Practice Areas


Discrimination

You may have a case involving unlawful discrimination if you believe you are being treated unfairly at work based on your race, gender, national origin, disability, perceived disability, record of a disability, age, religion, or sexual orientation. These are all protected classifications under the Federal statute, Title VII of the Civil Rights Act, and/or if you work in California, under the state's Fair Employment and Housing Act.

In order to prove discrimination, you need not have direct evidence of discrimination – rare in today's workplaces. Generally, you may prove discrimination by creating an inference of discrimination. To do so, you must show that you are similarly-situated to another employee who was treated more favorably than you were treated. So, for example, imagine you and another individual applied for jobs, and you were more qualified, but the other individual – not of your same race, sex, national origin, etc. – was hired. In that case, you could prove discrimination if the employer could not articulate a legitimate, non-discriminatory reason for hiring the other person, or if you could show that the employer's stated reason for not hiring you was false.

Sometimes, too, a whole group of people – say, people with disabilities, for example – is treated discriminatorily by being denied opportunities in the workplace. In other cases, a job requirement appears to be neutral, but actually impacts disproportionately one group of employees or potential employees – say, by making it harder on employees over 40, or employees who are of a particular national origin.

Be mindful of your deadline to file a complaint with the U.S. Equal Employment Opportunity Commission and/or, if your situation arose in California, with the California Department of Fair Employment and Housing.


Retaliation

If you complain about discrimination, or about some other unlawful activity, and you suffer some consequence on your job as a result, then you may have a claim of workplace retaliation. To prove retaliation, you do not have to prove that you were correct in your original allegation of discrimination or an unlawful activity – you just have to show that your belief, when you complained, was a reasonable one.

Next, you have to show that you complained – usually to a manager other than the one about whom you are complaining. Then, you must show that an action was taken against you – maybe you were fired, or demoted, or your performance evaluation was reduced, or the employer launched an investigation against you, to intimidate you.

Unless someone admits they took an action against you because you complained, you will most often prove that the adverse action was retaliation by showing that it occurred within a short period of time after you complained – a few days, weeks, or months, usually. To show that the employer was motivated by a desire to retaliate, you will have to show that the person who took the action against you knew that you complained at the time he or she retaliated. Alternatively, you could show that the person who took the action was merely rubber stamping a retaliatory action suggested by someone who knew of your complaint.

Please contact Bryan Schwartz if you believe you were subjected to any of these types of job discrimination and you need a lawyer's advice.

Be mindful of your deadline to file a complaint with the U.S. Equal Employment Opportunity Commission and/or, if your situation arose in California, with the California Department of Fair Employment and Housing. If you were retaliated against for blowing the whistle on unlawful activity other than discrimination, then read the Whistleblower section.


Harassment

Harassment is a form of discrimination. To succeed in a claim of harassment, you must show that the harassment was based on your race, gender, national origin, age, disability, perceived disability, record of a disability, religion, sexual orientation, or retaliation for a prior complaint of unlawful activity. 

There are generally two types of harassment: hostile working environment harassment, and quid pro quo harassment. Quid pro quo harassment occurs when a manager tells a subordinate employee that the employee will receive favorable treatment on the job (or will avoid unfavorable treatment) if he or she complies with an improper request – for example, that the boss will not fire you if you perform sexual favors.

The more common kind of harassment is hostile working environment harassment. You must show that the harassment against you was unwelcome, severe or pervasive (frequent) conduct which fundamentally altered your working environment and made it into an abusive workplace. Generally, a stray remark or isolated incident will not constitute hostile working environment harassment, unless it is so extreme that it shocks the judge or jury – for example, a workplace rape.

If you believe hostile working environment harassment is occurring, it is important to use whatever mechanisms your employer has available to file a complaint regarding this harassment, to give the employer an opportunity to stop it. 

Whether or not you have already filed a complaint, please contact Bryan Schwartz if you believe you were subjected to illegal harassment at work and you need a lawyer's advice.

Be mindful of your deadline to file a complaint with the U.S. Equal Employment Opportunity Commission and/or, if your situation arose in California, with the California Department of Fair Employment and Housing. If you were retaliated against for blowing the whistle on unlawful activity other than discrimination, then read the Whistleblower section.


Reasonable Accommodation

If you suffer from an impairment which substantially limits you in one or more major life activities (some examples are seeing, hearing, walking, breathing, eating, social interaction, taking care of yourself, and having children), then you may be entitled to a reasonable accommodation in your workplace. In general, you must be able to perform the essential functions of your job – with or without a reasonable accommodation. So, if you need help to perform these functions, you should request an accommodation. The accommodation you need must not pose an undue hardship for the employer – for example, if you are a receptionist and an essential function of your job is to greet guests at your workplace, you probably cannot be accommodated by asking to spend most of the work week working from home. On the other hand, if you perform most of your work from your office on your phone and computer, then working from home as an accommodation might be reasonable. 

