The Law Office of Traci M. Hinden

I went to Law School to help people and I really feel like I help everyone, from average Joe, to high exec, immigrants, the whole gamut. I feel that people really need a voice, and often times people who come to me are those who never would have had a voice. They never even thought about bringing a case and it feels good to advocate on their behalf.

We see discrimination in a few places. It could be a failure to hire case. It could be a failure to promote case, failure to transfer, failure to provide equal pay, and it can look like anything. It could be between a male and a female in gender discrimination. It could be between an African American person and a Chinese person. It could be between two different religions. And that’s what it’s about is comparing them and there’s two avenues there. It’s either direct discrimination, which means there’s been some names, there’s been some, you know, epitaph, something that has been slurred, or it’s an impact case, which is all of the Latinos in that company are not being promoted, or all of the Chinese people are given pay raises and no one else.

Well, I think you want to stop for a second and collect your thoughts and see, you know, what exactly is happening, maybe document it, because most people, you know, will take a stand back and say did that just happen, and then kind of let it go. It’s important to document it. If you write down the day and what happened, maybe anybody else who’s around, and then I think before you run off to HR I would absolutely call an attorney, because you want to find out is this a Worker’s Comp stress situation, or is this a true, hostile work under Employment Civil Rights.

So that’s what separates it from a possible stress case in Worker’s Comp versus an Employment Civil Rights case is in order to sue for harassment in employment law you only need to have one employee, versus five employees for discrimination under California’s act. But what makes the distinction is for a protected class, and a protected class includes those that are being harassed or discriminated based on their race, their religion, their age, their disability, their sex, which includes their gender, their gender identity, their pregnancy status, if they are trying to take leave to take care of themselves or another, veteran status, any others like that.

Sometimes people will write an e-mail. They’ll take notes. I’ve had clients, if they’re like in the service industry and they have a work schedule, when it was continuous harassment they would write down on their work schedule what was said, you know, maybe little bits and pieces of names they were called, people who were around, anything of that nature.

A reasonable accommodation could be restructuring of your job, restructuring of your physical situation; maybe you need an ergonomic, maybe you need a stool because you have a back injury and you can’t stand, maybe you need less hours, like part-time work, or maybe you need leave, which could be intermittent leave, or it can be leave for some time. And the other option is maybe you need another open position, because you can no longer perform your position.

So, if you’re not an exempt employee, which means you’re not salaried, you’re an hourly employee, if you work more than 8 hours in one day, more than 40 hours in one week, or 7 days a week, you are owed overtime. And on the seventh day every hour of that day would be time and a half. After 8 hours, up to 12 hours you would be owed time and a half. Anything after 12 hours in one day would be double time, and anything over 40 hours a week would also be time and a half.

The moment you feel you can’t do your job without a reasonable accommodation.

So this is very similar to the last issue of, you know, what can you wear, and again, if it’s not an undue burden on the employer they have to try and accommodate it. Sometimes it means taking off the entire day. Certain religions allow for prayer on Saturday. Some religions allow for prayer on Sunday. Employers, if they can, should not schedule you on those days. They should schedule around that. If it’s prayer within your workday, possibly there’s a way you can structure it such that you could do it during your break.

Well, the very first thing I would do is not say anything disparaging against your employer. Do not post anything on Facebook. Any of that stuff would come in if you later on wanted to bring a claim. I would file for unemployment, even if you quit. You are sometimes entitled to it. There are exceptions.

So, if you have a contract in place through your union about what your rights are, and anything that’s listed in there the union is not following, your action would be either the union to bring it on your behalf, or for you to file a claim against the union. The National Labor Relations Board would provide that for you if you wanted to bring a claim against the union.

Yes, unfortunately. Most people are surprised by this. There is a case called Ross v. Ragingwire. It is a United States’ Supreme Court Case that says even if your state, and in this the state in question was California, allows for you to have medical marijuana, if the employer does drug testing, it is still an illegal substance in the United States. And since we are United States and federal law preempts it, you can be lawfully terminated for that.