How to Know if You’re Being Discriminated Against

Discrimination in business is a complex subject, but at its core, it revolves around whether or not you are being treated fairly and equally by an employer. Most types of discrimination fall into one or more of the following categories – if you believe you’re being discriminated against and it doesn’t match any of these, you may need to consult an attorney for more information.

Race and Ethnicity

Race and Ethnicity are an unfortunately common source of discrimination in the workplace, despite the fact that Title VII of the Civil Rights Act specifically prohibits using race or color in regards to many hiring decisions. It also rejects the use of stereotypes for potential employees, but this doesn’t always stop companies from displaying a bias.

Example: Generic Business Company is a national corporation with offices in twelve states. Twenty-seven percent of its workforce is African-American, and another ten percent is Hispanic, but executive and managerial positions are staffed exclusively by Caucasians. Darryl Johnson is an African-American who has been with the company for seventeen years, and has performed as well (or better than) many people who have been promoted to managers… and repeatedly been denied a promotion despite the fact that his performance demonstrates he deserves it. He is probably being discriminated against.

Gender and Sexual Orientation

Often referred to merely as ‘sex’ in documents, there are times when one’s gender or sexual orientation have an adverse impact on their ability to succeed within the company. This type of discrimination is typically – but not always – financial.

Example: Betty Brown is a manager at Generic Business Company, where she makes an annual salary of $60,580. This is an average salary for female managers in the company, but male managers have an average salary of $75,931, even if they perform worse (and have been employed for a shorter amount of time) than Betty. This is a probable case of gender discrimination, and Betty would be entirely within her rights to inquire about the discrepancy.

Age

Some companies don’t like the costs associated with having older workers, but federal guidelines are clear that age is not an acceptable reason for denying promotions, hiring, or benefits.

Example: Robert Jeffson is a 54-year-old male who has been with Generic Business Company for 30 years. Over that time, he has performed well and steadily been rewarded with raises. However, an economic downturn has cut into the business’ cash reserves, and it decided to fire him because of his ‘inappropriate age for the position he holds’. Robert has a discrimination case on his hands.

Disability

This is the most complex area of discrimination. Companies cannot discriminate against employees who suffer in a way outlined by the Americans with Disabilities Act. However, neither are companies required to lower their quality standards or go to “undue hardship” to provide for that employee.

Example: Carl cannot use his legs, and requires a wheelchair to move around the office. Generic Business Company hired him, but refused to provide him with an elevator key, slowing his movement between floors… then fired him for “consistently failing to move between areas in a timely manner”. GBC’s failure to provide a reasonable accommodation for his disability, then blaming him for problems caused by this, is a clear case of discrimination based on a disability.

Note: In all cases, there are times when exceptions are made to the rules. For example, many companies require bathrooms to be cleaned exclusively by individuals of the same gender as those using it. Refusing to hire a woman to clean the men’s bathroom – or the other way around – is not necessarily discrimination.

Are You Eligible for Workers Comp in California?

You get injured while working. Should you report it or go to your own doctor instead? In California, every employer must carry workers comp insurance. And any injury sustained on the job is covered by that insurance.

What makes you eligible for workers’ compensation?

There are three general requirements for determining whether you are eligible for workers’ compensation.

  • Your employer must be required by law to carry workers’ compensation insurance.
  • You must be an employee of that employer.
  • You must have an injury or illness that is work-related.

Let’s take them one at a time.

Employer required to provide coverage

In the state of California, any company or business that has one employee or more must carry workers’ compensation insurance, or provide proof they are self-insured. There are very few exceptions to this law, so virtually everyone is covered.

Employee of company

To be eligible for workers’ comp, you must be an employee of the company.

Independent contractors are usually not eligible in case of an injury. Volunteers are also usually not covered, though California does allow non-profit organizations to opt in to provide coverage for volunteers.

There are gray areas in the law, however. Some employers try to categorize people as independent contractors, when, by legal definition, they are actually employees. In those cases, the injured employee may be eligible for coverage under their employer’s policy (if it exists).

