Sex Discrimination & Sexual Harassment in Employment

Legislation which, except in specific exceptional circumstances, prohibit discriminating against one on the ground of one’s sex is not limited to but most often becomes involved in relation to or in the course employment, in, e.g., recruitment, job selection, terms and conditions of employment, training and promotion, and pay -including in the form of fringe benefits and redundancy pay and pensions.

In law, discrimination can be direct or indirect -or as harassment or victimization.

The law expects employers to have specific policies to ensure in all respects non-discriminatory treatment of all their employees of either gender or transgender -whether male or female and regardless of the marital status of men or women in their employ, and neglect or recklessness by the employer may make in law the employers (including vicariously) liable for sex discrimination or sexual harassment.

Sex discrimination is, simply, subjecting to less favourable treatment a person because of that person’s sex -because the person is boy or girl, is a man or a woman (including, in the case of female persons, whether pregnant, expecting, or with a baby or children as covered by the equality and employment legislation, and also male persons in relation to paternity leave), or because of that person’s marital status -because that the person is married or single -mostly applicable to married women.

It is also unlawful sex discrimination if on the ground of one’s sex one is not paid equally for what the law calls ‘equal work’ ~which is not necessarily same work but also is work of equal value -in other words such work that is like work or work which cannot be argued in law reasonably not to be work that is rated as being equivalent work (Hayward -v- Canwell Laird Shipyards 1988).

‘Pay’ in the European Union in Article 119 of the Treaty of Rome is defined this as being the ordinary, basic, or minimum wage or salary or any other consideration, whether in cash or kind, which the worker receives, directly or indirectly, in respect of his [or her] employment from [the] employer -including any benefit involved in relation to after the employment ends ~such as concessions in respect of travel benefits following retirement (Garland -v- British Rail Engineering 1982) and early-retirement pension (Barber -v- Royal Exchange Assurance Groups 1990).

Sex discrimination can be ‘direct’, or ‘indirect’.

Direct sex discrimination would be, for example, if one is refused employment on the ground that the job traditionally is regarded as being ‘a man’s job’ or as being ‘a woman’s job’ (Baksha -v- Say 1977).

Indirect sex discrimination is by way of a requirement which without reasonable justification can not be or can less be met by the other sex ~for example if a job advertisement said that the position advertised persons of either sex could apply but unjustifiably stated that hand-bags or purses were not allowed to work or must wear perfume -in England under European Union Law’s definitions it was held that it was unlawful discrimination that in government employment the age limit for appointment to executive officer grade was 28 since many women in their 20s planned or had babies to look after (Price -v- Civil Service Commission 1978).

It is equally unlawful sex discrimination to segregate male and female sexes without reasonable justification in places of work, as it is also to victimize one because of applicable e.g. feminism or feminist activity or if is known or suspected to have made or be intending to make an allegation of having been subjected to sex discrimination or sexual harassment.

Sexual harassment at work sometimes may also be a criminal offence ~in Europe the EU Code of Practice defined it as being unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of a woman [or a man] at work -it is a detriment on the ground of one’s gender (it was unlawful for example for two male employees to have made frequently remarks which were suggestive to one of their female colleagues and to have brushed against her deliberately causing such unpleasantness as to have necessitated her requesting to be transferred to another post -Porcelli -v- Strathclyde Regional District Council 1980).

In Europe the member states of the European Union must have an Equal Opportunities Commission or its equivalent to regulate these under e.g. the Sex Discrimination Act 1975 (supplemented by the Equal Pay Act, Maternity and Parental Leave Regulations, Maternity and Paternity (Amendment) Regulations, EE (Sexual Orientation) Regulations -and in the Employment Rights Act and the Employment Relations Act).

The Equal Opportunities Commission must also to provide information and assistance -including legal representation subject to meeting specified criteria, to persons who wish to complain to a county court, or in the case of trainees or employees to an employment tribunal.

The complaints process includes, if the person alleging discrimination so chooses, serving a questionnaire on the alleged discriminator -requiring to related questions written answers ~it may be used in evidence and inference be drawn from failure to respond or vague or ambiguous answers.

