Tuesday, September 30, 2008

Liability in Sexual Harassment Suit

Illinois, Michigan and North Dakota are the only states that expressly prohibit sexual harassment. Other than these states, sexual harassment acts are considered as a type of discrimination. In California, for instance, these acts are prohibited by a number of statutes and by the federal Title VII of the Civil Rights Act and the ADA.

These laws and other various statutes ensure that victims of sexual harassment are protected. Other than this, the state government continues to make laws to improve the conditions in the workplace and prevent sexual harassment acts. AB 1825, for instance, is a law passed in 2004, which provides training for supervisors on how to handle situations involving sexual harassment.

The article “Testimony in Hollywood Sexual Harassment Suit Continues”, posted on September 24, 2008, tells of the continuing sexual harassment lawsuit brought up by an actor against a fellow worker.

The article mentioned the changes that have taken place since the lawsuit was filed. In this case, a witness has made a different testimony regarding the alleged sexual acts, contrary to what was presented by the plaintiff.

As sexual harassment is a delicate issue, the law has defined which acts are considered harassment and thus prohibited:

• vulgar or lewd comments

• forcing workers to wear sexually revealing uniforms

• unwanted physical touching or fondling

• suggestions to engage in sexual conduct

• Even obscene or sexually suggestive cartoons and posters

• Occasional inappropriate touching, off-color jokes, or repeated sexual references can be sexual harassment.

It depends on the circumstances. Courts consider the nature, severity, and frequency of the conduct, as well as the conditions under which the conduct occurred.

Friday, September 26, 2008

If at First You Don’t Succeed….

Pursuing disability benefits is an activity involving persistence. In this respect, pursuing a claim is like playing a game. Like game players, disability claimants must adhere to rules governing the awarding of benefits.

In most cases, disability applications are denied at the initial stage. This happens especially to those who had applied for benefits under social security disability (SSD) and supplemental security income (SSI). Rejected for the first time, a claimant should not be discouraged. Rather he should look at the brighter side of things: that it is always possible to make an appeal and to have a case reviewed.

At any rate, a claimant must first evaluate his application before making a claim:

1. An applicant must carefully look for reasons why his application was denied. Majority of the applications denied were simply due to technical errors such as incomplete information supplied by claimants. According to Social Security Administration, nearly 80 percent of applications for disability benefits were denied simply because some claimants have entered erroneous or incomplete data.

2. To be able to receive benefits under the SSD, an applicant must have a severe impairment or a medical condition categorized by the SSA as a disability. A claimant must show that his disability is so severe that it had greatly affected the way he lives.

3. A claimant must also show that he was not able to engage in any gainful activity caused by his disability or condition for about a year.

If an application is denied in the initial stage, a claimant must immediately file for an appeal known as a request for reconsideration.

While awaiting the result of the appeal, it would be better for an applicant to review his application and obtain the necessary medical documents to support his claim. Getting the help of an experienced social security lawyer would also work to one’s advantage.

Wednesday, September 24, 2008

When Absences and Work Leave Becomes a Job Issue

When an employee gets sick and has to take a leave, it is usually expected that he would notify his employer about his absence. If he fails to do so, the consequences are often undesirable to the worker.

Take the case of the employee who lost his job after taking up more than the allowable number of absences and failed to notify his employer. Because of this, the employee was sacked.

In the article, “CFRA Requires a California Employer to be Proactive with its Employees Sick Leave”, posted on September 18, 2008, the issue of absences and sick leaves were tackled. Based on the case, the Continental Airline employee exceeded the allowed number of absences and missed notifying his employer about it, although he told some of his friends that he was hospitalized for an illness. As a result, he was fired.

Generally, unexplained absences can be a basis for one’s termination. If an employee or worker fails to notify or give a valid reason to his employer about his absences, the issue would certainly result into a job issue.

However, the law protects employees from being penalized for taking leaves when necessary. In California, for instance, the Family and Medical Act and the California Family Rights Act guarantee protection of these rights.

These statutes allow eligible employees to take leave of up to a total of twelve (12) weeks for each calendar year.

To be eligible for this leave, a full-time employee must have been employed for a total of twelve (12) months and he must have worked 1,250 hours in the year preceding the leave.

Under the law, a leave may only be permitted for the following reasons:

• If the employee is unable to work due to a serious health condition

• To care for an immediate family member (spouse, child or parent) who has a serious health condition

• During the birth or adoption of a child or during a foster
In order to qualify for such a leave, an employee must meet the eligibility standards set by law and a notice to the employer must be made. At the most, he would have to consult with an experienced employment lawyer to help him with the issue.