Work-related injury or illness

The injury or illness must be work-related. In most cases, this is easy to determine. You injured your shoulder while carrying a heavy box at work. You tripped and fell down the stairs at work. You developed carpal tunnel syndrome due to heavy use of the computer keyboard. Those are all easy to see as work-related injuries.

Some injuries or illnesses may not be so easy to figure out if they are work-related or not. Here are a few examples:

  • If you are out of the building, grabbing a sandwich for yourself at a nearby deli and sustain an injury, then you are likely not covered. However, if you are there picking up a lunch order for your employer, you may be covered.
  • You are attending an employee baseball game off hours. You get hit by a ball and sustain an injury. The injury is likely covered by workers’ comp. After the game ends, if you trip getting into your car and sustain an injury, you may or may not be covered.
  • If you are on a business trip and sustain an injury, it is likely covered. If you routinely drive a company car back and forth to work, and sustain an injury during your commute, you are likely covered. If you are driving your own car and sustain an injury during your commute, it is likely not covered.

If you have a work-related injury, you may need to seek legal counsel to make sure you get the proper medical care, disability benefits, and compensation you are eligible for.

Why Hire a Divorce Attorney?

Approximately half of marriages end in divorce, and with no-fault divorces you can have a clean break from a spouse without proving any wrongdoing.

That said, filing for divorce is always an emotional decision that neither spouse takes lightly. A divorce attorney can patiently walk you through no-fault or contested divorce proceedings in a way that fits your schedule and gives you options.

Expertise of Divorce Attorneys

The process of divorce normally proceeds according to state law rather than federal mandates. California, in fact, approved no-fault divorces over two generations ago and continues to offer no-fault divorces to this day.

A divorce attorney has experience in an area of law known as civil law. This area of law is concerned with handling the sometimes emotionally fraught emotions between private relations and coming to mutually beneficial solutions for each party.

Let’s face it – divorce can be complicated and messy. Annulling a marriage, child custody and visitation rights are serious matters that require the help of an objective third party.

A qualified divorce attorney or family law attorney can help you achieve control and move your life in a more positive direction.

Avoid Costly Errors

Divorce proceedings can take six to twelve months to complete even with an experienced divorce attorney. In a state like California that has a long history of allowing for no-fault divorces, moreover, it can be challenging to figure out your options by going it alone.

California allows three ways to end a marriage or domestic partnership: marriage annulment, divorce and legal separation. Choosing one of these options and filling out a petition or summons can be challenging enough – knowing all of your rights when it comes to responding to, say, a marriage annulment can add to the complications.

Whether you’re filing for divorce or responding to one, the process is tremendously stressful for those embroiled in divorce proceedings. The areas of civil law associated with divorce are very complicated. Just hearing the word “divorce” can also make it challenging to think clearly and without strong emotions like anger, regret and anxiety.

An experienced divorce attorney can walk you through every form you’ll need to endorse and every asset you’ll need to appraise in order to move on with your life.

Align Yourself with an Expert

Divorce can be very high stakes and permanently alter the lifestyles of both spouses as well as children and other family members. Potentially millions of dollars are at stake and child visitation rights as well as child support payments hang in the balance.

An experienced divorce attorney or family law lawyer understands all of the procedural issues surrounding no-fault divorces, contested divorces, and child custody cases.

A family law attorney can help you file the proper paperwork, properly appraise all of your assets and make a convincing case to a judge. Aligning with an experienced expert in divorce proceedings can get the the best child support and alimony outcomes available given your unique circumstances.

Get In Touch Today

Set up a consultation with a divorce attorney today to get a better grasp of all of your legal options. California is a no-fault divorce state, yet judges also hear cases over legal separation and marriage annulments. Contact our divorce attorneys today to find out which option is best for you.

California Minimum Wage

The federal government establishes a minimum wage requiring employers to pay their workers a minimum of $7.25 an hour. Politicians are currently debating whether or not to raise that to a more reasonable amount.

