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California Labor & Employment Attorneys > California Labor & Employment Law FAQ

California Labor & Employment Law FAQ

Can I sue for sexual harassment if there were no witnesses?

Oftentimes, sexual harassment occurs behind closed doors. But just because there were no witnesses does not mean that all hope is lost. If the harassment is in the form of quid pro quo, where an employment decision is based on submission to a requested sexual favor or advance, there will very possibly be no other witnesses, as such requests are often made outside the presence of others. (Read more about how to tell if you have been sexually harassed here). But this doesn’t mean that you should give up.

First, it is important to bring your concerns to the attention of your Human Resources Department and/or supervisor. Once you report your complaint to your supervisor or the person who is delegated in your employer’s harassment policy, he or she should conduct an investigation of your claim.

As employment lawyers, we recommend that you consult an attorney so that you can know what to expect and reduce the number of surprises along the way. If, by chance, your company’s investigation was “inconclusive,” meaning that they were unable to uncover sufficient evidence to support your complaints, you may still have other options. A sexual harassment attorney can help you to identify these options.

Also, keep in mind that even if your harasser is found to be guilty, he or she may continue to be your colleague. The “punishments” vary, and could be anything from behavioral training to a department transfer. It is important that you voice to your employer or the investigator what your wishes are. What would you like to see happen as a result? Would you like to keep your job? By consulting legal help, you will feel better equipped when it comes to dealing with your employer.

If your situation does not improve, or if you do not feel confident that the harassment will stop, you may want to consider filing a Charge of Discrimination with the Equal Employment Opportunities Commission and/or the Florida Commission on Human Relations. An employment attorney can assist you in understanding how to comply with this important step in your claims. Please note that such complaints may be subject to a statute of limitations, so if you have concerns about harassment, you should not delay in seeking legal advice.

Can My Boss Be Mean to Me or Yell at Me at Work in California?

While being yelled at, berated, and belittled at work is incredibly stressful, insulting, and more than just a little unpleasant, unfortunately, it may not be enough to file a lawsuit or issue a formal complaint with the Equal Employment Opportunity Commission (EEOC), unless the bullying is charged by a discriminatory motive. Specifically, if your boss is singling you out based on a protected characteristic, such as race, religion, sexual orientation, age, disability, pregnancy status, or gender, you may likely have a case.

Additionally, California is one of the only states that has an anti-bullying law, Assembly Bill 2053, which prohibits abusive conduct. Abusive conduct is defined as actions with malice “that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” Abusive conduct includes:

  • “Repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating;” and
  • “The gratuitous sabotage or undermining of a person’s work performance.”

However, not one single act of misconduct can be considered abusive conduct unless it is incredibly severe. An employment attorney can help you decide what your best options are and how to seek the most desirable outcome in your specific circumstance.. Call us today for more information.

Do I have to file a complaint with my employer or my HR department

We know those employees who suffer a sexual harassment situation in the workplace may be eager to proceed with immediately filing a lawsuit. However, under Florida and Federal law, there are steps you must first take before you can get to the point of filing a lawsuit. Sometimes, by taking these steps, you may actually succeed at stopping the harassing behavior without the need for further legal action.

So what is your first step? Generally speaking, the first step is to address the harasser. You must make it clear to him or her that his or her behavior is unwanted and that it should stop. If you do not feel comfortable doing this, it may be a good idea to consult with Human Resources. Sometimes, your employee handbook may also dictate to whom you should take your complaints about harassment, and we recommend you consult with those terms to make sure you are following the right steps. For instance, in smaller companies without a Human Resources department, your supervisor may be the best person for your complaints.

If your employer does NOT have a harassment policy in place, or if it has not been sufficiently communicated to you and your co-workers, you should contact an employment attorney to determine the best steps to handle your concerns.

These two steps—lodging a timely complaint and reporting to the appropriate supervisor—are incredibly important stages that should not be bypassed. Also, this will set in motion the investigation—a key piece to your sexual harassment claim. Once you report your complaint, the Human Resource representative (or supervisor to whom you have reported) should begin to investigate by questioning you, the accused, any supervisors, and any witnesses there might be. He or she may look into any records, email accounts, and/or other forms of documentation.

If your situation does not improve, or if you do not feel confident that the harassment will stop, you may want to consider filing a Charge of Discrimination with the Equal Employment Opportunities Commission and/or the Florida Commission on Human Relations. An employment attorney can assist you in understanding how to comply with this important step in your claims. Please note that such complaints may be subject to a statute of limitations, so if you have concerns about harassment, you should not delay in seeking legal advice.

How do I know if I’ve been sexually harassed?

We often receive inquiries from both women and men who simply don’t know if they have a sexual harassment claim or not. If something just does not feel right about how your co-worker/supervisor/employer is behaving with or around you, then you are probably right. It is best to seek legal advice from an employment attorney who can advise you of the law and the best ways to protect your rights.

