Why Male Employees Are Suing their Female Bosses for Sexual Harassment and How to Protect Yourself
The Goldstein Law Firm
April 2010 Newsletter
“Why Male Employees Are Suing their Female Bosses for Sexual Harassment and How to Protect Yourself; Ninth Circuit Court Issues New Rules for Paying for Drive (Travel) Time; and Avoiding the Pitfalls of Misclassifying Independent Contractors”
By: Charles H. Goldstein, Esq.
I. Why Male Employees are Suing Their Female Supervisors and Seven Tips for Avoiding Sexual Harassment Claims
The U.S. Equal Employment Opportunity Commission has reported a significant increase in the number of males who are filing sexual harassment claims against their former female bosses. The claims are filed because laid off and terminated employees are having greater difficulty finding new jobs and living on unemployment benefits and savings. They are looking to blame someone for their problems. Many claims of harassment and/or discrimination are filed not because they are true, but in retaliation against a former female manager.
Claims of sexual harassment, even if bogus and untrue, can harm an executive, manager and supervisor’s career for years to come. How can female executives, managers and supervisors avoid becoming vulnerable targets of bogus sexual harassment claims? Here are 7 tips learned from years of experience defending executives, managers and supervisors against sexual harassment lawsuits.
First, understand what sexual harassment is. Sexual harassment is defined as an “unwelcomed request for sexual favors, visual or verbal conduct of a sexual nature that becomes a condition of employment and or receiving benefits or that creates a hostile workplace environment that unduly interferes with an employee’s performance”. Not every statement that you make that may have a sexual connotation is sexual harassment; but you should be aware of the language you use in the workplace, and more importantly never touch anyone. This last admonition seems overly strict and cautious, but when you touch someone else you do not know whether or not your touch was “welcomed or unwelcomed.” I have seen an innocent act of touching someone to comfort them become an act of sexual harassment in the mind of an unscrupulous former employee.
Second, avoid meeting alone with persons of the opposite sex who are your subordinates. Always have a witness, if possible. I once told this to a Vice President of Sales of a large national cosmetics company and she forcefully replied: “I’ve worked for years to get to my position and had to run the gauntlet and I will be damned if I am going to have a lawyer tell me I can’t meet with a male subordinate alone.” Within two months of my admonition, I had to defend the female Vice President who was being sued for sexual harassment by a male salesperson whose severely declining sales, and what I later learned was his drug habit, made him a candidate for termination. When the male salesperson was ultimately terminated, he claimed that the Vice President had groped him under the table when they had what was ostensibly a business lunch meeting at a well-known restaurant and that she touched him inappropriately in the parking lot of the restaurant. He further claimed that when he resisted her advances, she retaliated against him by taking accounts away from him, claiming his sales were low, and then firing him for low sales. It is important to note that the Vice President was a "huggy feely" type of person who “mothered” her male sales employees and would hug them when they made a big sale or even if they felt bad because they lost an account. She hugged him in the parking lot when he told her his dog had just died and he was upset.
Third, document all meetings that you have with your subordinates to show that the purpose of your meeting was business and not personal.
Fourth, your subordinates know that unemployment is high and they will have difficulty finding new jobs in this economic climate. Therefore, you have to be especially careful not to give them a real basis for filing a lawsuit against you and the company by making sexual statements, telling sexual jokes or touching employees even if you are motivated by the purist of thoughts and they appear to be amused by your statements and jokes.
Fifth, the best defense to frivolous claims and lawsuits by employees is not to put yourself in an awkward position of having to explain why you touched or hugged an employee or why you made sexual statements or told sexual jokes.
Sixth, make certain that you and your company are fully trained in real life situations of how to avoid sexual harassment.
Seventh, avoid dating relationships with subordinates because they can give the appearance of impropriety, and if the relationship turns sour, they can give some substance to a claim by a male employee that he was retaliated against because he rejected the advances of his female supervisor.
II. Update on Rutti v. Lojack Corporation – The U.S. Ninth Circuit Court of Appeals Issues New Rules for Paying Employees for Drive Travel Time When They Use a Company or Government Vehicle
In Rutti v. Lojack Corporation, a three judge panel of the U.S. Ninth Circuit Court of Appeals had basically taken the position that just because an employee used a company or government vehicle, that this did not mean that an employee was to be paid travel time to and from his or her workplace to his or her home.
However, the full U.S. Ninth Circuit Court of Appeals has now considered the issue and now states that if the employee is under the employer’s “control” while driving its vehicles, the employee is entitled to be paid. An employer can pay that employee at a lower rate if the employer designates this in advance provided it is at least the minimum wage. The Court went on to discuss what is meant by employer “control”. For instance, if the employee is not permitted to stop and drop off his or her children at school or to run a personal errand either on their way to their first job site or on their way home, the Court states that the employee would be under the employer’s “control” during drive time and entitled to be paid. This runs counter to prior interpretations of federal wage and hour law that employers were not required to pay employees for travel time commuting to and from work regardless of the vehicle they used.
