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Orange County Employment Law Blog

Major employers may target candidates by age

Those looking for work in California and throughout the country may not necessarily see job ads from major companies such as Google or Facebook on social media. According to an investigation from ProPublica and the New York Times, job ads on social media sites are being skewed toward younger audiences. For instance, HubSpot had an ad on Facebook that specifically targeted those between the ages of 27 and 40.

While this may seem like ageism, the law is not necessarily clear as to whether such behavior is illegal. This is because employers generally get some discretion as it relates to employment decisions based on age. However, the Age Discrimination in Employment Act of 1967 does offer protections for workers who are age 40 or older. In response to the investigation into the practice of ad targeting by age, several companies made changes to their advertising policies.

Man fired for whistleblowing awarded damages

If an employee in California reports dangerous or illegal practices by an employer, that employee should be protected from retaliation under federal laws that protect whistleblowers. A man who made a report when he was concerned about his employer's disposal of asbestos at a high school in New York was fired, and the company filed a defamation lawsuit against him. The Occupational Safety and Health Administration filed a lawsuit on the man's behalf, and he was awarded around $174,000 by a jury in damages.

The man went onto the work site after hours to take photos. He also took away a bag of asbestos that had been improperly removed. OSHA said the company's actions were retaliatory and were not permitted according to Section 11(c) of the Occupational Safety and Health Act.

Misclassification can deny workers earned overtime

In a state with a high cost of living like California, every dollar counts, and denial of overtime can strip workers of wages that they are entitled to under the law. A December 2017 ruling by the 6th U.S. Circuit Court of Appeals has held that workers that make over $100,000 each year may be entitled to overtime under the Fair Labor Standards Act despite the fact that they earn six-figure salaries. The case was prompted by a class-action lawsuit filed by two welding inspectors who were denied overtime pay.

The Fair Labor Standards Act governs the mandatory payment of overtime for employees who work more than 40 hours in a week. The FLSA's overtime provisions are mandatory for all non-exempt employees; other workers can be classified as "exempt" from these provisions, which means they can work over 40 hours each week without receiving overtime. In order to be considered exempt, employees must make at least $455 each week and be paid on a salaried basis rather than dependent on their weekly work hours. However, pay and salary style are not the sole determinants of exempt status under the FLSA.

Workplace discrimination in California

A transgender woman claims that she was the target of disparaging remarks before being fired from a Sam's Club store in North Carolina. She says this occurred after she had complained repeatedly about harassment. The plaintiff, who has filed a federal lawsuit, says that she began working at the suburban Charlotte Sam's Club in 2004 before she transitioned to being a woman. She was promoted to supervisor during this time. She says when she started wearing makeup, the harassment began.

The plaintiff claims that her direct supervisor took part in the harassment and that she was fired based on written infractions that were fabricated by an assistant manager. The Equal Employment Opportunity Commission concluded that evidence existed for a hostile work environment. Sam's Club repudiated these claims. Nevertheless, the EEOC acknowledged the plaintiff's right to sue Sam's Club.

Pregnant women shouldn't be subjected to discriminatory actions

Being pregnant is something that some women look forward to. The thought of starting a family or expanding their family makes them very excited. The joy might turn to trepidation when she realizes that her pregnancy isn't really welcome news.

There are some instances in which the pregnant employee might face discrimination or harassment. This is illegal because of laws that aim to prevent pregnant women from having to deal with this atrocious behavior. Here's what you need to know about pregnancy discrimination:

Pew Research Center looks at workplace gender discrimination

Some female employees in California may be among the 42 percent who reported facing gender discrimination on the job in a Pew Research Center survey. Conducted in the summer of 2017, the study identified a number of different types of gender discrimination and asked almost 5,000 people about their ideas on and experiences of gender discrimination.

The type of discrimination that was most often reported, with one-quarter of women saying they had experienced it, was being paid less than a man for doing the same job. Almost as frequent for women was being treated as though they were not competent. Women also reported being denied jobs, promotions and important assignments as a form of gender discrimination. The survey also found that while roughly the same percentage of men and women felt sexual harassment in the workplace was a problem, at just over one-third each, around 22 percent of women had experienced it while only 7 percent of men did.

Discrimination case declined by Supreme Court

Workplace discrimination based on the protected status of workers is illegal in California under state and federal law. There have been questions about whether the prohibition against sex-based discrimination covers discrimination against workers based on their sexual orientation.

The Equal Employment Opportunity Commission under the Obama administration took the position that sexual orientation discrimination is a form of prohibited sex discrimination. The Trump administration has taken the opposite view and has argued that the law does not prohibit discrimination against workers based on their sexual orientation. Recently, the U.S. Supreme Court declined to hear a case that would have answered the question.

Company to pay restitution in pregnancy discrimination case

On Oct. 31. the U.S. Equal Employment Commission said that a California company was responsible for paying $45,000 after it was accused of pregnancy discrimination. The EEOC stepped in after the company reportedly refused to make accommodations for an employee who became pregnant, placing her on involuntary leave of absence instead.

The EEOC released a statement saying that the company violated Title VII of the 1964 Civil Rights Act and the Pregnancy Discrimination Act by failing to provide appropriate accommodations. The Director of EEOC's Fresno office further noted that employers are legally obligated to provide accommodation for pregnant employees, especially if the company willingly provides accommodations for other employees.

I was fired for whistleblowing. Is that legal?

You’re a person who believes that if you see something, you should say something. That’s likely what led you to blow the whistle on your employer for an unlawful workplace policy or unfair treatment of employees – even if you weren’t affected.

After making the report and doing the right thing, you suddenly find yourself without a job. Is that legal?

Employer obligations in gender transitioning

California is one of several states in which laws have been established to protect transgender employees. In some cases nationwide, gender discrimination laws have been interpreted to include people who have gender dysphoria. Furthermore, according to the Equal Employment Opportunity Commission, Title VII of the Civil Rights Act also protects people from discrimination based on gender transition as well as sex discrimination. However, the federal government does not believe this is the case. It also may be possible for a person with gender dysphoria to pursue a disability claim under the Americans with Disabilities Act.

California has a number of specific regulations for employers regarding issues such as bathroom access and pronoun usage. However, there also are steps that companies can take to establish policies regarding this topic even if it does not apply to current employees. Doing so helps ensure that an employer does not have to scramble to put a plan in because an issue has arisen.