In recent months, the increasing number of high-profile allegations of sexual harassment and sexual assault has put a spotlight on the charged issue of proper decorum in the workplace. The issue that many employers face, however, is that the line between innocent behavior and offensive behavior can be difficult to draw. That’s why it’s important for employers to be as transparent as possible about workplace rules regarding unwanted touching—including behavior that many people might regard as innocuous, such as hugs. In addition, employers should make themselves familiar with the laws of their state regarding sexual harassment and sexual assault. Staying inside these laws is essential for protecting your company from potential lawsuits from current and former employees. If you are concerned about whether your workplace policies are strong enough to protect your company from possible legal action in the future, you may want to consult with a lawyer in San Jose, CA, with experience in employer rights .
In today’s politically contentious landscape, many employees find it difficult to abide by the golden rule: Never discuss politics in the workplace. This can create problems if heated political debates interfere with employees’ job duties and attentiveness to customers. Freedom of expression in the workplace differs from state to state. Employers should check with a labor rights lawyer in San Jose, CA for the reliable employment law advice they need to craft a written policy regarding political speech.
This video provides a brief introduction to this topic, including a discussion of the National Labor Relations Act, anti-discrimination laws, and the First Amendment. It’s a common misconception that the right to free speech guaranteed by the First Amendment extends to the workplace. In fact, it only prevents governmental action against the impingement of free speech. This means that employers can take action to limit political debates in the workplace, particularly if these debates could be considered harassment.
Legal protections in the workplace have come a long way from previous decades, but some employers still run afoul of employee protection laws, including those regarding pregnancy. Civil rights attorneys in San Jose, CA can offer employment law advice to employees who think they may have been discriminated against based on a protected class, such as pregnancy.
Asking About Pregnancies and Intended Pregnancies
It is not within an employer’s rights to ask about an employee’s intentions to become pregnant, or about whether she is currently pregnant. Employees have every right to consult a labor rights lawyer if they are asked this question. Likewise, employers may not ask job candidates about their intentions toward parenthood, nor can they base a hiring decision on whether a job candidate intends to become pregnant or is pregnant.
Disclosing a Pregnancy Status
Women often choose to give their employers a heads up when they are expecting to use maternity leave soon. However, not every new mother will take multiple weeks off. Women are within their rights to work up to their due date, and then take vacation time for the delivery and recovery period. Women who aren’t yet expecting, but intend to become pregnant, can use time off for doctor’s appointments and infertility treatments in accordance with the company’s policy.
Women who plan to take maternity leave given by the company—or time off requested under the Family and Medical Leave Act (FMLA)—must give reasonable notice of the leave. Not every employee is eligible for FMLA. Those who do are lawfully allowed to take up to 12 weeks of leave within a 12-month period for family or medical reasons, such as the birth of a child. FMLA leave is unpaid. At the end of the leave, employers are legally required to restore the employee’s previous position, or an equivalent position that offers the same benefits and wages.
Requesting Reasonable Accommodations
It’s possible for a pregnant woman to be unable to carry out certain job duties due to the conditions of pregnancy. During the last few weeks, for example, she may not be cleared by a doctor to take a business trip. There may also be restrictions on heavy lifting. Although employers cannot ask about pregnancies or intended pregnancies, they should be given reasonable notice about any accommodations the employee needs.
It’s not common for an employer to enjoy firing someone. But if it’s not done correctly, a termination can lead to a far greater headache for the company. Unlawful termination claims filed in San Jose, CA often follow critical mistakes made by the employer. You can hear about some of the most common mistakes by watching this video. Then, consult an employment lawyer to find out how you can avoid legal liability .
This video features many brief skits that illustrate how not to fire someone. For instance, claims of unlawful termination can follow a publicly humiliating firing. It’s also risky to terminate an employee who has just participated in a protected act, such as taking maternity leave or whistleblowing. Taking the time to consult a labor attorney can give you peace of mind knowing that you’ve avoided these costly errors.
Having a harassment policy protects your employees from a hostile work environment and protects you from lawsuits. Small businesses need to have harassment policies in place in the same way that larger corporations do, and developing one is easier than you may think. It’s important to work with an employment law attorney in San Jose when you create your policy to ensure that you are not overlooking any important elements that it should include. These tips will help you make a policy that works for your company and your employees.
Explicitly State What Is Prohibited
Spell out in clear, straightforward terms which groups are protected from harassment . This language can include stating that harassment based on sex, race, color, religion, age, or disability will not be tolerated. It is important to identify all groups who are protected from harassment under federal, state, and local laws. Since these groups may vary depending on where you live, consult with a labor attorney in your area who is experienced in working with your local laws.
Create a Procedure for Complaints
Your policy should tell employees exactly how they can make complaints if they believe they have been harassed. It is helpful to have one person who is not directly responsible for supervising an employee who can take these complaints. For instance, you may wish to state that any manager can take a harassment complaint. State that employees will not be protected from retaliation for making a complaint or cooperating in a harassment investigation and that the employee’s confidentiality will be protected as much as possible.
Make a Response Plan
Your harassment policy should also describe how managers should respond to complaints and provide a timeline for harassment investigations. Clearly define the consequences for harassing employees. Your plan should also include a framework for keeping the employee who made the complaint up to date with the investigation and any action taken against the person who violated the policy.
Although employers are entitled to terminate employees for just cause, such as job performance, there are many reasons for firing someone that is not permitted under employment law. If you think that you have been the victim of wrongful termination , talk to an employee rights lawyer in San Jose to determine if your case meets the legal definition and what steps you should take next. Here is a look at some common questions employees have about wrongful termination.
What is wrongful termination?