Yes, it’s important that you know your company’s harassment policy. This is just as important—if not more—as knowing what the law says. Your company may have a stricter policy about harassment than is even provided under the law.

The more technical answer? Sexual harassment is any unwelcome sexual advance or request for sexual favors. It can also be any verbal or physical conduct of a sexual nature. It is a form of sex discrimination that is prohibited by federal law under Title VII of the Civil Rights Act of 1964 for all companies with 15 or more employees.

There are two types of harassment:

  1. Quid pro quo refers to any employment decision that is based on your submission to the harassment, such as a promotion, an assignment, or merely job retention.
  2. Hostile work environment refers to comments, touching, crude jokes or pictures—anything that makes you uncomfortable in the workplace or that interferes with your performance at work. Unwanted touching can also constitute a battery under Florida law.

No employee should condone sexual harassing treatment for fear of losing his or her job. You have rights, and it is important you understand those rights in order to best protect yourself against this sort of conduct, as well as to assert your rights for protection if you complain about these situations

When considering claims for sexual harassment in a lawsuit, courts may look to the number of times that the behavior has occurred, but repetition is not required for a claim of this nature. If something was severe or pervasive enough, it could constitute sexual harassment after the first time. It all just depends on the situation.

If you believe you have been sexually harassed in the workplace, contact one of our employment attorneys for counsel; we can help you to figure out a course of action. Click here for what to do next.

I Was Written Up at Work in California, What Can I Do?

When questioning your rights as an employee as it relates to a write-up, you need to first tackle a couple of questions: 1. Why does the employer say you are being written up? 2. Why do you think you are being written up? Many times, the answers to these two questions are not the same. While the employer may allege one reason for the write up, you as the employee may have an entirely different belief as to the reasons or motive for the disciplinary action.

In the event you believe that the write-up or performance plan was done in retaliation for a complaint you made or some other protected activity you engaged in, or was done with a discriminatory motive, you may have rights under the law.

However, it is important that even if you disagree with the write up that you tread carefully in how you approach (and voice) your objection. While a write up with an improper motive may be grounds for a potential claim, this does not mean that employees can always refuse to sign the write-up without consequences. In some situations, the refusal to sign the document may be grounds for insubordination. Often times, the employee may have the abilities to sign the document and note that they are signing to acknowledge receipt only, but dispute the contents, or may have the chance to write a rebuttal to the write-up. If possible, it is always advisable to seek consultation with an employment law attorney prior to executing any write-up or if you believe that the write-up was provided to you for a discriminatory reason. Contact Scott • Wagner and Associates today to schedule a consultation.

Should I File a Lawsuit Against My Employer?

If the employee-employer relationship has deteriorated to the point that you are considering legal action, it may be necessary to speak with an attorney about legal resources beyond just an internal-company complaint.

Before you file a lawsuit for wrongful termination, discrimination, bullying, or another type of harassment or mistreatment, you need to know your options. Before a lawsuit is filed, certain laws require that you fulfill pre-requisites. Failure to follow these pre-requisites may result in a denial of your claim at a later time.

Regardless of your concerns with how you have been treated by your employer, it is always best to contact a lawyer with experience in California workplace law. Call the attorneys of Scott • Wagner and Associates today to schedule a consultation.

Should I Talk to an Attorney Before I Talk with My Employer?

We understand that it is not always possible to anticipate when a workplace dispute may arise. However, if time permits, it is advisable to seek counsel and consultation with an employment attorney before you talk with your employment about a workplace grievance or dispute.

Unfortunately, some employees learn the hard way that not all complaints make you protected under the law – and there is a fine line between being the squeaky wheel (who can be legally terminated) and making a validly-protected complaint under the law. Additionally, while certain complaints may provide you protection from retaliation, the manner in which you approach your employer about those claims is important. For example, if you have a complaint that is protected by the Whistleblower Protection Act, yet you do not properly fulfill certain requirements to have your complaints protected under the act, you may be in a difficult situation later if your employer takes adverse action against you.

An attorney can direct you to the correct person to which you should voice your concerns. Having the best timing, having an advocate on your side, and discussing the issues with the correct person all need to happen in order for a beneficial outcome. Whether you just need legal advice or you plan to take legal action, it is crucial to discuss matters, first and foremost, with an attorney.

What are my most basic rights as an employee in the state of Florida?

To be frank, Florida has horrible laws for employees. As an employee in the state of Florida, you have very basic rights. One of those rights is against discrimination in the workplace based on protected traits.

What are protected traits?

Protected traits are national origin, gender, disability, age, religion, or sexual orientation, among other traits. Under Florida law, an employer cannot discriminate against an employee based on those protected traits, beginning with the application process.

Prospective employees have these same rights as current employees. In general, if an employer makes an employment decision based on a protected trait, the employee—prospective or current—may have a lawsuit against said employer.

Whether or not that employee or employer is covered under the law depends on certain things, such as the number of employees of the company and the location of the company. Some smaller, privately held companies do not have the same regulations as larger, public companies. If you believe you’ve been discriminated against, you should consult with an experienced employment attorney as soon as possible.

