About Constructive Discharge and How an Employee Must Deal With It

constructive discharge

Wrongful termination is one of the many employment issues that employees in California. Basically, it can be categorized into two types. The first and the most common type is wrongful termination in violation of public policy. Here, an employee is directly or intentionally terminated for reasons other than those allowed under the prevailing federal and state laws. An example of such is when an employer decides to fire an employee who reported to a federal or state agency about his or her employer’s engagement in an illegal activity. So is getting terminated on the basis of one’s protected characteristics such as race, age, sex, disability, and the like.

The second type is wrongful termination in the form of constructive discharge. Here, an aggrieved employee is forced to quit his or her job because of his or her employer’s unfair treatment, which often involves discrimination on the basis of one’s protected characteristic or harassment. The employer doesn’t fire the employee directly, but creates a hostile working environment, making life miserable for the latter. Both types of wrongful termination should be properly and promptly presented through legal means, through the appropriate federal or state agency or through the expertise of an employment attorney.

What a Victim of Constructive Discharge in California Must Know

In proving that an employer subjected its employee to wrongful termination through constructive discharge, the latter must carry the burden of proof when raising the issue through legal means. For the aggrieved employee to claim damages against his or her erring employer, he or she must present prevalent pieces of evidence proving that the latter created or permitted frequent or severe actions of discrimination and/or harassment with intent. For the employer to be accused of constructive discharge, the employee must prove that the former had something to do with the hostile working environment he or she is experiencing in the workplace. He or she must also prove that his or her employer was either knowledgeable or should have known about the discriminatory actions, but failed to address it immediately.

An important thing to remember in this instance is that the employee must have done his or her part in reporting the hostile working environment by letting proper persons within the workplace know about it. By doing so, his or her employer would be enlightened by the fact that he or she is being harassed or discriminated against. The employer, upon knowledge of the situation, can penalize those who are behind those illegal workplace actions. Without the foregoing proof, the employee may not be able to establish the fact that he or she was forced to resign and, therefore, was subjected to constructive discharge termination.

The employment and labor laws in the state provide that an employee cannot just simply resigned from his or her job and then file a lawsuit for constructive discharge termination. Not only should there be proof that his or her employer knew or participated in doing the illegal action, but there should also be evidence of intolerable adverse working condition, which is the main reason why he or she quitted his or her job. In this regard, it would be imperative for him or her to seek legal assistance from a state or federal agency or through a law firm that focuses on employment cases. That way, a claim or lawsuit may be filed against the erring employer.

About the Family Medical Leave Act and Its Basic Regulations

FMLA claims

Most, if not all, employees often face certain emergency situations that require them to skip work for an extended period of time. Like most of us, they also have to deal with certain family and/or medical matters. There are those who have to be with their loved ones who are suffering serious health conditions. There are female employees who need to take some time off to give birth and bond with their newborn. Even employees themselves have to take a leave of absence for a week, especially if they are unable to work because of serious health conditions.

In these unexpected circumstances, they must be aware that they are protected under the federal law called the Family and Medical Leave Act (FMLA). Enforced by the U.S. Department of Labor, the said Act provides qualified employees with up to 12 weeks of unpaid, job-protected leave per year. The law also involves their group health benefits, stating that they should be maintained while employees take their leave of absence.

According to the federal Labor Department, the main goal of the FMLA is to provide employees the opportunity to balance their responsibilities between work and family by permitting them “to take reasonable unpaid leave for certain family and medical reasons.” Likewise, the federal law also puts into account the general interests of employers, as well as the promotion of equal opportunity within the workplace.

Basic FMLA regulations

Basically, the FMLA provides covered and eligible employees with up to 12 weeks of unpaid leave each year for any of the following situations:

  • Birth and eventual bonding with the newborn child;
  • Adopting a child or placing a child in foster care;
  • Taking care of the spouse, child, or parent with a serious health condition; or
  • Receiving treatment for a serious health condition. 

Another thing people must know about the FMLA is on which employers are covered by the law’s regulations and the eligibility rules for employees. On one hand, employers that are covered by the federal law include the following:

  • Employers in the private sector with 50 or more employees;
  • Public agencies, especially those within the local, state, or federal levels; or
  • Elementary or secondary schools, either private or public. 

