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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 36683
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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I've been working company in SF past 7 months.

Customer Question

I've been working for a company in SF for the past 7 months. This company I had worked for previously 12 years ago until I became ill. A couple of weeks after my current employment, the owner called me and asked whether I would be interested in taking on the project of redecorating his hotel/hostel rooms. I was originally hired to work at the front desk as the afternoon desk clerk. Then the question was posed if I were gay, and when I asked him why this was asked, his reply was that he works well with gay designers. I replied that I was not and the conversation continued on. I informed the hotel manager of this and at that time I thought it was somewhat amusing as I believe I have not said anything nor acted in any way, shape or form that would have given him the impression that I was of that sexual orientation. Nonetheless, things ran smoothly after that up until a few weeks ago. I have been informed by the hotel manager and my immediate supervisor that the owner had commented he was getting "bad vibes" about me. No reason given. This started when the hotel manager was considering me for the position of Reservations Manager. The owner did not want me for the post obviously and the hotel manager spoke with me and initially wanted for him and myself to approach the owner and try to convince him otherwise. I told my manager that I wasn't going to "fake it", attitude or personality wise, just so the owner would like me. I have since informed the hotel manager that I was going to stay on the job until the end of September as I had planned on taking an extended trip to Asia in October and will have to leave my employment then. When I spoke with the hotel manager yesterday, I was asked about my travel plans and he commented that the owner had obviously been asking when I was going to leave, and that how he (the hotel manager) was having his judgment questioned by having originally considered me for the Reservations Manager position initially. I again asked what exactly the reason is behind the owner's dislike for me as it seems to be more personal than anything at this point in time. I've been pondering about this most of the evening and got very little sleep for the first time just being totally annoyed and now I'm feeling harassed. Also, I have been functioning as the "answering service", answering after hours call from 11pm to 9am when the office reopens as the hotel's reception desk isn't open 24 hours. For this, I'm getting paid an equivalent of 15 minutes per call at the double rate of my hourly rate and wasn't paid for the entire time since starting to do this task. I only got compensated starting April whereas I've started working for this company back in November. What can I do? Jake
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.
Good morning,
I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today.
CA law prohibits harassment and discrimination in the workplace and if this is happening to you, you do have a legal remedy.
Workplace harassment/discrimination is any unwelcome or unwanted conduct that denigrates or shows hostility or an aversion toward another person on the basis of any characteristic protected by law, which includes an individual's race, color, gender, ethnic or national origin, age, religion, disability, marital status, sexual orientation, gender identity, or other personal characteristic protected by law. A conduct is considered unwelcome if the employee did not solicit, instigate or provoke it, and the employee regards ***** ***** as undesirable or offensive.
In CA you have two possible avenues of approach to dealing with discrimination. If your goal is to ultimately sue in Federal Court, then you will file a complaint with the EEOC, and if you want to be in the CA Superior Court---local to your county---then you will file with the DFEH and, if you want to, with the EEOC as well. You must file a formal complaint of discrimination with the EEOC within 300 days of the alleged discriminatory act, and within one year for the CA DFEH.
You may file a formal complaint with the CA Department of Fair Employment and Housing alleging discrimination based on your sexual orientation (non-gay).
To do this you must first make an appointment with the Department to be interviewed, either over the phone or at a local DFEH office. You may call the DFEH at(###) ###-#### ***** apply on line by using the Department’s "Online Appointment System." The system will guide you through questions to determine whether an appointment is right for you.
Alternatively, you may file a complaint with the EEOC (Equal Employment Opportunity Commission). If your company has 15 or more employees (the DFEH only requires that there be 5 or more employees, and only one if the claim is based on harassment), they are prohibited from discriminating against you. To file a complaint with the EEOC, contact the nearest Equal Employment Opportunity Commission field office. To be automatically connected with the nearest office, call(###) ###-#### ***** website: www.eeoc.gov
Federal law specifically prohibits discrimination, based upon the Ethnicity, Color, Religion, National Origin, Age, Sex and Disability of an individual, with regard to hiring, promotion and firing.
After you file the complaint, your employer will be prohibited from any retaliatory action against you. The EEOC will investigate your claim, and 180 days after the filing of the complaint you may ask for a "right to sue letter". The EEOC will issue you the letter which gives you the right to institute a private civil action against your employer and seek monetary damages.
As for the fact that you were made to work for the employer and not paid for the work between November and April, you have a valid wage claim under CA law.
You may actually sue the employer in court and recover your wages/commissions. Additionally, if you sue in court, under federal laws (FLSA), you are also entitled to seek what is called Liquidated damages. Liquidated damages is equal to the amount of back wages that they owe you and must be paid in addition to the wages themselves---so you essentially get double the wages owed you in the claim based on their willful failure to pay you. Additionally, you will be entitled to be awarded costs of the court as well as your attorney fees incurred in filing suit and litigating it against your employer. http://labor-employment-law.lawyers.com/wage-and-hour-law/Liquidated-Damages-and-FLSA-Claims.html
A relatively recent law signed by the CA Governor, allows CA employees to seek liquidated damages when making a claim to the Division of Labor Standards Enforcement (DLSE), just as they could if suing in court initially. So in CA whether you make a claim to the Division of Labor Standards Enforcement, or file an action in court on your own, you may seek liquidated damages. Here is a link to an article on the change---good for CA employees, but bad for CA employers: http://www.shawvalenza.com/publications.php?id=343
The award of liquidated damages is mandatory unless employer shows that (A) act or omission giving rise to violation was in good faith and (B) the employer had reasonable grounds for believing that act or omission was not a violation of 29 U.S.C.A. § 216(b). This is a very difficult standard for the employer to meet.
Here is an excellent article which deals with pursuing an FLSA claim---which you may do in either state court or federal court. Do take the time to review it:
http://www.thefreelibrary.com/Pursuing+an+FLSA+claim%3a+many+employers+have+figured+out+how+to+skirt+...-a0183316511
You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.
Kindly, remember to rate my service to you. That is how I am credited for assisting you.
I wish you and yours the best in 2015,
Doug