What are The 4 Things Employees Should Know About Harassment and Discrimination

With all the media surrounding the recent sexual harassment scandals, everyone is talking about sexual harassment occurring in the workplace, but do people know much about the laws surrounding sexual harassment?  Most people probably picture sexual harassment being your boss grabbing your butt and then there is a big lawsuit, however, it is way more complex than that, and sexual harassment does not always come in the form of touching.  Sexual harassment does not always take place between a male and a female and it is not always women who are victims of sexual harassment, sometimes the victims are men.  While good training can prevent sexual harassment in the workplace news stories and tabloids share the juiciest stories on sexual harassment, it is important to understand the legal side of the issue. A Work Lawyer is the type of legal professional who handles sexual harassment issues and should be the type of legal counsel an employee with a sexual harassment issue should seek advice from.
 

1.  Sexual harassment and discrimination

Did you know sexual harassment is a type of discrimination?  Sexual harassment is sex discrimination, which means a person is treated adversely specifically because of their sex.  An employee’s sex is recognized under the law as a type of class that is protected, just like race and religion or even sexual orientation. Having a written sexual harassment prevention policy can help stop sexual harassment in the workplace

 
2.  Making a complaint is protected

By law, an employee has the right to make a complaint about sexual harassment without being fired or punished for making the complaint. For example, Linda was a sales representative for a pharmaceutical company.  She had been having issues at work regarding another coworker Henry.  Henry had been sending Linda emails and text messages containing sexual innuendos and suggestive photos of himself. Recently Henry’s attempts to get Linda’s attention escalated when he began waiting for her in her car after work.  This frightened Linda and made her feel afraid to go to work.  Linda made a complaint to her head manager about Henry’s behavior but nothing was done to address the issue.  A few days after Linda made the complaint she was terminated without reason.  Here, Linda may have a claim for sexual harassment against her employer because they are liable for Henry’s behavior. In addition to her sexual harassment claim, Linda may also have a claim against her employer for retaliation.  
 

3.  Can any kind of harassment give me the right to sue? 
 

Harassment is only considered illegal if it is based on the employee belonging to a protected class.  For instance, because gender is a protected class, technically if you are a man or woman employee you are considered as belonging to a protected class. But this does not mean that if you are picked on at work or fired, you automatically obtain the right to sue. For harassment to be considered unlawful, you must be treated adversely because of the protected class you belong to or the protected characteristics you possess.  So in the gender example, if you are fired or picked on because you are a man and your boss doesn’t like you because you are a man, that may be considered unlawful harassment.
 
Every case has different facts but each one can still reach the same cause of action for harassment (for more info look at your company’s sexual harassment prevention policy). 

An employee may be able to prove that the harassment was based specifically on the employee belonging to a protected class or possessing a protected characteristic if other employees who also belong to the same protected class or possess the same protected characteristic also endured adverse treatment.  By providing this evidence, a pattern of targeting a particular class may be established.
 
With the help and guidance of a sexual harassment lawyer, an employee may be able to pursue a claim against their employer for harassment and possibly a claim of employment discrimination based on a protected class.

 
4.  Does sexual harassment only happen in a romantic pursuit?
 

When you first hear “sexual harassment” you automatically assume it took place between a man and a woman or it is romantically motivated such as person A being attracted to person B and person A is not interested.  Although this is the most talked about type of sexual harassment, another type of sexual harassment that is recognized by the law is same-sex harassment. For example, Sarah, a female server at a restaurant began having issues with her new female manager Pam.  Upon Pam’s hire, she began picking on Sarah as well as the other female servers and only female servers. Pam would often call Sarah and the other female servers “her little sluts” and sometimes she specifically called Sarah “the main slutbag”.  These nicknames made the female servers uncomfortable.  In addition to the inappropriate name-calling, Pam made a work policy that no female employees could wear pants, only shorts and skirts.  Often Pam would conduct “uniform checks” which consisted of Pam making sure the female server’s shorts or skirts were short enough for their buttocks to be revealed. Fed up, Sarah called the Human Resources Department at the restaurant’s headquarters and made a formal complaint against Pam.  Here, Sarah and the other female servers may be categorized as being victims of same-sex sexual harassment because they were treated adversely specifically because of their gender. They may be able to prove that they were being treated unfairly based on being female because of the inappropriate nicknames and because Pam only behaved this way towards the female employees.  Therefore the Human Resources Department may be obligated to start sexual harassment investigation to decipher whether the female employees were victims of same-sex sexual harassment and/or sex discrimination. If you find some signs someone is sexually harassing you and the Human Resources Department does not address the issue, the next step would be to contact a Work Lawyer.
 