Note that the Family and Medical Leave Act disregards the minimum number of employees on public agencies and elementary/secondary schools that are covered by the law.

On the other hand, employees are considered Family and Medical Leave Act-covered if they satisfy the following eligibility requirements:

  • They work for an employer covered by the FMLA.
  • They have worked for their employers for at least 12 months.
  • They have accumulated at least 1,250 hours of service for their employers within the 12-month period before the leave date approaches; and
  • They must have worked at locations wherein their employers have at least 50 employees that are within a 75-mile radius of their work site. 

Taking legal action

As an employee, it is imperative that your employer is not only covered by the FMLA regulations, but must also comply with them. If you are truly entitled to your leave given a reasonable excuse, your employer must not only give you the right to skip work, but must ensure that doing so won’t have any consequences on your job security. In other words, you must be reinstated back to work after you’ve used up your leave. Also, you shouldn’t be discriminated, harassed, or retaliated against by your employer for exercising this employee right. Otherwise, it would be in your best interest to file an employment claim against your erring employer. In order to do this, you must first seek the expertise of FMLA claim lawyers.

Deflecting Retaliation in the Workplace

retaliation claims

Even to this day when there is an extensive collection of laws that are drafted and implemented by the federal and state governments, it is undeniable that many acts of discrimination still persist. Why is this so? The thing is laws couldn’t really be much of help if they are not implemented efficiently. Implementation plays a key role in ensuring that a piece of legislation is effective or not. Moreover, it is also important that these legal avenues are very much accessible to more people. This would make it easier for them to come forward and report the abuses they have been experiencing.

Retaliation in the workplace 

Thing is beyond that, there are also people who are not able to file and even come up with a complaint because of their fear from being retaliated. Retaliation happens when one person is fired, demotes, and harassed as a form of intimidation by one person responsible for the discriminating act. Some victims are courageous enough to go and file Retaliation claims for employment against the ones retaliating against them. However, there are some that aren’t brave enough to go against influential and powerful people in the workplace.

Laws against retaliation 

Title VII of the Civil Rights Act of 1964 not only prohibits any act of discrimination against anybody in the workplace, it also prohibits any form retaliation against a victim who files a                                                                                                                                                                                                 discrimination charge against an individual. This law has been implemented since July 2, 1964 and has paved the way for penalizing a lot of companies and officials that have fired, demoted, or harassed an employee because of his or her workplace discrimination complaint.

Steps in filing California Retaliation Claims 

  • Get all the information needed. In filing a claim, even the smallest detail about your claim can affect the outcome of the case. So make sure you supply all the information needed to help expedite the agency’s assessment of your claim.
  • Undergo Equal Employment Opportunity Commission’s (EEOC) online assessment. This tool asks you questions that will help you verify if the Retaliation claims you are filing has the best chances of winning and helps you improve your claims’ weak points.
  • Send a complete intake questionnaire that is completely filled out to the EEOC office. A completed form with all the information can help speed up the process of actually filing a claim which also boosts your chance to win your claim. 

Nobody wants to be discriminated. Moreover, nobody wants to be abused and retaliated against for standing up and fighting for your rights. However, only you alone can make these acts of abuses stop. You have a choice and you can make these things end now. If you have been a victim of any of those, have the courage to stand up against discrimination and retaliation. File the necessary Claims for Retaliation now, fight for your rights and never lose hope. In the end, you will be surprised to be able to win your claims and see all of your efforts pay off.

Sexual Harassment: A Form of Discrimination on the Basis of One’s Sex

sexual harassment

Some California workplaces are no stranger to incidents of sexual harassment in the workplace. In fact, this employment issue is very common, with Equal Employment Opportunity Commission (EEOC) statistics showing that around 2,000 cases of sexual harassment in the workplace are filed every year in the state. This form of sex discrimination is prohibited under the federal and state employment and labor laws, but not all employers are aware of it. Sexual harassment lawyers in California, however, continuously advise victims to assert their rights by seeking immediate legal assistance.

As it is, sexual harassment is a form of sex discrimination that is described as an unwelcome conduct or action of sexual nature done to an employee or applicant in any aspect of his or her employment. However, certain sexual harassment acts may not necessarily be sexual in nature. For instance, it is already considered sexual harassment if a supervisor makes a stereotypical comment or remark towards a female employee.