Friday, September 19, 2008

Protected Category in Work Discrimination

Contrary to popular belief, an act is considered discriminatory and illegal only if it is based on the so-called protected category as stated by law. This means that an act is deemed actionable only under the discrimination laws listed in these categories.

What are these protected categories?

Under federal and state laws, these categories include the following:

• Discrimination based on race

• Discrimination based on disability

• Discrimination based on gender

• Discrimination based on religion

• Discrimination based on pregnancy

• Equal pay and compensation discrimination

• Sexual harassment

• Retaliation

Hence, if you think a discriminatory act has been committed based on all these protected categories, it is only proper to file a complaint to seek redress.

A California employee has the right to speak to representatives of the office of the California Labor Commissioner or any other government or law enforcement agency about any issues affecting your working conditions. On the other hand, an employer cannot fire, demote, suspend or discipline a worker or employee for answering any questions or providing any information to a government agency.

A discrimination complaint must be filed within six months after the occurrence of the alleged discriminatory and/or retaliatory action. However, complaints filed under Labor Code sections 230(c) (one year), 230.1 (one year), 1197.5 (no later than two years after the cause of action occurs), and Health and Safety Code section 1596.88 (not later than 90 days after action as to which complaint is made) are exempted from this statute of limitation.

Wednesday, September 17, 2008

That Horrible Metrolink Train Accident

Although the Federal transportation official made a pronouncement that it is too early to know what really caused the train crash that left:

• 25 people dead
• 135 people injured
• 40 critically injured

… the Metrolink official earlier said that the train crashed after their engineer drove through in red light.

Metrolink sensibly accepted responsibility in this now the worst train accident in Southern California, if not the whole of California, in half a century.

The LA Times extensively reported the news. And as if echoing the question many victims and their families or the public in general have in mind, the news account asks “how the Metrolink engineer could have missed the red signal.”

We cannot answer this question with definiteness this early. We can only surmise, speculate and infer from many unclear but determinable details of what really took place in the accident and what really caused it.

A lot has been said but as mentioned, that would remain speculations for now.

Answer/s to that question will not be available sooner or later as the investigation is still on going.

One thing is certain here though. Metrolink, now dubbed as one of the worst in the US when it comes to fatality record, will be facing the inevitable legal consequences brought about by this unfortunate train accident.

The Labor Day Weekend: The Roads Safest Days

Generally, accidents can be expected during the holiday, especially the long ones, because people move around a lot. People travel miles and miles of distances for merry making and spending time with their families and loved one.

So it is refreshing news to hear that San Francisco, and the majority of cities and counties in California as well, recorded a lower motor vehicle accidents on this year’s Labor Day weekend.

According to the report of the California Highway Patrol, the traffic fatalities were surprisingly lower this year than last year. And the Labor Day weekend when traffic fatalities were historically the highest has been the safest in a year so far.

The downside is that as the accident rate decreases, the number of arrests made increases. This, the authorities theorized, has something to do with the measures of keeping the streets from offenders and consequently keeping roads and streets safer.

Majority of the arrest made involved DUI. There were also cases involving non-use of seatbelts. It was recorded that there are at least 9 deaths that occur in traffic accidents related to non-usage or not wearing of seatbelts. Such deaths, authorities believe, would have been prevented if only seatbelts were worn.

The same report revealed that automobile accidents in San Francisco were down almost half of the number recorded last year.

Generally, it is something to rejoice with and congratulate the California Highway Patrol for helping keeping our streets safer. Accident, especially auto accident, is something that we don’t want to happen to us or to our loved one and families – so news of this sort will always be a welcome treat for us especially during the times of rest and merry-making.

Thursday, September 11, 2008

Foreseeability of Harm in Animal Attacks

Reasonable foreseeability of harm may be considered as a vital factor in determining liability in a personal injury case such as animal attacks.

Take the case posted on August 29, 2008, entitled “Dog Bite: Absentee Owner Can Be Liable If They Allow Dog on the Premises”. Here, a property owner was held liable for the harm done by a dog owned by one of his contracted workers after the dogs attacked a fellow worker. Salinas v Martin (August 28, 2008) First District, Division 1, Case No. A119733 prohibits.

Based on the article, a property owner had contracted a group of workers to do renovation job on his house. Several men worked on the project as sub-contractors and gardeners. All of them had access to the premises. The gardeners, whom the owner hired to do the landscape, had two dogs, a pit bull and a pit bull mix.

