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Hayward Law Blog

As sexual harassment cases seemingly become more frequent, business owners have a reason to be worried. Sexual harassment cases can be bad for employee morale and for business.

For business owners who are concerned someone on their management staff could exhibit behavior that leads to a #MeToo moment, there are steps to take. Here are three things to do to create a work environment that is not susceptible to sexual harassment.

1. Hold partners accountable

One way businesses can reduce sexual harassment claims and weed out bad actors is by dedicating to working only with the best vendors. It creates a supply chain of trustworthy companies, which ripples into your own company’s culture.

Some consumers are pushing companies to do this. As an example, the Coalition of Immolake workers persuaded consumers to only buy from food sellers who are certified “Fair Food Farms,” and the workers pressured companies to “sign legally-binding agreements promising to only source tomatoes from Fair Food Farms with no outstanding wage theft, trafficking, sexual harassment, or other issues.”

It led to several disciplinary actions and firings, and recent food seasons have shown more companies with zero harassment instances. Companies can hold their vendors to that standard without consumer pressure, which sends a message to their own employee base.

2. Promote more women

Research has shown that having more women in management positions reduces sexual harassment at work. Even though the management team may not be the perpetrators, incidents can sometimes be taken less seriously by those managers, which leads to a sexual harassment lawsuit from an employee. Having more equity in management can affect workplace culture positively.

3. Take accusations seriously

If an employee does make a complaint, don’t brush it off – even if it doesn’t sound that serious to you. An incident that seems innocuous to you could be painful for the employee and make the workplace a hostile environment, which could lead to a lawsuit. Investigate it and get human resources involved. It sends a message to the team that you take accusations seriously, and it can impact the culture in a big way to avoid future issues.

While there is no way to completely prevent your employees from committing sexual harassment, these three items can make a big difference in creating a workplace where harassment isn’t tolerated.

You work hard. You stay until you finish the job, not when the clock tells you to go. Your supervisor appreciates your hard work and tells you that you’re a team player. So why aren’t those extra hours showing up on your paycheck?

California law requires anyone paid by the hour (nonexempt) to be paid overtime for any work over eight hours in one day, or 40 hours in one week.

The right to overtime

If you have worked more than eight hours in a day, your employer must pay the extra time at one and one-half your regular wage. If you work more than 12 hours in a day, it bumps up to double your regular wage.

Several exemptions and exceptions do exist, however, including:

  1. Executive, Administrative and Professional employees. These employees are exempt from certain sections of the law. They include computer software employees.
  2. Government employees. This can include the state or any of its subdivisions, such as county or city workers.
  3. Drivers. Professional drivers are subject to their own set of regulations, including the number of hours they can drive in a day.
  4. Workers covered by a collective bargaining agreement. If the agreement covers wages and hours of work, then that agreement will apply.
  5. Alternative workweek schedule. Certain industries have adopted a regular schedule requiring employees to work more than eight hours a day. For example, many healthcare shifts are 12 hours.

These examples represent some of the broader categories of exceptions. The exceptions include many other specialized employees.

What are your rights?

If you don’t fall under one of the exemptions or exceptions, then the law protects your right to overtime pay. You may still have questions, however, such as:

  • Do they have to pay for unauthorized overtime? Yes, although you should be aware that you may be subject to discipline if your employer has a policy against overtime and you decide to work the time, anyway.
  • Does your regular rate of pay include bonuses? It does if you get the bonus as part of your regular work, rather at the discretion of your employer.
  • What about holidays and sick days? Overtime is only calculated on time you actually work, so if you were out for a holiday, even if it is a paid holiday, that day is not calculated toward overtime.
  • Can your employer require you to work overtime? Yes, they can, and they can discipline you if you refuse to work the schedule they give you. They cannot, however, require you to work more than six days in a row. They must give you the seventh day off.

