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Sacramento Sexual Harassment Law Blog

Pay compliance for tipped employees doing 'side work'

Food servers in California earn most of their income through tips given by patrons. Some of these jobs require workers to perform duties that do not give them an opportunity to earn tips from customers. In certain situations, these duties are considered "side work" according to the Fair Labor Standards Act. Wage regulations view these extra tasks as tip-related work, like when a server fills salt and pepper shakers or makes coffee.

This designation matters to employers because they get to take a tip credit for all hours worked by servers and avoid paying minimum wage as long as the tasks only supplement tipped duties. When an employee's "side work" exceeds 20 percent of duties, the duties cease to be incidental to the tipped labor. The extra duties that occupy more than 20 percent of a server's hours become classified as another job, which would require the payment of minimum wage and prevent an employer from taking a tip credit for those hours.

Human resources opinion leads to FMLA violation

Human resource managers in Sacramento and throughout the country may need to be a little more careful now about citing Family and Medical Leave Act rules to employees. A decision by the U.S. Court of Appeals for the 7th Circuit awarded attorney fees to a plaintiff on her claim for interference with the FMLA, though she was unsuccessful on that claim when the case was initially tried.

In the lawsuit, the plaintiff was initially permitted by her company to work from home so she could care for her preschool aged son, who suffers from autism. Later, the company rescinded its permission for all employees who worked from home and required them on site for 40 hours per week.

Fox at the center of another sexual harassment scandal

California residents who follow the media will likely be aware that 21st Century Fox has been at the center of several sexual harassment scandals. Fox News pushed CEO Roger Ailes aside in July 2016 after a sexual harassment lawsuit filed by Gretchen Carlson prompted several other women to step forward with similar allegations. However, this was just the first in a series of incidents involving the entertainment giant.

The media conglomerate's cable news division was on the receiving end of sexual harassment allegations again in early 2017, and this time the network's highest rated on-air personality was at the center of them. Bill O'Reilly's nightly current affairs show was the nation's most popular cable news program when numerous women accused him of speaking and behaving inappropriately, and media reports indicate that 21st Century Fox paid about $13 million to settle these complaints. The allegations and the reported payouts chased O'Reilly off the air in April.

FMLA discrimination a concern for employees on leave

Employees in California and across the United States should be aware of the potential for discrimination or retaliation following their Family and Medical Leave Act leave of absence. A case is moving forward in a Florida district court after an appellate court overturned a prior dismissal.

The appeals court found that the employer's stated reason for terminating the employee's job was not particularly believable. It also noted that the firing came close in time to the FMLA leave, implying that the two events could be related.

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.

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