Category: Employment Discrimination

Overtime

Overtime Pay for Farm Workers in California

Last week marked the end of the “80-year-old practice of applying separate labor rules to agricultural laborers” in California, after Governor Jerry Brown passed a law implementing updated overtime wage pay changes for farmworkers. The bill passed with a vote of 44-32 in the State Assembly, which brought an uproarious applause by farm workers present at the time. This is a groundbreaking new law for California, a state which leads the way in efforts to protect the rights of farmworkers. California has the highest number of farmworkers in the country (totaling over 800,000) many of whom work over 60 hours per week. We discuss the issues around the new laws and the impact it will have in relation to overtime for farmworkers in California.

Currently, California law mandates that farmworkers are entitled to overtime pay after their tenth hour work of work per day, whereas other hourly employees are paid an overtime rate after their eighth hour of work. The last time a change was executed to the law governing wages for farmworkers was in 2002. Though the last set of additions were helpful, they still fell short, as farmworkers were kept as an exempt group of employees whose hourly pay rate was different than that of most other hourly employees in California. Surely, “equal pay for equal work” is a right which should be inherent. The current California Assembly bill supports this idea, stating that “the function of the Department of Industrial Relations is to, among other things, foster, promote, and develop the welfare of the wage earners of California, to improve their working conditions, and to advance their opportunities for profitable employment”.

Even though the law will not go into effect until 2019, it gives hope to many of the farmworkers within the state that there will be a shift in the way they are compensated and treated for their rigorous and back-breaking work. Law AB 1066 states that farmworkers will be entitled to receive overtime pay after working an eight hour shift, just like any other hourly worker within the state. Per the assembly bill, the law will be phased in from 2019-2022 for farms with more than twenty-five workers, those who employ less than twenty-five workers will have an additional three years to make the adjustment. These four and seven year phasing periods are meant to ease the burden on farm owners, while allowing employees to start getting some of the compensation they deserve. The bill does include a possible exception, which states that if an economic problem were to arise, the governor can suspend the overtime changes. This shows the degree of separation in the way that farmworkers are perceived amongst all other hourly workers.

Without even adding the possibility of the suspension, not all farm workers are happy about these new changes. Some farm owners claim the law will not be helpful for the workers, as they believe they will not be able to afford the changes. Instead, they will have to make decisions that will negatively affect the farmworkers income, rather than boost it. They anticipate that they will need to hire more workers and reduce the hours of the current workers, or else they will be faced with the decision of having to close down their farms. They claim that they will not only have to adapt to these changes, but also the new minimum wage changes happening within the next few years. It is hard to anticipate how the economy will change and how farmers will have to adapt to the constant changes, but farms now have to adhere to these stricter guidelines about how they should compensate their workers who are essential to the agricultural economy within the country and who should be paid accordingly for the work they do.

California was the first state to give farmworkers collective bargaining rights, workers compensation and unemployment service. The state also requires that employers provide rest breaks and access to water and shade. These requirements have improved the lives of countless farmworkers. Only time will tell, but hopefully these changes will bring a step-up in the way that farm laborers within the state, and perhaps around the country, are compensated for the hard work they do. What do you think this new law for overtime for farmworkers will do to the Californian economy?

Sources:

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB1066

http://www.nytimes.com/aponline/2016/09/12/us/ap-us-xgr-farmworker-overtime.html?_r=1

https://www.unitedag.org/news/governor-brown-passes-ab-1066-ag-overtime-bill/

 

 

 

 

defamation

Are you an employee taking legal action for the first time?

So you are a victim of your employer and wish to take legal action. You have just fallen into the category of an employee taking legal action for the first time! This can be very overwhelming, scary and stressful. This blog has been written to give you some idea on what to expect when you call us.

You must understand that being a lawyer is tough because in an ideal world, the job wouldn’t exist. On the flip side, it’s just as difficult being a prospective client or in need of legal services. No one WANTS to be in that position. But, the need does arise and so the legal services industry continues.

