Offshoring Industry Trends Affecting California Employment Law

Offshoring Industry Trends Affecting California Employment Law

By Steve Danz

Businesses around the world are expected to spend nearly $1 trillion dollars on outside IT labor services in 2017. Perhaps this figure does not seem overwhelming on a global scale, but, the implications for employers and employees, on a micro-level, can be jarring and disruptive. Take, for example, the case of the IT department at the University of California at San Francisco (UCSF). Earlier this year, UCSF completed the transition to offshore their entire clinical IT team to an India-based company named HCL, resulting in the displacement of approximately 80 employees. A mere seven months ago, these individuals were gainfully employed. Next thing they know, they are being asked to train their replacements, ultimately culminating in the termination of their employment in favor of their new, ostensibly less expensive, counterparts.

What is striking is how pernicious this trend has become. In this case, this “organizational solution” was implemented at UCSF, a public nonprofit educational institution, who could not reasonably defend such a decision by borrowing the tired line used by for-profit companies that the move was in the “best interests of the shareholder and the bottom line.”  According to UCSF, the move will save nearly $30 million annually and will curb clinical-side IT costs that have nearly tripled between 2011 and 2016. In reality, the $50 million dollar contract would send the majority of the work to India and bring foreign IT staff to the UCSF campus on H-1B Visas.

Aside from the privacy and security concerns resulting from offshoring IT services, there are numerous business and employment law related concerns.  For instance, many large corporations are merely “shells” and offshore every job that does not interface with customers.  This makes it more difficult to bring a breaching or harmful company to court, and may even curtail enforcement from certain agencies such as the California Labor and Workforce Development Agency and the U.S. Department of Labor.  Our court system and laws have a storied history of protecting California workers.  Permitting companies to contract their labor with the ability to simply terminate a contract, or to instantly disappear altogether, is unacceptable.

When the lines are blurred between employment and contract labor, it not only affects our American tax system by giving reprieve to unscrupulous corporations, it also destabilizes and disenfranchises the American workforce.

The legislature must ensure that these companies are held accountable for how they pay and treat their workers.  This may mean creating new laws to govern these types of contracting industries.  We could look north of the border for an example where Canadian laws permit a third, legally recognized category known as “dependent contractor.”  This worker is economically dependent on, and subject to the control of, one principal employer, but uses his or her own tools and may expect a profit from the services provided. In return, an employer must give the dependent contractor reasonable notice of termination and the dependent contractor can sue the principal similar to how an employee may sue the employer.

The Protect and Grow American Jobs Act, introduced by Darrell Issa, a California Republican, and Scott Peters, a California Democrat, aims to curb the outsourcing of American jobs by reforming the nation’s high-skilled immigration program and helping to adjust the requirements in the issuance of H1-B Visas.  One way that the bill may encourage U.S. based companies to hire American workers is by increasing the minimum salary for foreign workers under the H-1B visa program from $60,000 to $100,000.  This will unquestionably help when companies are considering hiring an American worker versus a foreign worker.

There may still be time to save American jobs.  California’s legislature, as it usually does, should take the lead in protecting our local economy by introducing similar legislation and fighting for the employees, before it is too late.

Steve Danz is senior partner and chief trial attorney at Stephen Danz & Associates. He represents plaintiffs in wrongful termination, discrimination, disability, wage and hour class actions, and false claims act whistleblower litigation in partnership with the Department of Justice.

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Uber and tech: Are you listening now?

Uber and tech: Are you listening now?

PhoneBy Lisa Mak

This past Sunday, ex-Uber engineer Susan Fowler published a powerful blog post about the gender discrimination she experienced while working at Uber. It started with her male manager sending her messages, stating that he was in an open relationship and was trying to stay out of trouble at work but couldn’t help it, because he was looking for women to have sex with. Susan sent screenshots of the chat to Human Resources. The response? Uber HR and upper management told her that even though this was clearly sexual harassment, they were not comfortable giving the manager anything besides a warning. The reasons? This male manager was a “high performer” and it was his “first offense,” so they did not want to ruin his career over “an innocent mistake.” The company then gave Susan the “choice” of moving to another team, or staying on the male manager’s team and likely receiving a negative review from him.