Each state can establish its own minimum wage requirement as long as it at least meets the federal requirement. States can require employers to pay a higher minimum wage, but they cannot go below the minimum established by federal law.

California has an established minimum wage of $9 an hour. On January 1, 2016, that will increase to $10. The minimum wage requirement applies to both employers and employees. Employers cannot pay less than the minimum wage and employees are prohibited from agreeing to work for less than that amount. The law only applies to employees and not to those who work as independent contractors. There are some exceptions to the minimum wage requirement and nuances specific to California employers and employees.

Exceptions to the minimum wage requirement

There are some categories of workers to whom employers are not required to pay the minimum wage. They include:

  • Outside sales people or employees for whom generating outside sales is their main job.
  • The employer’s parents, children or spouse.
  • Babysitters under the age of 18.
  • Sheepherders. There is a minimum monthly wage instead of an hourly wage for sheepherders since they work unusual hours and generally live on the farm where they are working.
  • On the job learners may be paid 85 percent of the minimum wage during their first 160 hours of employment while they are learning. This is only if the worker has no previous experience in doing the specific job and is genuinely learning how to do the work.
  • Physically or disabled workers who are employed by nonprofit organizations who have obtained a special license from the Labor Department authorizing them to pay less than the minimum wage.

Specific rules applicable to the way employers calculate minimum wage

California law has some specific rules employers must follow to be sure the minimum wage law is not circumvented. Employees also need to be aware of the laws so they know what they can and cannot expect.

  • Holidays: California employers are not required to provide paid holidays to any employee. If they do so, it is according to their specific policy or to a collective bargaining agreement. Therefore, employees who work on a day considered a holiday are only entitled to be paid at the legally established hourly minimum wage and nothing more.
  • Tips: These belong to the employee who receives the tip. The employer must still pay the minimum hourly wage and what the employee receives as a tip is the employee’s to keep. It cannot be deducted from the minimum wage the employer is required to pay. If the tip is added on to a credit card charge and not left in cash, the employer may not deduct even one cent from the amount for credit card processing.
  • Benefits of meals and lodging: An employer and employee may agree in writing that meals and lodging may be provided to the employee to make up part of the minimum wage requirement. There are legal limits on how much of these expenses can be used to make up the minimum wage.

Whether you are an employer wanting to be sure you are complying with the minimum wage requirement, or an employee concerned about the accuracy of your pay, a California business and employment attorney can help you with your questions.

How’s California Spousal Support Determined?

During the divorce process you might encounter a petition for spousal support. Spousal support, sometimes called alimony, is not an uncommon request and may be granted, along with child support (or in the absence of child support) for a number of reasons. The court decides what the appropriate spousal support is for each particular case, by taking into consideration the specifics of the case, the marriage, the length of the marriage as well as other circumstances.

Spousal Support in California

Spousal support, often a hot button issue, is decided in California by considering many different aspects of the marriage, and the life that will be led by both parties after the marriage is dissolved. The length of the marriage often comes into play when a court is ruling on spousal support. The length of the marriage greatly impacts whether or not spousal support will be granted, often times. A judge will also consider whether or not the person who is asking for spousal support can support themselves with marketable skills. For example, if a 20 year marriage dissolves in which the wife has never worked, she is unlikely to have marketable skills, and, thus will require support until marketable skills or necessary education is achieved.

A court will also take into account whether or not the party asking for spousal support has had their income potential impaired by their time spent outside the workforce because of the marriage. The court will decide whether or not the supported party was removed from the workforce to devote time to their marriage and domestic work, as well.

The supporting party’s needs are also taken into account when dealing with spousal support in court. For example, a judge will consider the lifestyle that both parties have become accustom to in the marriage, and he or she will also look at the monetary obligations of both parties. The supporting party must be able to sustain their own lifestyle appropriately while paying spousal support, and the court will not impose a financial hardship on one party in the interest of the other.