Something we hear all the time from prospective clients who are employees taking legal action for the first time, is that they were very nervous about calling us in the first place. This completely understandable! From the stereotype of the ruthless attorney to how legal action is portrayed in popular culture, there are tons of misconceptions about the process. We’re here to set the record straight, and help to put your mind at ease about what to expect.

  • Call (don’t drop in) the law firm to speak with someone about getting started.
    • Law firms are busy places. People are working hard on upwards of hundreds of cases at a time, depending on the size of the firm. All firms operate differently, but many places do not accept walk in clients for attorney consultation. Instead, you would want to call the firm ahead of time, and let them know you are a potential client. From there someone can assist you, usually with a short, confidential intake process over the phone. This is necessary to get all of the important details which the attorney will be using to evaluate your potential case. This information will then be passed on to an attorney for evaluation, and if they think your case is something the firm can assist you with, you will be scheduled for an in-person consultation with the attorney.*Tip: Be sure to ask ahead of time if there will be a consultation fee involved. Here at Aegis Law Firm, your initial consultation with the attorney is free!
  • A good attorney cares about customer service.
    • It’s one thing to be great at public speaking, convincing juries, or quoting the law off the top of your head. But another crucial part of what makes a great attorney is their ability to connect with the client. When it comes down to it, we are working for you! A lot of people think it’s the other way around. We are proud to serve you, and grateful that you chose our firm for assistance. For this reason, most attorneys are very approachable and want to make the process as easy for you as possible. So don’t sweat that initial meeting – we don’t bite!*Tip: Check out a firm’s web presence to get a sense of their customer service rating. Their website probably includes bios to let you know who you may be working with.
  • How the firm gets paid – hourly or contingency?
    • Typically, firms receive payment from one of two structures: hourly billing, or contingency. Hourly billing is pretty self-explanatory – the firm sets an amount to charge per hour and depending on how much time is spent on a matter that is how much the client pays. Contingency is when the firm does not take any money up front, and payment comes from a settlement obtained at the end. Either way, the amount is mutually agreed upon at the beginning of services, and included in a retainer document that both parties sign.
  • Will I have to go to court?
    • Each case is different, so unfortunately there’s no blanket answer to this question. Many people want to stand up for themselves, but are scared of having to participate in a trial or other court proceedings, especially employees taking legal action for the first time. What can be said, is that going to trial is usually the very last option. Most cases are settled before the lawsuit is even filed with the courts, which is beneficial to both sides. There are several avenues that attorneys may take in order to settle your case with the best result. However, in the event that you do need to go to court, your attorney will work closely with you to prepare you for any appearances you would need to make or address any concerns you have.

So there you have it! Nothing to be scared of, right? If you are an employee taking legal action for the first time, or perhaps you may have an employment issue that you wish to take action on, give our office a call today and we would be more than happy to help you get started!

Sexual Harassment Attorney

Sexual Harassment Claims Land Shaun White in Hot Water!

Olympian, musician, and entrepreneur Shaun White has found himself in hot water. Former bandmate Lena Zawaideh has filed a lawsuit against him, alleging sexual harassment as well as wage claims. She states he did not pay her for some of her work. The legal matter was initiated in May 2016, but was not filed in court until recently.

Zawaideh was fired from the band Bad Things (which she helped form with White in 2008) after the end of their 2014 tour. She claims that throughout her duration working with the band, she was subjected to sexual harassment by White, being forced to endure various explicit pornographic images, listen to White’s vulgar language, and have to wear provocative outfits. Zawaideh states she would receive text messages from White including images of “engorged and erect penises”, as well as being forced to watch “disturbing” pornographic videos, some of which sexualized human fecal matter. Another showed a couple killing a bear, then having intercourse on top of it. The court complaint also details scenarios ranging from White sticking his behind in Zawaideh’s face, to him grabbing her behind or trying to kiss her.