An employer may face charges of sexual harassment if the following elements are present:

  • The sexual conduct or act is pervasive or severe;
  • The sexual conduct creates a hostile or offensive working environment; and
  • The offensive working environment results in an adverse employment decision that would affect the victim, such as demotion, suspension, or termination. 

Cases of sexual harassment in California don’t always involve the manager, supervisor, or any immediate superior. They could also involve a co-worker, or even a non-employee. Also, victim and the harasser may be a man or a woman; however, it doesn’t mean an employee is sexually harassed by the opposite sex. Even the harasser is of the same sex as the victim. If the acts of sexual harassment become frequent to the point that they create a hostile working environment, even other people who are not directly involved can also be affected by the offensive conduct.

Sexual harassment in the workplace is usually verbal, physical, or visual in nature. It is said to be verbal if the harassment involves saying jokes, making comments, and name-calling, and is usually sexual in nature. This type includes making repeated sexual innuendos, as well as remarking on someone’s outfit. It is said to be physical if the harassment involves making unwelcome physical contact on the victim by the harasser. This type includes stroking, groping, or touching. It is considered visual harassment if the harasser displays material, either in digital or print format, that is sexual in nature, from photos, emails, to letters.

Laws against workplace sexual harassment

Federal and state employment and labor laws prohibit sexual harassment in the workplace. These include the Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act (FEHA). These two laws may have its differences, but they similarly provide employee protections against sexual harassment, as well as in other forms of discrimination.

What you need to do in case you were sexually harassed?

Being sexually harassed in the workplace is an experience that is truly degrading.  However, you must know that the law is on your side, given the two existing laws that prevent this form of sex discrimination. You can always seek legal assistance from employment agencies such as the EEOC, the California Department of Fair Employment and Housing Act (DFEH), or with the legal expertise of best sexual harassment lawyers in Los Angeles.

Knowing What Religious Discrimination Laws Can Do For You

religious discrimination claims

Every person should be free to make the choices about their lives, which include the freedom to choose the way they profess their faith in God. This basic right should be respected by everybody including people in the workplace. However, discrimination is still a great hurdle that the society faces. That is why it is important for people to be aware of their rights especially in the workplace. Over the last few years, there has been a number of religious discrimination charges filed before the Equal Employment Opportunity Commission (EEOC). However, this could not be used to gauge the effectiveness of the campaign against discrimination on the basis of one’s religion. Not a lot of victims come forward to seek justice. This is caused by the people’s lack of knowledge about employment laws and how these legal remedies can help them. Here are some very important information about anti-religious discrimination laws and how these can help protect you from abuses.

What is Religious Discrimination? 

Religious discrimination in workplace happens when a person, whether an applicant or an employee, is treated unfavorably because of his or her beliefs religiously. Anti-religious discrimination laws helps protect people who follow big or minority organized religions. Whether it is Buddhism, Christianity, Hinduism, Islam, and Judaism, nobody should be treated differently because of their chosen religious organization. This includes people with no affiliation with any organized religions.

Protections offered by anti-religious discrimination laws 

Under this law, companies are prohibited from making religion as the main reason for one’s hiring, firing, determination of pay, job assignments, promotions, layoff, training, fringe benefits, as well as any other terms or conditions of employment. Moreover, people should never be discriminated because of religion. Frequent or severe teasing and making comments that are offensive to one’s beliefs is likewise strictly prohibited. Additionally, one employee should never be segregated because of religion such as assigning them to a non-customer contact position because of feared and even actual customer preference.

More than doing something to offend the employee, failing to provide reasonable accommodation to an employee’s request in relation with his or her religious beliefs is also unlawful. As long as the request causes minimal burden on the operations of the employer’s business, the requests for reasonable accommodation of an employee should be allowed. Some of such reasonable accommodation includes flexible scheduling, voluntary shift substitutions or swaps, job reassignments, as well as modifications to workplace policies and practices. Also, employees should be allowed to follow their religion’s dress and grooming policies, long as it does not cause undue problems to the company’s operation.

