Employment Law

What the ‘Fair Chance Act’ and Its New Regulations Mean For California Job Applicants with Criminal Convictions in Their Past

October 29, 2020 | by Stephen M. Fuerch

People with criminal convictions in their past face many challenges as they seek to rebuild their lives and return to participating fully in society. One of the bigger challenges they face is discrimination in the job application process. Fortunately, the State of California enacted the Fair Chance Act in 2018, which significantly restricts what employers can do in terms of asking about your criminal history. If you’ve been removed from an employment applicant pool because of your past conviction, that employer may have broken the law. Contact an experienced Oakland employment attorney to learn more and find out what you can do.

The Fair Chance Act is a kind of “Ban the Box” law. The “box” in question is the one next to a job application question asking you about whether or not you have a criminal history. The Fair Chance Act bans this kind of question, requiring employers to forego seeking applicants’ criminal histories prior to extending a job offer.

Along the way, the Department of Fair Employment and Housing (DFEH) has enacted various regulations that implement the Fair Chance Act, including some that were composed only recently and went into effect October 1, 2020.

What to Do When You Have Been Subjected to Discriminatory Humiliation and Abuse on the Job in California

September 15, 2020 | by Stephen M. Fuerch

About four years ago, a Fresno-area employment attorney wrote a blog post about a workplace discrimination case in which he gave employers the free advice of “don’t be a jerk.” OK, he didn’t use the work “jerk,” but you can still absorb the author’s main idea. Employers being jerks can do themselves quite a bit of damage. They may cause good employees to leave, good candidates to stay away and, sometimes, they may run afoul of discrimination law, particularly when it comes to creating hostile work environments. When you’ve faced that kind of harm on the job, it is important to reach out to an experienced Oakland employment attorney promptly.

Some employees may face bigger hurdles than others. For example, if you work for an employer that’s a church or church-related entity (such as, for example, a Catholic school,) then you may find that the discrimination you suffered at work may not be something upon which you can sue. That’s because of something called the “ministerial exception.” In fact, a U.S. Supreme Court case that recently ruled against two Catholic school teachers (one fired due to age and one fired due to disability,) made it clear just how broad the ministerial exception is.

Even when the hurdles are high, such as working for a religious employer, it is important to seek out capable legal advice before you decide to abandon your case. Sometimes, the totality of the facts in your case may still provide you with some legal avenue for compensation. For example, a religious employer may be able to demote or fire you because of your disability, age or sex, under the protection of the ministerial exception but, as one recent case illustrates, may be liable if it so humiliated, harassed and belittled you as to create a hostile work environment.

A Bank Executive in California Wins a $17M Wrongful Termination Judgment After Proving the Bank Fired Him to Avoid Paying Him a Bonus He’d Earned

August 27, 2020 | by Stephen M. Fuerch

Obviously, being a worker with duties that include the supervision and management of others is something that carries certain risks. One of those risks is that underperforming employees may become disgruntled at facing discipline for their deficiencies. One thing that shouldn’t be a risk of your job is being fired due to a false accusation lodged by a disgruntled subordinate. If that happens to you, you may have very good case for wrongful termination and the opportunity to recover very substantial amounts of compensation, so be sure to act promptly in retaining an experienced Oakland employment attorney.

The case of a bank vice president, and the multi-million dollar award he received, is a good illustration of what you can do… and how you can win. The employee, T.K., was a Sacramento-area senior vice president for a major national bank. In 2012, T.K. informed K.T., one of his subordinates, that he intended to place her on a “performance improvement plan,” which is a type of employment discipline against a worker with job-performance deficiencies.

Shortly after the vice president made the comment, K.T. complained to human resources about T.K.’s supposed gender discrimination and harassment. Less than two months later, the bank, having completed its investigation, fired T.K.

I Was Harassed on the Job But Didn’t Report It at Work. Can I Still Win a Harassment Case in California?

August 14, 2020 | by Stephen M. Fuerch

Workers who suffer discrimination and harassment on the job respond to it in different ways. Some may confront the harasser directly, others may approach their immediate supervisor, others may take the problem to their employer’s human resources (HR) department while still others may say nothing to people at work. If you are someone who falls into that last group, does your failure to speak out at work automatically mean that you cannot win a Fair Employment and Housing Act (FEHA) case? No, it doesn’t… not even if your employer has policies about reporting discrimination and harassment! So, if you’ve been the target of workplace discrimination or harassment – whether or not you reported it or confronted it internally – you may be entitled to significant compensation, so be sure to reach out an experienced Oakland employment attorney without delay.

As an illustration of this aspect of California law, there’s the recent case of R.M., a worker at a major aerospace company’s El Segundo facility. The worker, during his nearly two decades with the company, allegedly endured comments and jokes that were blatantly racist. These included crass and offensive things like jokes about R.M. missing work to go to the zoo and visit his relatives there.

