The myth about sleeping on the job

The myth about sleeping on the job

24-Hour Shift Workers Entitled to Pay for All Hours Under the Employer’s Control

cctv security system

By Hina B. Shah

When a receptionist has some down time at work, she surfs the internet or flips through a magazine.  Her employer still pays her for this time because she’s required to respond to calls or visitors.  It is a benefit to the employer.  However, when it comes to employees who work on-call hours or 24 hour shifts at the jobsite, employers and many lower courts have been reluctant to pay workers for this time.  No longer.  Earlier this month a unanimous California Supreme Court clarified that on-call employees required to spend time at their worksites and under the employer’s control are entitled to compensation for all hours, including sleep time.

The ruling surprised some observers despite the fact that California law plainly requires that employees must be paid “for all hours worked.”  In reporting on the 18-year conflict between security guards and CPS Security Solutions, Inc., some legal press described the workers as “idle” and “getting paid to sleep.” This is far from the truth.  CPS Security required the guards to spend their on-call time at the jobsite. The guards were required to investigate in uniform all alarm sounds, or any noise, motion or other activity they heard during their on-call time. They had to stay vigilant and not consume alcohol.  They were not allowed to have pets, children or adult visitors.  Most importantly, the guards had to ask their employer for permission to leave.

Despite these numerous restrictions, CPS Security Solutions, Inc. paid the guards only when they were responding to an alarm or had asked for permission to leave but were either waiting or had been denied relief.  Guards who were required to remain on the construction site during their on-call hours were not paid.

The most galling part of CPS’ practice, however, was the way in which the company profited from these rules. While the workers were required to remain on the premises and not paid for this time, CPS charged its clients for the round-the-clock presence of these guards.  In fact, the company admitted that these guards were an integral part of their business model.

CPS Security is not the only firm using this business model.  Employers of domestic workers, private correctional officers, environmental contractors and others refuse to pay for on-call time unless the worker is actively engaged in responding to calls or emergencies. It would be hard to imagine asking a firefighter to remain on alert at all times, but pay only for the time she responds to a fire, yet this is just what these companies have been doing.

The court’s ruling should be far-reaching. California has long recognized that long hours are harmful to employees’ health.  There is a growing body of evidence that links excessive work hours with substantial risks for occupational injury and illness.  And despite claims that “paying for sleep” will have a negative impact on business, in fact the decision may boost the economy. One obvious way to cut down on costs is to hire more employees, rather than one employee for a 24-hour shift.  Employers benefit when they have on-call workers at their job sites, and so do their clients. Now, more workers may benefit as well.

Hina Shah argued before the California Supreme Court for a number of organizations as amici curiae on behalf of the plaintiff. 

Hina Shah

About Hina Shah

Hina B. Shah is an Associate Professor of Law and Co-Director at the Women’s Employment Rights Clinic (WERC) of Golden Gate University School of Law, addressing employment and labor issues faced by low wage and immigrant workers.

The March for Jobs and Freedom continues: A daughter walks in her mother’s footsteps

The March for Jobs and Freedom continues: A daughter walks in her mother's footsteps

By Tiren Angela Steinbach

march

My mother grew up in a middle class African American family in Hyde Park, Chicago.  She graduated from high school in 1963 and was enrolled in Skidmore College for the fall. As a girl, she was a dancer, so she convinced her parents to send her to dance school in Paris the summer before she started college.  Paris in the early 60s was the mecca of cool, the epicenter for Black intellectuals and artists who had left the United States to find greater acceptance in the City of Lights.  So, in the summer of ‘63, eighteen years old, my mom flew off alone to Paris, which was horribly romantic in theory but rather lonely in reality. This was particularly true if your French was less that exemplary, which was, unfortunately true for my mother.

My mother was alone and desperate for her mother tongue, so she read the International Herald Tribune every day cover to cover. One day, there was a notice on the back pages: “Interested in Civil Rights?  Want to talk with other folks about the March on Washington? Come to Café Blah de blah blah at 4 p.m.” It was signed J.B.  My mother circled the notice and went to Café Blah de blah at 4 o’clock.  The café was overflowing with dozens of American ex pats, many African American, all sitting around drinking café lattes and discussing the March on Washington for Jobs and Freedom that was planned for the following week.  The small café was filled with a cacophony of American-accented voices speaking at once, asking, “What was it all about?”  “What should we do?” “What does this all mean for Negros – is this really going to make a difference?”  Finally the host of the meeting, J.B. – James Baldwin – stood up and said simply, “It’s time to go home.  Our people need us.”