When Susan later tried to transfer to other teams, her transfers were blocked due to undocumented “performance” problems. Her performance review was downgraded from a positive to a negative score, and she was told that she needed to prove herself as an engineer.

Presumably Uber, like most large U.S. companies, has a policy encouraging employees to report incidents of discrimination. Each time Susan received a sexist email, she forwarded it to HR. This included emails with her director when he said the company would not order promised leather jackets for the female engineers because they had not been able to get a bulk discount on the women’s jackets as they had for the men’s jackets. When Susan reported this to HR, she was told that maybe she was the problem, that she should not be surprised at the gender ratios in engineering, and that it was unprofessional to report things to HR via email.

Less than a week later, Susan’s manager told her that she was on “very thin ice” for her HR report and could be fired if she did it again. He also said that his threats to fire her for reporting things to HR were not illegal. Susan reported this conversation to HR and the CTO, but again the company did nothing. Susan left Uber for a new job.

After Susan’s blog post went viral, Uber CEO Travis Kalanick suddenly announced that the company is launching an “urgent” internal investigation into the matter, headed by former U.S. Attorney General Eric Holder.

Some takeaways from Susan’s terrible experience: We need to stop pretending that the tech world is a pure meritocracy, and instead call out the prevalent sexism in that sector. For starters, there’s the numbers issue. On her last day at Uber, Susan calculated that of the over 150 reliability engineers there, only 3 percent were women. Just last month, civil rights activist Rev. Jesse Jackson called out Uber to release its workforce diversity data. Why does a tech company of this size still need to be urged to be transparent about its diversity numbers? And then there’s the cultural issue – a culture that favors men in the STEM fields, that marginalizes women, and blames them when they speak out about misogyny. The problem of victim-blaming is also amplified in the tech space where employees are often on social media, with the risk of being judged by potential employers and targeted by internet trolls. We’ve known about these problems for years. So why hasn’t anything changed?

We also need to fix the double standard that underlies companies’ responses to these complaints. When Susan reported her male manager’s behavior, Uber did not want to ruin his career over a “first offense.” She later learned from other Uber female engineers that it was not, in fact, his first offense. Unfortunately, we’ve seen how companies use this excuse to sweep complaints under the rug, whether in tech or in other sectors. This attitude presumes that a man’s career opportunities are somehow more valuable and worthy of protection than a woman’s workplace rights.

Whether it was the harasser’s first offense or his fiftieth, Uber’s response was out of line as a matter of law. There is no exception to enforcing employment laws based on whether someone’s career and reputation would be “ruined” over claims of harassment and discrimination. It certainly is not a reason to avoid addressing the problem. Employers are legally obligated to investigate all complaints of harassment and to take prompt, effective action to stop it. Forcing the harassment victim to transfer is retaliation, not a remedy. Our laws focus on protecting those who suffer harassment, discrimination, and retaliation, and on eliminating those evils from our workplaces – not on whether the perpetrator will have hurt feelings or a derailed career.

Companies need to start taking complaints seriously, doing fair investigations, and taking appropriate remedial steps at the time these issues are raised. Uber is not some small start-up with five employees stuffed in a garage. It has thousands of employees, an HR department, legal counsel, and a board of directors. Why was nothing done to help Susan until she made her story public?

Uber does not get credit for now conducting an investigation into Susan’s claims, after she has already left the company and after she made a public blog post about her experience. Uber does not get credit for now committing to release its diversity statistics after this incident. Investigating and taking action should have happened long ago, instead of letting the situation spiral out of control. Kalanick’s apology now is simply too little, too late.

It should not take a blog post and public outrage to make a company finally pay attention to employees’ complaints of sexual harassment, gender discrimination, and retaliation. Our laws require companies to treat their employees fairly all the time, every time, not just when it is a PR nightmare.

Lisa Mak

About Lisa Mak

Lisa Mak is an associate attorney in the Consumer & Employee Rights Group at Minami Tamaki LLP in San Francisco. She is passionate about representing employees and consumers on an individual and class basis to protect their rights. Her practice includes cases involving employment discrimination, harassment, retaliation, wrongful termination, labor violations, and severance negotiations. Ms. Mak is the Co-Chair of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, and an active volunteer at the Asian Law Caucus Workers’ Rights Clinic. Ms. Mak is a graduate of UC Hastings School of Law and UC San Diego. She is fluent in Cantonese and conversant in French.

