What do you need to know about Equal Pay laws?

woman ready to take notesWith the current surge of women’s rights issues in the news, equal pay laws have been receiving a lot of attention. As an employer, you should be aware of both state and federal laws governing this area.

For example, California Labor Code 1197.5 prohibits the payment of wages at rates less than the rates paid to employees of the opposite sex in the same establishment if the job requires equal skill, effort, responsibility, and similar working conditions. Different pay rates may be allowed where they arise under a merit or seniority system, a system which measures earnings by quantity or quality of production, or a differential based on any factor other than sex (or else be faced with a sex discrimination lawsuit). The Federal Equal Pay Act is nearly identical to the California Statute.

Due to these laws, lawsuits regarding an employer’s failure to enact equal pay laws have steadily been on the rise. Typically in these cases, the focus is on the work product and qualifications of the employee filing the lawsuit versus the employee/gender of employees who are receiving better pay. The greater the disparity in pay, the more justification the employer will have to prove for such a disparity.

Judgments for these cases typically include not only the recovery of any wages lost  but also liquidated damages. A party bringing such a suit may also recover attorney’s fees in a private action to enforce this section.

As a result of these laws and the recent Lilly Ledbetter Fair Pay Act which essentially resets the statute of limitations to file a discrimination lawsuit with the receipt of each new paycheck, class actions lawsuits are steadily on the rise. These can be very painful suits to defend. They are long, time consuming, comprised of multiple former employees and a lot of work. The fallout of such a lawsuit can be both devastating to you personally and to you business.

At the risk of being redundant, employers should audit their workforce!  I’m going to keep saying it until they start doing it.  It’s the best way to protect and defend against these types of suits.  Remember that these lawsuits start with the big companies and slowly work their way down to small companies, so you aren’t safe simply by virtue of the fact that you have 20 employees instead of 20,000.  Many of my clients know this by personal experience.

If you want to know whether you are at risk for an equal pay lawsuit (or any other lawsuit), sign up today for a free Business and Employment Law Planning Session, or contact our employment law attorneys at (800) 449-8992 for a consultation.

How to Say "You're Fired"

Just FiredIf you’ve ever watched reality TV, you know the producers go for a big shock factor on each show. Nothing shocks someone more than hearing those two dreaded words:

“You’re Fired!”

There’s one show in particular, on which the “boss” actually utters those words and makes a cobra-like gesture when he let’s a contestant know they been fired.

Queue the dramatic music. Cut to the scowl on the face of the “boss.”  Pull the camera back to catch the look of shock on the face of the “employee.”

It’s good television for sure.

But in real life that is a dangerous scene.

In real life, in real business, that scene should never happen.  Any time an employee is separated from his position, there should be an orderly process void of snap judgments and surprises.

There are four main reason people lose their jobs:

Reason 1:  A Reduction in Force

Reason 2: Elimination of a Position

Reason 3: Poor Performance

Reason 4: Misconduct

Just about every job termination can be fit into one of these categories so let’s look at the business implications of each of them.

Quick reminder: This is not legal advice. You pay for legal advice. These workplace observations are free.  Always consult an attorney (preferably me) before making a decision on terminating the employment of any employee.

1. Reduction in Force

Sometimes you have more employees than you need. Maybe sales have slowed. Maybe you have a seasonal shift in demand. Maybe you just hired too many people and you cannot pay all of them.

Regardless of the reason, if you have more employees than you can afford, it may be time to reduce the size of your workforce.

In this case, you can and should prepare written notification for each employee whose position is eliminated.  The documents should be personalized and they should contain the specific dates when employment will be discontinued. They should also detail what, if any, severance pay and benefit packages are available.

You want to take great care to be fair and consistent in the methodology you use to calculate any severance or continuing benefits.

You also want to have your attorney review any documents the employee will need to sign as he departs. This is particularly the case for large workforce reductions, but certain Federal laws may apply, requiring notice and severance revocation periods.

If there will be some positions eliminated and some positions retained within one job classification, you definitely want to make sure you review each employee being retained and each employee whose position is eliminated, with your attorney.  This should be done for a number of reasons (cough avoiding a discrimination lawsuit cough) not the least of which is fairness.

2. Elimination of a Position

Similar to a reduction in force, eliminating a position requires a legal review to test for fairness and objectivity.

You may need to prepare similar paperwork detailing the date the work period ends and what, if any, severance pay and benefits are available.

One of the things you want to focus on when you eliminate a position is how you will redistribute the workload from that position. Many employers expose themselves to liability when they simply change the title of the job but all the responsibilities remain the same.