How Does Child Support Impact Spousal Support

Spousal support can be granted regardless of whether or not children were conceived during the marriage, however, many courts rule more favorably for spousal support if there are children involved, specifically, if the supported individual gave up their employment in the interest of caring for children. In many cases, the court agrees that the supported party should not take time away from the raising of children, as they had done during the marriage, for gainful employment and will rule in favor of spousal support to keep the children in a lifestyle they are both familiar and comfortable with. With that being said, however, spousal support can have an end date, and in cases were raising children is a deciding factor, the spousal support may end when the children involved in the case reach an age in which they can reasonably care for themselves.

The Length of Spousal Support

Many people think of spousal support as a never ending agreement. That simply is not the case. In the state of California, most spousal support decrees are for no longer than half the length of the marriage. This is considered enough time for the supported party to gain the skills they need to support their own lifestyle and interests. The length of the marriage, the age and the health of the parties, and other previsions may alter that time frame, however.

Poor Performance and Unemployment?

If you have fired an employee for the reason of poor performance, they may still be eligible to receive unemployment. Depending upon the state that you live in, most states consider workers who are terminated because of performance issue to still be eligible in many instances, provided they meet other work requirements.

What Does Poor Performance Mean?

Poor performance can be considered a catch-all term for several different reasons why an employee has been separated from their job. It is often defined as the employee’s inability to meet the standards set for their particular position provided that this inability was not deliberate.

Examples of why you would fire an employee because of poor performance may include that he or she:

  • Is a poor fit for the position in which they were hired
  • Does not have the proper skills or training for the position in which they were hired
  • Has been unable to perform to the standards for the position as expected by the employer
  • Made honest mistakes that cannot be considered willful misconduct

However, if you can prove that the employee has intentionally acted in any of these circumstances, it is possible that their unemployment benefits may be completely denied or delayed for a period of time.

For example, if the employee has intentionally shown misconduct or has acted recklessly against the best interests of your business, it is important not to label their dismissal as due to poor performance. This could be that they have previously performed their job as required, but have now stopped doing so intentionally. Keep in mind this does not include instances where the employee’s skills have declined because of infirmity or other declines.

Reasons Why an Employee May be Ruled Ineligible for Unemployment Benefits

It is important to protect your rights as an employer and help keep your costs for unemployment in check. The most important way is to understand the circumstances in which you would fire an employee under the guise of poor performance versus misconduct. For example, if after repeated warnings your employee has not corrected their behavior or performance to adhere to company policy; this may be grounds for being terminated for reasons of misconduct.

Instances of misconduct may include:

  • Excessive tardiness or unexcused absences
  • Insubordination or causing dissension among other employees
  • Dishonesty or stealing
  • Sexual harassment
  • Violating safety rules
  • Intoxication or failing a drug or alcohol test

The severity of the willful misconduct of the employee will be taken into consideration when determining if and when they will be eligible to collect unemployment benefits.

An Employers Responsibility When it Comes to Sexual Harassment

As an employer, you understand that fear of judgment and backlash can make opening up about sexual harassment tough for an employee. When a victim finally decides to speak up, you must be ready and willing to get to the bottom of the situation immediately.

Keep in mind that as the boss, you’re indirectly responsible for the on-the-job actions of your employees. If you choose to kick allegations of sexual harassment under the rug, it could lead to resentment, reduced productivity and high turnover rates among your employees.

Even worse, if you don’t take action, you could end up with a business-crippling lawsuit on your hands. The entire situation could turn into a chain reaction. Once one employee decides to sue, past victims might come out of the woodwork and fan the flames. Although 6 out of 10 lawsuits, according to information by the Equal Employment Opportunity Commission (EEOC), never see the light of day, why would you want to take that chance?

Interview the parties

Speak to the victim, and then to the accused to get both sides of the story. Get the names of anyone who may have witnessed the incident. There should be two people in management present during both interviews so there is an extra witness just in case the issue spills over to court.