Why I called my relatives this weekend

Why I called my relatives this weekend

Technological people
By Elizabeth Kristen

We are not a close family. We rarely get together.

We certainly don’t call each other on a daily or even monthly basis. It’s basically a text-on-your-birthday type of relationship.

But this weekend, I called my brother and my uncle.

My uncle is a Vietnam veteran and an accountant in Kansas. He is a steadfast democrat and demoralized having lived through Kansas Governor Sam Brownback’s destruction of public education in that state.

So he was distressed about Trump, but not mobilized to fight him. I spoke with him about his son, who he thinks voted for Trump and ways my uncle might reach his son about issues that matter to him — net neutrality.  We also chatted about my Aunt and her vote for a third party candidate.  Again, we discussed things that motivate her, such as the IDEA (providing support for students with disabilities — a law Education Secretary Betsy DeVos thinks is optional for the states).  After my conversation with my Uncle, he started emailing me about ways to get involved with fighting back against the Trump agenda.  He told me about this effort to provide a way to contact Trump through his businesses.  So I made that call, and it was great and I emailed my uncle about my experience.  I continue to text my Uncle to call his Kansas Senators.

My brother served in the Army and now lives in Indiana. He is a “white working class” voter. The ones who supposedly love Trump. But my brother also is a Democrat and an Obama supporter. When I called him, he too thought his voice didn’t matter.  I tried to convey the urgency of the panic I feel every day about how Trump is out to destroy everything I care about.

I looked up my brother’s Senators and their positions on the Executive Order Muslim ban and emailed him to call Congress.  To be honest, I am not sure he did it.  But I will keep trying.

Lots of liberals I know bemoan our inability to have conversations with Trump voters. Our emphasis on those lost conversations may be keeping us from remembering the easier and perhaps more impactful calls we can have with our friends and relatives in red states.

They need to make themselves heard too.

Those of us in blue states sometimes may believe we can’t or don’t need to do anything because our Congress people and Senators may share our views.

But we can and should still call Congress. I visited California Senator Diane Feinstein’s local office in person twice last month to urge her to vote against Jeff Sessions as Attorney General. My visit sparked others I know to do the same.

Now is not the time for business as usual. If you are calling your representatives, thank you. Just make sure that the next call you make is to friends and family to ask them to get involved in the fight. If they already are, let’s support each other and continue to connect to those in other states who also are struggling to find meaningful ways to protect the values we care about.

Elizabeth Kristen

About Elizabeth Kristen

Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid at Work.  Ms. Kristen began her public interest career as a Skadden Fellow at Legal Aid.  Ms. Kristen graduated from University of California at Berkeley School of Law in 2001 and served as a law clerk to the Honorable James R. Browning on the Ninth Circuit Court of Appeals in San Francisco.  In 2012-13, she served as a Harvard law School Wasserstein Public Interest Fellow.  She has been a lecturer at Berkeley Law School since 2008. Legal Aid at Work together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.

Election aftermath: The road ahead

Election aftermath: The road ahead

photo-1445365813209-5ab6d8f397cbWhen I was in law school, a white male student ran for a position in our student body government. In his campaign statement, he said that if elected, he would eliminate funding for the school’s minority organizations and use the money to “blow lines” off the taut stomachs of Southeast Asian boys. At a town hall meeting, this man still did not seem apologetic and told us to lighten up, that it had just been a joke. Many minority students, including yours truly, were outraged. When people ask why I became a civil rights lawyer and involved in progressive causes, I cite that incident as one of several defining moments. Because it was heartbreaking that someone in San Francisco these days would still think that racist jokes were acceptable, and that some people didn’t think it was a big deal.

The election results brought new heartbreak. Whatever theories emerge about the outcome, one thing remains clear – there is still so much to be done to protect our civil rights. If you think we are safe from racism, sexism, homophobia, and xenophobia in this country, think again. If you think that the laws we have in place offer enough protection to prevent unfair treatment, think again. If you think that there are too many complaints about discrimination and harassment, think again.

Our state’s public policy is clear:

“It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment for these reasons foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advancement, and substantially and adversely affects the interests of employees, employers, and the public in general.”