Eliminating a position is not a shortcut to terminating a problem employee. It should only be done when a position is no longer required or when a job has drastically changed. Using that excuse for firing a poor performing employee can result in a wrongful termination lawsuit in which your defense (poor performance) looks like pretext or retaliation. It’s also cowardly.

3. Poor Performance

When an employee is not performing up to standard, his employment can be discontinued.

While it may not be required, it is always a good idea to have a documented discussion with the employee about his performance prior to job termination. This provides an opportunity for the employee to improve and it helps show your desire to correct the situation without additional disciplinary action.

Documentation should be carefully worded and you should always have your attorney review it before you present it to the employee.

In the event the employee’s performance does not improve, you have a record of the previous conversations and it should come as no surprise to the employee.

The key in addressing poor performance with an employee is to have a process in place and make the employee aware of the process at the outset of his employment. But that being said, you have to simultaneously make clear that the process is ideal, but not required, before a termination can occur. It’s a tricky line to walk, so a good handbook and training for you HR staff is key.

4. Misconduct

Rarely, you may need to address an incident of misconduct that warrants job termination. Incidents such as theft, harassment, dishonesty, violence and discrimination require immediate action. In fact, ignoring such conduct and not terminating right away can create serious liability issues for you as the employer. So take these things seriously and act swiftly.

These incidents almost always require the involvement of or guidance from an attorney. Other people’s rights may be implicated. Or you may get an excuse from the employee for his behavior (such as a disability) that make things tricky. You want to connect with your lawyer to review what to say, how to say it and what documentation to prepare and deliver to the employee.

In some cases, you may need to gather facts and investigate before making a final determination. Again, it is best to have an attorney involved in the matter to advise you on how to conduct and document this investigation.

The law, as it relates to employees, is complex and it varies from state to state. The best time to review these laws and address them with your attorney is before you hire your first employee. The second best time is right now.

Nobody likes surprises when it comes to employee issues. Let’s leave the drama to reality television.

Reach out to me today to discuss my Employer Protection Package. My employment law team and I will review your current state and make recommendations for improvement before they become expensive litigation matters.

Religious Discrimination Lawyer

RELIGIOUS DISCRIMINATION

Businesses often employ a staff that practices half a dozen different religions. Some employees are more religious and worship daily, while others seldom participate or do not participate at all. Regardless of the frequency of their employees’ worship, employers must ensure that their rules, regulations, and business practices align with both state and federal regulations prohibiting discrimination based upon religion. Both the law and morality dictate that employers not discriminate against employees who have religious practices and cultural customs different than their own.

Indian women in traditional wedding and henna

When a job applicant or former employee alleges religious discrimination, the legal and financial consequences for your business can be devastating.  It is critical that you approach the matter with knowledgeable professional support. At Bellatrix PC, our experienced employment attorneys are dedicated to creating comprehensive, effective, and personalized defense strategies, and are proud to serve entities of all sizes, structures, and industries.

To arrange for a confidential case evaluation, call Bellatrix PC today at (800) 889-8376.

FEHA and Title VII of the Civil Rights of 1964

There are two significant laws which all employers must be mindful of with regard to employees who practice a religion: Title VII of the Civil Rights Act of 1964 at the federal level, and the California Fair Employment and Housing Act, commonly referred to as “FEHA,” at the state level.  Together, these two laws encompass numerous anti-discrimination provisions.

As many employers are already aware, Title VII of the Civil Rights Act of 1964 famously prohibits discrimination upon the basis of race, sex, color, national origin, or religion.  More specifically, Title VII prohibits treating employees differently due to either religious practices or religious beliefs, including the lack thereof.  This applies to both your personal conduct as an employer, and to all aspects of employees’ job duties and employment.  This could include, but is not limited to, matters of:

  • Benefits
  • Disciplinary Actions
  • Harassment
  • Hiring
  • Firing
  • Job Assignments
  • Promotions and Demotions
  • Recruitment

Title VII applies to all businesses with a workforce of at least 15 employees, in addition to unions and employment agencies.

FEHA, or the Fair Employment and Housing Act, mandates similar requirements for employers in the state of California.  With several rare exceptions, FEHA is even more expansive in scope than Title VII, extending to small businesses employing as few as six employees.

