Tag: employment discrimination

Free Speech and 140 Characters

According to the New York Times, a National Labor Relations Board office claims Thomson Reuters Corp. violated federal labor law with its Twitter policy.

“Labor law specialists say employees have the right to criticize or disparage their companies or supervisors as part of a conversation aimed at improving working conditions, but do not have the right to merely curse supervisors or make untrue, disloyal statements that damage a company’s reputation.”

Regardless of the legal right, it simply isn’t smart to bad mouth your employer using social media. That being said, the NLRB action indicates that American free speech principles remain alive and well, even if the speech is limited to 140 characters.

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

Your rights as an employee in California

Obviously your job is important to you. It feeds your family. Pays the rent. Helps educate your children.

You work hard for your employer. You show up on time and stay late when needed. You do your best to succeed.

Though you have to meet the requirements expected at work, you also have certain rights under the law as an employee.

For example, generally speaking, you employer has to pay you the minimum wage. Most hourly employees are also entitled to regular breaks, overtime pay, worker’s compensation insurance, unemployment insurance and unpaid time off for serious illness or a new baby.

Sexual harassment in the workplace is generally prohibited, as is discrimination based on certain characteristics such as gender, race, national origin or religion. If you suffer from a disability, your employer may be required to accommodate you by making changes in the workplace so your can perform the essential functions of your job position.

Sometimes a situation at work will seem unfair or even intolerable. When it does, it is best not to suffer in silence. Let your supervisor know that there is a problem, or if appropriate, consult with human resources. Most workplace problems can be resolved informally when there is communication. You may be surprised with the result!

If your employer is unwilling to help you solve your workplace problem, there may be other solutions. The California Department of Industrial Relations can help you understand your rights and provides services for employees in the state.  There are low-income clinics and workshops aimed to assist California workers, you can find references to them on the internet.

Of course, if you have a serious employment problem, whether its wage and hour, wrongful termination or discrimination, Daniels Legal | Law Offices is on your side.

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

Due Process

Labor Code Section 203 provides a waiting time penalty that is consistent with constitutional due process.

State Farm v. Campbell (2003) 538 U.S. 408 concerns constitutional due process limits on punitive damages, not civil penalties.  As the Supreme Court notes, one prong of its test in BMW of North America, Inc. v. Gore (1996) 517 U.S. 559 (which refused to sustain a $2 million punitive damages award accompanying $4,000 in compensatory damages) is “the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.”  The evil Campbell sought to remedy was the risk of an excessive punitive award imposed by a lay jury.  “We have admonished that ‘[p]unitive damages pose an acute danger of arbitrary deprivation of property.  Jury instructions typically leave the jury with wide discretion in choosing amounts, and the presentation of evidence of a defendant’s net worth creates the potential that juries will use their verdicts to express biases against big businesses, particularly those without strong local presences.”

The law does not view wage penalties as implicating property rights, which puts the 203 penalty outside of Campbell right at the start.

“A statute entitled ‘An act to provide for the protection of servants and employees of railroads,’ relating to the payment of unpaid wages without abatement or deduction on discharge of an employe[e], does not amount to deprivation of property, as the act is purely prospective in its operation.  It does not interfere with vested rights, existing contracts, or destroy, or sensibly encroach upon, the right to contract, although it imposes a duty in reference to the payment of wages actually earned, which restricts future contracts in the particular named.”  [Citation omitted.]

Moore v. Indian Spring Channel Gold Mining Co. (1918) 37 Cal.App. 370, 378 (quoting St. Louis, etc., R.R. Co. v. Paul, 173 U.S. 409).

When the section 203 penalty scheme withstood a constitutional due process challenge early in the last century in Moore v. Indian Sprint Channel Gold Mining Co. (1918) 37 Cal.App. 370, the remedial purpose of the penalty was highlighted in the decision.  After a penal statute imposing misdemeanor liability and a fine not to exceed five hundred dollars was ruled unconstitutional (Matter of Crane, 26 Cal.App. 22), the legislature changed the law to impose a penalty based on wages with a thirty day limit.