Screen captures of text messages between the two exhibit a very different side of the all-American “Flying Tomato”. Some conversations reveal White angrily admonishing Zawaideh for wearing a fleece sweater to a band photo shoot, (not provocative enough for his taste, presumably) saying he was “really disappointed” and if she were to do it again, she would be asked to go home. Another exchange shows White asking (or rather, telling) Zawaideh to cut her hair the following day “at shoulder length or above”, and that it’s “really important to [him]”. She then responds by declining to comply with this request, explaining that she is “very confident and happy with her long hair”, which elicits angry responses from White. Allegedly, the following day White went out of his way to avoid and ignore Zawaideh. This incident led to her unwilling separation from the group. Zawaideh did not hear from White or other management initially, but much later received word from the new band manager that the band had “decided to part ways with her”. Other band members called Zawaideh afterwards to let her know that they weren’t present at the time of the call as the manager claimed, nor did they have any part in her termination.

The accusations don’t stop at sexual harassment – Zawaideh is also seeking compensation for wages that she claims White stopped paying her. She alleges that she is owed about $42,000, as White stopped paying band members their contracted amount in January 2014 to “cut costs”. However, other band members’ payments were temporarily reinstated. Zawaideh’s payments were not, because as White told the other band members he believed she “did not need the money”. Additionally, Zawaideh is pursuing claims that she was misclassified as an independent contractor, and therefore is owed additional overtime pay.

In response to the allegations, White has issued a statement through his attorney, saying “Many years ago, I exchanged texts with a friend who is now using them to craft a bogus lawsuit….There is absolutely no coincidence to the timing of her claims, and we will defend them vigorously in court.” What he is referring to regarding the “timing of her claims” remains to be explained.

Zawaideh issued her own statement on the matter, saying, “I am pursuing this case because women should not have to tolerate harassment at work. Shaun White should not be allowed to do whatever he wants just because he is famous. Although I am embarrassed to have been treated this way, I cannot sit by and watch him do this to other women”.

Sexual harassment cases are seemingly on the rise in the entertainment industry, from the alleged victims of Bill Cosby coming forward to the multiple Fox News anchors alleging sexual harassment. Perhaps the occurrences of sexual harassment are not rising, but more people are willing to come forward about their experiences and fight for their rights.

 

Sources: https://www.scribd.com/document/321397378/Shaun-White-Legal-Complaint

http://www.tmz.com/2016/08/16/shaun-white-sued-graphic-sexual-harassment-allegations-penis-pics-fecal-matter-hair-demands/

http://nymag.com/thecut/2016/05/shaun-white-is-being-sued-for-sexual-harassment.html

 

 

 

General Counsel deposed in sex discrimination case, transgender professor

A sex discrimination case filed by the Department of Justice is in the news again, as a judge declared a potentially key witness in the matter will have to testify. The case is United States v. Southeastern Oklahoma University on behalf of former professor Dr. Rachel Tudor. The DOJ alleges that Tudor was terminated as the result of sex discrimination, due to the fact that Dr. Tudor is transgender.

The situation begins with Tudor being hired in 2004 on tenure track as an assistant professor at the university. At this time, Tudor presented as a male. In the summer of 2007, she notified the school that in the upcoming school year, she would begin presenting herself as a female, consistent with her gender identity. During this time, she started wearing a traditionally female hairstyle and clothing and took the name Rachel. This made Dr. Tudor the first transgender professor at Southeastern.

Shortly after notifying the school of the upcoming transition, she received a phone call from an HR representative stating that the Vice President of Academic Affairs, Dr. Douglas McMillan, had inquired about firing Tudor. His reason being that her “transgender lifestyle” offended his religious beliefs. The HR representative then advised Dr. McMillan that termination for this reason would be illegal. Jane McMillan (the sister of Douglas McMillan) advised Tudor to “take safety precautions” because some people were “openly hostile” towards transgender people. She also mentioned that her brother considered transgender people to be a “grave offense to his [religious] sensibilities”. This did not discourage Tudor, however, and she continued teaching without noted performance issues.

In 2009, Tudor met with the Dean of her school Dr. Lucretia Scoufos in order to prepare for her upcoming tenure application. It was at this meeting that the Dean became aware Tudor is transgender. Despite being made aware of this fact, Tudor states that the Dean continued to refer to her using male pronouns. Also at this meeting, Tudor made it clear that she felt a faculty member in her department had been discriminating against her, and requested that this person not be a part of her tenure review board. The Dean did not relay the request to the Affirmative Action Officer, who responds to claims of discrimination.