Compliance with Employment Law: Avoiding Litigation

In addition to delineating prohibited acts of harassment, intolerance, and discrimination, Title VII also prohibits denying an employee’s request for religious accommodation, provided such a request is “reasonable” and does not burden the employer with undue hardships.  Therefore, in order to better avoid religious discrimination lawsuits under Title VII and/or the FEHA, covered employers must attempt to make reasonable accommodations for an employee’s religious beliefs or practices in the workplace.

However, demonstrating undue hardship can be a very difficult for employers.  Most of the time, at least some form of accommodation that is discussed will not be found by courts to create an undue hardship and employers should generally offer some type of accommodation where possible.  Employers should also be careful to remember not to ask employees about the specifics of their religious beliefs, their availability for future holidays based on religion, or to require a dress code that violates an employee’s religious beliefs or practices.

On a final note, it is critical to remember that Title VII also prohibits acts of retaliation against job applicants, current employees, or former employees in response to allegations of discrimination.

Contact Our Business Attorneys

Sometimes a former employee will claim in their lawsuit both religious discrimination and national origin or racial discrimination occurred, as many cultures have a national religion or a practice that is not reflected in mainstream American culture.  But no matter what the former employee is claiming, Bellatrix PC has years of experience aggressively defending employers in a variety of discrimination cases, including religious discrimination in employment.

Our attorneys will meticulously analyze the strengths and weaknesses of the case, focusing on the most efficient and cost-effective resolutions for your business.  In addition, Bellatrix PC can also provide proactive advice on how to prevent potentially costly employment discrimination claims in the future.

To start discussing your business objectives in a private legal consultation, contact the employment law attorneys of Bellatrix PC right away at (800) 889-8376.

Sexual Orientation Discrimination

SEXUAL ORIENTATION DISCRIMINATION

Federal law and most states have various laws that prohibit sex discrimination, including, in many cases, sexual orientation discrimination. Additionally, California law strictly prohibits workplace discrimination based on an employee’s gender identity, biological sex, or sexual orientation. Businesses which violate these laws risk exposing themselves not only to the formal consequences of costly employee lawsuits and civil penalties, but also to the informal consequence of lasting bad publicity as a company which espouses prejudicial beliefs and practices.

boy and girl holding hands in sunset

If a former employee is alleging discrimination on the basis of orientation, sex, or gender, and has filed a lawsuit against your company, it is critical that you approach the matter tactically with support from an experienced employment law attorney. At Bellatrix PC, our knowledgeable legal team has extensive experience defending businesses, and will work with you to prepare a robust defense strategy against claims of employer misconduct.

Don’t allow the problem to escalate by delaying. To set up a confidential legal consultation, call Bellatrix PC at (800) 449-8992 today.

CA Anti-Discrimination Laws: Sex, Gender, and Orientation

People frequently refer to sex discrimination and gender discrimination as if they were interchangeable. In reality, there are key distinctions between these terms which are crucially important for employers to understand.

Sex discrimination refers to acts based on an employee’s biological classification as male or female. By comparison, gender discrimination refers to acts based on an employee’s personal characteristics, such as their manner of speech or way of dressing, as they relate to cultural “gender norms.” Gender discrimination is sometimes referred to as sexual orientation discrimination, and encompasses discriminatory acts based on an employee’s sexual preference.

California is one of 12 states, along with the District of Columbia, which protects employees against discriminatory acts based on sex, gender, and romantic preference. The law specifically protects individuals who identify as heterosexual, homosexual, gay, lesbian, bisexual, transsexual or transgender against discriminatory conduct.

Under California law, all of the following examples would be strictly prohibited by law:

  • An employer refuses to interview or hire a potential employee because he or she is openly gay.
  • An employer passes over a homosexual male employee for a promotion, even though he is just as qualified for the promotion as another heterosexual employee, solely because he identifies as homosexual. In this situation, the employees’ orientations are the deciding factor in the promotion, instead of their professional qualifications.
  • A male sales manager throws a dinner party at his house for other coworkers, including their spouses. He invites everyone on his sales team, except for a female coworker, because she has a same-sex partner.
  • A male employee is laid off due to wearing female clothing to work, even though he identifies as a woman.

Contact Our Business Defense Attorneys

As anti-discrimination legislation continues to broaden in scope, California-based companies can never be too careful or meticulous when it comes to handling lawsuits. The attorneys of Bellatrix PC will guide you through possible defense scenarios, and present different avenues in which to proceed with the claim. We will work with you to determine whether your organization could benefit more from pursuing a settlement, arbitration, mediation, or if need be, aggressive litigation.

