Although most employers treat most of their employees fairly, there are abundant abuses of employee rights in this country. There is also widespread discrimination on the basis of race, ethnic group, gender, age and sexual preference. In order to make sure that you are treated fairly by your employer, you need to be informed as to what rights you have. Both federal and state law have numerous protections for workers which are important to know. Below is a description of your basis rights and steps you can take when your rights are violated.
Requrements of employers under the law.
- Your Personnel File. The law requires employers
to give you access to your personnel file. California
Labor Code § 432, 1198.5.
- Your Evaluations. Many employers provide
written evaluations; keep copies of these. If you disagree
with any statements in these evaluations, submit a written
rebuttal to the employer and request that it be put in
your personnel file. It becomes more difficult for an
employer to justify your termination for cause if you
have only received positive feedback from the company.
- The Employee Handbook. Many employers have an
employee handbook, which sets forth the policies of the
company. This handbook should have policies prohibiting
sexual harassment and other forms of discrimination. Read
the handbook. The handbook can be considered a contract
between you and your employer and therefore the employer
can be held to what is stated there.
- Wage and Hour Rules. Federal and state
law requires your employer to pay minimum wages and overtime
wages. California has a minimum wage of $5.75 per hour.
Under the Federal Labor Standards Act, if you work more
than 40 hours in any particular week, your employer most
likely must pay you "time and a half", that is, one and
one-half times your normal rate. The Equal Pay Act requires
that men and women receive equal pay and benefits for
the same work.
- Medical and Family Leave. The Federal Family
and Medical Leave Act (FMLA) requires most employers to
provide you with 12 weeks of unpaid leave in the event
of a family or medical need. If you have a medical or
a family problem that requires you to take time off, you
probably qualify for leave and the employer must give
you the same or a similar job back. Many employers will
attempt to coerce you to take "personal" leave so that
they don’t have to give you your job back afterwards.
Insist on "Medical and Family Leave" if you qualify so
that your job is protected.
- Pregnancy and Maternity/Paternity Leave.
The FMLA requires most employers to also grant 12 weeks
of unpaid leave to new mothers and fathers, including
those who adopt. A mother can begin the leave before the
birth of the child for prenatal care. If your employer
has a group health plan for employees, it must keep you
on its plan while on family, medical or maternity leave.
In California, a female employee is entitled to up to
four months of leave if disabled as a result of pregnancy,
childbirth or related condition. Govt Code § 12945.
- Employer May Not Discriminate on the Basis
of Exercise of Leave Rights or because of a Workers Compensation
claim. Employers may not fire or in any way discriminate
against an employee on account of their exercise of rights
to family and medical leave or because they made a workers
compensation claim.
Your employer may not discrimaiante...
On the basis of Race, Color, Religion, Gender or National Origin. Title VII of the federal Civil Rights Act of 1964 prohibits discrimination based upon race, color, religion, gender or national origin.
On the basis of Age. The Age Discrimination in Employment Act (ADEA) outlaws discrimination against older workers (40 years or older).
On the basis of Pregnancy. The Pregnancy Discrimination Act forbids discrimination on the basis of pregnancy, childbirth or related medical conditions.
On the basis of Citizenship. The Immigration Reform and Control Act makes it illegal to discriminate on the basis of whether or not a person is a U.S. citizen. This law protects you even if just have permanent or temporary legal residence in the U.S., but not citizenship.
On the basis of Sexual Orientation. The California Labor Code makes certain discrimination against sexual orientation illegal and provides remedies to victims of such discrimination.
On the basis of Disability. The Americans With Disabilities Act prohibits discrimination against people because of a disability.
Discrimination Means applying employment decisions such as hiring, firing, promotion, pay raises, benefits, work assignments, leaves of absence or almost any other aspect of employment in a discriminatory way based upon one of the prohibited bases.
