California Employment Attorneys – We Can Help

Harris & Kaufman is a California law firm that’s dedicated to representing employees in disputes against their employers to do with employee rights in California. Our California labor lawyers also represent employees and workers in wage disputes, overtime pay, vacation pay, unlawful termination, rest and meal period cases, sexual harassment, workplace discrimination, gender and race discrimination,pregnancy discrimination, and cases regarding tips and tip pooling. Our lawyers can assist you if you believe that your employer has broken the California Labor Laws.

Our employment attorneys are experienced and have had numerous trials, arbitrations, and appeals and have litigated on behalf of thousands of employees.

Harris & Kaufman has represented workers in state and federal court and in administrative proceedings before the California Labor Commissioner. Determined and aggressive, our cases include individual disputes and class action lawsuits.

We can assist you with a wide variety of workplace disputes to do with the California Labor Laws. We are aggressive and experienced lawyers and can help enforce your rights under California state law or state regulations. Based in Sherman Oaks, California we serve greater Los Angeles, Orange County, Ventura County and have cases statewide.

For more information on your employee rights in California call:
Toll Free 1-800-559-6868

California Court of Appeal declares Circuit City’s Arbitration Agreement Unenforceable

A good example of an unfair arbitration agreement is discussed in the decision of Gonlugar v. Circuit City Stores, Inc. Harris & Kaufman represents the plaintiff against Circuit City in an overtime pay class action. In September 2004, a court of appeal said that Circuit City’s arbitration agreement could not be enforced. The court of appeal found that the terms of Circuit City’s arbitration agreement were so one-side that it “shocked the conscience”. Among the things, Circuit City’s arbitration agreement bound only the employee to arbitration, required the employee to pay fees to Circuit City just for initiating the arbitration (Circuit City pays no such fees), imposes a shortened statute of limitation on the employee (and not on Circuit City), and prohibits class actions. The court concluded that the “central purpose of the agreement” was “tainted with illegality”.

Harris & Kaufman Employee Attorneys Prevail at Trial, Prove that U-Haul General Managers Entitled To Overtime Pay Under State Law

In a case with major state-wide implications, Harris & Kaufman employee attorneys successfully represented the plaintiffs in a class action for overtime pay against U-Haul International, Inc. In Crandall v.s. U-Haul International, Inc., Harris & Kaufman, with William E. Harris & Matthew A. Kaufman acting as lead attorneys, represented 480 current and former employees, entitled “General Managers,” of U-Haul rental outlets. At trial, the employees argued that the Phoenix-based company wrongly classified them as exempt from overtime requirements of California law. The plaintiffs claimed that they spent most of their work time engaged in sales and the same work as the other non-management employees at the stores. The court agreed with the plaintiffs, ruling that the evidence did not show that the employees spent over 50% of their time engaged in management work as required by state law.

U-Haul threw everything but the kitchen sink at the plaintiffs. U-Haul spent millions of dollars in its defense by hiring four law firms, an uncountable number of lawyers, and many high-priced expert witnesses. Adding to U-Haul’s resources, the California Employment Law Counsel, an organization financed by big business, also appeared as a party in the case and lobbied the court of appeal and supreme court to intercede. Despite the financial mismatch, Harris & Kaufman proved their determination and that the employees were non-exempt by persuading the trial judge to disregard U-Haul’s arguments and rule on behalf of the employees.

This is the first class action to go to trial on the issue of whether managers spent over half their work time engaged in exempt work under California law. The case, which was the subject of articles in Business Week, CFO Magazine, The Los Angeles Times and The Los Angeles Daily Journal, was closely followed by the employer’s bar and lobby. The result implicates the common practice throughout the state of classifying as “exempt” employees who work on the sales floors and production lines.

Arbitration in Employment Disputes: Don’t Believe The Hype!

Arbitration is where parties to a dispute agree to resolve a dispute outside of court. The parties hire a third person, usually a retired judge, and their agreement determines the rules of how the arbitrator makes his or her decision. There is no jury and, usually, no appeals. Even if the arbitrator makes a mistake, the parties usually have to accept the arbitrator’s decision. Thereafter, a court will enforce the arbitrator’s judgment the same way it enforces its own judgments.