Our experienced employment law lawyers will tenaciously defend you and your organization against employment discrimination claims in both state and federal courts. We want your business to succeed in the long-term, not just today, and will provide you with forward-thinking preventive advice that can help you avoid further claims heading into the future. Regardless of whether your company is large or small, new or well-established, you will benefit from our business risk review service.

Even if you have not been sued, and simply wish to discuss your organization’s current or proposed policies, we encourage you to contact us. Remember, reviewing your procedures today can prevent an expensive lawsuit tomorrow.

To start discussing your company’s situation in a private consultation, call Bellatrix PC right away at (800) 449-8992. Our offices are located in St. Louis, San Diego, and Riverside, CA.

Sex Discrimination

SEX DISCRIMINATION

Many people confuse gender and sex discrimination, as the terms “sex” and “gender” are often interchangeable. By definition, sex discrimination is based on an individual’s biological identity as male or female. By comparison, gender discrimination is based on individual characteristics which are culturally associated with “masculinity” or “femininity,” such as an employee’s manner of dressing or speaking.

half woman in red with fan

Employers must be extremely careful with regard to employment contracts or policies which could potentially infringe upon protected legal rights. It is difficult to be “too” vigilant or meticulous when it comes to drafting and implementing gender-neutral company procedures. Failure to do so can lead to allegations of workplace discrimination, which in turn can lead to highly contentious, disruptive, and expensive litigation.

Whether an employee has already filed a lawsuit against your organization, or you are simply concerned about ensuring compliance with state and federal anti-discrimination laws, the experienced employment law attorneys of Bellatrix PC can help. Our legal services range from performing a comprehensive business risk review to identify and improve vulnerable areas in your company’s current policies, to providing strategic and aggressive defense should litigation become necessary.

Don’t wait for the problem to escalate. To start discussing some of your legal options in a private consultation, call our business attorneys right away at (800) 449-8992. We proudly serve entities of all types, ranging from the small start-up or sole proprietorship to the well-established corporation.

Examples of Sex Discrimination in the Workplace

California state laws and federal laws alike vigorously protect employees against acts of workplace discrimination on the basis of sex. These laws require equal treatment, policies, standards and practices for males and females in all phases of the employment process. Employers should note this also extends to non-employee individuals who are submitting job applications. Laws prohibiting employer misconduct are aggressively enforced by the Equal Employment Opportunity Commission or EEOC, and generally encompass discriminatory policies and practices pertaining to:

  • Benefits
  • Compensation Packages
  • Hiring
  • Job Assignments
  • Layoffs
  • Promotions
  • Raises
  • Recruiting
  • Termination
  • Training
  • Working Conditions

Below are some common examples of discriminatory conduct based on an employee’s sex:

  • An employee sexually harasses another employee, such as making suggestive comments or requesting sexual favors. While many sexual harassment claims involve female employees alleging harassment by male bosses or co-workers, it’s important to remember that harassment of males by females, males by other males, or females by other females are all prohibited by law.
  • An employer passes over an employee for a promotion because he or she does not conform with typical “gender norms” related to dress, appearance, or other personal characteristics.
  • A business owner approves a reduction in workforce [link when published] which disproportionately terminates mostly male or female employees on the basis of sex rather than poor performance or other legitimate concerns.
  • An employer terminates an employee after discovering that he or she is homosexual or bisexual.

Does Your Business Comply with the Equal Pay Act?

Two of the most common forms of sex-based discrimination involve “equal work for equal pay,” and hitting the “glass ceiling.”

The Equal Pay Act or EPA of 1963, which is part of the Fair Labor Standards Act, generally requires employers to grant equal pay to male and female employees who are performing the same job under similar working conditions. However, it is crucially important for business owners to understand that “equal pay” is not limited to an employee’s salary alone, but also includes health benefits, overtime pay, bonuses, stock options, business travel expense allowances, and other reimbursements.

The EPA covers the majority of employers, subject to certain exceptions. In most cases, employers are required to keep detailed information on employee wages, hours worked, and conditions and employment practices. This ensures there are reliable records to examine should claims of discrimination arise in the future. Employers should consider such documentation to be one of their most powerful allies, as accurate records can often be used to disprove costly and damaging accusations.

The “glass ceiling” refers to the invisible barrier that prevents women, who are equally as qualified as their male counterparts, from being promoted due to their sex. Another version of this would be if an employer only hires males or only hires females for the company. These types of claims are generally filed in federal court as class actions against a particular company which the plaintiff alleges contains a “glass ceiling.” Discrimination claims based on sex can also be brought under the California Fair Employment and Housing Act, or FEHA, as well in state court.