Where does this leave you? If you feel that your employer has violated your overtime rights, you can file a wage claim against your employer with the California Division of Labor Standards Enforcement.

A commissioner there will review and decide your claim. Your employer cannot legally retaliate against you for filing the claim. You are entitled to the money you earned. If your employer is not paying what they owe, you have options.

If the time has come to let an employee go, it is likely a task you are not relishing. Terminating an employee is one of the most difficult and potentially emotional parts of your job, and it may never get easier as time passes. Nevertheless, you realize that, for whatever reason, keeping certain people on the payroll is no longer a viable option for your California company.

There is always a risk involved in firing someone. A disgruntled employee can cause untold damage to your business, taking up time and money with litigation and potentially causing irreparable damage to the reputation of your company. One way to head that off is by offering a severance package.

Do you need assurance?

Federal laws do not require you to offer a severance package to a terminated employee unless your employee’s contract dictates such an agreement. In any other case, it is an option you may exercise if you feel the circumstances call for it. Some situations that may suggest you should consider offering a severance agreement include the following:

  • You are concerned that your former employee will seek a job with your direct competitor or start a rival business of his or her own.
  • You want to protect trade secrets and customer information that you fear your employee will take upon termination.
  • You suspect your former employee may try to recruit or rally other employees to leave your business.
  • You fear your employee may damage your company’s reputation by publicizing private details of the termination or spreading negative comments about your organization.
  • You want to avoid paying your worker unemployment benefits.
  • You suspect your employee may file a wrongful termination lawsuit.

The severance package you offer can include contracts prohibiting any of the above actions. In return for your employee’s signature on these documents, you may offer your employee a payout that equals between one and four weeks pay for each year of service. You may also throw in an extension of health benefits and a positive letter of recommendation. All these terms can be negotiated, so you may seek the advice of your attorney for the best first offer that leaves room for bargaining.

Finding a balance is important. You want to make your offer attractive enough to obtain the signatures you desire, but you don’t want to set a precedent that will bankrupt your business. Your attorney can offer advice and be involved in every aspect of the negotiation process. You may find that mediation is the most effective way to reach an agreement that protects your business and satisfies your employee.

Most businesses, whether here in California or elsewhere, end up in disputes with other businesses or individuals. They could be vendors, customers or employees. Resolving those disputes doesn’t always happen over lunch or a friendly phone call.

The first step is often an informal meeting to try to work things out before taking any steps in the legal direction. If that doesn’t work, you may dread taking the next steps if you believe that your only option is traditional litigation.

There is another way

Fortunately, you do have other choices. One of them is mediation. Among its numerous advantages is the fact that the parties enter into it voluntarily, which means that each side wants to resolve their issues without a contentious courtroom battle. Other advantages include the following:

  • The setting is informal. This allows the parties and the mediator to focus on finding a resolution instead of winning or losing in court.
  • The parties remain in control. They control the negotiations and the outcome.
  • The parties can preserve their relationship. Since mediation requires compromise and cooperation, the parties may find a way to work together and to work past the differences that brought them to the table.
  • The process takes less time. Mediation generally takes less time than litigation, which means the parties can get back to their lives and businesses faster.
  • Mediation costs less. The demands of litigation often end up costing much more than mediation sessions.
  • The results are often more satisfying. Because of the above advantages, the agreements reached through mediation are often more mutually satisfying than the decisions made in a courtroom.

One last advantage that many people fail to realize until later is that the parties tend to comply with the agreement because they had a part in creating it.

Will it work for you?

Nearly any civil matter could benefit from mediation instead of litigation. The catch is that the parties need to agree to undergo the process. The mediator does not make the decisions, but helps keep the parties on track and offers advice regarding possible solutions, along with how a court would rule under the same circumstances. What a mediator does not do is advise you of and protect your rights. Even if you decide to mediate your dispute, you may still find the experience and assistance of an attorney invaluable.

