Employment Law 101 Part Two: Retaliation and Harassment

Retaliation and Harassment are ‘Terms of Art.’

Over the past week, I’ve educated at least two potential clients on the difference between the ordinary daily use of the word “harassment” and “retaliation” versus the legal definition. It’s no wonder that an employee would be confused. Harassment is harassment is harassment, right? And, surely it means that my boss has picked on me to the point that I’m seeking psychological – or legal - counsel? Not so when it comes to the law.  

Harassment.

A quick online search for the word harass yields the following: pester, badger, hound, harry, plague, torment, bedevil, persecute, bother, annoy, exasperate, worry, disturb, trouble, agitate, provoke, vex. Under this definition, any parent should be able to bring a lawsuit against their young child!        

Yet, to be legally actionable against an employer, an employee has to show that the unwanted/offensive conduct/comment(s) was because the employee was a member of a protected class, e.g. because he or she was disabled or older, because of gender or pregnancy, because of religious affiliation, race, sexual identity or preference, for being a veteran or because of national origin. And, because an employer isn’t expected to be psychic, the employee has to show that the employer was on notice of the unwelcome conduct. Ideally, the affected employee made a report to Human Resources (“HR”); or that the employer “should have known.”

Retaliation.

There are two different types of “retaliation” in the workplace for the purposes of legal action. Of course, when an employee believes their boss has acted unfairly, perhaps reprimanding that employee for an action the employee believes was perfectly reasonable or defensible, that employee may seize upon the word “retaliation” to describe what just happened. It’s then my job as an attorney to determine whether it meets the legal definition.  

            Fair Employment and Housing Act Retaliation. In theory, an employee should be able to assert a legally protected right in the workplace with impunity, e.g. the right a workplace free from discrimination, the right to a reasonable accommodation for a disability or the right to take protected medical leave. An employer’s reaction to an employee’s assertion of a legally protected right is key, here. If, within a short period of time of such an assertion, an employee finds themselves subject to bad treatment that changes the “terms or conditions” of their work, they may have a supportable claim for retaliation under the Fair Employment and Housing Act.  

            Labor Code Retaliation. This second type of retaliation is commonly known as “whistleblower retaliation,” popularized by media and movies about the hero inside the workplace who figures out that some illegality is taking place inside the company and takes it upon themselves to either point it out to leadership, refuses to participate in the illegality or makes an official report to a regulatory agency charged with overseeing that industry or investigating such claims. Once an employee has made a complaint about the illegality, or perceived illegality, they are afforded some protections under the law: specifically, a termination (or other adverse action taken against that employee) hot on the heels of such a report would be viewed suspiciously as retaliatory and any other reason given by the employer could be deemed pretext.   

Evidence and Damages.

            Even if an employee’s bad experience in the workplace amounts to actual harassment or retaliation, an attorney will ask for evidence. In other words, did your boss use derogatory language toward you in front of other employees (a.k.a. witnesses) or did you report it to HR? Even if it’s just your word against them, it can be enough: for instance, maybe the employer is so small that the boss is also HR, but, you made it clear or it should have been clear that the derogatory language or conduct was unwelcome and offensive.       

            Attorneys also look at damages. In other words, how much money did you lose over this unwelcome conduct or retaliation? Did it result in the loss of your job or alter the conditions and terms of your employment in a quantifiable way? Can we put a dollar amount on the emotional distress that you suffered as a result of the situation? Many if not most contingency-based attorneys will think twice or thrice about taking on an employment matter in the event that the employee has not lost their job or when the damages may amount to little or nothing.

Word to the wise: it’s usually time well spent to discuss your experience with an employment law attorney. Sometimes, you can decide, together, whether it’s worthwhile to pursue a claim – or, whether you’re best served just moving on with your life and hopefully finding a less toxic work environment.