The person alleging discrimination may be, up to limits specified by law, in the case of the industrial / employment tribunals, ordered to pay costs, if the allegation proves to be unreasonably groundless, frivolous, or vexatious, and whereas financial remedy in respect of other matters is limited to a maximum, following a European Court of Justice confirmation there is, at the discretion of the tribunal, no limit on the amount of compensation which may be awarded for injury to feelings arising from sex discrimination in the workplace.

It is not unlawful sex discrimination, though, to discriminate in life or accident insurance risk assessment for employees fringe benefits justifiable by statistics, or in competitive sport if strength or stamina or physique matters -nor is it sex discrimination in employment if discrimination relates to, e.g., unadvertised managing of premises partly in one’s or relatives’ occupation, voluntary non-profit bodies or charities insignificant to other sex or statutory single sex colleges, or facilities which may embarrass men or women or would offend significantly a religion on grounds or privacy and decency.

Sex discrimination may be perfectly lawfully practised by employers, if there is an imbalance of male and female employees, without the dismissal of any by recruiting specifically from one sex alone, and in such cases as of necessity only from one particular sex must be recruited ~for example as in the case of a movie company’s advertising Edgar Rice Borough’s ‘Tarzan’ specifically for a male person or for his ‘Jane’ auditioning only female persons -or, e.g., in the case of a modelling agency employing as a fashion model only persons of one sex for modelling wear for that sex only.

Sex discrimination laws may vary in detail among countries that have such legislation, and in the European Union they are more or less uniform -in the case of allegations of discrimination in education in England (whether one does or not settle through the Advisory Conciliation and Arbitration Service -ACAS) with a requirement within a specified time before taking legal action to inform the secretary of state for education.

(Laws change –always ascertain current law)

The author has a website at: http://www.geocities.com/eoa_uk

The author’s favourite site is the Teacher of Teachers

Maternity Leave – Rights for Employees

By law, all pregnant employees are entitled to ordinary maternity leave of 26 weeks. Employees who worked for their employer continuously for at least 12 months are also entitled to an additional maternity leave. Employees may have additional leave rights under their contracts. Employees have the right to return to work at the end of their maternity leave. If refused, or otherwise treated unfavourably, they may also have additional claims for unfair dismissal and sex discrimination.

Prescribed procedure

To take maternity leave, you must follow a prescribed procedure. You will have to inform your employer of your pregnancy, the expected week of birth, the date on which you would like to start your maternity leave and, if you are absent from work for a pregnancy-related reason, the reason for your absence.

You cannot start your maternity leave before the beginning of the eleventh week before the expected week of birth, unless you gave birth earlier. You may start your leave before the notified date if you are absent from work for a pregnancy-related reason.

Maternity leave periods

By law, there are two maternity leave periods:

Ordinary maternity leave. This lasts for 26 weeks. You have the right to return to your old job at the end of your leave on terms and conditions no less favourable than would have applied if you had not been absent on leave, provided you give your employer at least 28 days’ notice. During your leave, you are entitled to your contractual benefits, except for remuneration. You are likely to be entitled to Statutory Maternity Pay (SMP).

Additional maternity leave. This is available if you have worked for your employer continuously for at least 26 weeks at the beginning of the 14th week before the expected week of birth. It starts at the end of the ordinary maternity leave and can last for up to an additional 26 weeks. Your contract of employment continues during the leave period and some contractual benefits and obligations remain in force. You have to give your employer at least 28 days’ notice if you want to return to work. You have the right to return to your old job or to similar job on no less favourable terms.

If you also have a right to take maternity leave under your contract, you may take advantage of only the more favourable of your rights.

Remedies

If your employer breaches any of your maternity rights, or otherwise treats you unfairly because you are pregnant, you are likely to have a sex discrimination claim. In addition, if you are not allowed to return to work at the end of your maternity leave, you will be treated as having been dismissed and may have a claim for automatic unfair dismissal. If you are made redundant whilst on leave, you may also have a claim for redundancy payment.

For unfair dismissal and sex discrimination, the most common remedy is compensation. Compensation for sex discrimination has no upper cap but will be limited to an amount which will put you, as far as possible, in the position you would have been in had you not been discriminated against.

Compensation for unfair dismissal is divided into a basic award and a compensatory award. The compensatory award depends on your actual losses and is capped. You have to take reasonable steps to minimise your losses, for example, to look for another job.