Please contact Bryan Schwartz if you believe you have been denied a reasonable accommodation, or you need a lawyer's advice in requesting one from your employer. 

Be mindful of your deadline to file a complaint with the U.S. Equal Employment Opportunity Commission and/or, if your situation arose in California, with the California Department of Fair Employment and Housing. If you were retaliated against for blowing the whistle on unlawful activity other than discrimination, then read the Whistleblower section.


A whistleblower is someone who stands up for what he or she reasonably believes is right, and reports fraud, or a violation of law, rule, or regulation, or, in some instances, gross waste, gross mismanagement, or abuse of authority. Whistleblowers can be Government employees, or private citizens, depending on the circumstances. 

Whistleblowers who report false claims by Government contractors that are defrauding the Government of money may sometimes help the Government recover lost funds and keep a portion of this recovery. The Federal statute giving you the right to such recovery is the Federal False Claims Act. 

Non-governmental employees who report environmental, health, or safety violations, or securities regulations violations, or certain other types of unlawful activities, and who suffer some action against them at work for having made a complaint, can file a claim within 30 days at the United States Department of Labor. After an investigation, you can have a hearing with an Administrative Law Judge at the Department and reverse the action against you and recover damages. 

Among Federal employees, under the Whistleblower Protection Act, a whistleblower is someone who reports fraud, gross waste, gross mismanagement, abuse of authority, or a violation of law, rule, or regulation by a United States Government agency. What you are reporting must be reasonable, but it does not need to be proven true in the end. You must make your complaint known to someone in management other than the wrongdoer. Agencies have Inspectors General (IGs) to receive and investigate such complaints, but it is not mandatory that you report to the IG in order to be a whistleblower. Once a Federal employee has made a complaint, if managers know of the complaint, and soon thereafter they begin to take actions against the employee, which might tend to discourage complaints in the future (for example, issuing you an unpaid disciplinary suspension, or demoting you), then you can file a complaint with the United States Office of Special Counsel. After 120 days, you can file an Individual Right of Action complaint with the Merit Systems Protection Board.

Whether or not you have already filed a complaint, please contact Bryan Schwartz if you believe you have suffered or may suffer whistleblower retaliation and you need a lawyer's advice.

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Federal Employment

Federal employees have special rights. If you are a Federal employee and you receive a proposed suspension of more than 14 days, a reduction in pay, a demotion, or a removal, you have the right to an oral and written reply to the proposal. If your Agency takes the threatened action, you may appeal it within 30 days to the Merit Systems Protection Board. The Agency must prove its case for the action against you to remain in force.

If you have a discrimination complaint, you must contact the EEO counselor at your Agency within 45 days to file an informal complaint. As a Government employee, your employer may violate the U.S. Constitution if it improperly suppresses your right to free speech, or takes away your job without Due Process. You may have concerns about a security clearance, or disability retirement, or any of the many other unique issues in Federal workplaces.


Overtime & Other Wage Issues

 

Most employees in the workplace are entitled to overtime pay (1.5 times the regular pay rate) when they work over 40 hours in a week – and in California, when they work over 8 hours in a day. In California, when you work over 12 hours in a day, most employees are entitled to be paid double-time. If your employer has failed to pay you the time you are owed, the employer may owe you liquidated damages – meaning, twice the unpaid wages. In California, if you have already left the employer, and were not paid everything you were owed, then your employer might owe you up to 30 extra days of pay for waiting time penalties. The employer may also owe you penalties in California if your pay checks do not accurately reflect all of your compensation data or other information required.

Also, most California, full-time workers are entitled to an unpaid, but uninterrupted, 30-minute meal period by the end of five hours' work, and two, 10-minute, paid rest periods a day – one to be taken during each four hours worked. If you work over 10 hours, most employees are entitled to a second 30-minute meal period. Each day most California employees miss the full meal and rest periods to which they are entitled, they are due premiums, equal to one hour at the employees' regular rate of pay.

Some employers have improperly classified their employees as "exempt" from overtime and meal/rest period premiums, cheating employees out of earned compensation. Some employers dip into employees' tips, or shave time off of employees' time records, or refuse to compensate employees for time spent waiting in security lines, setting up a work station for a shift, or putting on and taking off required work equipment.

If you question why you are not receiving compensation to which you believe you are entitled, and you want advice from an attorney, please contact Bryan Schwartz.


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