My mom went home.  She changed her ticket and flew back to Chicago the day before the march.  But when she got there, her parents’ house was empty. She went to her aunt’s place next door – empty. It was like the whole of Hyde Park was empty, all gone to Washington DC to take part in history. No one had been expecting her so there was no message, no instructions, nothing.  Finally she found a scrap of paper written in her twin sister’s handwriting that had a name and number. She called it and a man on the other end said that the last chartered train to DC was leaving in two hours and she better get to the station if she wanted to get on board. So she did.

podiumShe arrived in DC with hundreds of thousands of people there to march to support civil rights. My mother was swept out of the train station into the crowd flowing like a human river towards the Lincoln Memorial.  There, a queue of speakers took the stage to address the crowd, among them Martin Luther King Jr., who delivered a thoughtful speech about the emancipation proclamation and the national legacy of racism.  Some say that it was gospel singer Mahalia Jackson, who was standing nearby on the stage, who called out, “tell them about your dream, Martin!” And my mom stood in a crowd of over 200,000 listening to the speech that would later be recognized as a transforming moment of the Civil Rights Movement.  That day, my mom never found her mother or father or her twin sister or aunts, uncles, cousins, grandfather, and neighbors, but she knew that they were there with her somewhere in the crowd.  And she knew that her world had changed forever.

My mother started college several weeks later.  She joined SNCC – the Student Non-violence Coordinating Committee She joined SDS – Students for a Democratic Society.  She joined the MOVEMENT…and never looked back.  A couple years later, in 1965, while organizing for another march on Washington to oppose the Vietnam War, my mom got a call from a graduate student at Rochester, saying that he had three busloads of people for the march but needed to connect to an organization to get them to DC. My mother told the grad student to come to a planning meeting in New York City, and he did. That man was my father. And the rest, as they say, is history.

I share this story as a call to us all, J.B.’s call that my mother answered, “to go home, our people need us.”  And home is not only our home, but the streets and jails and prisons and homeless shelters and veterans homes and community centers and clinics and legal aids and public defender offices and all places we are needed to advocate for justice. And our people are all people whose voices are silenced and stories vilified and humanity stolen – all people for whom the law has been wielded as a weapon against them rather than a tool for their equality.  And on this journey for justice, we will sometimes feel alone and scared and far from comfort, but our spirits will be buoyed by the many others who have also answered the call, and comforted by knowledge that we are part of global movement – people raising hands up and voices loud and putting lives at risk for justice.  And we will need to be lifted by words and wisdom of those who preach proudly to the choir because they know the power of their sermons is what inspires the choir to sing our loud and proud and powerfully for justice – justice that looks like love in public. And we must answer this call and never look back because today, more than ever, our people need us.

Tirien Angela Steinbach is the executive director of the East Bay Community Law Center, the community-based clinic for Berkeley Law School, where she graduated from law school in 1999. This post was written from her life experiences in hopes of inspiring a call to justice.  It originally appeared on the EBCLC blog under the title “J.B.’s Call and the March for Jobs and Freedom.”

 

A New Year’s resolution for CEOs: Admit the mistake and take action to end bias

A New Year’s resolution for CEOs:  Admit the mistake and take action to end bias

By Sharon Vinick

Business Team

On February 4, 2014, Microsoft announced that Satya Nadella would become the new Chief Executive Officer of Microsoft.  Nadella had worked in Silicon Valley since 1992, and had been with Microsoft for 22 years when he was elevated to the position of CEO.  His first year compensation amounts to about $84 million.  Until October, Nadella’s tenure as Microsoft’s CEO was unremarkable.  But then came his remarks at the annual Grace Hopper Celebration of Women in Computing, the World’s largest gathering of women technologists.  The head of Microsoft chose this gathering of more than 8000 attendees, mostly women, to suggest that women were better off trusting “karma” than pushing for raises.  The incident raised the hackles of women inside and outside the technology world and immediately raised Nadella’s profile as well … but not in a good way.