California's Ban the Box Ordinance Creates a New Protected Class of Employment Applicants

Recently, the California Legislature enacted Government Code §12952.  This legislation follows a trend of history-making legislation aimed at reducing the barriers to employment for people with conviction histories and to decrease unemployment in communities with concentrated numbers of people with conviction histories. California’s initial application of this policy only applied to government agencies and in 2015, President Obama applied the rule to federal agencies. Nationwide, 29 states and over 150 cities and counties have adopted a similar “Ban the Box” law and over 300 private companies have signed the White house Fair Chance hiring pledge that was initiated by President Obama.

            Specifically, California Government Code §12952, the most far reaching piece of legislation thus far passed in California, makes it unlawful for any company doing business in California with five or more employees to inquire into or consider an applicant’s conviction history in advance of a conditional offer.

            Calif. Gov. Code §12952 also requires that a company who intends to deny an applicant a position of employment solely on the basis of that conviction history to make an individualized assessment of whether the applicants history has a direct and adverse relationship with the specific duties of the job; and, to give the applicant notice and the opportunity to respond before the employer makes a final decision.

            In making this “Ban the Box” law apply broadly to private employers, it is clear that the legislature intended to impose a duty on all companies, with limited exception, to give a fair chance to otherwise qualified and rehabilitated employees.  

            Under “Ban the Box” statutes, it may be perfectly reasonable for a company to disqualify an applicant who is newly released from prison where he/she served two years for financial fraud from a job as an accountant. There, the nature of the crime is similar to the interests that the company would seek to protect; and, two years may not be long enough of a history of rehabilitation. However, when a crime is in an applicant’s remote past and has no nexus to the job for which he/she applies, it becomes more difficult to justify denying that applicant the job.

As well, there may be occasions where an applicant is hired into the job, the employer later learns of the conviction and, on that basis, terminates the employee. Given the legislative intent of Gov. Code §12952, terminating an employee in this way would be contrary to public policy of the state of California and thus create liability for Wrongful Discharge. Indeed, California has made it clear that employers may not discriminate against the class of people who have criminal backgrounds when employers are making employment decisions.      

When Strippers Became Employees AND "Tip's" Became "Commissions"

Each year California regulators and judges adjust and interpret the laws and employment attorneys in particular scramble to remain current on the codes and ever-evolving case law. So, it’s no big surprise that 2018 ushered in a long-overdue newly minted definition of “independent contractor,” as opposed to employee. 

            The case in question, Dynamex Operations W., Inc. v. Super. Ct., 4 Cal. 5th903 (2018) (“Dynamex”), is trending - with Plaintiffs’ attorneys claiming victory and Defense attorneys crying foul over the California Supreme Court’s ABC test decreed by the court. This newly established standard automatically assumes workers to be employees. The employer has the burden of showing otherwise, using a narrowly drawn set of three factors. 

            Specifically, in order to prove that a worker is a contractor, the employer must establish that each and every one of these applies: (A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and, (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and, (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. 

            Dynamex has been widely lauded as an attack on the “gig economy,” doubtless a consequence considered and intended by the court. A class of delivery drivers brought the case in question. However, it affects a lot of other professions, including hairdressers and strippers.  

            Almost two and a half decades have passed since I was first hired as a summer clerk to work on what was a cutting edge wage and hour lawsuit by erotic dancers challenging clubs that changed them from employees to independent contractor status. And, by news accounts, the court’s ruling in Dynamex has produced a hue and cry among some of the very workers it seeks to protect, strippers. 

            As reported by the San Francisco Examiner, strippers in North Beach are walking off the job as a result of being handed their first-ever paychecks that represent a much lower amount of money than their usual take-home cash. (http://www.sfexaminer.com/208300-2/Apparently, in an end-run of the Dynamex ruling, clubs are paying strippers an hourly wage and a “commission” on dance sales. What the article fails to mention is: this isn’t the first time that clubs have paid a paycheck to strippers. Indeed, prior to the mid-90’s, strippers were classified as employees who received minimum wage plus their take home in tips from customers.  