Discrimination in any form adversely affects us all. It’s not a joke, and it’s definitely a big deal. People who come to my office are not litigious by nature – they have suffered real harm and mistreatment in the workplace simply because of who they are. Because their skin is not white. Because they are women. Because they were not born in this country and speak imperfect English. Because of who they pray to. Because they are perceived as too old or too disabled to work. Because they love their same-sex partner. Because of these and other immutable qualities that are supposed to be embraced and protected under our laws and under human decency.

If you think we’ve progressed to be more inclusive, look harder at what this nation has revealed about itself. And look harder at the work that needs to be done. Now more than ever, we need to continue seeking justice, fair treatment, and equal opportunities for all.

Lisa Mak

About Lisa Mak

Lisa Mak is an associate attorney in the Consumer & Employee Rights Group at Minami Tamaki LLP in San Francisco. She is passionate about representing employees and consumers on an individual and class basis to protect their rights. Her practice includes cases involving employment discrimination, harassment, retaliation, wrongful termination, labor violations, and severance negotiations. Ms. Mak is the Co-Chair of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, and an active volunteer at the Asian Law Caucus Workers’ Rights Clinic. Ms. Mak is a graduate of UC Hastings School of Law and UC San Diego. She is fluent in Cantonese and conversant in French.

A turning point in paid family leave: California measure has broad political and medical support

A turning point in paid family leave: California measure has broad political and medical support
image1

Charles Anderson, a new father who was denied parental leave by his employer, and his baby girl.

By Jenna Gerry

With unprecedented bi-partisan support, a bill that would expand parental leave to 2.7 million more of California’s working families is on Gov. Jerry Brown’s desk. Introduced by Sen. Hannah-Beth Jackson (D-Santa Barbara), SB 654, the New Parent Leave Act, would extend six weeks of job-protected bonding leave to California workers at companies with at least 20 employees within 75 miles of the employee’s worksite.

This bill addresses one of the biggest barriers workers face when trying to take Paid Family Leave — knowing that their job may not be there when they get back. This bill is remarkable not only for what it will provide to millions of California workers but for the justified bi-partisan support it received on the Assembly floor.

Here in California, the state Chamber of Commerce has consistently put every bill expanding the right to take job-protected parental leave on its infamous “Job Killer” list. In the past, a bill’s placement there has ensured that no Republican legislator would support it, and it has often meant that few to no moderate Democrats would either. Indeed, it can be the kiss of death for progressive legislation, even in our Democratic-controlled Legislature. So, as SB 654, prominent on the “Job Killer” list, headed to the Assembly floor in August, Jackson and the bill’s sponsors were not sure if we had the 41 votes we needed. But something miraculous happened.

After hearing her fellow Republicans voice staunch opposition, Assemblymember Melissa Melendez (R-Murrieta) stood up to speak in support of SB 654. She described her own experience of deciding to leave the military when she became a mother — in part because she would have received only six weeks off after giving birth. She could not imagine having to leave her child that fast. Melendez called on her colleagues to consider that we guarantee the job of any member of the military reserves if they are called to active duty. And she asked whether “the birth of a child is less important than service to one’s country.” She also challenged past rhetoric from both sides of the aisle justifying votes against parental leave measures.

When the final vote came down, nine Republicans joined 45 Democrats in favor of SB 654. We hope this was a turning point, and our state and nation can now transcend partisan politics to understand, finally, that family leave affects us all. As Melendez put it, “Republicans and Democrats agree that family is important, that children are important. And, if you believe that, you have to put your money where your mouth is.”

California’s health community is also speaking out for SB 654. More than 120 California health care professionals and 16 health care organizations — including the American Academy of Pediatrics’ California chapter — delivered a letter to Governor Brown this week urging him to sign it. “This is about clear empirical evidence,” said one signatory, Dr. Paul Chung of UCLA, “showing that the health and well-being of parents and their children — the present and future of our state’s economic productivity — are improved by job-protected paid parental leave.”

In addition to my organization, Legal Aid Society-Employment Law Center, several groups that advocate for policies to support the viability of working families cosponsored and helped promote SB654: the California Employment Lawyers Association, Equal Rights Advocates, and the California Work and Family Coalition (which counts these groups and many more among its members).

Now it is time for Governor Brown to make parental leave a reality for millions more California workers, especially because they’re already funding six weeks of it through payroll deductions. But parental leave is about more than the bottom line; it is about ensuring the wellbeing of California families and the state as a whole.