If your employer breached the terms of a contractual leave policy, you may also have claim for breach of contract.

Complaints

You should make your complaints at the employment tribunal which is local to where you work (or worked). Sex discrimination, unfair dismissal and breach of contract claims must normally be presented within 3 months of the effective date of termination. A claim for redundancy payment has to be made within 6 months of the relevant date. Only in truly exceptional circumstances, a tribunal may allow you to make a complaint out of time. You may, as an alternative, bring a breach of contract claim in the county or high court, within six years of the effective date of termination.

If you would like to find out more about the services that we provide, please visit our website mfg Solicitors Maternity Rights

mfg Solicitors Employment Law advice on all issues relating to your employment.

Employment Contracts: Workers’ Written Statement Rights

There exists a contract between each employee and employer which is not necessarily, but is preferred to be, in writing, not necessarily as a single, and often more than one, document readily accessible, containing in a written statement which must be issued to the employee by the employer within a period of not longer than two months from the date of the commencement of the employment, if the employee works more than eight hours per week and has continuously been employed for at least one month, which must contain the major terms of the contract of employment ~of which some are express terms and found also in itemised pay or salary slips and notices and in such other documents as work-rules and relating to any collective agreements affecting and not by the individual employee contracted with objected to -as well as in verbal exchanges such as oral instructions (if only can be proven, in practice), and some are legally bindingly implied terms in common-law and/or by custom and practice and increasingly by statute.

>>>Section 1 of the Employment Rights Act 1996, as amended, treats the written two-month statement as being the most crucial and important source of the express terms of the contract of employment which the Act requires that must include the following:

i… The names of both the employer and the employee;

ii… the date of commencement of the employment;

iii… the remuneration -including the method of payment and at what intervals paid ~and in the case employment outside the UK longer than one month extra pay;

iv… the holiday and sick-leave entitlements;

v… pensions and pension schemes;

vi… notice requirements -or reference to statutory entitlements if not better;

vii… the area of employment -indicating if place of work is more than one;

viii… the job-title and description -which may be brief;

ix… details of the disciplinary and grievance procedures -ACAS’s are regarded the minimum.

>>>As to implied terms, there exist in common-law and by statute a number of duties of which some are on the part of the employee, and those binding on, or also on, the employer are…

i… Mutual respect.. in Warner -v- Barbers Stores 1978 refusal to give leave of absence to attend to a domestic crisis was breach of contract, as was to swear at the employee in Palmanor -v- Cedron 1977 but if in that particular trade in common use Futty -v- Brekkers 1975 might excuse it, and to have been heard by another speaking derogatorily of the employee also was a breach in Isle of Wight Tourist Board -v- Coombes 1978…

ii… Remunerating and paying wages so long as the employee is available for work, even if no work is provided -unless collectively or as guarantee payments in cases of short-time work or lay-offs…

iii… Provision of Work.. for.. in Devon -v- Roser & Son 1906 one might be on piece-work or Turner -v- Goldsmith 1891 commission-wise might suffer, at any rate Provincial Financial Group -v- Hayward 1989 is entitled to practise and retain his skill -Clayton -v- Oliver 1930 it may affect his reputation…

iv… Indemnifying.. any expenses employee reasonably incurred the course his job…

v… References.. if chooses to give about the employee to another, with care must do so, Spring -v- Guardian Assurance plc 1994 else he may be liable to the (former) employee for negligence or recklessness for any loss so caused…

vi… Confidentiality.. of the details furnished by the employee must not without his permission without a right in law to do so be broken, for they were not in Dagleish -v- Lothian Border Police Board 1991 in the public domain and an injunction prevented disclosure for identifying non-payers of poll-tax…

vii… Care in safety.. must be not less than reasonable in providing and maintaining a safe place of work as well as tools and equipment and competent colleagues -Walker -v- Northumberland County Council 1944: else may be liable to the employee for any physical injury or psychiatric harm.

viii… By statute implied terms include those below:

a… Paid maternity leave and job protection;

b… time off for union activities or to seek work if under redundancy notice;

c… a safe system of work;

d… guarantee and statutory sick pay;

e… equal opportunities regardless of race, gender, marital status;

f… not to dismiss wrongfully, nor unfairly -including constructively.