Much effort has been put into convincing the public that arbitration is a great way to resolve any dispute, including employment disputes.  Arbitration advocates say that arbitration is quicker and less expensive for everyone.  If this is so, then why not prefer arbitration?

These arguments are concocted to favor business.  Would you still prefer arbitration if the rules of conducting the arbitration favored the employer?  How would you feel if the arbitrators likely would favor the employer when awarding damages, and would award less on claim than a jury?  Those arbitrations are not free by the way, and the arbitrators (at least where I practice in Los Angeles) charge in the neighborhood of $450 per hour.  You may be required to pay half or all of the arbitrator’s fee, which probably will be thousands of dollars.

Arbitration is big business.  For example, the American Arbitration Association reports that its revenues were almost $84 million a year in 2002.  Like any business, it will favor its repeat customers, namely, other big businesses.  (Who do you think conducts more arbitrations, you or General Motors?).  In fact, the California Supreme Court acknowledges the pro-defense and pro-business bias of arbitration.  “The perceived advantages of the judicial forum for plaintiffs include[s] . . . the fact that courts and juries are viewed as more likely to adhere to the law and less likely than arbitrators to split the difference‚ between the two sides, thereby lowering damages awards for plaintiffs.” ‚Armendariz   v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal. 4th 83.  That is a nice way of saying, “people know that arbitrators don’t always stick to the law and award less.”  If you don’t believe me, I can’t wait for your first arbitration result.

I have seen many arbitration agreements in my practice, and I am always surprised at how low employers will go to skew the process of arbitration in their favor.  For example, Circuit City’s arbitration agreement requires their employees to pay a fee to Circuit City before beginning an arbitration.  No Court in the United States requires that one party pay a fee to another party just to get into court.  Many arbitration agreements shorten the statutes of limitations or require that their employees bring their disputes to a panel of employees first for resolution, thereby subjecting the employee to the company attorneys before the employee gets legal representation.  Others limit how much fact finding (discovery) the employee can do prior to the arbitration.  This favors employers tremendously, because their lawyers and not the lone arbitration claimant will have access to many employees and documents.  These clauses are designed to skew the conflict in the employer’s favor.

 

Arbitration in California

Unfortunately, in California, an employer can require its employee to agree to arbitration as a term of employment.  There are some protections.  If an agreement has too many unfair or one sided terms, California courts may refuse to enforce the arbitration agreement or sever the unfair terms.

Do not ignore these agreements if you have a dispute with your employer.  Many people think that these agreements can be ignored or that it is some paperwork to cover a legal formality.  In California, if you ignore the arbitration agreement, at some point a court may find you in breach of the arbitration agreement.  In that case, you will not be able to proceed with an arbitration or in court, and you will not be able to get any remedy for your dispute no matter how good your case is.

Arbitration is a very tricky area because the law is still developing.  You should consult a knowledgeable attorney before to trying to resolve any dispute where you have an arbitration agreement.

 

California Employment Attorneys Harris & Kaufman Can Help

Harris & Kaufman can assist you with a wide variety of workplace disputes. We are aggressive and experienced attorneys and can help enforce your rights under state law or state regulations. If you believe that your employer has violated your rights call us toll free at 1-800-559-6868.

 

Sexual Harassment In The Workplace: What is Sexual Harassment in California?

When an employee has to gratify the sexual appetites of someone else in order to make a living, that is sexual harassment. The law classifies sexual harassment in two categories, quid pro quo and hostile environment sexual harassment.

Quid Pro Quo sexual harassment involves a supervisor who demands sexual favors for other job benefits. This occurs when a supervisor requires sexual gratification for raises, promotions, or just keeping the job. This includes punishing those who refuse to comply.

Hostile Work Environment sexual harassment is where the workplace is hostile or abusive on the basis of sex. The sexual environment has to be such that it would offend a reasonable person. Further, the employer knew or should have known about harassment and failed to promptly remedy the situation.