Finally, an employee experiencing discrimination in the workplace on the basis of religion should be allowed to voice out their frustrations and their grievances tackled, investigated, and resolved. Retaliation against an employee who reports about acts of discrimination is strictly prohibited by the law.

Knowing your rights and fighting for it 

Acts of abuse and harassment against an employee because of his or her religion and other forms of discrimination is not and will never be acceptable. That is why victims must have the courage to come forward and fight these abuses by their employers. Being aware of your rights as an employee is just winning half the battle. Standing up and fighting for it helps provide you the complete protection that these laws offer. There are religious discrimination lawyers that you can consult to help you with your predicament. However, you should not just hire any legal representative and get only the services of the best employment lawyers for religious discrimination to ensure your chances of winning your claims.

Source:  http://eeoc.gov/laws/types/religion.cfm

About the CFRA and Its Similarities, Differences with the FMLA

CFRA.

Employers always expect their employees to have good attendance at work. Apart from mostly being strictly enforced in the workplace, checking in to work on time and doing it on a daily basis shows how committed employees are with their duties and responsibilities. However, it is not all the time that employees can work for consecutive days. There are times wherein they have to skip a day, a week, or even a month or two from work because of certain circumstances that are either unforeseen or anticipated. For one, some employees need to take care of someone in their families who is experiencing a health condition. Female employees would also have to leave work for a certain period of time to take care of the newborn child.

As such, employees are allowed to take a leave of absence from work to deal with such circumstances. In the State of California, employees are protected by the California Family Rights Act or CFRA.

More on the CFRA

The California Family Rights Act (CFRA) is an employment law that was provides covered employees the right to take a leave or leaves of absence for the following situations:

  • Childbirth, including bonding with the newborn;
  • Adoption of a child or placing a child in foster care;
  • Taking care of a child, parent, or spouse with a serious health condition; and
  • Medication and/or hospitalization for the treatment of the employee’s serious health condition. 

California businesses that employ 50 or more part-time or full-time employees, as well as local, city, and state agencies, are subject to the provisions of the CFRA. Employees, on the other hand, are qualified for a CFRA leave if they meet the following criteria:

  • Must be either a part-time or full-time employee;
  • Must have worked for more than 12 months (52 weeks) for their current employers;
  • Must have worked at least 1,250 hours during the 12-month period before the leave date approaches; and
  • Must be working at a location wherein the employer has 50 or more employees within a 75-mile radius of the employee’s work site. 

Similarities, differences with the FMLA

The CFRA is California’s version of the federal employment law on leaves, which is the Family Medical Leave Act or FMLA. The two laws are generally the same, especially with respect to the eligibility criteria (12 weeks of leave in a 12-month period for the same circumstances mentioned above, as well as employer and employee requirements.) However, one of the things that set the two laws apart is with regard to pregnancy being considered as a serious condition.

A woman who is pregnant and is expected to take a leave of absence from work in order to give birth is eligible for the FMLA leave but not the CFRA leave. This is because the state employment law does not consider pregnancy as a serious health condition. In other words, a California employee can only be eligible to take a leave of absence from work to bond with her newborn child after giving birth.

Despite this, female employees who may decide to skip work in order to give birth can still be eligible to use their leave either under the FMLA or the California Fair Employment and Housing Act (FEHA) provisions. The latter, which is the top employment law in the state that also protects covered employees from discrimination, also protects individuals who are disabled by pregnancy, childbirth, or any related medical condition. Since almost all employers in California are covered by the FEHA, they must provide eligible pregnant employees up to four (4) months of protected and paid Pregnancy Disability Leave (PDL).

Seeking legal assistance

Employers are compelled to comply with the provisions stipulated in the CFRA, as well as in the FMLA and the FEHA. However, not all of them are able to do so, with some not even reinstating those who are returning to work after lawfully using up their leaves. Some others even deny those who are eligible to use their leaves. If this ever happened to you as a worker in the State of California, you can always seek legal assistance with Los Angeles CFRA lawyers.

Skin Color Discrimination: How It Differs With Race Discrimination

skin color discrimination

One of the most common forms of workplace discrimination is on the basis of one’s race and/or skin color. This form of employment maltreatment can happen in any aspect of employment, from hiring to termination. Fortunately, employees are protected by various federal and state laws that prohibited this kind of discrimination. Under both Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act (FEHA), covered employers are not allowed to discriminate, harass, or retaliate against any employee or applicant on the basis of race or color.