An employee has the right to ask an employment tribunal has the obligation to order an employer to issue these and, if the Written Statement is not in issued or not in full or clear, in case of employment termination or any other employment dispute to deem it issued as statutorily required and binding in determining the matter -as well as to hold the employer in breach of the laws relating to contracts of employment.

This is an outline –laws change, always ascertain current law.

The author has a website at: http://www.geocities.com.com/eoa_uk

EMPLOYMENT LAW DISTINCTION BETWEEN ‘EMPLOYEES’ & ‘WORKERS’ AFFECT HOLIDAY & PAY RIGHTS

Affect who the employer is and who is responsible for one’s wage or salary, holiday pay, employer’s contribution to national insurance, pension rights, and employment protection, the legal distinction made between “employees” and “workers”, and between those and “contractors” ~one’s entitlements depend on whether in the eyes of the law one is an employee, or a worker, subcontractor, self employed contractor –or partly a freelancer.

Because of their different legal definitions an ’employee’ or a ‘worker’ in the eyes of the law may be in fact a ‘contractor’ or a ‘subcontractor’, and vice-versa -and employment through an employment agency may or may not itself fall in different category. Definitions and categories affect entitlements.

Many employees lose out on entitlements, because their legal employment category, or because who the law regards as employer, is different than they think or have been told. When one is paid to do work for another it is important to know how the employment contract is formed, and one’s employment status.

Are you liable for your income tax or must the employer deduct it and attend to it at source, what are your holiday and pension entitlements and whose responsibility are they, are you entitled to employer’s part of your national insurance contribution –who is your employer at the workplace that you work, the business you work on the premises of, or an employment agency, or is it you whose responsibility those are, in the eyes of the law?

These affect liability, vicarious liability and the statutorily implied terms of any contract -as well as various other statutory requirements ~from equal treatment to employment protection under the employment laws -many have sued and lost because the employer was not in law the sued party but another.

Often these also affect ‘pay’ (in law defined as being what is received directly or indirectly in cash or kind for work done) ~an ’employee’ gets full holiday pay, paid leave -a ‘worker’ does not.

In employment there is sometimes a company pension scheme; as the norm the employer must pay part of one’s national insurance contributions (covering, e.g., unemployment, health-care, state-pension) if one is an ’employee’; but the entitlement is partial if one is a ‘worker’, and nil if one is in law a ‘contractor’ -one’s employment status matters.

The following helps ascertain one’s employment status in law, and who in law is one’s employer.

Is one an ’employee’ or ‘self-employed contractor’? There are three tests that are applied to the question:-

The first is the ‘Control Test’ and is based on this that if the employer controls the job to be done but not how it is done than the person doing the job is an employee; but this test would not be satisfactory, because also to an employee with specialist knowledge, e.g. a company nurse, the employer would not tell how to do the job.

The second, ‘Organisational Integration Test’, seeks to ascertain whether the person paid is an integral part of the business: an anaesthetist was not a self-employed contractor in Cassidy -v- The Ministry of Pensions 1961 ~he was a resident of the hospital -an employee.

But this did not suffice: drivers who were paid for an agreed minimum number of jobs per year and had to wear company uniforms as well as to have the company colours on their lorries and who could not work for the competition without the employer’s permission, but who could choose to do extra work and decided their own routes and used their own lorries and could use at their pleasure substitute drivers, in Ready Mixed Concrete -v- The Ministry of Pensions 1968 were self-employed contractors, not employees.

There is a third, the ‘Multiple Test’ to be applied: ‘one is an employee if.. provides work or service for remuneration.. the business has some degree of control.. without any terms contrary to the employment relationship.’

This is the consideration in the case of those engaged or introduced by employment agencies:-

Who is the employer? Is one, as a specific individual, under the direct supervision and control of the business? If so, one is an employee of the client business -where one works…

Does the business where one works pay that agency and that agency itself pay one? If so, one is not an employee of the client business, but may be an employee or worker of that agency itself -agency staff.

Employees normally receive holiday pay, self employed contractors do not ~but what about the ‘worker’-the casual worker who is not in self employment and yet is also not a regular employee?

Is one an ’employee’ or ‘worker’? There is a different ‘worker’ category for casual workers which was created under the Employment Rights Act 1996 s.230 (3) to deal with this question.