Jenna Gerry is an attorney at Legal Aid Society – Employment Law Center (LAS-ELC), where she advises workers struggling with family and medical crises and participates in legislative advocacy to expand family-friendly workplace policies.  LAS-ELC is a co-sponsor of SB 654, along with the California Employment Lawyers Association, the Work and Family Coalition, and Equal Rights Advocates.  

 

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We’ve Finally Reached 2016 African American Women’s Equal Pay Day

We've Finally Reached 2016 African American Women’s Equal Pay Day

Harriet Tubman portrait

Today we commemorate “African American Women’s Equal Pay Day,” the day in the year when African American women’s wages finally catch up to what men earned last year.  It is important to note that African American Women’s Equal Pay Day comes nearly four months after “Women’s Equal Pay Day,” which included wages of women of all races, and was marked on April 12th of this year.  The four-month lag signifies the nearly 20-cent wider wage gap African American women face when compared to women of all races.  So, while the average wage gap for all women in the United States is 79 cents for every dollar a man makes, African American women’s wages are at just 60.5 cents on the dollar.  African American lesbian couples, who doubly experience the high wage gap (plus discrimination based on sexual orientation), have triple the poverty rate of white lesbian couples.

Eliminating the racial gender wage gap would provide concrete economic benefits to African American women.  To give a concrete example, women could buy nearly three years of food for their families or pay rent for nearly two years with those additional wages.  Given that so many African American women and their families are struggling to make ends meet, receiving equal pay would make a life-changing difference.

Last year, California passed one of the strongest equal pay laws in the country, the California Fair Pay Act of 2015, which strengthened protection for workers who discuss or ask about their wages and the wages of others.  It also protects women who challenge gender based pay differences in jobs that are “substantially similar” to theirs.  For example, a female housekeeper who is being paid less than a male janitor could remedy the pay difference since the jobs are so similar and wage inequality would likely be unjustified.  The California Labor Commissioner is charged with enforcing the California Fair Pay Act.

This year, California State Senator Hall has introduced SB 1063, the Wage Equality Act of 2016, which would add race and ethnicity to California’s strong Fair Pay Act.  Under SB 1063, California employers would be prohibited from paying workers less for substantially similar work based on race or ethnicity.  An African American woman thus might have a claim that she is being paid less based not only on sex, but on race as well.  With SB 1063, she would be able to more effectively address racial wage inequality.

Certain cities already are specifically addressing wage inequality by sex, race and ethnicity.  For example, in San Francisco, city contractors will have to disclose data on what they pay their workers, broken down by both sex and race, to the City.  California state contractors may also be required to submit similar pay data reports under another bill that should reach the governor’s desk for approval.  And the federal Equal Employment Opportunity Commission intends to revise its Employer Information Report (EEO-1) data collection to include salary information based on ethnicity, race, and sex.

Our current laws against sex and race discrimination have proven inadequate to end race- and sex-based unequal pay since the pay gap remains depressingly large more than fifty years after passage of federal civil rights laws in these areas. Pay disclosure rules are an important step towards closing the pay gap for women and women of color in particular. They force employers to self-audit and identify unjustified pay disparities.  In the event they do not correct the disparities, disclosure enable government agencies to conduct targeted enforcement of equal pay laws.

It will reportedly be more than a decade before the first African American woman (Harriet Tubman) graces the face of U.S. currency.  With these new laws there is hope that before the Tubmans arrive, African American women will already be receiving the full value of those $20 bills and not just 60 percent.

The Legal Aid Society-Employment Law Center together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.

 

 

 

Elizabeth Kristen

About Elizabeth Kristen

Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid at Work.  Ms. Kristen began her public interest career as a Skadden Fellow at Legal Aid.  Ms. Kristen graduated from University of California at Berkeley School of Law in 2001 and served as a law clerk to the Honorable James R. Browning on the Ninth Circuit Court of Appeals in San Francisco.  In 2012-13, she served as a Harvard law School Wasserstein Public Interest Fellow.  She has been a lecturer at Berkeley Law School since 2008. Legal Aid at Work together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.

