Discussing Women’s Hormones in the Workplace is No Djoking Matter

Q:     If Novak Djokovic was your employee could you terminate him after he stated men should be paid more money than women and made comments about women’s hormones?

A:     Maybe.  But, it is an interesting question because it pits two employment law principles against one another – equal employment v. concerted activity.  As you may be aware, the men’s world number one tennis player indicated that men deserved more prize money at tournaments because they draw more fans.  He then went on to say:

As I said, I have tremendous respect for what women in global sport are doing and achieving. It’s knowing what they have to go through with their bodies, and their bodies are much different than men’s bodies. They have to go through a lot of different things that we don’t have to go through. You know, the hormones and different stuff, we don’t need to go into details. Ladies know what I am talking about.

As most people are aware, there is significant federal and state law that protects against gender discrimination and harassment.  In compliance with these laws, most employers have policies prohibiting statements that indicate one gender is superior to the other or make reference to one’s gender’s anatomy.  As such,  Djokovic’s statements, particularly the reference to bodies and hormones, would likely fly in the face of these policies and laws.

From an employment law perspective, a question arises as to whether Djokovic would be protected to complain that he (and the rest of the men) should receive more money because (in his opinion) they generate more revenue through fan demand.  Statements regarding “working conditions” are protected under California law and “concerted activity” is protected under Federal law.  “Working conditions” and “concerted activity” both have broad definitions that would certainly protect an employee’s ability to have a platform to discuss why he thinks he is entitled to more money.   It is unclear whether the employer could actually make the changes to the pay structure without violating the law, particularly in light of California’s Fair Pay Act.  Accordingly, this controversy is a good reminder to review our previous blog on California’s new Fair Pay Act that went into effect in 2016.[1]

Of course, all of this is somewhat theoretical because Djokovic is not an employee of the ATP (Associated Tennis Professionals).  That said, his comments certainly did not help his own personal brand.  What is weird, however, is that a sport’s star said something controversial[2], and that he later apologized for it.[3]

[1] https://answersforemployers.com/?s=gender

[2]  http://www.msn.com/en-ae/sport/sport-index/they-said-what-most-controversial-quotes-by-sports-stars/ss-AAgqhNo#image=26

[3] http://espn.go.com/espn/page2/story?page=philbrick/100218

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Employees search for the pot of gold – how not to get pinched by an employee’s request for information.

Q:        It seems that I do not have the luck of the Irish this St. Patrick’s Day.  I just received a request from a former employee for his entire personnel file and wage statements.  I am concerned that this employee is searching for gold at the end of a rainbow in the form of a lawsuit against my company.  Do I have to provide this employee his personnel file and wage statements?

A:        Unfortunately, yes.  Pursuant to Labor Code section 1198.5, an employee has a right to inspect personnel files, and Labor Code section 226 requires employers to provide copies of the information required to be contained on wage statements.  In 2013, the Legislature expanded and clarified these inspection rights.  The law now provides that copies of wage information can be in the form of computer-generated information.  An employer must provide copies of the personnel file upon request. Additionally, an employee may designate a representative to receive the information.

As the employer, you have 30 calendar days from the date you receive the request to provide copies of the personnel file pursuant to Labor Code section 1198.5.  But, you only have 21 days from the date of the request to provide copies of the wage information pursuant to Labor Code section 226.  There is a $750 penalty for non-compliance to each statute.

It is likely that your employee may be seeking some green by making this request.  Often these requests precede a demand letter or civil lawsuit.  This is particularly true if it comes from a former employee.  Therefore, upon receipt of such a request, in writing or orally, make sure you contact your employment attorney as quick as a leprechaun to properly comply with these laws.

Happy St. Patrick’s Day from the BMJ employment law team!

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.



