Federal Anti-Discrimination and Harassment Laws
Other Federal laws, the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA), prohibit discrimination based on an employee’s physical or mental disability or age (if the employee is over 40 years old). The ADA requires employers to provide reasonable accommodations to disabled employees upon request as long as the employee, with or without the accommodation, can perform the essential functions of the job. Reasonable accommodations can include physical changes to the workplace to improve accessibility, the provision of interpreters and/or specialized computer and communications equipment, job restructuring and flexible work schedules.
The Equal Pay Act also requires employers to provide men and women equal pay for equal work regardless of gender.
The Federal Agency charged with upholding these Federal civil rights laws is the Equal Employment Opportunity Commission (EEOC). All employees, whether employed by the Federal government, State government or private corporations, can file complaints with the EEOC. In fact, filing a complaint with the EEOC is often a required step, called "exhaustion of administrative remedies," that the employee must complete before filing a case in Court. The EEOC will then determine if a complaint warrants investigation, and may bring an administrative action against the employer or may issue the employee a right to sue in Court.
California Anti-Discrimination and Harassment Laws
Employees who work in California receive additional protection from the Fair Employment and Housing Act (FEHA). The FEHA encompasses more protected classes than Title VII, and includes age and disability discrimination and harassment as well as discrimination and harassment based on religion, gender, national origin, color and race.
A critical difference between Title VII and the FEHA is that FEHA prohibits sexual orientation discrimination against workers who are gay, lesbian, transgender, or transsexual. FEHA also recognizes marital status as an improper basis for employment decisions: firing, hiring and promoting must be without regard to whether someone has a family, is single, or is divorced.
Another important difference between Federal and California State discrimination laws is that the State's law applies to employers with five or more employees while most Federal laws only apply to employers with 15 or more employees.
The California State agency charged with enforcing the FEHA is the Department of Fair Employment and Housing (the DFEH). Employees in Calfornia must filed a complaint with the DFEH within one year of suffering discriminatory or harassing conduct at work. Employees must file a complaint of discrimination, harassment, or retaliation in violation of FEHA with the DFEH in order to be able to sue the employer or ex-employer in Court. This process is called exhaustion of administrative remedies and all employees in California must exhaust their administrative remedies by filing a complaint with the DFEH before seeking remedies in Court.
Attorneys at MARTIN & VANEGAS, APC assist employees in filing complaints of discrimination with their employers, with the EEOC, and with the DFEH. We represent employees during EEOC and DFEH investigations and mediations. We are experienced in pursuing wrongful termination and employment discrimination, harassment, and retaliation cases in Court.
The California Labor Code makes it illegal for an employer to retaliate against or punish an employee for filing a complaint about the employer’s violation of the law with a state or federal government agency, or for otherwise engaging in protected activity. Examples of protected activity include filing a wage complaint with the Labor Commissioner, reporting violations of the law or regulations to a supervisor, or reporting hazardous work conditions to Cal-OSHA. The California Labor Code further protects workers who refuse to follow their employers’ requests or demands to engage in activities which violate state or federal laws.
The Fair Employment and Housing Act and Federal anti-discrimination laws also prohibit an employer from retaliating against an employee who files a complaint of discrimination, harassment, or retaliation internally with Human Resources, the federal Equal Employment Opportunity Commission (EEOC), or the California Department of Fair Employment and Housing (DFEH). Retaliation can take the form of an explicit adverse employment action, such as a termination of employment or a demotion, or can take the form of cumulative harassment including name-calling, negative performance reviews, and exclusion from important meetings.
Attorneys at MARTIN & VANEGAS, APC represent employees who are the victims of unlawful employment retaliation.
The California Labor Code provides employees a number of important protections in regards to payment by their employers. The legal questions raised by claims for overtime pay increasingly involve issues of whether or not particular employees meet specific criteria to exempt their employer from paying overtime. An employer's categorization of an employee as salaried versus hourly does not answer to the real question of whether or not the employee is in fact exempt. The courts will look to the employee's job duties to determine their real status under the law. Industrial Welfare Commission orders covering various employment sectors complement and clarify how the California Labor Code applies differently to employees based on their industry.
Attorneys at MARTIN & VANEGAS, APC represent employees at Labor Commissioner hearings regarding claims for unpaid wages, unpaid overtime wages, missed meal and rest breaks, waiting time penalties, and other violations of the California Labor Code.
The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) require businesses and corporations that employ a certain number of workers to provide up to 12 weeks of unpaid leave to an employee who is suffering a serious medical condition or who is obligated to care for a family member suffering from a serious medical condition. Generally an employee must work for a company for at least one year before qualifying for protected leave. Employees have certain obligations that they need to meet to obtain the protection of these laws. Employees generally have to have a certain number of hours on the books with the employer in the previous year in order to qualify for FMLA and CFRA leave.
The employee, if possible, must provide notice to the employer that they need the leave and must provide a medical certification from their doctor or their family member’s doctor indicating that the leave is required for a serious medical condition. If the employee qualifies for the leave, the employer has an obligation to ensure that the employee can return to his or her job or a comparable job after the leave is over, and the employer cannot retaliate against the employee for needing to take the leave. For example, if an employee qualifies for and takes FMLA leave, it is impermissible for an employer to punish, fire, or harass the employee for missing work during the time of the protected FMLA leave. The Department of Fair Employment and Housing (DFEH) investigates complaints of violation of the California Family Rights Act while the federal government’s Department of Labor handles FMLA violations. Attorneys at MARTIN & VANEGAS, APC represent employees in these proceedings.