At Southeastern University, tenure must be obtained by all professors by the end of their 7th year of employment. They are not allowed to apply until their 5th year of employment, however. If they fail to obtain tenure, their employment will be terminated. The application process includes assembling a portfolio to be reviewed by the chair of their department, other tenured faculty members, the Dean of the school, and various administrative figures before the final decision being made by the President of the university. Tudor received positive reviews and recommendations for tenure, until her portfolio reached the Dean of her school who, in spite of the praise from other faculty members, chose to not recommend Tudor for promotion and tenure. His letter of denial did not offer an explanation as to why or how he arrived at this decision. The portfolio was then passed to Vice President McMillan, who also wrote a letter not recommending Tudor for tenure without explanation. In February of 2010, Tudor requested the reason for denial from each party, in order to amend her portfolio before it was reviewed by the President of the University. Both the Vice President and Dean refused to offer her this insight, though another non-transgender male English professor had the opportunity to meet with McMillan, for guidance on strengthening their portfolio. This professor was later granted tenure.

The unwillingness to provide her with a fair opportunity for improvement led Tudor to file a grievance with the President of the college, Lawrence Minks. She also requested a hearing by the Faculty Appellate Committee, alleging that she was “denied due process” by McMillan and Scoufos refusing to provide reasoning for their negative evaluations. The FAC eventually ruled in Tudor’s favor, advising for McMillan and Scoufos to provide the missing information. However, that request was also denied by the responsible parties, rendering Tudor unable to supplement her portfolio, and ultimately leading the President to deny her application in April of 2010. His letter of denial did not give specific reasoning for the decision, but simply stated that the specifics would be discussed with her in a separate communication within 10 days. This communication never arrived, also leaving Tudor unable to file an appeal within the necessary time frame. Tudor’s application for tenure was the first in school history to be denied with positive recommendation of faculty and peers.

Eventually in June of 2010, Tudor received a letter identifying the reasons for her denial being that the areas “research/scholarship” and “university service” were supposedly deficient. However, it has been shown that her qualifications exceeded those of at least 3 other English professors granted tenure during her employment with the university. Supposedly, the Dean and VP insisted that they “couldn’t verify” a work listed in her portfolio, however, copies of that very publication sat in the University library. Covers of both clearly indicated Tudor’s role as editor.

Moving forward, Tudor notified her department chair in August 2010 that she intended to re-apply for tenure in the upcoming school year. Before she could do so, she received a letter the following October stating that she would not be allowed to re-apply that semester, saying it was “not in the best interest of the university” and that, among other reasons, he did not think her deficiencies could be corrected so quickly. He also made an odd comment stating that if administration once again disagreed with the faculty recommendations, the situation could “inflame” their relationships. This caused Tudor to once again file a grievance with the FAC who ultimately ruled in her favor once more in December, insisting she be allowed to re-apply that school year.

January of 2011, the Vice President of Business affairs responded to the FAC recommendation, He stated that the administration would not allow Tudor to re-apply because he and President Minks “interpreted” Southeastern’s policy on the matter to mean that applicants may not re-apply after the President declines them.

In May of that year, Tudor was ultimately terminated for “failing” to obtain tenure. Ironically enough, before her employment ended she received the Faculty State Recognition Award for Excellence in Scholarship for the 2010-2011 school year.

After her termination, Tudor filed a complaint with the regional EEOC office. Their investigation concluded that there was reason to believe Tudor had been discriminated against, and they referred the case to the Department of Justice.

The most recent development occurred on August 11th 2016. U.S. District Judge Robin J. Cauthron has granted the DOJ’s motion to compel the deposition of the university’s General Counsel Charles Babb. He will have to answer the federal government’s questions about communications he had with university employees about Rachel Tudor. The discussions included her gender transition and grievances she had filed.