            From my first law school summer job, I learned that one house rule with which dancers had to take care was not soliciting the clients for money in exchange for performing sexual acts. Indeed, the line can be somewhat thin on the legal definition of prostitution and the type of things that might happen inside strip clubs. Because California Penal Code 647defines prostitution as “any lewd act between persons for money or other consideration,” the clubs managed to skirt the law (so to speak) by the dancers receiving only “tips” for their performances. By calling them “tips,” dancers could avoid prosecution as prostitutes – and, assumedly, clubs could avoid prosecution as pimps. 

             California law then contains specific rules related to “tips.” Most critically, California Labor Code 351 says that employers cannot take any portion of a tip left for services rendered by a specific employee or employees. Yet, somehow, clubs have turned the rules inside out by repurposing the same money from customers previously used for “tips” as “commissions.”  

             California law and regulations are dense with rules governing the acceptable treatment of various classes of workers. Most relevant here are the laws related to commissions and to tips. By conveniently “forgetting” that dancers don’t “sell” their performances, which can be considered lewd under California law, these North Beach strip clubs have entered the murky world of laws related to commissions. Enter the Division of Labor Standards Enforcement that defines “commission” as Compensation paid to any person for services rendered in the sale of the employer's property or services and based upon the amount or value thereof. If the employee's compensation is based on a percentage of the cost or sale price of the product or service, then the compensation plan is a commission. That’s a lot to unpack. 

            Taking this rule at its face value: Can dancers be compensated for their services that are rendered in the sale of their own time spent with a client? Then can a dancer’s time, energy and performance be considered the property or services of the club? Most importantly: By requiring that dancers solicit patrons who must pay the upfront costs to the clubs that are then partially paid out to the dancers, are clubs specifically foregoing the protections that they had set up against prostitution busts? 

            Given the ever-changing landscape on compensation regulation, I strongly suspect we have not yet seen the end of this issue that has now been ongoing for at least three decades.  

Associational Discrimination

Unbeknownst to many and rarely litigated, associational discrimination is actually an express cause of action under the Fair Employment and Housing Act (FEHA). (Calif. Gov. Code §12926(o)).  Among classes protected from employment discrimination by FEHA such as race, national origin, disability, national origin, religion and sex are those “associated with a person who has, or is perceived to have, any of those characteristics.” (Id.) 

            The classic case of associational discrimination is when a mother or father discloses to her employer that she/he has a disabled child at home.  (Ennis v. National Assoc. of Business & Educ. Radio, Inc., (4th Cir. 1995) 53 F.3d 55, Tyndall v. National Educ. Ctrs., Inc.,(4th Cir. 1994) 31 F.3d 209; O’Connell v. Isocar Corp. (1999) 56 F. Supp. 2d 649.)As a result, the employer may wrongfully discriminate against the employee because the disabled child was covered under the employer’s healthcare plan and thus the employee has become more costly to the employer.  Or, the employer may fear that the employee will contract the disability as there may be a genetic component.  Or, the employee may have been distracted from their work because of the disabled child. So long as the employee was not so distracted that they couldn’t otherwise perform their work to the satisfaction of the employer, none of these reasons justify an employer’s discrimination against his employee.   

            California has not gone so far as to require that an employer reasonably accommodate and employee based on that employee’s association’s disability, however.  (Castro-Ramirez v. Dependable Hwy. Express Inc., 2 Cal.App.5th 1028, 1039-40 (2016)) Thus, while an employer has a duty to reasonably accommodate a disabled employee so that he/she can perform the job, the employer does not have to accommodate an employee’s caretaking duties. Of course, if caretaking duties for a close family member requires a specific and limited time off from work rather than an ongoing obligation, eligible employees can look to other areas of the law such as the Family Medical Leave Act (federal) or California Family Rights Act.  

            Equally interesting as the classic case of associational discrimination are the outlier cases. For instance, given the hot topic of gender/pregnancy discrimination, one could foresee an avalanche of future cases that feature Dads who were discriminated against for trying to take or for taking paternity leave.