If a casual worker is genuinely on an ad hoc basis employed, that casual worker is, in law, an employee while he is employed, and for the period/s of such employment has employment rights -e.g., to receive wages and holiday pay.

A ‘subcontractor’ normally would be in the category either of employee or of worker on the same basis, but instead of the business where the sub contractor works, of the self employed contractor who engaged the sub contractor.

If there is a dispute about whether a contractor engaged a subcontractor as a self employed person, then the same three tests above are applied to ascertain the employment status of that subcontractor in relation to that contractor.

If that subcontractor receives a wage and is not self-employed in relation to that contractor, then if the subcontractor works regularly for that contractor he is an employee of that contractor, and if he works casually for that contractor he is a worker of that contractor.

Being a ‘freelance-worker’ is, to all intends and purposes, the same as being a self-employed contractor.

One can lawfully be both: an employee or worker, as well as a freelancer -self employed.

If one who is normally an employee or worker wants also to do some freelance work, then one officially is an employee or worker and one’s entitlements in relation to ones normal status are not affected -but those entitlements do not extend to one’s freelance work and employment.

If one normally self employed wants also to do some work as an employee or worker of a business, then one’s official status as self-employed does not change -but one’s entitlements for work done as an employee or worker are not affected to the extent of one’s such work.

If one is not paid for holidays.. if a pension scheme depends on whether one is a freelancer or not.. if the employer is responsible for one’s colleagues’ taxes or pension contributions but not one’s own.. if one is working for one business but is paid by another… one might need to ascertain one’s employment status -the above are the legal tests.

(Laws change –always ascertain current law.)

The author has a website at: http://www.geocities.com/eoa_uk

Employment – Do you Know your Rights?

Do you know your rights?

Your rights are governed by your contract of employment and by the law. Your contract does not have to be written. But, if you are an employee, once you work for your employer continuously for 2 months, you are entitled to a written record of the most important terms of your employment. You have different rights if you are ‘self-employed’, rather than ‘employee’.

Legal protection

What rights you have will depend, to some extent, on whether you are ‘employee’ or ‘self-employed’. Generally, employees have more legal protection than the self-employed. There is no precise, legal, definition of these terms. All the circumstances, and especially the overall picture they paint, are relevant. Generally speaking, you are more likely to be an employee if you have to do your duties personally, if your employer can tell you how to do your job, and if you cannot work for more than one employer at any given time.

Minimum rights

Your contract may be in a letter or a formal agreement. It may even be verbal. Normally, at least some rights will be written. If an employee, you are entitled to receive a written statement of the most important terms of your employment.

The law sets certain minimum rights. Your employer cannot give you less than what the law offers. If you did not agree to certain matters, your legal rights will apply automatically. They deal with matters such as minimum pay, minimum holidays, maximum working hours and right to maternity and paternity leave.

You also have certain rights which are often unwritten or unspoken (‘implied’ rights). They include the right to:

(i) be paid wages;
(ii) have your employer take reasonable care of your health and safety;
(iii) in some cases, receive work;
(iv) have trust and faith in your employer; and
(v) receive reasonable notice to end the employment (if your contract does not set a notice period).

Breach of contract

Your employer cannot normally change the terms of your contract without your agreement. To do so, is a breach of contract. However, if you don’t agree to the changes, your employer might decide to dismiss you. Depending on the circumstances, the dismissal may be ‘unfair’ and / or ‘wrongful’. If the changes have exceptionally serious effect on you, you may be able to resign and seek compensation for ‘constructive dismissal’.

Complying with the law

If your employer breaches any of your rights, you should speak to them. If necessary, make a written complaint and issue a formal grievance. Most employers want to comply with the law. So, a change should take place. If nothing happens, and you are a union member, see if it can help.

If you want to recover compensation, you could bring legal action. You should take full legal advice first. Most complaints will be heard at a local employment tribunal.

You must make sure that your claim arrives at the tribunal within 3 months. This begins from the date your employer breached your rights or, if you were dismissed or resigned, the ‘effective date of termination’. The effective date of termination is normally your last day at work. Only in truly exceptional circumstances will the tribunal allow you to make a later complaint.