                Today, many employment law firms provide a free sit-down with a Work Lawyer who can tell you whether or not you have a claim worth pursuing.  Because there are free consultations available, an employee should not feel reluctant to discuss their issue with a Work Lawyer who can tell them what rights they have in the workplace as an employee.  Initiating legal proceedings can be an overwhelming and daunting process but having a diligent Work Lawyer can make all the difference.  Contact an employment law firm as soon as possible if you feel that you are being sexually harassed at work or were fired because you complained about being sexually harassed at work or complained about sexual harassment outside the workplace. 

For some employees, time off from work is difficult to get. They try to save sick days for when they need them and they patiently wait for the time they can finally take a vacation, but it doesn’t always seem like enough, given all of their responsibilities and the challenges life often poses. Well, many employers do not understand or fail to mention all the kinds of leave of absence employees might be entitled to. Most people know about sick days and vacation days, as well as maternity leave and personal time, but there are multiple other kinds of time off that some employees are entitled to. These include (but are not limited to) time off for jury duty, voting, situations related to being a victim of domestic violence, bone marrow, organ donation, and military leave. Let’s dive into the specifics of each of these kinds of time off so you can understand what rights you might have.

1- Time off for jury duty (or other matters of the court)

Under California law, employers are obligated to allow employees time off when they are subpoenaed by a court to be a witness in a case or summoned for jury duty. Moreover, employers cannot punish you for having to take leave for those reasons. This means they cannot fire you, demote you, threaten you, or take any adverse employment action towards you because of this time off. Of course, employees should give as much advance notice to their employer as is reasonable. Additionally, employees should provide proof of their obligation if their employer requests it. That can include the notice of jury duty service, the original subpoena, or a note/notice that the court provides, so it should not be difficult to acquire. The question that is most likely on your mind about this kind of leave is if it is paid.

Unfortunately for employees, California law does not mandate that employers must pay employees for jury duty or for testifying as a witness if subpoenaed. However, some employers have a policy allowing for paid leave in these kinds of cases, i.e. when the leave is non-voluntary and non-personal. Additionally, exempt employees earn a salary and because they are not paid by the hour, they usually do not suffer any loss of compensation for this kind of leave (exceptions can occur occasionally, as when the employee must be away from work for over a week and cannot complete job duties). Furthermore, union agreements or contracts might stipulate that employers must pay for jury duty or related leave. The details of your specific situation should be clarified with the relevant people (i.e. employer or union representative).

2- Time off for voting

California employees are also entitled to time off to vote on election days. Employees can take up to two hours of paid time off (more time if they need it, but the extra time is unpaid) to vote if they cannot vote during non-work hours. They do need to notify their employer at least two working days before the election, though, if they need to take that time off to vote. To further safeguard the right to vote, California employers have to post somewhere visible to employees a notice letting employees know about their rights a minimum of 10 days before an election.

3- Time off for bone marrow and organ donation

Under California law, employers with at least 15 employees have to allow employees time off to donate an organ or bone marrow. Moreover, this leave must be paid, although in some cases, that can be through the required use of sick days, vacation days, etc. Time off for organ donors can be up to 30 business days in any 12 months. For bone marrow donors, the leave of absence can be up to five business days in any 12-month period, which is calculated from the day the leave begins. This rule may sound strange, but it is a protection that relieves a significant burden from many people who only want to save a life. With this protection, they do not need to worry about work; instead, they can focus on healing.

4- Leave related to being a victim of domestic violence

When people are facing domestic violence, often the last thing on their minds is work responsibilities. They need to focus on their safety and potentially the safety of their kids. They might require legal help in getting a restraining order, medical care for injuries, or mental health services like psychological counseling for post-traumatic stress disorder. In California, employers must allow time off to deal with these problems. They can also seek temporary restraining orders for their work if there is a threat of the abuser going there. Of course, for both of these rights to be exercised, the employer has to know something about the situation. It can feel understandably frightening to inform people at work about being a victim of domestic violence, but there are laws protecting victims of domestic violence, sexual assault, and stalking against discrimination and retaliation. Moreover, employers have to maintain privacy and only reveal confidential information about the situation if legally required or to ensure the employee’s safety in the workplace. California law also mandates that employers provide reasonable accommodations for victims of domestic violence if requested. That can include things like changing the employee’s work schedule, installing a lock on their office door, transferring/reassignment to a different job, or changing their telephone number.

In terms of time off for domestic violence, the rules depend on the size of the employer. All employers have to allow time off to seek relief, which includes things like getting a restraining order. Employers with at least 25 employees also have to allow time off for victims of domestic violence to get psychological counseling and medical treatment for physical injuries, to receive services from a domestic violence shelter or rape crisis center, and to participate in safety planning or relocate. Notice of the need for time off should be given by the employee in advance if possible. If notice is not possible, proof is required, e.g. court order, police report, or doctor’s documentation. Whether or not this kind of time off is paid depends on multiple factors, so discussing it with the employer may be best, but if you have been a victim of domestic violence and you are suspicious your rights regarding time off were violated, contact a work attorney.

If you believe your rights to any kind of leave have been violated and need more info about other types of harassment seek justice by contacting a work attorney, who can help you figure out the next steps to take.

