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Los Angeles Employment Law Blog

Using indirect evidence in discrimination cases

If a California employee is involved in a workplace discrimination case, there may be strength in numbers. Specifically, people may have better odds of succeeding if it can be shown that others were discriminated against as well. For instance, a minority worker may want to show that other minorities were passed over for positions while women may want to show that females were treated worse than males.

Such circumstantial evidence is critical to proving a case because direct evidence is rarely available. Most employers are not going to say that a job wasn't offered specifically to minorities or that women don't get promoted because of their gender. Instead, a plaintiff may need to gather indirect clues that a workplace decision was made with the intent to discriminate.

Employee terminated after not responding to email

California employers are generally allowed to check up on employees while they are on FMLA leave. This was according to a Texas court's ruling in response to a lawsuit from an employee who was terminated for attending a Beyonce concert. The woman claimed that her termination was a violation of her FMLA rights and that it constituted retaliation against her.

In this particular case, the woman was watching the concert in her employer's sky box two weeks after receiving a performance improvement plan. This was while she was on leave because of anxiety over the volume of work that she was given as well as the PIP she received. While at the concert, the woman and her boss exchanged voice and email messages. After failing to respond to an email, the woman was terminated.

Ageism in the workplace may be difficult to identify

Workplace discrimination in California takes many forms, and ageism is among the hardest to spot. With Baby Boomers working alongside Gen Xers and Millennials in today's workforce, and with complex anti-discrimination rules and regulations on the books, sensitivity to ageism is more important now than ever. The ways opportunities are offered, the specifics of employee handbooks, the working environment and the business website may all present clues as to how older employees are viewed at a given organization.

In many businesses, evidence of ageism can be found in the ways development and training opportunities are offered to employees. If younger employees are encouraged to earn new certifications, for example, while older employees are not, that may evidence of ageism. Older employees, generally speaking, should have the same chances to develop new skills as their younger counterparts.

Women file discrimination lawsuit against Google in California

Three women have filed a lawsuit in a California court naming tech giant Google as a defendant, claiming a discriminatory pattern of treatment against female employees. They allege, among other things, that Google has systematically paid female workers at lower rates than males performing comparable work.

The three women are demanding a jury trial and claim their situations are representative of all women who work for Google. According to the complaint, one of the women left Google in 2014 due to the company's sexist culture. The complaint alleges that she was moved into a front-end position because of a false perception at Google that back-end engineering is more rigorous. Her observation was that almost all back-end engineering positions were held by men.

EEOC and DOJ take separate stances on workplace discrimination

California residents may remember that the Department of Justice declared in July 2017 that Title VII of the Civil Rights Act of 1964 doesn't protect against workplace discrimination based on sexual orientation. This was a departure from the views of the Equal Employment Opportunity Commission . At the time, this split was considered to be unusual. This is because both agencies are tasked with defending the civil rights of workers.

In early September, Lambda Legal asked the Supreme Court to review a decision based on the theory espoused by the DOJ. Specifically, it asked for a review of a March 2017 decision made by the 11th Circuit in the case of Evans v. Georgia Regional Hospital. The court ruled 2-1 that sex discrimination protection based on Title VII of the Civil Rights Act did not extend to discrimination based on a person being gay, lesbian or bisexual.

How natural disasters affect FLSA and FMLA

Natural disasters such as Hurricane Harvey may raise issues between some employees and employers regarding the Fair Labor Standards Act and the Family and Medical Leave Act. If a person is on FMLA leave when a natural disaster occurs that results in the employer having to close the premises, that person generally cannot have the leave docked for those hours of closure.

Furthermore, employees in most cases cannot volunteer their time to employers. Extra hours worked, even in a natural disaster, must still be paid as overtime. Some problems may arise if the employer's usual timekeeping method is unavailable or if records required by the FLSA are lost as may happen in some natural disasters.

Employees advised to keep records about family leave

The Family and Medical Leave Act and the California Family Rights Act create a legal framework to protect qualifying employees from job loss during a health crisis or when a relative requires care. Because disputes among employers and workers are increasing, some observers recommend that people keep careful records of communications with an employer about the time off.

An employer's human resources department cannot be relied on to supply complete or accurate information regarding a worker's right to leave. The protections established by the FMLA and CFRA exist concurrently. The complexity of each law and their overlapping and separate protections generally require careful interpretation by an attorney before clear answers to specific situations can be determined.

Workplace harassment and discrimination reported at Google

One of California's most iconic tech firms is feeling the heat after a former employee distributed an internal memo that read like a manifesto for gender discrimination. Search engine giant Google moved quickly to terminate the employment of the software engineer responsible for the memo, which claimed that women are biologically unsuited to jobs in the tech world. However, recent reports suggest that this employee may only be the tip of the workplace discrimination iceberg.

An investigative report published in mid-August interviewed former Google employees who complained about having endured an atmosphere of sexism, racism and gender inequality. One of the former employees, a young Asian-American woman, explained that she found very few opportunities for advancement in Google, where executives and senior managers are mostly Caucasian males.

Equitable estoppel can apply to the FMLA

The Family and Medical Leave Act (FMLA) was enacted to provide employees the ability to take a leave of absence for medical or family issues without fear of losing employment. The act as written applies only to companies with over 50 employees. However, one court has determined it can apply to smaller companies, depending on how the company communicates with its employees. Smaller firms, including those in Los Angeles, should take notice of the court's reasoning.

The Sixth Circuit Court of Appeals case revolved around a discharged employee who was suffering a medical condition and missed work. The employee met two criteria for falling under the FMLA. First, he was employed with the company for more than 12 months. Second, he had worked more than 1,250 hours in the previous 12 months.

$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.

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  6. California Employment Lawyers Association

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