Contact Our Employment Lawyers

Whether the sex discrimination claim against your company has merit or not, our experienced team can advise you regarding your legal options while investigating and developing your defense. We tailor our services to your company’s style and needs, while keeping your company’s legal budget and time constraints in mind.

To arrange for a private legal consultation, call Bellatrix PC at (800) 449-8992 today. Our Missouri offices are located in St. Louis, and our California offices are located in San Diego and Riverside.

 

Race Discrimination

RACE DISCRIMINATION

Even after more than 50 years after The Civil Rights Act of 1964, there continues to be a steady number of race discrimination, race harassment, and retaliation claims filed each year. Much has been written about the importance of diversity in the workplace and the importance of avoiding policies, practices and incidents that unintentionally have a disparate impact on minority employees. To keep your workforce happy and your business humming, it is incumbent upon the employer to avoid negative race issues.

black woman reading book and smiling

Employers must be more vigilant and proactive than ever when it comes to their employment policies. Business owners should make careful decisions when it comes to recruiting, hiring, training, promoting, demoting, and terminating employees, being sensitive to how these decisions may impact their workforce and all their employees. They must also be aware of the attitudes and behaviors of their managers, supervisors and even customers. Numerous laws have been enacted to protect employees at the state and federal level, and if an employer violates an employee’s legal rights, a lawsuit alleging discriminatory business practices can easily follow. Litigation disrupts daily operations, generates lasting negative publicity, and can inflict devastating expenses on your company, as well as demoralizes your workforce.

The bottom line is that legal claims alleging discriminatory policies or practices are serious matters which must be addressed immediately. The knowledgeable employment law attorneys of Bellatrix PC have extensive experience representing employers and entrepreneurs in national origin discrimination claims brought by employees. We pride ourselves on tactical and aggressive defense strategies, and are prepared to handle even the most complex and contentious of claims on your behalf. We will walk you through each and every step of the legal process, and fight hard to protect your organization’s best interests.

To arrange a private consultation with our experienced race discrimination lawyers, call Bellatrix PC today at (800) 889-8376.

Examples of Racial Discrimination in the Workplace

Some of the most common types of claims we see at Bellatrix PC are those made by an employee who alleges they have been terminated, harassed, laid off, and/or retaliated against because of their race and/or national origin. However, employers must remember that race discrimination, which is sometimes called ethnic-based discrimination or national origin discrimination, can also occur and be actionable even when the alleged victim is not an employee. Job applicants are also legally protected against discriminatory hiring practices.

The Equal Employment Opportunity Commission, or EEOC, aggressively enforces workplace anti-discrimination regulations. Employers, supervisors, and co-workers are all expressly prohibited from engaging in discriminatory conduct “when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.”

This can also extend to include an employee’s personal appearance. For example, the EEOC notes that implementing a “no-beard” policy, unrelated to the job, could have a “negative impact on the employment of African-American men (who have a predisposition to a skin condition that causes severe shaving bumps).” This example serves as a reminder that even seemingly simple employment policies can have significant legal implications for business owners.

Below are some additional examples of scenarios that could constitute racial discrimination:

  • A person is not interviewed or hired due to his or her race.
  • An employee is passed over for a promotion due to his or her race.
  • An employee is favored for a promotion over an equally qualified employee due to his or her race.
  • An employee or group of employees is disciplined or trained differently due to their race.
  • An employee is treated differently due to having an accent.
  • An employee is harassed due to being married to a person of another race.
  • A co-worker makes insensitive racial comments, jokes, slurs, or insults.
  • An employee is verbally or physically assaulted due to his or her race.
  • An employee is retaliated against for speaking out or complaining about discrimination in the workplace on behalf of himself or others.
  • An employee is fired or disciplined for saying he or she has been harassed or discriminated against.

Contact Our Employment Lawyers

If your business needs legal representation against an employee lawsuit, the skilled attorneys of Bellatrix PC can help. Our dedicated racial discrimination attorneys will thoroughly investigate the claim, guide you through cost-effective strategic options, and see the case through to the end — even if that means going to court to defend your company.

Even if no claim has been brought, and you simply have concerns about your current or proposed employment policies, your organization will benefit from a comprehensive business risk review. Our risk review service is a two-step process which first identifies problem-areas, and then provides solutions to give your company greater protection against future litigation.

To start discussing how we can help your business, call Bellatrix PC at (800) 449-8992 for a private consultation. Our offices are located in St. Louis, San Diego, and Riverside, CA.