The CEO had been invited to speak at a plenary session, which was open to all conference attendees.  In response to a question the best ways for women to advance in corporate America, Nadella said that “[i]t’s not really about asking for the raise, but knowing and having faith that the system will actually give you the right raises as you go along.”  Nadella went on to say that not asking for a raise was “good karma.”

Not too surprisingly, Nadella’s remarks immediately drew the ire of women, particularly as studies routinely show that women are paid less than men.  Indeed, some research shows that Nadella’s advice is exactly the opposite of what women need.  According to Linda Babcock, an economics professor at Carnegie Mellon University and leading researcher on women and pay negotiations, one of the reasons that women make less money is because they are less likely than their male counterparts to negotiate their compensation.

There is at least one silver lining in the story of this CEO blunder — it appears that Mr. Nadella may have learned something from the experience.  The first sign of the lesson learned came in the form of a tweet.  Unlike many CEOs, he did not try to explain away the ignorant remarks.  Instead, within hours of leaving the stage, Mr. Nadella tweeted:  “Was inarticulate re how women should ask for raise.  Our industry must close gender pay gap so a raise is not needed because of bias.”

Next came Nadella’s brief email to all Microsoft employees, in which he stated that his response to the question was “completely wrong.”  Yes, you read that right.  Within hours of making a foolish and clearly erroneous suggestion about how women should try to get ahead in the world of technology, Nadella sent an email saying he “answered the question completely wrong.”  He also went on to say “I believe that men and women should get equal pay for equal work.  And when it comes to career advice on getting a raise when you think it’s deserved . . . you should just ask.”

Then, a week after the incident, Nadella issued a companywide memo committing to expanding diversity within the company.  Significantly, the memo points repeatedly to the danger of “conscious and unconscious” bias in the workplace.  The concept of “unconscious” bias, also known as implicit or cognitive bias, refers to the way that people make decisions based on stereotypes and assumptions without intending to discriminate. In Nadella’s own words —

“My advice [to not ask for a raise] underestimated exclusion and bias — conscious and unconscious — that can hold people back. Any advice that advocates passivity in the face of bias is wrong. Leaders need to act and shape the culture to root out biases and create an environment where everyone can effectively advocate for themselves.”

Psychologists, academics and employment rights lawyers have been talking about this phenomenon for years.  The Nadella memo is a clear sign that their message is finally reaching the top echelons of corporations.  And that is good news.

Cynics will assume, probably correctly, that the quick apology was a public relations tactic.  And there is no question that the seemingly radical act of Nadella admitting that he had made a mistake virtually ended the criticism.  But there is reason to hope that the CEO for one of the world’s largest companies may have learned a deeper lesson than how to engage in damage control.  As we begin a new year, CEO’s across the country should take a page from Nadella’s playbook, accept that they may not yet fully understand the forces that have caused the gender pay gap, and resolve to “act and shape the culture to root out biases.”  Admitting error, saying that you were “completely wrong,” and taking action to change corporate culture is not only the right thing to do, it is also good business.

 

Sharon Vinick

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

The Top Five Wins for Workers’ Rights in 2014

The Top Five Wins for Workers' Rights in 2014

By Sharon Vinick

2014

As the year comes to a close, it’s time for a “Top Five” list.  Interest in “Top Ten” or “Top Five” lists is so immense that psychologists have even coined the term the “Top Ten Effect,” to describe the “bump” that items on such a list receive in terms of sales.  A list of the top developments in employment law may not cause a run on any stores, but policy makers and working people should take note (drum roll please) as we now count down the list of five developments that will change the landscape of employee rights as we enter the new year.