Have the victim sign a statement confirming his or her version of what happened. Document the date and time you spoke with the accuser and the alleged perpetrator. To keep down trouble and confusion, request that the victim avoid speaking to anyone on the job about what happened.

Investigate the matter

Gather all of the information and conduct an investigation via an in-house manager or a lawyer. It’s best to assign at least two people to the investigation to make sure it’s fair and unbiased. Also, document every step of the investigation process, as well as the basis for the outcome.

Take appropriate disciplinary action

If your investigation reveals that the accused did in fact sexually harass a coworker, take disciplinary action. The nature of the action will depend on what happened. If the infraction is small, a written warning may suffice. If the harassment is ongoing and severe, you may have to send the person packing to prevent a lawsuit.

Having a written, anti-harassment policy in place shows you took measures to prevent employee harassment and can protect you legally. Give everyone in the workplace a copy of the manual and have them sign a form indicating they received it. To ensure you cover all the bases, have the handbook drafted by an employment attorney. In addition, go over the handbook annually and update it as needed.

What is Wrongful Death?

What are wrongful death lawsuits and when might they be brought against another person? A wrongful death lawsuit is a type of civil action that can be brought against a company or person responsible for another’s death.

Wrongful Death and Negligence

Normally, wrongful death lawsuits are filed by surviving family and brought against, for instance, a car company for selling a faulty vehicle or a liquor store owner for selling alcohol to a minor that lead to a roadside fatality.

Wrongful death claims usually involve wrongdoing or some form of negligence. A wrongful death lawsuit can be brought against anyone from a doctor or highway engineer to car manufacturer.

If a car manufacture, for example, knowingly ships out vehicles with faulty parts, then the car manufacturer might face a wrongful death lawsuit subsequent to a fatal accident tied to those faulty parts.

Alternatively, a physician who prescribes too high a dose that ultimately leads to a wrongful death could face a wrongful death lawsuit.

Although some cases of wrongful death are indeed murder, many cases of wrongful death involve simple negligence.

Civil Damages in Wrongful Death Lawsuit

In most cases a close family member or spouse can file a wrongful death lawsuit on behalf of the deceased. If found guilty of wrongful death, the defendant bringing the wrongful death lawsuit will be “made whole” and awarded civil damages.

Civil damages are simply monetary awards given to the plaintiff from a guilty defendant. Civil damages can be general or special – general damages are typically more intangible and include compensations for emotional distress as well as pain and suffering.

Special damages include more quantifiable payments. Lost wages and even future income that would have been generated by that family member had s/he not suffered a wrongful death could both be considered special damages.

Before contacting a law firm, make sure that you document all of the facts surrounding the timing and circumstances of the wrongful death. Contact any witnesses who could help strengthen your wrongful death lawsuit as well.

Individual circumstances and the amount of negligence largely dictate how much compensation in civil damages the surviving kin receive for a wrongful death.

Wrongful Death Lawsuits in California

In California, hospital and funeral bills are part of the special damages that are paid to the surviving kin. Future financial support that would have been generated had the wrongful death not occurred also constitute civil damages payable to surviving kin.

A very common rationale behind filing a wrongful death lawsuit is to address medical malpractice that resulted in wrongful death. Medical malpractice is a form of negligence and, if proven in court and linked to a wrongful death, could entitle surviving kin to general and special civil damages.

In California, if the wrongful death occurred in a patient who had less than a 50-50 chance of survival, then the wrongful death lawsuit has a much worse chance of standing up in court. The reasoning behind this is that negligence by a physician would be harder to link to a wrongful death if the patient were already in a poor state of health.

Also, since the California Supreme Court has ruled that a fetus is not a person, wrongful death lawsuits are not applicable in this area.

Finally, California has a statute of limitations for wrongful death cases. This means that if surviving kin or a spouse fails to file a wrongful death lawsuit in the two year timeframe following the wrongful death, then the California civil court system might not hear the case.