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Company agrees to pay $3.4 million in unpaid overtime

On June 20, it was reported that Zenefits, an insurance software startup based in California, agreed to pay about $3.4 million in unpaid overtime to some of its workers. According to the Department of Labor, the company also agreed to allow the agency to monitor its practices to ensure that it does not violate the Fair Labor Standards Act.

According to the report, the DOL's Wage and Hour Division found that the company misclassified 743 of its sales representatives and account executives. Zenefits reportedly said that the employees were exempt from minimum wage and overtime. However, the DOL said that the workers should not have been paid a flat salary.

Former employee sues McDonald's for sexual harassment

California fast food lovers might be interested in a lawsuit one former McDonald's employee has filed. The Michigan woman was reportedly subjected to unfair treatment by fellow employees because she is a transgender woman. Additionally, she alleges that the store fired her when she complained about the hostile working environment.

The lawsuit was filed in May after the woman worked at McDonald's for five months before being fired. During her employment, she says that coworkers insulted her, asked her inappropriate questions and discussed sexual matters with her. Employees also kept asking and talking about her anatomy.

Court rules specificity not necessary in sexual harassment claim

The Civil Rights Act’s Title VII prohibits sexual harassment from occurring in California workplaces and all throughout the rest of the country. This harassment may take the form of either a hostile work environment or quid pro quo harassment. The latter behavior refers to situations in which people are told their job or some other aspect of their employment is in jeopardy if they reject sexual advances. However, although the court system recognizes both of these as forms of sexual harassment, the terms "hostile work environment" and "quid pro quo" harassment come from academia and have been adopted by the legal field rather than originating there.

The Tenth Circuit Court of Appeals recently issued a ruling in a case where a truck driver alleged that his supervisor, who was also a company shareholder, fired him when he refused to have sex with her. A lower court found his claim deficient because the Equal Employment Opportunity Commission never received an attachment the defendant filled out that detailed the sexual harassment.

How leadership can help reduce workplace sexual harassment

Sexual harassment in the workplace is a hot topic as an increasing number of large companies, including FOX and UBER, have become embroiled in public lawsuits. Unfortunately, in some cases, workers in California and throughout the country might not always report harassment. In 2016, the Equal Employment Opportunity Commission reported that although approximately 33 percent of women reported experiencing sexual harassment at work, around 75 percent of them never discussed it with a supervisor or union representative. Common reasons for failing to report the harassment include the fear of retaliation, harming one's career or not being believed.

Companies can take steps to create a better environment where sexual harassment is less likely to thrive. Senior leadership must be vocal about a zero-tolerance policy. In some of the major pending lawsuits, human resources became involved in covering up harassment. Establishing a protocol for reporting harassment to a neutral third party may help. Men in the company can also help reduce the incidence of sexual harassment against women by not tolerating inappropriate comments or behavior.

Hotlines inadequate for sexual harassment prevention

While lots of California employees work for companies that have sexual harassment hotlines, many are unaware that these hotlines exists. According to experts, it is not unusual for sexual harassment hotlines to be underused and poorly promoted in companies that have them. One survey found these hotlines were the least popular way of reporting sexual harassment, and among people who had witnessed or experienced sexual harassment, only 7 percent reported it using a hotline.

There are a number of other ways that an organization can demonstrate its commitment to stopping sexual harassment. Firing offenders sends a message that the company will not tolerate this kind of behavior. The Equal Employment Opportunity Commission encourages a culture of accountability. In some cases, an employee may hesitate to report harassment if it means going through a supervisor because of fear of retaliation. An ombudsman may be one solution. Effective leadership is also important.

FMLA leave and employer retaliation

An employee in California who posts on social media about certain activities while on medical leave may still be protected from being fired. Such was the case for a man who was terminated from his job with Accentia Health. The worker, who had a job that involved some desk work and physical activity, was approved for FMLA leave to get shoulder surgery. After the approved 12-week period, the man was not able to resume his job duties. His employer rejected his request for modified duties, so he asked for more time off so he could continue physical therapy.

The employer agreed to another 30 days of non-FMLA medical leave. While on leave, the man went on a Caribbean trip and made two visits to Busch Gardens. He posted photos of himself on Facebook in the ocean and on the beach. The employer received the photos anonymously from another employee. The man was terminated because, according to the employer, the photos showed poor judgment and violated social media policies.

Employer may be liable for decisions of lower-level supervisors

Based on a decision from a court with jurisdiction over other states, if a low-level supervisor in a California company attempts to fire an employee, higher-level management may have an obligation to independently investigation the reasons for the termination. Otherwise, if the termination is illegal, the company could be held responsible. A split panel of the U.S. Court of Appeals for the 6th Circuit reached this conclusion in April using what is known as the "cat's paw" theory of liability. This refers to a 1990 case in which a 7th Circuit Court judge decided that an employer was liable for a lower-level supervisor who behaved in a discriminatory fashion.

The April case involved a woman who was terminated after she took time off for mental health issues under the Family and Medical Leave Act. After returning from leave, the woman was demoted and then terminated. She filed a lawsuit claiming that two lower-level supervisors had discriminated against her because she had gone on leave. A district court dismissed her claims, giving summary judgment to the employer.

Female farm workers face extreme sexual harassment

California employers know that it is illegal to discriminate against employees based on their gender. However, the practice is still common in many businesses. For example, the attorney general of Washington state filed a federal lawsuit against an agricultural company on April 26, alleging that management subjected female workers to extreme forms of sexual harassment while on the job.

According to the complaint, a supervisor at Horning Brothers LLC required female workers to have sex with him in order to keep their jobs. He also allegedly requested intimate photos of female workers and touched them sexually without permission. The lawsuit further contends that the company segregated female hires into a particular job position and retaliated against workers that stood up to the sexual harassment or segregated hiring practices. All of these actions are violations of Title VII of the Civil Rights Act of 1964.

Emails can be used in California FMLA discrimination cases

A recent court case illustrates why it is so important that employers carefully choose their wording in all work-related documentation and make sure that it does not appear as though they are retaliating against those who take time off from work under the Family and Medical Leave Act. The case involves a woman hired as a sales consultant in 2012.

In the first year of the woman's employment, she failed to meet her sales goal, and after a continued lack of improvement, she was issued warnings by her employer. Just prior to receiving a formal warning, the woman was diagnosed with myelopathy and scheduled to undergo surgery.

In loco parentis relationships and the FMLA

Employers in California who violate the provisions of the Family and Medical Leave Act can be subject to lawsuits, citations and fines. A common mistake employers make is failing to consider whether an in loco parentis relationship gives an employee the right to FMLA leave.

An employer may initially react to an employee's request for FMLA leave to care for a family member who is not a parent or child by denying the request. However, a biological connection is not required, and the leave can be used if it is to care for individuals who stand in place of a parent, to an employee or child. Any failure by the employer to recognize the in loco parentis relationship may result in the filing of an FMLA interference claim.

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