In California, when supervisors are committing the harassment, the employer is automatically liable if the harassment culminates in tangible employment action. Tangible employment action is reassignment to a less desirable position, to failure to promote, to termination, or other negative action. If no such tangible employment action is involved, the employer will be liable anyway unless it can establish a defense that it acted reasonably to prevent the harassment and the employee did not take advantage of the employer’s preventive actions.

To best preserve their rights, employees who feel they are sexually harassed should immediately report it to their employer and follow the company’s sexual harassment policies. These policies usually mean informing the employers human resource department of the problem, and that is exactly what a sexually harassed employee should do.

Do not “play along” or appear to consent to the harassment. This is a defense to sexual harassment. 

Sexual harassment is an extremely complex area of the law, and employees should consult with knowledgeable attorneys if they fee they are sexually harassed. A lawsuit on the basis of sexual harassment may likely require the filing of a claim with different state and federal administrative agencies. People who think they have been sexually harassed are strongly advised to seek legal assistance.

 

California Sexual Harassment Law: Employer’s Duties in the Workplace Under Sexual Harassment Laws

An employer must take all reasonable steps necessary to prevent discrimination and harassment from occurring. If harassment has occurred, the employer has a duty to take measures to not only change the harasser’s behavior, but to prevent potential harassers from unlawful conduct.

Employer’s Duties Under Sexual Harassment Laws

An employer must take all reasonable steps necessary to prevent discrimination and harassment from occurring. If harassment has occurred, the employer has a duty to take measures to not only change the harassers behavior, but to prevent potential harassers from unlawful conduct.

Employers Cannot Permit Retaliation Against Employees Who Complain About Sexual Harassment

Part of preventing sexual harassment in the workplace is permitting employees to seek management’s helping preventing it. Employees are protected from retaliation if they complain about harassment or discrimination. Employers cannot punish employees directly or indirectly for making complaints, assisting or opposing any prohibited practices such as sexual harassment and racial discrimination. If an employer does retaliate, an employee has grounds for a lawsuit.

California Sexual Harassment Law: Important Factors and Remedies on Sexual Harassment Cases

Some things that courts and juries examine when in assessing sexual harassment and discrimination cases are:

  • Frequency of the harassment
  • Severity and offensiveness of the harassing behavior
  • Did the victims act reasonably in the situation, i.e., whether the victim
  • appeared to invite or consent to the harassment
  • Context and circumstances of the alleged harassment
  • The size and nature of the employers business
Examples of Harris & Kaufman’s Sexual Harassment Cases

Some of Harris & Kaufman’s sexual harassment cases include:

In a department store, a male supervisor of a female employee solicited sex from her, graphically discussed his sex life, and would rub her arms and shoulders. After she complained, the supervisor was fired. However, she then was rescheduled to the graveyard shift, received poor performance reviews, and did not get promoted. She sued for sexual harassment and retaliation.

At a car dealer, a male supervisor solicited sex from a male salesman. The salesman refused. After the salesman complained to human resources, he received poor performance reviews and was ultimately terminated. He sued for sexual harassment, failure to prevent harassment, and retaliation.

Remedies for Employees Who Are Sexually Harassed

Employees who are subject to unlawful termination and harassment may be able to recover the following:

  • Past lost wages and other benefits
  • Future lost wages and benefits
  • General damages. This includes emotional distress and pain and suffering
  • Punitive damages
  • Attorney’s fees

National Origin Discrimination In California

Federal and California state laws prohibit discrimination on the basis of an individual’s national origin. While national origin is protected, citizenship, however, is not.

What is national origin discrimination?

National origin broadly refers to the country where a person was born or where his or her ancestry comes from, and it includes any display of the physical and cultural traits of a particular national group. National origin generally means “ancestry.”

National origin discrimination occurs when an employer discriminates against an employee on the basis of his or her national origin and/or ancestry.

What acts by an employer constitute national origin discrimination?

• A rule that requires employees to speak English at all times in the workplace constitutes national origin discrimination because it disadvantages employees whose primary language is other than English.

• An employer who believes an employee to be of one nationality and discriminates against him or her on the basis of that belief,–even though the employee is not of that nationality–, constitutes national origin discrimination.