  • No. 5:  New California Law Says Proof of Sexual Desire is Not Required to Win Sexual Harassment Claim

 The California Legislature deserves recognition for a new law that strengthens protection against sexual harassment on the job. For years, employers have tried to defend against sexual harassment claims by arguing that the harassment, although boorish, was not illegal because it was not based upon sexual desire.  This “defense” goes something like this — The boss who “joked” with his female subordinate about hopping over to a motel for the night wasn’t actually attracted to her, so that couldn’t be sexual harassment.  Or as the employer claimed in one infamous case, the ironworkers who hazed a new guy on the crew with threats of sexual violence couldn’t have perpetrated sexual harassment since they were all straight.  Earlier this year, the California legislature took away this excuse when it amended the Fair Employment and Housing Act to specifically provide that “sexually harassing conduct need not be motivated by sexual desire.”  These few short words will provide powerful protection for victims of workplace sexual harassment.  As important, the change reminds employers and the courts that sexual harassment is about abuse of power, not sex.

The California Supreme Court took aim at the hypocrisy of employers who hire and exploit undocumented workers. It has often been noted that low wage workers, regardless of their immigration status, are frequent victims of workplace violations. Undocumented workers, fearful that any complaint regarding a violation of these rights might result in their deportation, are a particularly vulnerable group, which should be supported by providing assistance in dealing with any kind of legal documentation – up to the living will management (learn more at Legal Zebra).  This year, in Salas v. Sierra Chemical Company, the California Supreme Court ruled that an employer who discriminates or retaliates against an undocumented worker can be held liable. While the case limits the damages available to these employees, it does provide that employers who violate the workplace rights of undocumented employees will be held accountable for their actions.

While the phrase “wage theft” has been around for years to describe employers who fail to pay overtime or other wages earned by their employees, a number of cases in 2014 have raised public awareness and built public outrage regarding the all-too-common practice of employers forcing employees to work without pay.  Studies suggest that employers are ripping their workers off to the tune of more than $50 billion annually.

The year began with a high profile wage-theft story from an unlikely quarter with the filing of a class action lawsuit against the Oakland Raiders by one of their cheerleaders, Oakland Raiderette Lacy T. The lawsuit sparked similar lawsuits at four other NFL franchises and, as important, a national conversation about wage theft.   In March, seven class action lawsuits were filed across the country against MacDonald’s on behalf of workers in the fast food franchise restaurants alleging its franchises did not pay employees for all hours worked and forced them to work through breaks. Challenges to wage theft kept rolling throughout the year.  In November, employees of Yank Sing, a high end San Francisco dim sum restaurant recovered a landmark settlement — $4 million in back pay and benefits for “blatant” wage theft in settlement of complaints before the California Labor Commissioner. These high profile lawsuits have increased public awareness of wage theft and their examples serve as a deterrent to future wage theft.

  • No. 2:  National Labor Relations Board Opens the Door for Retail Workers to Organize by Department

The federal administrative agency that oversees labor-management relations also took steps to level the playing field for workers in 2014.  In July, the NLRB issued a decision that makes it far easier for unions to get a foothold in large retailers, including Walmart.  In a case involving Macy’s department store, the NLRB ruled that the United Food and Commercial Workers could organize a subgroup of 41 cosmetic workers at a 150-employee store.  Before this change, unions faced huge challenges because they were required to win storewide votes.  As of 2013, only 4.6% of workers in the retail industry were members of unions, as reported by the Wall Street Journal.   That’s down from more than 6% in 2003.  The UFCW is campaigning to organize retail workers at stores like Bloomingdales, Macy’s, Target and, of course, Walmart.

  • No. 1:  Increases in Minimum Wage for Workers 

Without question, the movement that gained the most momentum this year for workers was the campaign to increase the minimum wage.    President Obama called upon Congress to raise the minimum wage from $7.25 an hour to $10.10 an hour, and signed an Executive Order to raise the minimum wage to $10.10 an hour for new federal contract workers.  Unfortunately, the gridlocked Congress did not act to increase the minimum wage that applies to all workers around the nation. However,  eleven states (California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Michigan, Minnesota, Rhode Island, Vermont, and West Virginia) and the District of Columbia did raise their minimum wage.

As of January 1, 2015, twenty-nine states and the District of Columbia will have minimum wages that exceed the paltry $7.25 per hour that workers earn under the federal minimum wage.  The highest minimum wage in the nation is in the District of Columbia, where the minimum wage is $9.50 an hour.  And, by January 1st, six other states (California, Connecticut, Massachusetts, Rhode Island, Vermont and Washington) will have legally mandated minimum wages of at least $9.00 an hour. While significantly more work remains to be done in this area, increases in the minimum wages are a meaningful development for millions of low-wage workers in this country.