If your claim is successful, the tribunal is likely to say that your employer should honour your rights. You are also likely to recover compensation. Where relevant, the tribunal will say what the terms of your employment are.

If you would like to find out more about the services that we provide, please visit our website mfg Solicitors Employment Law.

mfg Solicitors Halesowen provide legal advice on all areas relating to the Employment Law

———————————————————————————————————————

NEED A Lawyer? Check out our Lawyer Directory!

Back to homepage for Law Information

Claiming for Work Harassment

Harassment is an unfortunate by product of the society that we live in and is frequently encountered by us in the course of every day life. This may typically be found in work situations, but it need not be confined to this, and many of us are, unfortunately, deliberately harassed in our social and domestic lives.

Notably, it is possible to recover damages for harassment that is received in all of these situations without the need to have suffered any injury as a result.

The usual requirements for an action for harassment to succeed are that the victim must have been the recipient of conduct which;-

Is targeted at the person who receives that conduct; Occurs on at least two occasions; Is objectively calculated to cause the victim distress; and, Is objectively considered to be oppressive and unreasonable.

It is enough simply to have suffered anxiety as a result of this behaviour for this to constitute harassment and for damages to be awarded or agreed to compensate for any distress and financial losses incurred.

Typically, awards can be made in a range from £500 up to £25,000, although these are by no means the only sums that can be awarded.

It is not necessary, as with most work personal injury claims, for your claim to be commenced within three years of sustaining the injury. Claims under the Protection From Harassment Act 1997 must usually be commenced within six years of the harassment being received. This is particularly important in circumstances where the victim has not been confident enough to bring the claim in the immediate period after the harassment has been received.

The Protection From Harassment Act 1997 was recently applied to civil claims for harassment in the workplace. It is not just employees who are protected, but anyone, such as a customer or supplier, even a client.

Closer interpretation has led to the law being applied to situations outside the workplace, with a recent decision awarding a Claimant an overall sum of £35,000 as a result of the utter misery that she incurred through being bullied by her mother in law over a period of four months.

Bullying and harassment are not situations which must be endured silently, or only stopped through criminal proceedings or when injury has been sustained. The law is changing and protection exists through your right to compensation in the civil courts.

Andrew Bowen is the Managing Director of City View Media who own and run a number of online websites including National Injury Claims and Claim King Accident Compensation.

———————————————————————————————————————

NEED A Lawyer? Check out our Lawyer Directory!

Employers Who Fail To Provide Meal and Rest Periods in California Beware

Recently the California Supreme Court rendered a decision in interpreting California Labor Code Section 226.7.

The issue was whether Labor Code section 226.7 provided for payment of one additional hour of pay when an employer failed to provide a meal break after five hours of work or a rest period after four hours of work and therefore it was pay and subject to a three year statute of limitations, meaning the employee could bring a claim three years after the fact, or if it was penalty and subject to a one year statute of limitations. In the case of Murphy v. Kenneth Cole Productions, Inc., the Supreme court addressed the issued.

In this case the Supreme Court summarized the facts as follows:

“John Paul Murphy worked as a store manager in a Kenneth Cole Productions (KCP) retail clothing store from June 2000 until June 19, 2002, during which he was paid a weekly salary. The store was open from 9:30 a.m. to 8:00 p.m., Monday through Saturday, and 11:00 a.m. to 6:00 p.m. on Sunday. On a typical day, Murphy and another employee arrived around 8:30 or 9:00 a.m. to open the store. Between 9:30 a.m. and 1:00 p.m., Murphy did nothing other than make sales, receive or transfer product, process markdowns and clean.”

“During a usual weekday afternoon, the second shift of either one or two people arrived at 1:00 p.m. The employee who had opened the store with Murphy would go to lunch, and Murphy and another employee would begin carrying merchandise into the stockroom while covering the sales floor. At some point, Murphy would go to the office to eat as he continued to work. By 2:00 p.m. he was either on the sales floor or working back in the stockroom. Murphy was scheduled to leave at 6:00 p.m., but he often would have customers on the sales floor, or would do some human resources paperwork.”