The conflict you are facing with an insurance company, in your business or among your family members is consuming your energy. The longer you and the other party struggle, the more firmly you become entrenched in your own side of the issue. You may be spending more and more time researching the law for your point of view or gathering proof that you are in the right. All of this takes a toll on your relationships, your health and your ability to fulfill your duties at work.

It may seem that your only choice is to take your opponent to court, present your side of the argument and hope the judge agrees with your case. However, you may be interested to know that there is an alternative to a heated and exhausting courtroom battle.

How can you benefit from the mediation process?

Mediation is a form of conflict resolution that often brings a satisfying closure to those who do not relish taking their problems to court. Through mediation, you and your opponent may be able to find a compromise you had not considered and likely would not have reached through an adversarial trial.

If you and the other party agree to mediate, you will bring your case before a neutral third party in a less formal environment, such as an attorney’s office rather than a courtroom. Each side will discuss his or her issues, and the mediator will guide you in seeking a positive way to resolve those areas about which you cannot find common ground. Some of the benefits of choosing mediation over litigation include the following:

  • You will likely resolve your case within weeks instead of the months or years required to complete a trial.
  • Mediation is much less expensive than litigation.
  • You and your opponent will have the opportunity to personally engage one another instead of the submitting to the divisive nature of a trial.
  • Mediation is often less combative, allowing you to preserve and rebuild relationships that may have been damaged through the dispute.
  • The results of the mediation are confidential, unlike a trial where every aspect becomes public record.

Many people who choose mediation over litigation find that the results are far more satisfying than a judge’s ruling. Because of this, they are more willing to comply with the results. If this type of conflict resolution seems appealing, you may wish to contact a California attorney to represent you and assist you throughout the process.

Like other California residents, you may find yourself embroiled in a dispute with another party. Perhaps you attempted to resolve the situation without involving the courts, but those efforts got you nowhere. Now, you are facing the possibility of filing a lawsuit.

If this is not your first choice as a resolution method, you may want to know that there is another way. Mediation is an alternative method of resolving disputes that has worked well for others in the past. You may also be considering this method but need answers to some questions first.

Can mediation be used in any type of dispute?

Yes, mediation can help resolve just about any type of civil dispute. However, under certain circumstances, it may not be your best choice. Consider the following situations:

  • Creating a legal precedent or sending a message remains a priority for you. Since mediation does not set precedents, the results of the mediation of a particular dispute will not apply to any similar disputes that may arise in the future.
  • Getting the other party to admit guilt in connection with the dispute remains a priority for you. Mediation does not require an admission of guilt to be successful. Compromise holds greater importance in this process.
  • Believing that a jury would award a large settlement may preclude the use of mediation. Since mediation helps the parties reach a compromise, it doesn’t necessarily mean a large payout.

If your goals include any of the above, mediation may not be a good fit.

Reaching a fair resolution to your dispute

If your focus is more on resolving the dispute in a way that allows you to feel you received fair treatment and you reached a satisfactory agreement, then mediation may be for you. Because you participate in creating the agreement, you receive the opportunity to present your side of the story and then come to a compromise with which both parties can live. No judge or jury forces you into a resolution with which you may not agree.

What to expect during the mediation process

If you agree to participate in mediation, you can expect the following to occur:

  • The mediator will confirm your goals and outline the rules of the process.
  • You confer your thoughts regarding what the dispute involves without input from the other side. The other party receives the same opportunity.
  • The mediator will oversee discussions regarding the dispute and ways to resolve it with both parties present, and perhaps, with each party individually.
  • Once you and the other party reach an agreement, it’s put into writing.
  • If you don’t reach an agreement, the mediator will advise you of the next steps and point out the issues on which you were able to agree.

It’s important to note that the mediator does not represent either party. It would be beneficial to have your own counsel to represent you during this process.

Legal assistance

Even though the atmosphere of mediation is intentionally informal, that does not mean that legalities are not involved. In order to ensure that your rights remain protected throughout the process, you may want to consider having a legal advocate at your side to answer questions and provide you with legal advice as the negotiations progress.