So, as the year 2014 comes to a close, let’s toast these advancements for workers and rededicate ourselves to improving the working lives of all employees in the new year.

Sharon Vinick

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

Unfortunately, our “post-racial” society isn’t post-bias

Unfortunately, our “post-racial” society isn’t post-bias

By Amy Semmel


According to a recent study by MTV, the majority of millennials believe that they live in a “post-racial” society.  They cite Barack Obama’s presidency as a great achievement for race relations.  Having a black President even influenced a majority of the study participants to believe that people of color have the same opportunities as white people.  Unfortunately, employment statistics say otherwise. Since 1972 –when the Federal Reserve began collecting separate unemployment data for African-Americans — the black unemployment rate has stubbornly remained at least 60% higher than the white unemployment rate. The gender pay gap has barely budged in a decade, with full-time women employees being paid 78% of what men were paid.  And the gap is worse for women of color, with Hispanic women laboring at the bottom, with only 54% of white men’s earnings. 70% of Google employees are male, with only 2% Black, 3% Latino, and 30% Asian. This from the company whose motto is “Do no Evil.” How can this be? While overt racism or sexism is rarer today in corporate America, implicit biases linger.

Source: Google Official Blog - googleblog.blogspot.com

Source: Google Official Blog – googleblog.blogspot.com

Imagine that you are supervisor, with two virtually identical resumes on your desk.  Both candidates are equally qualified.  Do you gravitate toward the one with a white Anglo-Saxon name (think “Emily” or “Brendan”), or a name more likely to belong to an African-American (think “Lakisha” or “Jamal”)? Aware of their bias or not, hiring managers are 50% more likely to call the applicant with the white-sounding name in for an interview.  There is a growing body of research like this that proves that implicit bias is real and is having real-life consequences for people who are considered “other” in terms of race, disability, sexual orientation and other characteristics. (There are even on-line tests you can take to find out about your own implicit biases.)  But even as our understanding of how implicit bias leads to discrimination grows, judges often fail to recognize that discrimination can result from unconscious stereotypes or subtle preferences for people similar to oneself—perhaps today even more than overt bigotry.  To truly provide equal opportunity for all, social science research into how people actually behave in the workplace must inform the enforcement of anti-discrimination laws.

Amy Semmel

About Amy Semmel

Ms. Semmel devotes her practice to eradicating discrimination and retaliation in the workplace. She advocates for employees seeking remedies for retaliation for whistleblowing, discrimination and wage theft. Ms. Semmel is frequently invited to speak at conferences and seminars throughout the state. Subjects on which she has spoken include discovery issues in employment litigation; liability of successor, electronic discovery, alter ego and joint employers; the Private Attorney General Act, and developments in wage and hour law.

Wage theft still on the menu in the restaurant industry

Wage theft still on the menu in the restaurant industry

Plate of Money

By Lisa Mak

Making the headlines this week was a landmark $4 million backpay and compliance settlement for 280 current and former workers at the popular Yank Sing restaurant in San Francisco.  Last summer, a group of Yank Sing employees, with the help of the Chinese Progressive Association and the Asian Law Caucus, complained that the owners of Yank Sing engaged in a slew of labor violations, including theft of wages and tips, failure to pay minimum wages and overtime, and denying workers their meal and rest breaks.  The violations, according to California Labor Commissioner Julie Su, were “pretty blatant.”

Unfortunately, employee wage theft and labor violations are very common in the restaurant industry.  For example, workers brought claims last year against a Los Angeles restaurant, Izakaya Fu-ga, for wage theft, failure to provide breaks, and retaliation against workers who asserted their rights.  An announcement is also expected soon regarding a settlement with restaurants in the El Mercadito complex in the Los Angeles Boyle Heights neighborhood that will pay $220,000 in back wages to workers and provide improved sick and vacation leave.

The Yank Sing crackdown is a good reminder that people serving us our food often make too little to put food on their own table.  Aljazeera recently covered the issue in its “Fault Lines” series, highlighting the prevalence of wage theft in the restaurant industry.

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.