Silencing the survivors: How the Brock Turner case reflects the failures of our justice system

Silencing the survivors: How the Brock Turner case reflects the failures of our justice system

Woman1By Lisa Mak

Like many others, I was outraged by the outcome of Brock Turner’s case for his rape of an unconscious, intoxicated woman behind a dumpster.  This woman was brave enough to go through the process of a 16-month criminal case.  She wrote an extremely powerful and heartbreaking statement that she read in court when addressing how Turner’s assault has forever changed her life.  Prosecutors had sought a six-year prison sentence for Turner’s crime.  Yet Judge Aaron Persky only imposed six months of prison with probation, stating that a longer sentence “would have a severe impact” on Turner and that Turner “will not be a danger to others.”

Unfortunately, this painfully skewed result, the biased way the case was portrayed, and the outrageous statements from Turner’s family and friends defending his actions, are all too familiar features of a system that often does not treat rape and assault for what they are – violent, heinous crimes that violate basic human dignity.  The events and reactions in the Turner case remind me of cases I’ve litigated where employees were sexually harassed, assaulted, or raped in the workplace.

It seems like the same story every time.

The victim is blamed and doubted.  Questions may be asked about whether she was somehow responsible for what happened.  Were you drunk at the company party?  Why did you enter his hotel room to talk about work?  Have you ever sent a risqué email at work?  Did you date that co-worker? Why can’t you remember all the details?  Are you sure the relationship wasn’t consensual?  Investigations into workplace sexual harassment complaints may not happen, or when they do, they may be conducted in a way that is slanted against the victim.  Given the difficulty of coming forward, it is unsurprising that many sexual harassment cases go unreported.

The perpetrator is protected.  He is given the benefit of the doubt.  He may receive little to no discipline for his misconduct.  The victim is advised that everyone is “moving on” from the situation.  To add insult to injury, often employees who complain about sexual harassment will be fired in retaliation.  For example, in her lawsuit against Tinder in 2014, co-founder Whitney Wolfe alleged that she was forced out of the company after her complaints of discrimination and harassment.

There is often a mistaken focus on the impact on the perpetrator’s career and reputation, as opposed to the physical and psychological impact on the victim.  When former Dean of Berkeley Law School Sujit Choudhry was accused of sexually harassing his executive assistant, university officials were allegedly reluctant to terminate him for fear of ruining his career.  He was never in fact terminated, and resigned after a lawsuit was filed against him earlier this year.

Similarly, when Turner’s father pleaded for leniency for his son, he ignorantly argued: “[Turner’s] life will never be the one that he dreamed about and worked so hard to achieve.  That is a steep price to pay for 20 minutes of action out of his 20 plus years of life.”  This, compared with the life of the woman Turner raped, who explained: “My independence, natural joy, gentleness, and steady lifestyle I had been enjoying became distorted beyond recognition.  I became closed off, angry, self deprecating, tired, irritable, empty … You bought me a ticket to a planet where I lived by myself.”  Yet Judge Persky remained concerned about the “severe impact” a longer prison sentence would have on Turner, the convicted criminal.

Whether sexual assault happens at work, at school, in a home, or anywhere else, the same infuriating narratives keep surfacing – blaming the victim, doubting the crimes, and protecting the perpetrator.  Language is used to downplay the severity of the attacks.  Turner’s friend, Leslie Rasmussen, submitted an equally outrageous letter of support for him for trial, writing: “[W]here do we draw the line and stop worrying about being politically correct every second of the day and see that rape on campuses isn’t always because people are rapists.”

This isn’t about being politically correct.  This isn’t about alcohol or promiscuity or the tarnished futures of privileged individuals who chose to violate the rights of others.

This is about calling out sexual harassment, assault, and rape for what it is.  This is about respecting women and human beings and common decency.  Cases like Brock Turner, along with the many cases of workplace sexual harassment we see, underscore the need to focus on the consequences caused by the perpetrator and not on rationalizations for the violent conduct.  When survivors of assault and harassment are able to come forward and speak their truth, their courage should always be met with an outcry of support and a fair chance at justice.

Lisa Mak

About Lisa Mak

Lisa Mak is an associate attorney in the Consumer & Employee Rights Group at Minami Tamaki LLP in San Francisco. She is passionate about representing employees and consumers on an individual and class basis to protect their rights. Her practice includes cases involving employment discrimination, harassment, retaliation, wrongful termination, labor violations, and severance negotiations. Ms. Mak is the Co-Chair of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, and an active volunteer at the Asian Law Caucus Workers’ Rights Clinic. Ms. Mak is a graduate of UC Hastings School of Law and UC San Diego. She is fluent in Cantonese and conversant in French.