In these laws, covered employers are likewise prohibited to subject employees and applicants based on racial stereotypes. They can’t also discriminate on someone who is married to a person of a different race, as well as on someone who is known to be associated with an ethnic organization or group. Job policies that are neutral on the surface but disproportionately exclude minorities are also not allowed.

Race vs. Color Discrimination

Title VII explicitly states that discrimination on the basis of one’s race also includes one’s skin color, as well as texture of hair, or any other certain physical characteristic linked to one’s race, is illegal. Though race and color often overlap and are usually regarded as the same thing, they are not necessarily synonymous. Employment laws, like Title VII and the FEHA, distinguish these two terms as different. Notably, both laws have a separate protected category for “color” discrimination.

Basically, skin color discrimination in the workplace occurs when an individual is discriminated, harassed, or retaliated against based on his or her lightness, darkness, or other color characteristic of his or her skin. The Equal Employment Opportunity Commission (EEOC), which enforces Title VII, read the term “color” as pigmentation, complexion, or skin shade or tone. This form of discrimination can happen to anyone, even if the harasser or discriminatory is of the same race or ethnicity as the one being discriminated, harassed, or retaliated against in any aspect of employment.

Explaining color discrimination even more

A common example of discrimination because of skin color is this: suppose an employer decides not to promote a qualified employee and instead goes for an inexperienced one. If the qualified employee is an African-American, and the inexperienced one is white, then it is considered discrimination on the basis of race. However, if the qualified employee is a darker-skinned African-American and the inexperienced one is a lighter-skinned African-American, then it is deemed as color discrimination because the employer favors the former over the latter, despite both being of the same race.

Seeking legal representation

This form of discrimination can oftentimes be hard to determine, given the fact that is often associated with workplace bias on the basis of race. However, an employee or applicant who was discriminated against because of skin color can always seek legal guidance and representation from a workplace discrimination attorney. It might be challenge for the victim, but a lawyer can help figure out whether there is a case for either race or color discrimination.

A Simple and Complete Guide about Harassment in the Workplace

workplace discrimination

As defined by a government website, harassment in any way is a form of discrimination. This practice is unlawful as stipulated in the Title VII of the Civil Rights Act of 1964. According to this law, any unwelcome verbal or physical conduct against a person on the basis of one’s race, color, religion, national origin, mental or physical disability, sex (which includes same-gender harassment and gender identity harassment), sexual orientation, or retaliation is a form of harassment.

How Can One Say That He or She is harassed in the Workplace? 

One person can claim that he or she has suffered from harassment in the workplace if:

  • One person’s conduct is severe or pervasive enough to promote a hostile work environment; or
  • The harassing conduct of a supervisor causes a tangible change in an employee’s employment status or benefits. For example, one gets demoted, is deprived of a chance to get promoted, or worse, terminated from work. 

When does the work environment become hostile? 

In cases where a person’s unwelcome comments or conduct that are based on one’s race, color, religion, national origin, mental or physical disability, sex, and sexual orientation unreasonably interferes with an employee’s work performance. This creates an intimidating, hostile, or offensive work environment that is not conducive for productivity and well being of the victim. Contrary to popular belief, anybody, not just the supervisors and officers of a company can commit this type of harassment. The culprit can be a high-ranking management officer, a simple co-worker, even non-employees like contractors, vendors, and guests of the company.

The victim likewise can be anybody that has been affected because of the said conduct, not just the individual whom the offensive conduct has been directed.

What are the actions or gesture that can create a hostile environment in the workplace? 