We need “peace” officers! It’s time for crisis intervention training

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?????????????????????????????????????????????????????????????????????????????????In a recent article published on the popular online magazine, Truthout, CELA VOICE blogger and police misconduct lawyer, Jim DeSimone, explains why police officers need to be properly trained in order to avoid unnecessary use of force against individuals, especially those who have disabilities.  In most jobs and occupations, safety training is provided to avoid injury to employees and customers.  When employers intentionally fail to provide proper safety policies and training to avoid injury, or ignore obvious accommodations to an individual employee or customer, the companies or government entities can be held liable for substantial sums to compensate the injured party.  Jim shows how inadequate police training has led to unnecessary death or injury and the resulting costs to the families involved as well as taxpayers.

Read the full article here:  “We Need “Peace” Officers! It’s Time for Crisis Intervention Training(more…)

Despite losses in Congress, workers gain ground in state and local elections

Despite losses in Congress, workers gain ground in state and local elections

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By Mariko Yoshihara

Although the Republicans had a sizable victory in last night’s midterm elections, and even picked up a few seats in the California state legislature, workers in California and across the U.S. scored some major victories.  The Republican gains in Congress will surely spell doom for Democrat-led efforts to advance workers’ rights at the federal level, like banning forced arbitration, raising the federal minimum wage, and providing paid sick days to workers, but as we saw last night, states, cities, and counties are moving ahead on their own to serve the needs of workers.

For example, four states last night — Alaska, Arkansas, Nebraska and South Dakota — all voted to increase their state minimum wage.  Proving that the minimum wage is not a partisan issue, voters in these four deeply conservative states approved the measures by sizable margins.  Two-thirds of voters in Arkansas, Walmart’s home state, approved a $2.25 wage increase to set a $8.50 per hour minimum.  Alaska will increase its minimum wage to $9.75 over the next 14 months and Nebraska will raise its minimum wage to $9 by January 2016.  South Dakota approved a minimum wage increase to $8.50 next year that will increase annually to match inflation.  With Tuesday’s victories, 17 states have now opted to raise the minimum wage since just last year.

Two cities in California also voted to raise their local minimum wage.  Oakland will boost its minimum wage to $12.25 next year and San Francisco will gradually increase its minimum wage to $15 by 2018.  Eureka was the only minimum wage measure to fail in last night’s election.  Meanwhile, Illinois and several counties in Wisconsin pushed the issue forward by approving non-binding referendums calling for minimum wage boosts.  According to Economic Policy Institute, an estimated 680,000 low-wage workers will be getting a raise based on last night’s results.

Workers also scored major wins for paid sick days last night.  Voters in Massachusetts and the cities of Oakland, California and Montclair and Trenton, New Jersey approved measures to provide paid time off for workers who are sick or need to care for family members.  In Massachusetts, workers in companies with over 10 employees can earn up to to five paid sick days a year, and those who work for smaller companies will be eligible for unpaid sick days.  In Montclair and Trenton, New Jersey, workers who provide food service, child care or home health care, or who work for companies with 10 or more employees, can earn up to 5 days of paid sick leave each year. All other employees have access to three paid sick days.  In Oakland, California, workers in companies with more than 10 workers can take up to nine sick days a year, and, in smaller companies, up to five paid sick days.  Oakland’s new law will provide up to three times as many paid sick days as the new California law that was passed this year, which provides only 3 days of paid sick days.  After last night’s results, three U.S. states and sixteen cities have now passed paid sick days legislation, including two states and ten cities in this year alone.

The growing efforts by state and local governments to move this kind of legislation forward reflects the electorate’s dissatisfaction and frustration with a Congress that fails to act.  However, despite the widespread support of these efforts by voters on both sides of the aisle, as we saw last night, much of the country still sides with GOP candidates who are fundamentally opposed to these exact issues.  Will Republican lawmakers from Alaska, Arkansas, Nebraska and South Dakota, now support a national minimum wage increase?  Probably not.  Unfortunately, politics is much more than just casting votes based on the views and needs of your constituents.

Now that Republicans control both houses of Congress, it is almost certain that the national workers’ rights agenda will continue to go nowhere.  Until we see a change in power in Congress or the Republicans decide to listen to the majority of their constituents, we will have to count on state and local governments to work past partisan gridlock to address the needs of workers.