R.M. allegedly did not report the offensive comments to supervisors or to HR. He allegedly reached a breaking point one day in 2017 when a white coworker threw a piece of rope at him that was tied into the shape of a noose.

What You Can Do in California if Your Employer Has Punished You for Being a Caregiver for Family Members

July 27, 2020 | by Stephen M. Fuerch

With the challenges that have been created by the current pandemic, more and more people are wearing the dual “hats” of employee and caregiver for children or seniors. Whether you are a man or a woman, it is possible to face employment discrimination because you care for those family members, whether they’re your kids, your grandchildren, parents or other elders. While the Fair Employment and Housing Act does not currently list family responsibilities discrimination as a specific cause for suing and collecting damages, that doesn’t mean that you cannot win a case based on the workplace discrimination you suffered due to your family responsibilities. There potentially may be avenues available under the FEHA, so be sure to reach out to an experienced Oakland employment attorney about your situation.

D.R. was someone who allegedly faced this difficulty. She was an account executive for an insurance brokerage firm in San Diego, and was also a mom to two young children. According to a New York Times report, when the governor issued a statewide stay-at-home order, the executive began working from home. At home, she managed her work duties and also tended to her children (for whom she could not find childcare due to the stay-at-home order.)

Allegedly, the executive’s supervisor was not happy with D.R.’s juggling work and kids, and took several discriminatory actions, such as assigning her several tasks with “rush” deadlines (even though those tasks weren’t actually urgent) and frequently scheduling conference calls during the lunch hour, even though the supervisor knew that D.R. would be either nursing her youngest, feeding her oldest or putting the younger child down for a nap. The supervisor allegedly did this even after the executive stated that afternoon calls would be better as the younger child would be napping during that period, according to the Times report. D.R.’s supervisor reprimanded her after her children were heard on a call with a client, calling it “unprofessional,” and later told D.R. to “take care of your kid situation,” in addition to making many other sexist statements that demonstrated a clear bias against mothers, according to the mother’s lawsuit.

Coronavirus and How Your Employer’s Response May Have Violated Workplace Disability Discrimination Laws in California

July 14, 2020 | by Stephen M. Fuerch

The state of California set a bleak milestone recently as it surged past 300,000 total cases of coronavirus, according to Deadline. The Mercury News reported that, on July 12, Alameda County was added to the state’s coronavirus “watch list.” There are many ways that coronavirus can hurt you, but one way you perhaps hadn’t considered is the possibility of contracting the virus and recovering, only to be faced with discrimination when you try to return to work (due to your having had the virus.) If that happens to you, California’s discrimination laws may have options for you to obtain compensation for the harm you suffered, so be sure to contact an experienced Oakland employment attorney right away.

One of the first things that you should understand is, if you have tested positive, there are certain things that California’s law forbidding certain forms of workplace discrimination (the Fair Employment and Housing Act) says your employer can do, and other things it cannot.

The law in California may allow an employer to make certain demands of employees in order to ensure that the employee in question is capable of doing the job and doing it safely. These are called “fitness for duty” exams, and they typically include a medical examination and a certification from a medical professional that any safety concerns related to that worker’s return to the job no longer exist.

What You Can Do If Your California Employer Fired You for Resisting or Complaining About Sexual Harassment by Your Supervisor

May 27, 2020 | by Stephen M. Fuerch

In California, you have the right to go to work and do your job while free from sexual harassment. You also have the right, if you are the target of sexual harassment, to seek to stop that harassment without suffering reprisals from your employer. That means that you are entitled to say “no,” to complain to your employer’s HR department or to file a harassment lawsuit or claim with the Department of Fair Employment and Housing (DFEH) and your employer cannot punish you for it. That means no firing you, no demoting you, no reassigning you to less desirable work and no cutting your hours. If your employer does engage in these types of actions, you should reach out to an experienced Oakland employment attorney promptly, because those punishments may mean that your employer is liable to you for impermissible retaliation.

S.E. was a teenager working at a drive-in restaurant whose lawsuit presented a case of exactly that sort of retaliation. According to the employee, who was still a minor, her manager made sexual advances toward her and, when she did not accept those advances, he altered the teen’s work schedule to reduce her hours (and, by extension, reduce her income.) The teen informed the employer of the manager’s advances and his retaliation against her after she said no. The employer fired the teen.

That, of course, is one of every workplace sexual harassment target’s nightmares, isn’t it? Too many victims look at their harasser and think that he has far more “pull”/”juice”/power/etc. within the organization than they do, and so they suffer in silence, fearing what would happen to them if they did dare to speak up.