Wrongful termination occurs when an employee is fired because of a reason that is not legally permitted. For instance, although your employer can terminate you because of poor job performance or because he or she wishes to downsize, you cannot be fired for your age, race, political views, gender identity, or pregnancy. Termination is considered to be wrongful if it either violates federal, state or local employment law or if it violates the terms of your employment contract. A labor attorney can tell you if your termination falls into this category.
How do I know why I was terminated?
Because you are employed at-will, you can be terminated without warning, unless you have a contract that states otherwise, and your employer does not have to give you a reason. Generally, in cases of wrongful termination, there was a pattern of discriminatory behavior that culminated in the firing. Your labor attorney will want to know information about your work environment if you’ve had performance warnings in the past, and what exactly happened when you were terminated.
What should I do if I believe I was wrongfully terminated?
If you think you were wrongfully terminated, document everything about the incident when it is fresh in your mind, and talk to an employee rights attorney. Your attorney will evaluate all of your evidence and determine if you should pursue legal action against for your former employer. You may seek damages for the impacts of the termination.
Employment laws apply not only to the treatment of employees but also to the application and hiring process. If you are an employer who is unsure of your responsibilities under the law or a prospective employee who believes your rights have been violated, speak to an employment law attorney in San Jose for insight into your case.
Employers cannot discriminate against job applicants for race, religion, sex, gender identity, sexual orientation, national origin, disability, genetics, or age if the person is over 40. Employers also cannot consider stereotypes or assumptions about these groups during the hiring process. When a test is required during the hiring process, the test must be clearly related to the job and cannot exclude people based on any protected class. If a job applicant has a disability and requires an accommodation during the hiring process, the employer must provide it if it can be obtained without excessive hardship or expense. A labor attorney can provide employment law advice to applicants and employers to ensure that these rights are being honored appropriately.
Age discrimination is prohibited under federal and state law, but countless employees suffer its effects regardless. If you’re age 40 or older, you should know how to identify the signs of age discrimination and how to exercise your legal rights with the help of a labor rights lawyer serving San Jose, CA. Another way to protect your job is to familiarize yourself with some basic employment law advice, such as by taking a proactive approach during the course of your career.
Know your legal rights.
Your employment law attorney can review your case to determine if your legal rights may have been violated. Under a federal law—the Age Discrimination in Employment Act (ADEA)—employees and job candidates are protected from age-based discrimination if they are ages 40 or older. This law does have some limitations. For instance, it doesn’t apply to elected officials, military personnel, or independent contractors. The ADEA does apply to:
- Federal, state, and local government entities
- Labor organizations with a minimum of 25 members
- Employers with a minimum of 20 employees
- Employment agencies
Since the ADEA does not extend protections to employees of companies with fewer than 20 workers, many states have enacted additional protections. In California, employees are protected from age discrimination if the company has at least five employees. The same age range applies. Your state rights are explained in the Fair Employment and Housing Act (FEHA).
Take a proactive approach to fight discrimination.
There is no guarantee that not having experienced age discrimination in the past will mean you won’t in the future. It’s best to be proactive about protecting your legal rights. During the course of your career, you should request specific feedback at each job review meeting. Request written copies of your job reviews, and keep these records indefinitely. A track record of positive job reviews can be helpful later on if you need to have a labor rights lawyer file an age discrimination claim.
Identify potential signs of age discrimination.
If you do suspect that you’ve been the recipient of discriminatory actions, contact an employee rights lawyer right away. Age discrimination isn’t always easy to spot. Sometimes, a mature worker may be told, “You have too much experience for this position,” or “Your salary history is too high.” These statements can indicate unlawful discrimination.
Many companies have workplace policies that prohibit harassment, but filing a complaint with human resources isn’t the only remedy available to wronged employees. When certain criteria are met, workplace harassment is also a violation of federal and state laws. If you feel you’ve been targeted, consider seeking employment law advice from an experienced labor attorney in the San Jose, CA area. Be sure to thoroughly document each incident, and bring this written record to your initial consultation with your employment law attorney.
Under the law, workplace harassment is defined as unlawful and unwelcome acts that are discriminatory in nature. Harassment may stem from discrimination based on race, age, sex, religion, color, disability, national origin, or genetic information. Unlawful harassment falls into one of two categories. First, workers are forced to endure the acts in order to maintain their employment. Or the conduct is widespread or severe enough in the workplace to constitute an intimidating, abusive, or hostile work environment.
The Civil Rights Act of 1964
Labor attorneys can file a workplace harassment complaint under Title VII of this federal law. Title VII provides the foundation for anti-discrimination complaints. It prohibits employers from engaging in discriminatory actions against employees based on their sex, religion, race, national origin, or color. This federal law applies to employment agencies, labor organizations, and federal, state, and local government organizations. It also applies to private and public universities.
The Americans with Disabilities Act (ADA)
This monumental piece of legislation was passed in 1990. It gave employees with disabilities broad legal protections against discrimination in the workplace, in addition to protections regarding public accommodations, telecommunications, and public services. Under the ADA, individuals with disabilities are protected from suffering discriminatory harassment in applying for a job, hiring, firing, promoting, job training, and compensatory procedures.
The Fair Employment and Housing Act (FEHA)
FEHA is a California law that applies to employers with at least five employees. Under FEHA, employers are required to take reasonable steps to both prevent and correct harassment and discriminatory practices. FEHA takes a proactive approach toward workplace harassment, as it requires employers to have written policies to prevent discrimination, retaliation, and harassment. Current and future employees must be provided with a copy of this policy, but they still have the legal right to consult an employment lawyer if they feel they’ve been the subject of harassment.
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