Love shouldn’t hurt or get you fired

Love shouldn’t hurt or get you fired

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By Lisa Mak

Today is the last day of Domestic Violence Awareness Month, so let’s take a moment to reflect on the prevalence of domestic violence in our country.  The press has no shortage of coverage on the issue when celebrities are involved, such as the recent leak of a video showing NFL player Ray Rice punching his then-fiancée in an elevator.  However, the press largely ignores the real-world challenges faced by domestic violence victims.  One challenge is maintaining employment while trying to get out of an abusive relationship.  In most states, a domestic violence victim can still be fired due to the abuser’s conduct, based on an employer’s misguided safety or productivity concerns.

This is one of the shocking things I learned during my two years as a volunteer counselor on a domestic violence hotline.  During that time, I counseled many victims who had different reasons for hesitating to leave the abusive relationship.  Some victims were still in love with their abuser, or were too afraid of the violent aftermath if they tried to leave.  Some cited a lack of a support network, as their partner had isolated them from family and friends.  Still others were financially dependent on their abuser, who prevented them from working or had sabotaged every job they ever had.

In 2013, Carie Charlesworth, a teacher in San Diego, brought national attention to the economic vulnerability of domestic violence victims when she was fired after her abusive ex-husband invaded her workplace and placed the school on lockdown.  Even though Charlesworth had a restraining order against her ex and had called the police, the school still fired her for safety concerns – essentially punishing her and her 4 children for her partner’s crime by taking away her livelihood.

As a result, Charlesworth became a strong proponent of SB 400, a new law protecting domestic violence victims from job termination.  Enacted in 2013 and effective this year, SB 400 changed Labor Code sections 230 and 230.1 to prohibit an employer from firing or discriminating against an employee based on his or her known status as a victim of domestic violence, sexual assault, or stalking.  The law also requires employers to provide reasonable safety accommodations for victims at the workplace, such as changing a phone number or relocating an employee’s desk.

With this new law, California joined 6 other states – Connecticut, Hawaii, Illinois, New York, Oregon, and Rhode Island – to specifically protect DV victims from employment discrimination.  But that means that in 43 other states, there is still no protection or recourse for victims who are fired because of their status.  That is appalling, considering that on average, approximately 20 people per minute in the U.S. are victims of physical violence by an intimate partner.  About 1 in 4 women will experience some form of domestic violence in her lifetime.

For many victims, maintaining stable employment is critical for escaping the abusive relationship and for supporting themselves after leaving their partner.  A 2012 study reported that 74 percent of women nationwide stayed with an abusive partner for a longer time due to economic reasons.  In California, studies have shown that nearly 40 percent of DV survivors were fired or feared termination due to domestic violence.  Laws like SB 400 protect victims who are often in a very vulnerable financial position.  We need such laws in every state.

Some states do allow victims to take time off work for DV-related issues, such as obtaining a restraining order or testifying in court.  But those laws are woefully inadequate.  What good is it when an employee has a restraining order in hand but no job to go back to?  How will she support herself while trying to be financially independent from her abuser?

Even without such laws, companies would be well-served by implementing policies to protect such vulnerable employees.  Intimate partner violence is not just a “family” problem – it’s also a business issue.  Employees who suffer from domestic violence or workplace harassment by their partner understandably may miss more work and be less productive.  If the abuser visits the workplace, this could also be extremely disruptive to a company’s operations.  Yet surprisingly, a 2006 study found that over 70 percent of U.S. workplaces did not have a formal program or policy addressing workplace violence.  Even in those private sector workplaces that did have such programs, less than half addressed DV issues.

Firing victims of domestic violence does more than take away the financial security that can allow victims to leave their abuser.  It also perpetuates the stigma of abuse and discourages other victims from reporting their experiences.  It re-victimizes them and takes away the last shred of self-worth they may have.

It takes an incredible amount of courage for DV victims to exit their abusive relationships.  Let’s not make it harder by putting their employment at risk too.

 

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.

More Episodes of Clueless in Silicon Valley:  What does the reaction say about us?

More Episodes of Clueless in Silicon Valley:  What does the reaction say about us?