Sexual Harassment is Illegal. Sexual harassment is another form of discrimination on the basis of gender forbidden by federal and state law. An employer has a duty to investigate complaints of sexual harassment promptly, thoroughly and confidentially. If the employer does not do so, the employer has liability. In many cases, if the employer has not taken action in the past in response to complaints, it may be liable for future harassment. And if the harasser is your supervisor, the employer is liable under all circumstances under existing state law. (See article on "Fighting Back against Sexual Harassment")
It is also illegal to Retaliate. An employer cannot retaliate against you for raising claims of discrimination or harassment. If any adverse employment action is taken against you because you have made such a complaint or cooperated with another employee making a complaint, the employer is subject to liability for violations of Title VII and state law. This is true whether or not the discrimination or harassment complaint is found to be valid.
An Employer cannot punish whistleblowers. In California, an employer who fires or demotes or otherwise penalizes an employee who reported illegal or improper activity by that employer faces liability for damages caused to the employer plus punitive damages. An employee has the right to report illegal conduct without repercussions from his employer.
EMPLOYER’S DUTY TO INVESTIGATE COMPLAINTS.
The employer has a duty to investigate all claims of harassment and discrimination and its failure to do so may subject it to separate liability under federal and state law.
An investigation ... must be impartial, done by an objective party, not connected to the conduct in question
must be done promptly and, in the process, the victim of harassment should be separated from her harasser
must be thorough, including in most cases interviews of the victim, the harasser and other witnesses
must protect the victim’s confidentiality as much as possible.
If the harassment or discrimination is found to have occurred, the employer must take appropriate disciplinary action against the perpetrator. And, of course, no retaliation can be taken against the person complaining. If an employer fails to satisfy these requirements of federal and state law, it may be found for increased damages to the victim of harassment or discrimination.
TAKING COMPLAINTS OF DISCRIMINATION OUTSIDE THE COMPANY.
EEOC. The Equal Employment Opportunity Commission is the federal agency which investigates complaints of violations of federal civil rights law (Title VII) in employment.
The EEOC has offices throughout the country. Below are the addresses of several EEOC offices in the Northern California/Bay Area:
- EEOC
901 Market St., #500
San Francisco, CA 94103
(415) 356-5100
- EEOC
1301 Clay St., #1170
NOakland, CA 94612
(510) 637-3230
- EEOC
96 N. Third St. Ste. 200
San Jose, Ca. 95112
(408) 291-4231
DFEH. The Department of Fair Employment and Housing is the state agency which investigates complaints of violations of state employment discrimination laws. The DFEH has offices throughout the state. Below are the addresses of several DFEH offices in the Northern California/Bay Area:
- DFEH
1330 Broadway, #1326
Oakland, CA
(510) 622-2941
- DFEH
30 Van Ness Ave., #300
San Francisco, CA 94102-6073
(800) 884-1684
- DFEH
111 No. Market St., #810
San Jose, CA 95113
(408) 277-1277
PLEASE NOTE. You must file a claim with either the EEOC or the DFEH (see below) before filing suit against your employer for discrimination. Our office can also help you through this process as well as represent you in court.
IF YOUR COMPLAINT GETS NOWHERE, YOU CAN STILL FIGHT BACK IN COURT.
The complaint process both within companies and through the federal and state agencies charged to investigate complaints often leaves employees empty-handed and feeling that justice was not done. This is often our law firm’s experience when we attempt to get a company or an agency to investigate a case of discrimination. It can be a frustrating and disappointing exercise.
But thankfully the law does give you the right to go to court.
Both Title VII of the federal Civil Rights Act of 1964 and the state Fair Employment and Housing Act give employees a right to sue an employer for violations of their rights, and if violations of the law are shown, the employee’s recovery may include your past lost wages and benefits, future wage loss, your attorneys fees and punitive damages. Punitive damages are calculated in part on the earnings of the company.
WARNING: The following is article
discussing legal issues. It is not intended to be a substitute
for legal advice. We recommend that you get competent legal
advice specific to your case. If you would like such advice
from our office, call (415) 777-4445 or (916) 349-2900 or
(408) 993-9737. |