The legacy of the civil rights movement

The legacy of the civil rights movement

selma2

The struggle for civil rights puts us squarely within a longstanding movement. It is helpful to keep the history of those efforts in mind as we focus on the problems of the moment. Here are the reflections of a woman who has dedicated her life to global human rights – The Legacy of the Civil Rights Movement.

Marvin Krakow

About Marvin Krakow

Marvin Krakow (B.A., Yale, 1970, J.D. Yale, 1974), a founding partner of Alexander Krakow + Glick LLP, focuses on discrimination based on race, age, religion, disability, gender, sexual orientation, national origin, and ethnicity, wrongful termination of employment, civil rights, and class actions. He has won seven, and eight figure results. He helps victims of sexual harassment and rape, and represents whistle blowers. He argued landmark cases before the California Supreme Court, Loder v. City of Glendale and Superior Court v. Department of Health Services (McGinnis).

A Mother’s Day gift of job-security

A Mother’s Day gift of job-security

This Mother’s Day, let’s give moms the gift of job-security for the time they take away from work to bond with their new babies.  Just last month, Governor Brown signed into law a bill that would boost Paid Family Leave benefits for parents who take baby bonding leave, but nearly half of all California workers could still be fired for taking the leave and accessing those benefits.  Under current law, job-protection for baby bonding leave is only available to parents who work for large companies with 50 or more employees, leaving out over forty percent of the workforce in California.

A legislative proposal currently underway in California, Senate Bill 1166, by Senator Hannah-Beth Jackson, would help ensure more mothers can go back to their jobs after taking up to 12 weeks of baby bonding leave, by extending job-protection to parents who work for smaller companies.  The reality is, almost half of the workforce is now women and mothers and fathers are sharing in financial and childcare responsibilities.  Without job-protection for new parents, mothers are usually the ones who are forced out of the job market when they would otherwise choose to return after an extended period of leave.

Many other states have already expanded their family leave laws to provide more parents with job-protection when out on leave.  Most recently, New York signed a bill that provided paid family leave benefits with job protection for nearly all workers in the state, regardless of the size of their employer.  In Washington DC, all employees have 16 weeks of job-protected leave.  In Maine, workers at companies with 15 or more employees have 10 weeks of job-protected leave; Massachusetts provides 8 weeks of job-protected leave for workers at companies with 6 or more employees; Minnesota offers 6 weeks of job-protected leave for workers at companies with 21 or employees; and Oregon provides 12 weeks of job-protected leave for workers at companies with 25 or more employees.

Opponents of SB 1166 argue that the proposed measure would “kill jobs” and “unduly burdens and increases costs of small employers.” These fear-based, sky-will-fall arguments have no basis.  In 2004, the National Federation of Independent Business conducted a poll of small businesses that contradicts the “undue burden” narrative.  The average number of requests for leave is only one per year.  Two-thirds of the small businesses did not receive a request for leave at all in the prior three years.  When asked about the principal problem caused by the employee’s absence, the most frequent response was “no real problems.”  A 2012 national survey of employers conducted by the Department of Labor also found that small employers were less likely to report problems with family leave than were large employers and that fewer than 10 percent of employers reported problems with productivity, absenteeism, turnover, profitability, career advancement, or morale because of family leave.

At last month’s bill signing ceremony raising California’s minimum wage, President pro Tem Kevin de León said, “When it comes to taking care of working families, mark my words, California leads the nation…the rest of the country looks toward California for leadership on this issue.”  It’s time for California to make good on its promise to working families – to provide not just higher paid leave benefits, but an assurance that their job will be there when they need it the most.

In addition to signing your Mother’s Day cards today, please sign this petition in support of SB 1166, because no mother in this state should have to choose between caring for a child and keeping a job.

What we can learn from the U.S. women’s soccer team this Equal Pay Day

What we can learn from the U.S. women's soccer team this Equal Pay Day
Leroux

U.S. soccer fan and cutout of U.S. national team player, Sydney Leroux, at the Women’s World Cup Final in 2015.