“Murphy’s duties when he worked the closing shift from noon until 8:00 p.m. were essentially the same as when he worked the opening shift. On most days, he was on the sales floor or in the stockroom from 12:30 to 4:30 p.m. At 4:30 p.m. he would try to eat lunch while he checked KCP company voice mail and e-mail in the office, and then worked on the sales floor until closing time. After the store was closed, Murphy and a sales associate would verify the bank deposit, clean up the store, put shoes away, vacuum and empty the garbage. Typically, they would finish cleaning around 8:45 or 9:00 p.m.”

“Murphy regularly worked 9- to 10-hour days, during which he was only able to take an uninterrupted, duty-free meal period approximately once every two weeks. He rarely, if ever, had the opportunity to take a rest period and, on occasion, was unable to go to the restroom.”

Plaintiff Murphy resigned on June 19, 2002 and then filed a wage claim with the Labor Commissioner.
About eight months later the Labor Commissioner conducted a hearing and issued a decision in Murphy’s favor and awarded unpaid overtime, interest, and waiting time penalties. KCP appealed it to Superior Court and plaintiff asserted claims for meal and rest period violations. The superior court permitted the additional claims.

The trial court awarded payment for missed meal and rest periods applying the three year statute of limitations under Code of Civil Procedure section 338. KCP appealed from the trail court judgment. The court of appeal held the statue of limitation is one year and that claims may not be raised for the first time on de novo appeal from an administrative hearing in front of the Labor Commissioner. The plaintiff appealed to California Supreme Court.

Overtime and rest period violations attorney Arnold Hernandez can be reached at San Diego Overtime Attorney Arnold Hernandez

———————————————————————————————————————

NEED A Lawyer? Check out our Lawyer Directory!

What is the Equal Pay Act?

Under the Equal Pay Act or 1963, any employee, whether male or female, must be given substantially equal work that requires equal skill, effort and responsibility and are carried out under similar working conditions, and the compensation must be substantially equal as well. The law was formulated and brought into effect as a result of years of outcries and proposals from different labor and women’s rights groups seeking for fair treatment and compensation in the workplace. The Equal Pay Act is just but one of the many progresses of women’s advocacy towards gender equality in the society. Although the Equal Pay Act is still subject to the scope and exceptions of covered employees and employers contained within the act, it is considered as the first step towards and adjustment of balance in pay for women. Many cases involving the Equal Pay Act revolve on how people get work that requires more effort and more responsibility but is paid the same as the work that requires less. There are also issues regarding pay inequality between men and women. There are certain factors that affect inequality of employment, particularly in third-world countries where domestic politics, culture and religious differences play a big role in pay disparity between both sexes.

But since the Equal Pay Act has been enacted, the workplace had changed to become less discriminate against women and they have become a primordial force of manpower in big companies today. Women are given the opportunity to get the same working conditions as with men, and they have a bigger participation in labor relations. What hasn’t changed much since the law was enacted is the wage gap. Although the disparity between the wages of men and women has narrowed since 1963, women still earn only 81% of what men earn in 2005.

The progress is slow; nevertheless the momentum of change is still ongoing. Figures and statistics show that in the coming decades, there is a clear possibility of a reversal on gender wage gap, where women will outearn men eventually. The transition is quite slow at this time, but very dramatic. In the end, women will eventually reach the goal of this act, where cases of wage and living standards depression will be irrelevant, as sex-based pay discrimination may become an obsolete picture of employment culture.

Our Los Angeles Accident Attorneys specialize in all fields of personal injury, business law, social security, and employment cases

John Luke Matthews is a regular contributor of relevant articles about the jurisprudence of employment. He is part of the Mesriani Law Group and is currently taking information technology studies as well.

The Race of the Races

The rule is quite simple, equal employment opportunity is available to any person without regard to his racial orientation, or his genetic characteristic that may be associated with his race. Even marriage to or association with someone of a marginalized ethnicity cannot be a basis for unjustly discriminating an employee. The prohibition from discriminating against an employee because of race or perceived color covers not merely the hiring of employees but extends to promotion, compensation, job training, termination, or terms, privileges, and conditions of employment. Employment decisions on the basis of assumptions on abilities, and the performance of an individual based on the fact that the employee belongs to a particular ethnic or racial group is also abhorred.

With the advent of new legislations on the matter, even racial jokes such as ethnic slurs, derogatory comments, and other verbal or physical conduct that would in effect create a hostile and offensive working environment are already considered as forms of racial discrimination.