There are many things that one can do that constitute harassment and promote a hostile environment in a workplace. These include:

  • Leering (i.e. staring in a sexually suggestive manner)
  • Making offensive remarks about one’s looks, clothing, or mentioning body parts in a suggestive manner
  • Patting, pinching, or intentional brushing against an employee’s body in a way that they feel uncomfortable,
  • Delivery of sexual jokes, hanging and display of sexual posters, or making sexual gestures
  • Sending of letters, notes, e-mails, or images that are sexually suggestive 

However, harassment may not always be sexual in nature. There are non-sexual acts that constitute harassment such as:

  • Racist remarks and use of derogatory words, phrases, or epithets
  • The demonstration of gestures, pictures that are offensive or derogatory to one particular race or ethnic group
  • Making derogatory comments about one’s skin color, or characteristics about his or her race and ethnicity
  • Making fun of one’s gender even if it is not sexual in nature
  • Poking fun of one’s religious beliefs or the lack of it
  • Stereotyping one person based on his or her birthplace and ancestry
  • Age jokes especially with people aged 40 and over
  • Making fun of one’s mental or physical impairment 

More than committing the above-mentioned acts, actions that affects one’s employment status can also be considered as harassment. The hiring, firing, promotion, failure to promote, demotion, as well as disciplinary actions like suspension, sudden and undesirable assignment, the change or lessening of benefits, decisions about compensation and work assignment can also be a great indicator of harassment.

Protecting yourself from harassment 

Knowing what to do if you ever become a victim of discrimination is just half of the battle. To be able to protect yourself from being harassed in the workplace, you should know what and when harassment and discrimination happens. This way, you will be able to react properly and do the necessary actions to fight for your rights. Through proper education about harassment, people will be able to stay away and better fight harassment and discrimination in the workplace.

Source Links: https://www.fcc.gov/encyclopedia/understanding-workplace-harassment-fcc-staff

About Workplace Discrimination on the Basis of One’s Nationality or Nation of Origin

workplace discrimination

Most employers in California, either public or private, assert workplace diversity by promoting themselves as equal opportunity employers. This means that they widely accept individuals regardless of the class in which they belong, including their ancestry, ethnicity, or their countries of birth. As such, they are given equal rights in employment as other workers who were born and raised in the U.S. However, there are still instances wherein people of a certain nation of origin, ancestry or ethnicity are subjected to acts of discrimination, harassment, and/or retaliation. Decades removed from the enactment of the Civil Rights Act of 1964, workplace discrimination on the basis of one’s nationality still occurs today.

What is nationality discrimination?

Discrimination because of national origin involves making adverse employment decisions towards an employee or applicant based on his or her ancestry, ethnicity, birthplace, or certain characteristics associated with his or her ethnicity, including his or her surname, accent, physical features, and cultural identity, among others. It is worth noting, however, that the Equal Employment Opportunity Commission (EEOC), which enforces laws that prohibit nation of origin discrimination, does not link nationality discrimination with race, color, or religion discrimination. These characteristics, race, color, religion, and nation of origin, are defined separately under EEOC’s guidelines and Title VII.

Basically, nation of origin discrimination may be either direct or indirect. On one hand, it is a direct form of discrimination if an employer denies an applicant a job because his or her surname is Hispanic-sounding (e.g. Reyes, Cruz). On the other hand, it is indirect discrimination if an employer decides to enforce an English-only policy on employees who speak Filipino or any other language. Either way, they are still illegal under Title VII of the Civil Rights Act and the California Fair Employment and Housing Act (FEHA).

What is considered illegal under anti-nation of origin discrimination laws?

The two aforementioned laws forbid this form of discrimination in any aspect of one’s employment, from hiring, termination, pay and compensation, job assignments, promotions, layoffs, and any other term or condition of employment. Any form of harassment is also illegal under these two laws. Uttering offensive or derogatory remarks on an employee’s place of origin, ethnicity, or ancestry is considered discrimination if it is done frequently that it promotes a hostile working environment, resulting in an adverse employment decision, including suspension or termination.

Also, employment practices that create a negative impact towards employees of a certain nation of origin, ethnicity, or ancestry are also prohibited. An example of such is on the English-only policies of many workplaces. The Title VII and the FEHA differ when it comes to this, especially in the issue of English-only policies in workplaces.

Seeking legal action for this form of workplace bias

Getting discriminated because of nationality, ethnicity or ancestry, is never a good thing. Most instances of this kind of workplace bias often revolves around stereotypes, and unfortunately, we still live in this day and age where people either directly or subtly hurt other people’s feelings through generalizations, double standards, and stereotyping. If you happen to be working in California and you have been subjected to this form of discrimination, then you must know that you can always seek the legal assistance of employment lawyers, as well as the EEOC and the California Department of Fair Employment and Housing (DFEH).