Having siblings has its good points and bad. If you were fortunate to get along with your brothers and sisters, you may have friendships with them as adults that you cherish above all others. However, if tension or rivalry existed among you growing up, those old resentments may be difficult to overcome.

If you recently lost your parents, you may find those childhood rivalries rearing their ugly heads, especially if your parents didn’t divide the estate the way you expected. In fact, you may even suspect that the will your parents signed is not valid.

Grounds for disputing a will

Contesting a will is difficult. In fact, courts start with the assumption that a will truly expresses the wishes of the deceased, so if you decide to challenge your parent’s will, you will have a tough road ahead. The burden of proving the invalidity of the document will be squarely on your shoulders. To challenge your loved one’s will, you must suspect one of these factors:

  • Your loved one didn’t prepare the will according to the laws of the state where he or she lived and died. For example, some states like California allow handwritten wills, some require a certain number of witnesses and other states have rules regarding the signatures on wills.
  • Your loved one didn’t know what he or she was doing. Having cognitive awareness of one’s assets, heirs and actions when signing a will is known as testamentary capacity. It is a delicate undertaking to prove your loved one did not have testamentary capacity during the signing of the will.
  • Someone pressured or tricked your loved one into signing the will. You may feel the will doesn’t express the wishes of your loved one because someone else influenced or intimidated him or her into changing its contents. Perhaps, on the other hand, your loved one had no idea he or she was signing a will when the document was presented.

The sticking point is in proving these claims. Without witnesses, charges of undue influence or fraud are extremely fragile, and the presence of testamentary capacity may be fleeting and still not render a will invalid.

Are you ready to start the contest?

You can see that contesting a will is not something you can do simply because you disagree with the way your loved one divided the estate among the heirs. It is not something to take lightly or frivolously. However, if you believe you have legitimate reasons for questioning the contents of your loved one’s will, you may wish to know the next step to take. Laws in each state differ and change periodically, and you would do well to seek legal advice.

Business needs are a common aspect of owning and running a company. In many cases, those needs also coincide with keeping employees happy. Unfortunately, problems can arise within a business and its operations that make it difficult for you and your employees to see eye-to-eye. In some cases, the issues may not prove easy to resolve on your own, and as a result, you could face legal action if your employees feel unsatisfied.

Before immediately heading toward litigation to end an employment dispute, you may wish to determine whether an alternative method could prove effective. You may find it worthwhile to explore mediation as a possible option for resolving issues.

Mediation

With mediation, you and the other party involved in the dispute meet with a third-party, unbiased mediator. During the process, the mediator helps each side understand the other’s stance and determine what could help each party feel satisfied that they have addressed the problem. If discussion begins to get off track or break down, the mediator can guide the conversation back to the topic at hand and keep negotiations flowing. The main goal of the process is to come to terms in the most agreeable manner for resolving the dispute.

Benefits of mediation

This type of dispute resolution method can offer a variety of benefits that litigation may not. For instance, the costs of mediation typically fall far below those associated with full court proceedings, and the process often takes less time. Additionally, the end results of mediation typically come as agreements made between both sides.

Of course, not all mediation proceedings have a completely successful outcome in terms of the individuals coming to an agreement. However, attempting this method can allow both parties to hear the other side and better understand what exact issues need addressing. If you find yourself facing a mediation that comes to a standstill, you can still move forward with litigation if that route seems necessary, in order to ensure that your business-related issues get resolved.

Finding a mediator

Because mediation differs from litigation proceedings, you need a trained mediator to handle your case. Many mediators also serve as litigation attorneys and therefore understand the laws necessary to address the issues presented with your predicament. You may wish to explore your options for obtaining the assistance of such a trained professional in California and better understand how mediation could potentially work in your favor when it comes to resolving disputes.