We understand how you may feel if you have been treated poorly by an employer or prospective employer. The attorneys at Scott • Wagner and Associates can help you if you’ve been wrongfully terminated or discriminated against in the workplace. Contact us today.

What Can I Expect During the Employment Law Process?

It takes courage and often a lot of patience to take legal action against an employer. Whether you are in the preliminary stages and having your questions answered is all you desire, or you have made up your mind that the only acceptable path is filing a lawsuit, we will take the time to make sure you are fully informed; we believe that walking our clients through every step of the process is crucial in building a relationship of trust.

The Complaint Process of the Department of Fair Employment and Housing

If you plan on filing a formal complaint with California’s Department of Fair Employment and Housing (DFEH), the process follows as such, according to the DFEH:

  • Filing;
  • Investigation;
  • Dispute resolution;
  • Litigation; and
  • Remedies.

We can provide legal assistance at every step of the way, and encourage you to discuss going this route with an attorney before filing with the DFEH, as there are certain measures that can be taken to bolster your claim’s chances of success.

No matter what your needs are, we handle each client uniquely. Each client needs a carefully crafted plan to ensure that they come out on the other end with the result that they desire.

What is the Best Way to Negotiate the Terms of my Employment Contract?

Prior to signing any document regarding your employment, it is important that you fully understand and comprehend the terms, conditions, and language of whatever type of contract you are being asked to sign. All too often, employees are so excited about starting a new position, they may be tempted to sign whatever is placed in front of them without considering the consequences. Simply not understanding a term of a contract may not be a legal defense if you accidentally violate it at a later time. At Scott • Wagner and Associates, we offer advice and legal assistance for employees when it comes to understanding and creating workplace contracts such as:

  • Initial offer letters;
  • Employee or company handbooks;
  • Employee contracts;
  • Severance and separation agreements; and more

By understanding your contractual obligations in the workplace, you can prevent potential conflict in the future, as well as understand exactly what your employer requires of you. You may also be in a more advantageous position to negotiate for better terms of employment or terms of termination – if that ever comes. It is vital to have the assistance of an attorney if you plan to negotiate, as negotiating without legal assistance can actually cause more problems than simply not negotiating in the first place.

Negotiating a severance package can be especially tricky. While any monetary offer may seem enticing when faced with the prospect of no paycheck in the future, you may be signing away valuable rights. In most circumstances, employers must provide employees with time to consult with an attorney to review a contract. Contact us today to find out more.

Scott Wagner Contracts

Should I negotiate without an attorney?

You should not attempt to negotiate without an attorney. Doing so could do more harm than good.

Let’s use a severance agreement as an example. This type of agreement is valid under Florida law, therefore there is a potential for negotiation. At the same time, however, you do run the risk of losing the opportunity for that severance because they are also not required under Florida law.

Severance agreements in Florida are like a gift from an employer, so even a dollar of severance may be a dollar more than what the employer is obligated to provide to you. We understand that you want to get as much out of your severance as possible, which may require negotiating the terms. However, you have to be careful that, in attempting to negotiate, you do not talk yourself out of a “gift” that your employer doesn’t have to give you in the first place.

Therefore, while there can be latitude for negotiating most contracts, it can be a slippery slope that is best handled with the guidance of an employment attorney. It’s important to know what rights you have in order to negotiate a contract so that you work within the confines of those rights. This way, you can make sure that you’re getting the best deal for yourself while also still getting the benefits of whatever contracts you may be offered.

What Should I Do and Not Do If I Suspect that I Have Been Discriminated Against in the Workplace?

When your rights have been violated in the workplace, the first step that you need to take is contacting an attorney and discussing your options. By doing so, you can seek information about what pre-litigation complaints you may need to file, the best strategy for making a complaint to your company for the action, the timing for bringing a claim, and other pertinent steps to make sure your rights are protected. Many times, employment claims are subject to strict statutes of limitations. Therefore, if you think you may have been the victim of unpaid wages, discrimination, or retaliation, it is important that you take immediate steps to consult an attorney and preserve your rights immediately.

What are the Statutes of Limitations?

What if I was harassed, discriminated against, or unfairly fired in the past – can I still take legal action even if I no longer work for that company? While you do not have to be a current employee in order to take advantage of your rights under the law or otherwise bring a claim, you should remember that your claims are typically subject to strict statutes of limitations, or timing, in which you have to bring your claim. Often times, the law requires that you file a pre-litigation complaint before you can even file a lawsuit. Unfortunately, if you miss your statute of limitations to bring your claim, you may be without recourse to enforce your rights. This is why it is important that you take immediate action if you believe you may have been the victim of workplace discrimination – a consultation is the first step to arm yourself with the knowledge you need to determine what rights you may have available – and when you need to take action.

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* Cathleen Scott is licensed to practice in Florida only.

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