Do I Have a Case?
It is best to contact an employment law attorney to determine whether you “have a case” or not, because various subtleties which a non-attorney may not perceive can drastically affect the existence and viability of a legal case. Furthermore, you may be overlooking certain facts that give rise to legal action, because you are distracted or focusing on other (potentially irrelevant) facts. However, prior to contacting an attorney, it is helpful to understand certain concepts.
The first is whether you are a party to an employment contract, or an at-will employee. If you and your employer are parties to an employment contract, then you generally have the protections of the terms and provisions specified within the contract. At-will employees, on the other hand, can be terminated for any reason or no reason, although not an illegal reason.
Illegal reasons can include retaliation against an employee for protesting or opposing illegal conduct by the employer. These can include, but are not limited to: safety violations, defrauding customers/clients, failure to pay wages or overtime, and illegal discrimination and harassment.
FAILURE TO PAY WAGES AND PROVIDE MEAL/REST PERIODS
An employer has an obligation to abide by laws and regulations pertaining to the timing and payment of wages, and rest period and meal breaks. “Wages” include most forms of payment, including but not limited to commissions, overtime, vacation pay and bonuses.
Discrimination is the denial of employment, termination and/or adverse employment actions (negative changes in the terms and conditions of employment, e.g., wages, hours, bonuses, shifts, position, and duties) based on the employee’s membership in a protected classification. Protected classifications include, but are not limited to: race, age (generally being over forty years of age), gender, national origin, religious affiliation, marital status, disability, pregnancy, and sexual orientation. Note also that a perceived membership in one of the protected classes can also be a basis for actionable discrimination (e.g., a supervisor fails to promote someone because he or she thinks that a subordinate is disabled, when the employee is not actually disabled). This law is codified within various federal and state laws, the most pertinent of which (in California) is the California Fair Employment and Housing Act.
Discrimination can be targeted at a single individual or a group of individuals. It is generally proven through the conduct and statements of supervisory or managerial employees, and sometimes statistical data. The most important question to ask yourself before calling an attorney is, why do you believe the actions being taken against you are based upon the discriminatory basis, as opposed to something else?
Harassment is generally undue and unwanted attention of an unlawful nature.
Sexual harassment is the most common form of harassment. The most common forms of sexual harassment are “quid pro quo” sexual harassment and “hostile workplace” sexual harassment.
“Quid pro quo” sexual harassment occurs when employment opportunities are conditioned upon acquiescence or acceptance or the undue and unwanted sexual attention.
“Hostile workplace” sexual harassment occurs when there is unwanted touching, jokes, exposure to images, statements, and/or other behavior that is severe or pervasive. “Pervasive” means that it is so common that it affects an employee’s ability to do his or her job. Cases of this type often involve off-color jokes, photographs of scantily clad or naked men or women, pornography, racial slurs, and the like.
WHAT TO DO
If you feel you’re being discriminated against, harassed, or retaliated against, you should report the conduct to your company’s Human Resources (HR) department, your supervisor, or a manager. Your company may have a reporting structure in place for complaints of discrimination and/or harassment. You should follow your company’s reporting requirements wherever possible, and escalate the complaint if appropriate. If the harasser is the one that your company’s policy suggests that you report harassment to, you should report it to HR or the harasser’s supervisor. ANY REPORTS SHOULD BE IN WRITING and you should keep a copy of your report.
If conditions are so severe or physically dangerous that no reasonable person (of the protected class) should be made to endure it, then the employee may escape the conditions by quitting, and seeking damages for lost wages. This is called a “constructive termination.” However, it is important to note that “constructive termination” is to be a last resort remedy. The conditions must be truly severe or dangerous, and employees will generally be expected to use any available reporting mechanism to attempt to resolve their employment issues. Only if those mechanisms fail, and the treatment continues, is an employee to quit under the auspices of “constructive termination.”
VERY IMPORTANT: YOU HAVE A LIMITED TIME PERIOD IN WHICH TO BRING A LEGAL CLAIM. FOR MOST CASES OF HARASSMENT AND DISCRIMINATION, YOU HAVE ONLY ONE YEAR TO FILE A CLAIM WITH THE PROPER AUTHORITIES. IN THESE TYPES OF CASES, IT IS OFTEN BOTH ESSENTIAL AND ADVANTAGEOUS TO FILE AN ADMINISTRATIVE CLAIM BEFORE FILING A LAWSUIT.
In California, an individual who has suffered unlawful conduct in violation of the Fair Employment and Housing Act (such as discrimination or harassment based on their membership in a protected class) must file a complaint with the Department of Fair Employment and Housing (DFEH). Usually, this must be done within one year of the conduct of which they are complaining (there are limited exceptions in some cases). FAILURE TO DO SO COULD CAUSE YOU TO LOSE YOUR ABILITY TO PURSUE LEGAL ACTION AT-ALL! Information on, and forms provided by, the DFEH and its complaint process can be found at DFEH Complaint Process.