ALERT: A Valley business and a cautionary small business tale

It was recently reported that a local Valley restaurant has been ordered to pay employees $150,000 in back wages and penalties.[1]  This is another cautionary tale of how employment related lawsuits and government enforcement can lead to extensive liability and shudder small businesses in struggling areas.  While the newspaper article seems to suggest that simple steps can be taken to avoid liability for wage and hour violations, this is not always the case.  Even attentive and cautious business owners can get sucked into lawsuits or government enforcement actions.  Indeed, back in 2013 an article in the Huffington Post stated that wage and hour lawsuits had risen 432 percent over the last 20 years![2]

The last three years seem to have shown no signs of slowing down – particularly in California – where wage and hour laws are even more employee friendly than Federal laws.  While some employer errors are obvious and easy to correct going forward, others are not.  The number and technical nature of wage and hour laws make it increasingly difficult for employers to maintain compliance. Perhaps what is even more concerning is that a company does not need to commit an extensive amount of violations to have liability reach six (or even) seven figures.  The large nature of these figures stems from the three year statute of limitations attached to most wage violations.  Furthermore, a violation of one statute usually means that an employer violated other statutes, sometimes for the same exact conduct.  Additionally, penalties are often imposed in addition to back pay.  And, once a violation is discovered, the only way to correct it is to pay the employees for every violation and penalty that took place during the previous three years.

A common strategy for Plaintiff’s and former employees is to indicate that they worked off the clock.  This is extremely problematic because even companies that keep very good records are left defending a lawsuit that is “employer said versus employee said.”  While ultimately there may need to be legislative changes to ensure that well meaning employers are not put out of business by wage and hour lawsuits, there are some suggestions that employers are encouraged to take.  These suggestions are not fail safe and will not mean an employer cannot still be sued or brought into a government enforcement action for an alleged violation, but they do put the employer in the best defensive posture when one occurs.

  • Make sure your exempt employees are truly exempt:  Simply paying your employee a salary does not mean they are necessarily exempt from overtime and meal breaks.  In order to be exempt, employees must meet both the salary test and the duties test.  Because the salary test is based on a multiple of minimum wage, employers must continually review their exempt employees salaries to ensure compliance.  Currently, in addition to meeting the duties test, an employee must be paid at least $41,600 per year to be an exempt employee.
  • Ensure employees are encouraged to take meal periods/rest breaks:  Often the allegation in a wage and hour case is that employees did not receive their meal and rest period.  Generally Employees are entitled to a meal period every 5 hours and a rest break for every 4 hours worked (or major fraction thereof).  Make sure an employee’s workload does not prevent them from taking their meal and rest breaks.  If an employee misses a meal period, simply pay the one hour pay penalty in the next pay period.
  • Make it easy for an employee to correct their time:  If there is an error on the time clock (or an employee forgot to clock in), make sure there is an mechanism where an employee can easily make sure their pay accurately reflects the time they actually worked.
  • Pay all compensable time:  This concept is getting trickier all of the time.  The increase in use of technology and mobile devices makes it difficult to ensure no work is conducted after the employee leaves the workplace.  To that end, employees should be informed that they are not to conduct work when they are not clocked in and that if they do conduct work after hours, they make sure and record it the next day.  Employers should be very careful about giving non-exempt employees mobile devices or after hours access to the computer system.
  • Be wary of classifying somebody as an independent contractor: Simply calling an individual an independent contractor does not mean that they are one.  Indeed, an individual performing work is presumed to be an employee.  In order for an individual to be properly classified as an independent contractor he or she must meet an extensive test.
  • Keep accurate time records:  Time records and wage statements will be an employer’s main line of defense in a wage and hour action.  Do not automatically deduct meal periods, and be wary of hand written timesheets that always reflect nice round hours.
  • Have policies which accurately reflect the law and have employees acknowledge the same: An employer’s next best defense, other than keeping accurate pay records, is to have strong policies that inform the employees of their rights.  It is more difficult for an employee to claim that the employer prevented an employee from taking a meal and rest break when the employers policies say the exact opposite.
  • Get an employment law attorney involved early:  Obviously prophylactic measures are better than a defense.  It is better not to have a violation than to defend against a lawsuit.  An attorney or HR professional can help set up your business to prevent violations from occurring in the first place.  But, if an employee does make a claim, an attorney’s early involvement can save an employer a significant amount of funds through early resolution.

[1] http://m.hanfordsentinel.com/selma_enterprise/news/selma-leaders-react-to-wage-violations-case/article_832efea5-80ae-5a69-a174-9cc7fd815d25.html?mobile_touch=true.

[2] http://www.huffingtonpost.com/2013/05/14/wage-and-hour-lawsuits_n_3271978.html.