Orange County Employment Lawyers Blog

California Employment Discrimination Against Asian Americans During Pandemic

April 28, 2020 | by Nassiri Law

There are many aspects of the COVID-19 pandemic’s impact that are unprecedented in modern history. One thing that isn’t so new is the tendency for people to seek a scapegoat. During the Black Plague of the 1300s, many blamed Jews. When cholera broke out in the U.S. during the 1800s, ire turned to immigrants of Irish descent. When an epidemic of polio was spreading across the U.S., many pointed the finger at Italian immigrants. With the novel coronavirus, the scapegoat has become people of Asian descent.

COVID-19 is believed to have originated in China, and unfortunately this has resulted in discrimination and even aggression against those with physical attributes typically attributed to people from Asia.

Los Angeles racial discrimination attorneys know there are already reports of bullying and harassment against Asian and Asian American workers. We’re are anticipating more will be reported in the weeks and months ahead. Apparently so does the Equal Employment Opportunity Commission (EEOC), which recently indicated it would be specifically tracking COVID-19-related claims. This will help create more than just anecdotal evidence of the trend. Continue Reading ›

EEOC Reports a Rise in Pregnancy Discrimination Settlements

April 22, 2020 | by Nassiri Law

Claims for pregnancy discrimination are spiking across the country, according to the U.S. Equal Employment Opportunity Commission. Last year, the agency filed 3,000 claims of pregnancy discrimination nationally. More than $22 million in payouts for those claims were ultimately paid, which is a more than 30 percent increase in the annual average ($17 million) recorded over the last decade.

Our Los Angeles pregnancy discrimination attorneys would point out too that this doesn’t even include pregnancy discrimination cases that are resolved through litigation in court. Some of those outcomes have been substantial, such as the $185 million California pregnancy discrimination damages awarded to a plaintiff in San Diego who was demoted and then later fired from her retail position after informing her boss she was pregnant. The company insisted she was fired for misplacing money, but a jury found that reasoning to be pretextual (an excuse) and decided the case in her favor.

That was in 2014, and the number of claims and payouts has been steadily rising ever since. A big part of the problem is too many employers still are apparently failing to grasp what their responsibilities are under state and federal gender discrimination laws pertaining to pregnancy. They do what they may feel is expedient for the company financially without fully examining the legality and potential repercussions. Also, employees are becoming increasingly aware of their legal rights – particularly with the cultural influence of the #metoo movement. Continue Reading ›

California Staffing Agency Liability for Workplace Discrimination

April 15, 2020 | by Nassiri Law

California staffing agencies can be held liable for workplace discrimination. However, in a recent decision of Duckworth et al. v. Tri-Modal Distribution Services Inc., a state appellate court ruled the staffing agency was not liable for alleged racial discrimination of two black employees who weren’t promoted. The court held that because the two workers were “leased” to the company they worked for – and that company had the authority over employment actions – the staffing agency was effectively off-the-hook.

As our Los Angeles racial discrimination attorneys can explain, this, like many similar cases comes down to the degree of control each firm had in employment-related decisions. As an increasing number of companies turn to staffing agencies to fill certain positions, the question of who the actual employer is becomes pertinent when determining who is responsible for employment-related discrimination claims. The question will be which entity retains substantial control and are in fact employers in all but name. Continue Reading ›

Top 3 California Employer Legal Mistakes During the Pandemic

April 10, 2020 | by Nassiri Law

As employers throughout California are tackling unprecedented challenges brought about by the novel coronavirus (COVID-19) pandemic, it’s inevitable that mistakes will be made. However, employers would do well not to exacerbate their financial woes by erring when it comes to employee pay, sick leave and wrongful termination.

Outlined here are the top legal missteps our Orange County employment lawyers see companies making in the coming weeks and months. Continue Reading ›

COVID-19 Raises California Wage and Hour Law Questions

April 5, 2020 | by Nassiri Law

The COVID-19 pandemic has raised a host of questions for employees and employers about what the wage and hour rules are for things like paid sick leave, reporting time pay, predictive scheduling and reimbursement for reasonable business expenditures.

The pandemic has left the California and U.S. economies in a free fall, with California’s Employment Development Department receiving almost 2 million unemployment insurance claims within just three weeks. As noted by the San Jose Mercury News, the Great Recession in 2008 resulted in a total of 2.2 million unemployment claims. It’s unclear how long these unemployment claims will last, and small businesses have been hit particularly hard.

Our California wage and hour lawyers in Orange County know, these unprecedented times have many asking whether the same wage and hour rules apply. Continue Reading ›

Journalists May Be Exempted from AB5, California’s Contractor Law

February 28, 2020 | by Nassiri Law

Freelance journalists may soon be exempted from the controversial Assembly Bill 5, which went into effect Jan. 1st. The new law codified the California Supreme Court’s ruling in the Dynamex case, which established an “ABC test” for ascertaining whether workers are misclassified as independent contractors when in fact they should be receiving all the benefits of employment.

The law, introduced by Assemblywoman Lorena Gonzalez, has been the target of gig industry behemoths like Postmates, Lyft and Instacart. Freelance journalists, though, are another group that has been embroiled in a fight over AB5. Specifically, the law stipulates that a journalist who produces more than 35 submissions to a single entity should be considered an employee. But that, freelancers say, would effectively kill their career. Media companies, who increasingly can hire reporters and photographers who live and work anywhere, would be less inclined to hire writers from California – or cut them off at the 35-submissions mark.