Appellant expresses difficulty in discovering any material distinction between the two acts.  In the act of 1911, continues the brief, the penalty is nothing more nor less than a fine not exceeding five hundred dollars; while in the amendment of 1915 the penalty is in effect a fine not exceeding thirty times the servant’s daily wage.”  It seems to us that the distinction is obvious in this:  The act of 1911 declares that a violation of its provisions is a crime for which the violator is answerable to the state, while by the amendment he must compensate the wage-earner by way of penalty.”

Moore at 373-374.  The court of appeal compared the penalty to other statutes, such as Code of Civil Procedure sections 732, 733 and 735 which impose treble damages on tenants who commit waste, cut down trees or forcibly detain property.  “The constitutionality of these sections is not questioned.  They are held not to be penal, but remedial.”  Id. at 375.

The Court of Appeal distinguished between remedial civil penalties and punitive damages in Los Angeles County Metropolitan Transportation Authority v. Superior Court (2004) 123 Cal.App.4th 261, and held that a government entity is not immune from civil penalties imposed by the Unruh Civil Rights Act (Civil Code section 52 et seq.) under Government Code section 818, which bars imposing punitive damages against public entities.  “[A] number of courts have concluded that to be condemned as punitive, a penalty, generally speaking, must simply and solely serve that purpose.”  Id.at  272  “It is apparent from this legislative history that section 52 has at least two important non-punitive purposes.  The first is simply to provide increased compensation to the plaintiff.  The second purpose, and perhaps the most important one, is to encourage private parties to seek redress through the civil justice system by making it more economically attractive for them to sue. . . . If not for the civil penalty, many such litigants would neither have the economic incentive nor the means to retain counsel to pursue perpetrators under the statute.”  Id. at 271-272.

Moore notes that the 203 penalty has a similar purpose.  “There has been a pronounced tendency in state and national legislation for many years, not only to ameliorate the working conditions of the wage earner, but to safeguard him in his relations to his employer in respect of hours of labor and the compensation to be paid for his labor. . .  the public safety and welfare demand . . . laws which are designed to secure [for labor] a reasonable wage, [and] to provid, where practicable, for the enforcement of payment by way of liens on the product of his labor . . . The intention of the penalty imposed by the act in question is to make it to the interest of the employer to keep faith with [its] employees and thus avoid injury to them and possible injury to the public at large.”  Id. at 381-382.

Note:  Moore repeatedly refers to the wage and labor laws under discussion as applicable to a class, e.g., “The act refers to all wage-earners, designated as employees, as the class referred to, and it unquestionably applies equally to all of the class.”  Id. at 379.

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

CA Employment Discrimination and FEHA

In California, workers are protected from employment discrimination by law.

FEHA protects California workers from employment discrimination
Employment Discrimination laws in FEHA protect California workers

Some of the strongest employee protections are found “FEHA.”

The Fair Employment and Housing Act (FEHA) prohibits harassment and discrimination in employment because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, mental and physical disability, medical condition, age, pregnancy, denial of medical and family care leave, or pregnancy disability leave (Government Code sections 12940,12945, 12945.2) and/or retaliation for protesting illegal discrimination related to one of these categories. Continue reading “CA Employment Discrimination and FEHA”

Wage Theft and the Modern Worker

reject-thumbs-downCorporate after-tax profits are at their highest since 1929, reports The Economist.  Real income levels for most Americans have stagnated for a full generation.   In 1980, the average CEO made about 42 time as much as the average employee.  The ratio today is 373 to 1.

We are all pretty aware that the haves are getting more, while the have nots are falling behind.  There was a time when most people seemed to believe that if you couldn’t keep up in the economy, it must be your fault.  Following the Great Rescession, that thinking has changed big time.  Witness the rise of Bernie Sanders and Donald Trump.  There is a strong emotional current running through our society today, call it anger or unrest.  But the basic notion is, our capitalist system is being hijacked by the rich and powerful and we need to take a stand. Continue reading “Wage Theft and the Modern Worker”