Disability Discrimination

The Equal Employment Opportunity Commission has initiated a lawsuit against a McDonald’s franchise for violating the ADA (Americans with Disabilities Act). A former employee was terminated in February of 2015, seemingly due to his disability – being HIV positive. His termination came only days after management became aware of his condition, though he had been hired in November 2014.

The complaint against Mathews Management Co./Peach Orchard Inc. details one undeniable violation of the ADA, as the franchise required employees to disclose all of their prescribed medications to management. This policy is actually listed in the company’s employee handbook, but no information has been released as to how or when employees are required to disclose. Through such disclosure, management became aware that the “aggrieved party” is HIV positive.

About a week before his termination, the employee was questioned by his shift leader regarding his HIV status. At this time, the supervisor warned the plaintiff that he may be fired, because another female employee was previously terminated due to being HIV positive [Disability Discrimination]. At a different meeting with the general manager, the employee faced questioning about his relationship with a co-worker. The employee admitted they had an “interest” in their co-worker, and also had he had confided his HIV positive status to them. It was at this meeting that the employee was terminated, supposedly due to “attendance issues”. The plaintiff and his council maintain that other employees with far worse attendance records continue to work without consequence.

The Americans with Disabilities Act became law in 1990, and seeks to protect employees from Disability Discrimination. Under federal rule, a disability is defined as “a physical or mental impairment that substantially limits one or more major life activities of such individual”. HIV positive status is protected under the ADA, both symptomatic and asymptomatic. Not only would it protect those with a disability, it also extends protection to those associated with someone having a disability. For example, if employment was denied to an applicant because their partner has AIDS/HIV. Additionally, a “presumed” disability would not be an acceptable reason for termination/denial of employment.

There are some stipulations for ADA coverage to be applicable to an employee. First, the business must be a private entity employing 15 or more people. Moreover, the employee must be able to complete the “essential functions” of the job, with or without “reasonable accommodation”. Alleviation of the “essential functions” would not be considered a “reasonable accommodation. The ADA describes an essential job function as “Essential functions of the job are those core duties that are the reason the job position exists. For example, an essential function of a typist’s position is the ability to type; an essential function of a bus driver s position is the ability to drive. Requiring the ability to perform “essential” functions assures that an individual with a disability will not be considered unqualified because of his or her inability to perform marginal or incidental job functions”.

Regarding what a reasonable accommodation includes, the law states, “A ‘reasonable accommodation’ is any modification or adjustment to a job, the job application process, or the work environment that will enable a qualified applicant or employee with a disability to perform the essential functions of the job, participate in the application process, or enjoy the benefits and privileges of employment. Examples of ‘reasonable accommodations’ include: making existing facilities readily accessible to and usable by employees with disabilities; restructuring a job; modifying work schedules; acquiring or modifying equipment; and reassigning a current employee to a vacant position for which the individual is qualified”.

Finally, an employer is not required to make a certain reasonable accommodation if the accommodation would place an “undue hardship” upon the business and its operations. Generally, the larger the company, the less chance there is that an employee’s absence or accommodations will place an undue hardship upon the company as there will be more resources available to support the change. Finally, it is the responsibility of the employee to notify the employer that they need accommodations in order to perform their job successfully. An employer cannot be held responsible for conditions they were not aware of.

Events like the ones the former McDonald’s employee was forced to endure are what the ADA seeks to prevent. The good news is, the employee took appropriate action by retaining an attorney to fight their case. If you have experienced a similar situation, or feel like you may have been terminated due to your disability, please contact our firm as soon as possible for a confidential no obligation case evaluation. Injustices shouldn’t go without consequence. For all Disability Discrimination inquires contact us at aegislawfirm.com, an award winning law firm representing employees only.

SOURCES:

https://www.ada.gov/archive/hivqanda.txt

http://www.reuters.com/article/us-mcdonalds-hiv-lawsuit-idUSKCN0ZL2TZ

https://www.eeoc.gov/eeoc/newsroom/release/7-5-16.cfm

http://www.eater.com/2016/7/6/12105692/mcdonalds-hiv-discrimination-lawsuit-eeoc