By Supreeta Sampath

The spotlight shined again this month on employer cluelessness in Silicon Valley, first with Microsoft’s new CEO telling women they’re better off waiting for karma than pushing for raises and then with the news that one multi-million dollar tech company was paying workers in Rupees.

Early this month came the disturbing comment about women and pay raises by Microsoft CEO, Satya Nadella, speaking (ironically) at the Grace Hopper Celebration of Women in Computing Conference.  Nadella’s mind-boggling advice to young women seeking advice on how to ask for a raise was to keep quiet – “knowing and having faith that the system will give you the right raises as you go along.”  He further opined that it’s “good karma” not to ask for a raise.  Immediately after the talk, Nadella recanted in a tweet –

Nadella tweet

That same day he issued a letter of apology to Microsoft workers telling them if they think they deserve a raise, just ask.

Then last week, EFI, a publicly-traded digital technology company was caught by the U.S. Department of Labor paying eight employees in Rupees.  That’s right, Rupees, the currency of India.  Apparently, the Fremont-based multi-million-dollar company believed that because it had flown the Indian employees from India to California for a project, it was allowed to pay the employees in Rupees, at a rate equivalent to $1.21 per hour and make them work 120 hours per week.  The consequence for this travesty?  Other than paying $40,000 in wages owed, EFI was fined a mere $3,500 by the DOL. What was the company’s response?  Let’s just say there were no apologies, simply feigned ignorance of the law.

The reaction to these events reveals a ‘sign of the times’ and the power of media to focus (or not) on work place equality.

The public and media decry of Nadella’s comments are ubiquitous.  If one types in any combination of “Nadella”, “Pay” and “Women” into any search engine, the results are prolific. Ranging from tweets of dismay and disgust, to thoughtful editorial pieces criticizing Nadella in major news magazines, the country passionately leaped into its discussion about gender equality in the work place. Perhaps most notable is the equal abundance of pieces (including in the New York Times) spinning Nadella’s blunder into a positive and needed opportunity to continue discussions about the gender divide.

In stark contrast to the national reaction over the Nadella debacle, you will be hard pressed to find any significant media coverage over EFI’s unlawful conduct.  Media attention was short-lived and confined to local stations.  I found only one article condemning the behavior and guffawing at the paltry DOL fine.  So where are the bloggers, tweeters and national media commentators decrying wage theft and worker exploitation?  Why is there a lack of any meaningful response expressing shame and disgust over this blatant example of corporate greed? And has anyone asked whether EFI would have paid British workers in Pounds (with a $1.61 exchange rate) if they had been slogging away in California for the company?  Why is no one furious that a company reporting close to $200 million in revenue in its last financial quarter got away with a $3500 fine?

Perhaps with recent political victories like the Lily Ledbetter Fair Pay Act and Cheryl Sanberg exhorting women to “Lean In” – it is more socially acceptable and sexy to debate the merits of fair pay and gender equality in the work place than to focus on the unrelenting reality of labor exploitation.  Perhaps Microsoft is cleverer and has a better Communications Department assisting in rehabilitating Nadella and Microsoft’s reputation through widespread “positive spin” pieces?  Perhaps it is all of this.

Don’t get me wrong, as a woman and a workers’ rights advocate, I am thrilled that Nadella’s comments have put needed attention on pay and gender equality in the workplace.  But as a woman and worker’s rights advocate, it’s clear to me that the bigger lesson can be learned from the different ways these two employer “mishaps” have been reported by the media and digested by the masses.

Minimum wage, wage theft and worker exploitation may not be as alluring as gender equality in the year 2014, but they are equally vital to our national economy and collective moral conscience.

 

Supreeta Sampath

About Supreeta Sampath

Supreeta Sampath is the founder of The Sampath Law Firm located in San Francisco, California. For over a decade, her legal career has been dedicated to serving the needs of those who have been denied justice. Ms. Sampath has extensive experience representing workers in employment discrimination cases on account of race, national origin, religion, gender, disability, age, sexual harassment, retaliation as well as cases involving labor code violations. From 2011-2014 she has been named a Rising Star in the field of Labor and Employment by Super Lawyers Magazine.

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