The homeowner knew about the dogs and given the gardeners the permission to allow the dogs on the premises. The dogs were free to run around in the fenced-in back yard.

One weekend, as one worker went to the job site to retrieve some scaffolding, he was attacked and bitten by the pit bull.

The trial court granted summary judgment to the homeowner, holding him to the same standard as a residential landlord who must have actual knowledge of a dog’s dangerous propensity before he or she can be held liable.

The Court of Appeal reversed the verdict and held the property owner to the usual standard according to the doctrine of reasonable foreseeability of harm. In this case, the Court of Appeal held that it was foreseeable that the pit bull would attack another worker and thus the homeowner could be held liable for the injuries sustained by the animal attack victim.

In animal or dog attacks, foresee ability of harm may be determined by these factors:

• The dog’s behavior prior to the attack
• The history of attack incidents, if there are any

To pursue claims in an animal attack, a victim must seek the assistance of a lawyer with experience in handling cases of this nature.

Thursday, September 4, 2008

The New Temp Workers’ Rule

For good or ill (for some), Governor Schwarzenegger did it again.

The controversial governor, known for signing into effect, controversial, not to mention queer, attention-magnet laws (no pun intended) has signed into law a law which will change the way temp workers are paid in California.

The new law, which will take into effect in January, requires temporary service agencies to pay temps every end of the week instead of every other week. If the temps work on a day-to-day basis, such temp will have to be paid daily – not weekly, more so not monthly.

But when is one a temporary employee, or temp for brevity? You are a temp if you are under the employ of a temporary services employer.

So what is a “temporary services employer”? The New Labor Code holds the answer. It defines TSE as an employing unit that contracts with clients or customers to supply workers to perform services for such clients or customers.

Your employer is a TSE and consequently you are a temp, if your employer does the following, among others:

• Negotiates with clients and customers for matters such as the time and place where the services are to rendered, the type of work, condition, quality and price of the service
• Determines assignments or reassignments of workers, even if workers retain the right to refuse assignments
• Retains the authority to assign or reassign a worker to another client or customer when the worker is determined unacceptable by a specific client or customer
• Assigns or reassigns workers to perform services for clients or customers
• Sets the rate of pay of workers, whether or not through negotiation
• Pays workers form its own account or accounts
• Retains the right to hire and terminate workers

But there are instances when you may look like you’re a temp but under the law, you’re not. You are not a temp if your employer is one of the following:

1. a bona fide non profit organization that provides temporary service employees to its clients
2. a farm labor contractor as defined under the law
3. garment manufacturer which can be considered as “contractor”

The new law, to reiterate, applies to temp employees. Basically, the heart of the law is the requirement that you should be paid weekly, not another week after. If it’s day to day work – then at the end of each day.

Of course, needless to say that there are some ambiguous parts of the law that an ordinary temp employee may not fully understand, such as when exactly is payment due, what are the conditions, how about the rules on striker replacements, etc.

In this regard, and in any issues of law for that matter, it is still ideal to consult with a qualified and competent employment law attorney in California to avoid being taken advantage by some unscrupulous employers, TSE or not.

Tuesday, September 2, 2008

Fights Against Pregnancy Discrimination Finally Pay-off

It is quite ironic that a place where anti-discrimination laws were supposed to be advocated, or observed at the very least, becomes the latest place to cuddle discrimination.

Not so long ago, two lady employees of a large law firm (take note law) reportedly became victims of discrimination.

Lady “A” was reportedly “let go” due to what her employers call “downsizing”. While Lady “B” said her salary was severed just before she went on a law sanctioned maternity leave.

Learning well from their boss, the two women are expected to file suits – and they did.

The two women filed suits for gender discrimination against their bosses. Not long after, they won the lawsuits and the judge ruled that the two had been victims of pregnancy discrimination.

The action, and consequently the judgment of the court, is based on the California Fair Employment and Housing Act (FEHA) and pertinent federal laws which prohibit discrimination based on pregnancy, among others, in terms of hiring, firing, demoting, job detailing, etc.

Also, under Title VII of the Civil Rights Act of 1964, employees are protected from any and all types of discrimination such as race, color, religion, sex, nationality, etc. And this includes discriminating a woman employee because (1) she became pregnant, or (2) she is expected to get pregnant.

If you, or any of your family member, experience this kind of discrimination, or any discrimination for that matter – it is a must that you speak with a qualified employment law attorney to protect your rights.