What ‘Equitable Tolling’ and ‘Continuing Violations’ Are and How They Can Help You in Your California Workplace Discrimination Case

May 13, 2020 | by Stephen M. Fuerch

The law in California requires a worker to file an administrative complaint for discrimination with the Department of Fair Employment and Housing (DFEH) within one year of the discriminatory actions. The good news for workers, though, is that there are circumstances where the law may give you extra time to file a complaint with DFEH or file a lawsuit with the court. One way this can happen is through something that the law calls “equitable tolling.” Another legal concept that may help your case is something called a “continuing violation” of the Fair Employment and Housing Act. These tools can help you present to the court a fuller and more persuasive case and potentially entitle you to a larger sum of compensation. The key thing is to make absolutely sure that you don’t wait too long, as that could cost you your case entirely. Contact a knowledgeable Oakland employment attorney to learn more about your options and deadlines.

J.B. was a Northern California worker whose discrimination case focused heavily on those deadlines. J.B. was an openly gay man who worked for the California Highway Patrol from 1996 to 2016. During those two decades, J.B. allegedly suffered through many injustices, including “derogatory, homophobic comments,” being “singled him out for pranks” and having his mailbox “repeatedly defaced.” On top of those things, other officers also allegedly “refused to provide him with backup assistance during enforcement stops in the field.”

Eventually, the discrimination and harassment took their toll, according to J.B. He filed a workers’ compensation claim in January 2015. In that action, he stated that he had begun having “headaches, muscle pain, stomach issues, anxiety and stress.” He was also allegedly suicidal due to problems at work. J.B. won his workers’ comp case. That ruling came down in October 2015 and, four months later, he left his job. Several months after leaving, J.B. filed a claim with the DFEH and filed a discrimination lawsuit the next day.

California DFEH Reminds Employers: COVID-19 Pandemic Doesn’t Reduce Employers’ Obligations to Avoid Discrimination and Harassment

March 27, 2020 | by Stephen M. Fuerch

The COVID-19 pandemic is disrupting lives and, more importantly, has cost the lives of more than 1,000 Americans. While the pandemic has led to the institution of many extraordinary measures, there are some things that remained unchanged. For example, California employers’ obligations to avoid illegal discrimination and harassment remain in place and are as strong as ever. In fact, given the racial/ethnic component of the virus’s presumed origin, employers should be even more vigilant than ever to avoid improper practices. If, in this era of COVID-19 pandemic, you’ve been harmed at work because of your race, ethnicity or national origin, you may have legal options under the Fair Employment and Housing Act. Reach out to a knowledgeable Oakland employment attorney to find out more.

The Department of Fair Employment and Housing recently released an “Information” document about COVID-19 and employers’ FEHA obligations. The very first topic that the document addressed was the harmful practice of discrimination or harassment “because of race or national origin.” This kind of discrimination or harassment can take many forms. In the context of the current COVID-19 pandemic, the victims of illegal discrimination or harassment may be targeted because of actual or perceived Chinese ancestry.

Note that you don’t actually have to be of Chinese origin or ancestry. Illegal discrimination or harassment can stem from one’s actual national origin or the perpetrator’s perception of your national origin. So if, for example, your facial appearance, your manner of speaking or your name makes your supervisor think you’re of Chinese origin – and your supervisor harasses or discriminates against you because of it – it doesn’t matter if your heritage is Chinese, Korean, Vietnamese, Japanese or something else entirely. The fact that your supervisor believed you were of Chinese origin and took adverse action against you because of that belief is enough.

Overcoming Hearsay Objections to the Evidence in Your California Wrongful Termination Lawsuit

March 14, 2020 | by Stephen M. Fuerch

Sometimes, your wrongful termination case may have overwhelming evidence on your side… a case where you are obviously entitled to a judgment in your favor. A lot of times, though, that’s not what happens. In many lawsuits, the cases are of the type often referred to as “he-said-she-said,” or as lawyers call them, “swearing contests,” which refers to the fact that the sworn testimony of witnesses make up the vast majority of the evidence, and the outcome rests on which side the jury finds more believable. If you’re involved in a case like that, the more evidence you can give the court beyond just your own testimony, the more credible your testimony may become and the stronger your case may become. To be sure you are identifying, obtaining and utilizing all the evidence you need for your strongest case possible, make sure you have an experienced Oakland wrongful termination attorney working for you.

D.W.’s was a case like that. He had risen through the ranks at the call center of a major telecommunications company. By 2012, he was named the interim acting director of the call center. He routinely received high-performance review scores and praise for his leadership skills. He applied to be named the director of the call center but was not chosen. The company selected a white woman to be the new director. Unlike D.W., the woman did not have a bachelor’s degree, which the employer listed as a “preferred qualification” for the position of director.

D.W.’s former supervisor, after having been reassigned, told him that she attempted to get the company to choose D.W., but that he had three key things working against him: he was a former employee of a competitor company, he was not white, and he was not female. Just four months later, the company fired D.W.