Gonzalez said she had received extensive feedback from writers, photographers and journalists about how this would impact their ability to make a living, and said changes would be made to accommodate them, while still offering protection against employee misclassification. She indicated that amendments to the law would be introduced that would remove the submission cap. However, contractors still cannot replace employees. Contracts with freelance journalists would also need to expressly indicate the pay rate, payment deadline, individual’s copyrights to the work. Companies also won’t have the right to restrict freelancers from working for more than one outlet, and they can’t mainly perform their work on the business’s premises. Continue Reading ›

9th Circuit: Worker’s Salary History Can’t Be Used to Defend Unequal Pay

February 27, 2020 | by Nassiri Law

The 1963 Equal Pay Act mandates that employers must provide equal pay for equal work. The express purpose was to eliminate the practice of paying women less simply because of their gender. The law does allow employers to offer an affirmative defense to the law if they can show that some factor other than one’s gender played a role in lower pay. The question recently before the U.S. Court of Appeals for the Ninth Circuit in Rizo v. Yovino was whether a California math teacher/consultant’s past salary qualified as a “factor other than sex” that allowed the school district to legally pay her less than her male counterparts. On remand from the U.S. Supreme Court, the appellate court ruled that it is not.

In other words, the school district can’t use one’s prior salary as an excuse to pay them less. The court ruled that to allow employers to pay workers less solely based on the pay of a previous employer would essentially defeat the purpose of the federal Equal Pay law and perpetuate gender inequities in pay. As our Los Angeles equal pay lawyers can explain, fact that women have been paid less ion the past isn’t justification to continue paying them less.

Several other federal appellate courts have held that if defendants in an equal pay case present a “factor other than sex” defense, that factor has to be job-related. Only one court, the U.S. Court of Appeals for the Seventh Circuit, has held that the defense can involve any number of essentially limitless other factors, so long as none of them involves the employee’s gender. Continue Reading ›

Spotlight on Racial Discrimination in the Fashion Industry

February 26, 2020 | by Nassiri Law

A number of civil rights and employment lawsuits filed over the last handful of years have accused fashion industry powerhouses of discriminating against workers on the basis of race. Among them, two employees at high-end retail shops in California say they were treated poorly by management because of their race, and that black shoppers who weren’t celebrities were identified by code so that employees could monitor them more closely than other shoppers. Those cases, against Versace and Moschino, were later settled out-of-court.

There have also been numerous recent incidents of reported racial insensitivity within the industry, including:

Backlash following the release of several Gucci products, including an “Indy full turban,” a blackface jumper and a hoodie with strings tied like a noose.
An H&M “Coolest Monkey in the Jungle” advertisement featuring a black child.
Prada’s release of key chain figurines that resembled the offensive “Little Sambo” children’s book character of the late 19th Century. The New York City Commission on Human Rights sided with a civil rights attorney in a complaint over the figures, and the company reached a settlement and plans to begin diversity training.

Many think pieces have been published regarding rampant racism within the fashion industry. Although some companies are making an effort to diversify the models, people who work in the industry say the effort has to go beyond that to really mean something and address the racial undercurrents that are reflected in from the runway to the retailers. Continue Reading ›

Use of Social Media in Hiring Risks Running Afoul of Discrimination Laws

February 26, 2020 | by Nassiri Law

A recently-filed California workplace discrimination lawsuit alleges a former supervisor at Amazon ordered an employee to scour the social media platforms of job applicants, looking for information on their gender, ethnicity and race. When the employee raised concern about this (as well as the fact that she reportedly earned significantly less than male colleagues doing similar work). She was fired two months later.

Amazon has been criticized in the past for its lack of diversity. This was partially why the worker ascertained that what she was being asked to do was illegal, in violation of California’s anti-discrimination laws. Her lawsuit states that when she was fired, it was communicated to her that her direct supervisor had admitted to accessing job applicant social media accounts for the purpose of gleaning details about candidates’ ethnicity and race. The director who fired her also reportedly conceded that the claimant made less than male colleagues by that this simply “happens all the time” at the company. She was allegedly fired for failure to meet expectations (even though she’d been promoted within five months of joining the team).

Although the incident made headlines because it involved Amazon, the fact is incidents like this happen a lot more than one might think. Social media can prove incredibly useful for job recruiters in publicizing job openings, etc. LinkedIn, Facebook, Instagram, YouTube and Twitter can be valuable in gathering information on prospective employees, and many companies use these outlets to conduct background checks on workers to ensure they are qualified for a certain position. However, it’s a fine line that has to be walked in terms of how those jobs are publicized and what type of information is being sought when recruiters access applicants’ social media pages. Continue Reading ›

Can Tech Tools Eliminate Hiring Bias in California?

February 25, 2020 | by Nassiri Law

Discrimination in the hiring process has long been problematic in California workplaces. Allowing personal biases of employers and supervisors to play a role in who gets the job and who doesn’t is extremely problematic when the effect is systematic discrimination against applicants on the basis of their race, religion, age, gender, disability or other protected status. Yet it happens far too often.

Now, a new California bill seeks to address this with technology.

SB1241, formally the Talent for Competitive Hiring (TECH) Act would establish a new legal bar – a high one – to address discrimination in hiring with transparent written guidelines for companies to follow in their recruiting process. The ultimate goal is to create fairer hiring processes and more diverse work forces with the aid of technological tools. It was co-authored by Democrats from Los Angeles, Long Beach, Gardena and Carson.

Rather than leaning on one of a myriad of unregulated pre-screening software programs or even a hiring manager, the TECH Act would require adoption of a smart computer program equipped with agnostic filtering that would be routinely monitored. As our Los Angeles employment discrimination lawyers understand it, SB1241 is a “rules of the road” so-to-speak for hiring practices. The bill sponsors say the measure is necessary to tackle the widening opportunity gap that leads to ongoing socioeconomic inequality throughout the state. Continue Reading ›