The U.S. Women’s National Soccer team recently became the (familiar) faces of the problem of women being paid less than men for the same work.  Last month, Hope Solo, Carli Lloyd, Becky Sauerbrunn, Alex Morgan, and Megan Rapinoe filed a complaint with the Equal Employment Opportunity Commission saying that the U.S. Soccer Foundation pays the women far less than its male players.  While inequalities in the treatment of female athletes are legion—recall the controversy about the women’s team being forced to play on artificial turf, the recent offensive comments about women’s tennis, and ESPN’s failure to include the women’s basketball bracket in its app— there has been less attention focused on pay disparities.  When we talk about female athletes’ pay, the usual excuse for paying women less is that they generate less revenue.  Yet the women’s soccer team generated $20 million more in revenue than the men, but are paid four times less.  The women’s team has been far more successful than the men’s team, including winning three World Cup championships, but still struggle for fair and equal pay.

Unequal pay is a problem for all women, and has real financial consequences.  Indeed, one study found the gender pay gap begins even with the unequal allowance boys and girls are given for household chores.  Melinda Gates recently pointed out the additional burden on women around the world of unpaid additional household work.  The annual cost of the gender pay gap is $9 trillion dollars — dragging down the entire global economy.

On April 12, 2016, we observe Equal Pay Day (now in its twentieth year).   Equal Pay Day symbolizes how many days into the next year women have to work to make what men earned in the prior year.  Unfortunately, we likely will be observing Equal Pay Day until 2059 — the estimated date we can expect to close the gender pay gap.  Equal Pay Day falls at different points in the calendar for women of color who experience a more egregious wage gap than do white women (as compared to all men and/or white men).  The federal Equal Pay Act has been on the books for more than 50 years.  Yet every year, women are deprived of valuable economic and tangible benefits of their hard work.

Pay disparities exist in all sorts of jobs where women and men perform the same work.  For example, female pilots are paid 16 percent less than male pilots and women who are chefs earn 28.1 percent less than male chefs.  In the tech industry, women are experiencing a significant pay gap with women in Silicon Valley earning on average just 49 cents for a man’s dollar.  The cause of the gender pay gap goes beyond factors like education and choice of profession.  As much as 40 percent of the gender pay gap is unexplained by such measurable factors.  When women enter a male dominated profession, pay begins to decrease.

This year, a stronger equal pay law went into effect in California.  The law should ensure that women who perform substantially similar work to men receive the same pay.  For example, one caller to the Legal Aid Society-Employment Law Center explained that the job of cleaning up fire- or water-damaged homes is sometimes gender-segregated with women receiving less pay. Given that the work is so similar, it is likely that under the California Fair Pay Act, women cleaners should be paid the same as men.  However, one big problem is that women often do not know how much men in similar jobs are being paid.  The new California law enhances protections for workers who talk about their pay (or ask about the pay of others).  Once a California worker does know about a pay disparity, it will be up to the employer to prove it was based on a factor other than sex and that it explains the entire wage difference.

Ending the gender pay gap calls for action on many fronts.  The Equal Pay Today Campaign (of which LAS-ELC is a member) has called for five specific changes — ending job segregation, stopping wage theft, eliminating retaliation for discussing wages, stopping pay disparities as a result of parenting and caregiving responsibilities, and changing the disparities in pay in promotions for women performing the same job as men.  Another recently proposed piece of legislation in California (CELA-sponsored) would prohibit employers from using a new employee’s prior salary to base salary decisions in order to begin to break the cycle of persistent pay discrimination for women.

As we observe Equal Pay Day and anticipate the U.S. women’s soccer team’s appearance at the summer Olympics in Brazil this summer, we hope to recognize the amazing contributions made by women throughout the world that finally deserve equal recognition through ending the gender pay gap – because it’s 2016!

Elizabeth Kristen

About Elizabeth Kristen

Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid at Work.  Ms. Kristen began her public interest career as a Skadden Fellow at Legal Aid.  Ms. Kristen graduated from University of California at Berkeley School of Law in 2001 and served as a law clerk to the Honorable James R. Browning on the Ninth Circuit Court of Appeals in San Francisco.  In 2012-13, she served as a Harvard law School Wasserstein Public Interest Fellow.  She has been a lecturer at Berkeley Law School since 2008. Legal Aid at Work together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.

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