How to Avoid Conflict When You Take a Leave of Absence

People frequently ask:

• What is a good reason for a leave of absence?
• How to ask for a leave of absence
• Can a leave of absence be denied?
• What is a good reason for absence?
• What qualifies for a personal leave of absence?
• How do I ask for time off for personal reasons?
• How many days is considered a leave of absence?
• How long can you take leave without pay?

What qualifies for a personal leave of absence?

Injuries, illnesses, family emergencies, and accidents happen but what if it happens to an employee?  Employees in California do have rights when it comes to a leave of absence for particular reasons. The laws that govern leaves of absence in employment are quite complex even with the assistance of a Work Lawyer.  There are a few ways though that an employee may be able to avoid conflict at work if they do take a leave of absence.  In addition, these ways of avoiding conflict may also give insight to individuals who feel as though they have been wrongfully terminated because they took a leave of absence and want to hire a Work Lawyer. Each employee or former employee’s situation is unique therefore it is important to hire a Work Lawyer should there be an issue at work once he or she took a leave of absence or requested to take one.

Now look at the 5 Ways to Avoid Conflict When You Take a Leave of Absence

• Know how much time you get off for a leave of absence
• Provide a note from your doctor if and when your boss asks for one
• Use the employer’s documents
• Keep the employer and/or Human Resources department in the loop
• Know your employee rights

1- Know how much time you get off for a leave of absence

Employees are technically entitled to a total of 12 weeks off if he or she takes a leave of absence that is recognized by the law.  If an employee needs more than 12 weeks, he or she may need to have a doctor recommend this extended leave in writing in the form of an accommodation request. As mentioned previously, the laws in this area are complex and an employee or former employee would need the facts of their situation closely considered by a Work Lawyer.      

2- Provide a note from your doctor if and when your boss asks for one

What if my boss requests a note from my doctor?  Do I have to comply?  If and when an employee puts in a request for a recognized leave of absence, their employer may ask the employee to provide documents from their doctor.  An employee is not required to submit a note from their doctor, however, if an employer requests the note then it is required that the employee provide the document. The document(s) provided by the employee’s doctor does not need to disclose any personal information about the employee’s condition, illness, or injury, but it does need to provide what date the employee is expected to recover and return to work.  In addition, should the employee wish to return to work, the doctor’s documents should provide any information regarding any accommodation the employee may need while at the workplace.  For example, an employee may have been injured in a car accident and suffered a back injury.  They may take a leave of absence to recover.  The employee’s Human Resources Department may provide the employee with paperwork for his or her doctor to fill out. In the paperwork, the doctor may provide the date on which the employee is expected to return to work as well as some restrictions on the employee’s duties such as not being able to lift a certain amount of weight or the requirement that the employee sits for 10 minutes after every few hours of standing. Here, in this example, the employee’s doctor provided a date for when he or she would return as well as particular details on restrictions and accommodations the employer may need to comply with upon the employee’s return. 

3- Use the employer’s documents

Most employers or organizations have their customized forms for their employees to take a leave of absence.  These forms are usually for the employee’s doctor to fill out.  Even though a doctor can provide a note from their office to your employer, it may be more productive to have the doctor provide their recommendations within the form provided by the employer.  By having the doctor fill out the employer’s standard form for leave of absence, the employee may be able to demonstrate he or she complied with the employer during the process of taking a leave of absence.

An employee may request this paperwork as soon as they find out they need to take a leave.  Whether it is in a few months or he or she is already on leave due to an emergency, an employee should be as diligent as possible in requesting the employer’s customized form for a leave of absence. 

4- Keep the employer and/or Human Resources department in the loop

From the beginning, middle, and end of a leave, keeping open communication with the employer or Human Resources department can be crucial.  A leave of absence, depending on the particular circumstances, requires a lot of touches and goes between an employee and their employer.  For example, an employee may need to take extra time off after the 12-week mark.  Another example may be if the employee can return to work before the 12 weeks is up but will need accommodation upon their return.  Open communication between an employer and the employee may aid in avoiding future conflict or miscommunication.  Should an employee find himself or herself in a position where they were terminated due to taking a leave of absence, the former employee may be able to use their open communication as evidence that he or she was wrongfully terminated.

5- Know your employee rights

If an employee needs to take a leave of absence or already has taken a leave of absence, he or she needs to know their employee rights.  By asking a Work Lawyer questions regarding their rights, an employee may be able to make an educated decision to pursue legal proceedings. A Work Lawyer is the type of attorney who handles employment matters, specifically leaves of absence matters.  If an employee or former employee needs legal advice on a leave of absence matter, he or she should seek a Work Lawyer who offers free consultations and only works on a no-win fee basis.  An employee taking leave or who already has taken a leave may benefit from knowing their rights regarding a leave of absence because they will know what the law expects of them as well as their employer.

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