the reasons for termination are unrelated.

In Jones v. Gulf Coast Health Care of Delaware, an employee used his FMLA leave when he needed to have surgery on his shoulder. As he was unable to return to work for 12 weeks, he was granted an additional month of non-FMLA leave by his employer. During the additional month off, however, he posted photos of his Caribbean vacation and other exploits to his social media pages. He was then ultimately fired by his employer after the employer believed that he could return to work earlier. The Eleventh Circuit Court of Appeals decided in favor of the employer.

Providing incorrect legal information may cost employers

California residents may be interested in a legal case involving an employee and her company, Miller Compressing Company. The circumstances of the case began in 2011 and were affirmed by Seventh Circuit in 2017 in favor of the employee.

The case involved the Family Medical Leave Act and the obligation of employers to follow the law and provide correct benefits and clear information to employees. The employee in the case was granted FMLA and made use of the benefits to care for her autistic son. At first, Miller granted all FMLA leave, including the ability to work from home and get paid for time spent working. In 2012, the company reversed its decision and required the employee to work full-time in the office.

Timing of termination matters to claims of retaliation

The law could view a California employer as retaliating against an employee if the company terminates the person's employment only a short time after the person engages in protected activity. A ruling from a federal appeals court illustrates this concept of temporal proximity, which indicates that one action caused another action soon thereafter.

In the case, the plaintiff had claimed that his employer violated his rights under the Family and Medical Leave Act and retaliated against him for taking vacations while recovering from shoulder surgery. A district court ruled against him on both charges, but the appeals court validated his claim of retaliation. The court based its decision on the fact that he had lost his job only one month after his last day on leave. The company had claimed that the man's vacation photographs on social media had negatively effected co-workers. The company could not, however, identify anyone harmed by the social media messages, and the court suspected that the employer used undocumented claims of workplace disruption as a pretext for firing the man.

EEOC accuses bank of violating the Equal Pay Act

The 1963 Equal Pay Act requires employers in California and across the country to pay men and women equally when they have equal responsibilities and perform duties that require the same amount of skill, experience and effort. The Equal Employment Opportunity Commission is tasked with administering and enforcing the nation's workplace civil rights laws, and the federal agency filed a lawsuit on June 18 that alleges a Nebraska bank violated the Equal Pay Act by paying a female relationship manager less than a man who performed the same job.

In addition to monetary relief, the EEOC is seeking a declaratory judgment and demanding that the company implement practices and policies designed to prevent future violations of the 1963 law. The agency says that it filed the wage discrimination lawsuit in the U.S. District Court for the District of Nebraska after efforts to settle the case were unsuccessful.

Trump DOL changes for contractors and joint employment

Employers in California and across the United States should be aware of changes that took place in June 2017 regarding the regulation of independent contractors and joint employment. The new Department of Labor under President Trump has rejected the Administrator's Interpretations established under Obama. While these changes are not law and do not affect an employer's legal responsibilities, they may indicate a shift in priorities with the new DOL.

The changes may be considered a roll-back to a more traditional stance on identifying workers as independent contractors or joint employees. Under Obama, the focus on these types of employment was put under a higher degree of scrutiny with an aim to consider most workers actual employees and reduce the prevalence of workers considered independent contractors. With those changes now eliminated, employers can focus on the established case law and traditional use of the economic realities test that has long been a way of measuring a worker's independent status.

10th Circuit overrules lower court in harassment case

In May, the U.S. Court of Appeals for the 10th Circuit sent a sexual harassment case back to a lower court for trial. In its ruling, it rejected a claim by the defendant, that was the plaintiff's employer, that the case should not go forward because there was no required EEOC charge of quid pro quo harassment. California employees might be interested to hear that the appeals court based its decision on the fact that no label is required to proceed with a sexual harassment claim.

While academics may have created distinctions between quid pro quo harassment and a hostile work environment, they are not distinct claims under Title VII. The court found that a claim of sexual discrimination describes both types of sexual harassment and that there is only a need to have sufficient facts to back up the allegation.

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