• An employer may not discriminate against an employee who merely associates with an identifiable national group, even though the employee may not be a member of that group.

Remedies

The following remedies are available for national origin discrimination:

  • Backpay
  • Reinstatement or front pay
  • Injunctive relief
  • Reasonable attorney fees and court costs
  • Compensatory damages for pain and suffering
  • Punitive damages

Racial Discrimination in the Workplace: Some Basics Regarding California Laws

There are many different types of harassment and discrimination. In California, there are laws protecting employees on their race, color, national origin, religion, age, disability, pregnancy, sex and sexual orientation. Further, employers cannot terminate employees for certain public policy reasons. Workplace harassment and workplace discrimination can result in wrongful termination, hostile work environment, and demotion. The following is based on California employment law:

California Law – Discrimination

For discrimination on the job, the employee has to be a member of a protected class. In California, protected classes include race, color, national origin, religion, age, disability, sex and sexual orientation.

There are two different types of discrimination, disparate treatment and disparate impact:

Disparate Treatment &endash; Disparate treatment means simple discrimination. This is treating a person differently because of a protected class, like sex or race. Slurs, offensive “jokes” and comments, or other actions against people in protected classes unlawful discrimination if the conduct creates an intimidating, hostile, or offensive working environment, or interferes with work performance.

Disparate Impact &endash; Disparate impact is where a company policy excludes certain individuals from the job or from promotions. For example, a company required all new hires to have high school diplomas, even for janitor positions. African Americans in the company’s geographic area had far less education than whites and were far less likely to have high school diplomas. Since a high school diploma had nothing to do with holding a janitor’s job, and the company’s policy excluded many blacks, this was considered disparate treatment.

Whistle Blowing and Termination and Demotion Based in Contravention of Public Policy

The law will allow employers to terminate, demote or harass their employees for certain reasons, such as race, color, national origin, religion, age, disability, pregnancy, sex and sexual orientation. People who have suffered for these reasons have a remedy in the courts.

Along the same lines, the law protects “whistle blowers.” Whistle blowing is when an employee informs government or law-enforcement agency that their employer is breaking the law. An employer cannot retaliate against an employee for whistle blowing.

Employers Cannot Permit Retaliation Against Employees Who Complain About Discrimination

As in sexual harassment law, employers have a duty to prevent racial discrimination in the workplace, and they must permit employees to seek management’s helping preventing it. Employees are protected from retaliation if they complain about racial harassment or discrimination. Employers cannot punish employees directly or indirectly for making complaints, assisting or opposing any prohibited practices such as sexual harassment and racial discrimination. If an employer does retaliate, an employee has grounds for a lawsuit.

Remedies for Employees

Employees who are subject to unlawful termination and harassment may be able to recover the following:

  • Past lost wages and other benefits
  • Future lost wages and benefits
  • General damages: This includes emotional distress and pain and suffering
  • Punitive damages
  • Attorneys fees

California Disability Discrimination: The ADA and FEHA

The law protects people with disabilities on the job.

The federal Americans with Disabilities Act (“ADA”) and California’s Fair Employment and Housing Act (“FEHA”) protect qualified people with disabilities but who can do the job. It requires employers to make reasonable accommodations (as defined below) to allow disabled people to perform a job’s essential functions. This is not a guarantee of a job for disabled people, but it is protection for those who can perform its essential functions from being discriminated against on the basis of their disability.

What duties do employers owe applicants and employees with disabilities?

Employers must make reasonable accommodations to enable an employee with a disability to perform a position’s essential functions.

A reasonable accommodation is an action that enables an employee with a disability to receive the same opportunities and benefits of employment as other employees. This may be fulfilled by making facilities readily accessible to disabled individuals, providing transfer or reassignment to a vacant position for which the disabled employee is qualified, providing part &endash;time or modified work schedules, or providing modified equipment or devices to accommodate a disabled employee. This is an ongoing duty and not a one-time effort.

However, the employer’s duty to accommodate has its limits. Accommodations must not impose an “undue hardship” on the operation of the employer’s business. The employee must prove that the accommodation is reasonable both in cost and benefit to the employer’s business.