A deliberate attempt to segregate employees from other employees or from their own customers may be viewed as a breach of this particular proviso. Assigning minorities in areas which are considered as predominantly minority establishments is also construed as a form of racial discrimination since it in effect denies the ample opportunity for growth of an employee on the sole basis of his racial origin. It would also run counter to the laws of the land to exclude those belonging to a particular race to limit them to a particular position or in stereotypical designations.

Prohibition also extends to pre-employment requirements notwithstanding the fact that no employer-employee relationship presently exist. Requiring personal information which compels the disclosure of an applicant’s race presumes that this information would be used as a basis for making decisions on hiring the applicant, which in itself is already a form of racial discrimination.

Racial prejudice is against the law, despite of this, a colossal battle is still looming in the horizon before the status of equality on the issue of ethnicity can be achieved. It is one race that would require no winners, but only the sensitivity to afford respect, where such is due. All that is necessary is that the same rights afforded to those who consider themselves of higher class because they do not belong to a marginalized racial group are given to those who are coined as colored. If this simple requisite is answered, then equality is not far-fetched.

Our Los Angeles Accident Attorneys specialize in all fields of personal injury, business law, social security, and employment cases.

Rainier used to work in a publishing company as a writer and eventually became an associate editor. He dealt in writing instructional materials for secondary and tertiary students. His passion in writing inspired him to read a lot and subsequently enabled him to gain more knowledge and skills.

A Deeper View on Sexual Harassment

In the United States, around 15,000 cases of sexual harassment are filed in the Equal Employment Opportunity Commission (EEOC) every year. These unruly sex discrimination acts by a higher authority such as the employers are covered by Title VII of the Civil Rights Act of 1964. This law pertains to labor institutions, employment agencies and also the federal government. Its scope covers the employers having fifteen or more workers under his supervision. Sexual harassment deals with cases involving unwanted sexual moves and sexual favors among others. In the workplace, these acts can be brought to the EEOC for appropriate lawsuit if these put much effect to the employee such as interference in one’s work, intimidation, threat, or being engaged in an unpleasant working condition. These harassment incidents have many variations. In fact, it not necessarily means that the victim is always a woman and the aggressor, a man. Same thing as it may occur in cases such that both the victim and the harasser are in the same sex. Most of the times the aggressor has a great authority over the sufferer but there are even occasions that they belong to the same level of work. Moreover, these objectionable acts may come in the form of verbal expressions of sexual desire and not always physical exploitations which may lead to extreme and forcible sexual act.

For a sexual harassment case to gain merits in the court, the accuser must first prove that the sexual violation is unwelcome and in intense cases, the act was done in a violent manner. This means that anyone filing a case suit should be aware that he or she must have informed the assailant, in any way, the he or she is against the person’s malicious act. This is quite important because the EEOC examines such accusations in a holistic approach when doing investigative efforts to resolve these issues. They conduct thorough analysis on both party’s assertions and other factual information and evidences which have involvement on the case in order to uphold justice.

Nonetheless, it is much better to prevent the occurrence of these incidents in the workplaces. Much to be aware of, employers have the obligation to carry out their duties of providing their workers a safe and amiable place to perform their work and to prevent sexual harassment cases from happening. They, too, should make it clear to their workers that sexual aggression is indeed prohibited in his company by conducting seminars about the topic, setting up an efficient help desk which will hear and resolve the complaints of employees regarding sexual harassment.

The complexities of the law and the intricate court procedure may jeopardize the possibility of obtaining justice. This is why it is still much practical to ask the assistance of a credible labor lawyer to provide support in any legal undertakings such as filing a sexual harassment suit. An expert and steadfast lawyer to handle a victim’s case may be more likely to gain favor in the court’s resolution of his case.

Our Los Angeles Accident Attorneys specialize in all fields of personal injury, business law, social security, and employment cases.

Rainier used to work in a publishing company as a writer and eventually became an associate editor. He dealt in writing instructional materials for secondary and tertiary students. His passion in writing inspired him to read a lot and subsequently enabled him to gain more knowledge and skills.

———————————————————————————————————————

NEED A Lawyer? Check out our Lawyer Directory!