Tips for Complying with Rutti v. Lojack Corporation
1. If you provided vehicles for your employees to take home and to come to work in, review your existing employment policies to determine whether they show that you exercised control over the employee’s use of the vehicle while commuting.
2. If your current employment policies show that you are exercising control over the employee while they are using your vehicle while commuting, determine whether the potential monetary liability that can be created by the rules is outweighed by the greater liability that can be created by removing these limitations on the use of the vehicle.
3. Determine and make any changes that will remove employer control without expanding your real liability.
4. If you determine what you need to control the vehicle, use and then implement a compensation plan document that pays employees while driving to and from work in your vehicles when they are in fact under your control. The amount of the compensation can reflect a lower payment than the employees’ regular hourly rate of pay.
III. If You Use Outside Contractors - Are they Really Independent Contractors or are they Employees?
In Jose Luis Lara v. Workers’ Compensation Appeals Board and Bratiff Home Corporation et al., the California Court of Appeals, Dist. 2 (2010) considered that issue in examining whether a gardener who only worked twice in the space of 12 months for a restaurant and who was allegedly injured at the restaurant, was entitled to workers compensation.
Lara was a 62-year‑old man who suffered injury to his head, lower back, neck, right shoulder, arm, hand, and thumb when he fell from a roof of a restaurant located in a hotel, while pruning bushes. Lara filed a workers’ compensation claim against the restaurant’s then sole shareholder, Scott Broffman, personally and against the restaurant. The Uninsured Employers Benefits Trust Fund, the California state fund used to pay benefits to injured employees where their employer does not have workers compensation insurance, was joined as a party because the restaurant had no workers’ compensation insurance.
At trial before the Workers Compensation Appeals Board, (“WCAB”), Lara testified that he had been gardening, painting, pipe fixing, and doing graffiti removal for 25 years. He charged by the hour, but sometimes he contracted for the entire day. He usually did the same type of work, but for different people each day. Lara did not have a roofer’s license or a general contractor’s license. He had no city license to perform this type of work. He had no employees and did not work out of an office or advertise. Lara further testified that he was paid in cash by the hour for his services at the restaurant the first time, but was not paid the second time because he did not complete the work after his fall and he never sent a bill. The restaurant did not take taxes out of his pay since Lara paid his own taxes. Lara brought all the equipment he needed to do the job, including a trimmer, rake, a broom, and a blower, which tools he owned. He also brought a ladder that he borrowed from a friend. He arrived in his own truck.
On this evidence, the Workers’ Compensation Judge (WCJ) found that Lara was employed by the restaurant as a gardener; was injured in the course of employment; and was entitled to workers’ compensation benefits. The employer filed a Petition for Reconsideration of the Findings and Order with the Board. The Workers Compensation Appeals Board (WCAB) granted reconsideration and, relying on the test in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, found that although he was injured while attempting to prune bushes for the benefit of and at the behest of the restaurant, Lara was an independent contractor and thus not entitled to workers’ compensation benefits.
Lara appealed the WCAB’s ruling. The Court of Appeal agreed with the WCAB’s that Lara was in fact an independent contractor. The Court based its decision on the fact that “the principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.”
Tips to Avoid Liabilities for Your Independent Contractors Being Found to be Employees.
1. Make certain that you have a well drafted independent contractor agreement with anyone who you want to treat as an independent contractor and not treated as an employee.
2. Make certain that you take no actions that evidence your exercising control over the independent contractor. Your only interest should be in the end result of the independent contractor’s effort.
3. Make certain that the independent contractor has other customers or clients. Check on this periodically. If you become aware that you are the only customer or client of an independent contractor, there is a greater probability that a court, administrative body and/or taxing agency will conclude the person is an employee.
4. Make certain that the independent contractor is paid based on an invoice for services and does not receive a payroll check.
5. Make certain that the independent contractor is never micromanaged. However, you can determine whether the independent contractor is effectively performing services.
6. If you wish to terminate the services of an independent contractor, terminate the written independent contractor agreement upon 30 days written notice, not immediately without notice, as you would an at-will employee. Even if you give the independent contractor 30 days written notice, you can direct them not to perform any work for you during the 30 day period.
7. Make certain that your independent contractors have all proper licenses necessary to perform the work you are contracting with them to perform.
8. Make certain that your independent contractors have all necessary insurance coverage.
9. Remember, trying to save money on insurance and benefits by using independent contractors can become the most expensive decision you ever made, if you don’t legally protect yourself.
10. Consult competent employment law counsel before moving forward with any independent contractor relationship because the potential liabilities for employers who fail to create true independent contractor relationships can spawn wage and hour class actions and be financially catastrophic.
The Goldstein Law Firm
8912 Burton Way
Beverly Hills, California 90211
Telephone: (310) 553-4746
Facsimile: (310) 282-8070