Proof of Discrimination May Not Be Hard to Come By

Q It is my understanding that if you are an “at will” employee, your employer can terminate you at any time without warning and without reason. If that is the case, then it seems that it would be perfectly legal for an employer to terminate an employee based on race, religion, national origin, age or gender as long as the employer does not explicitly say so or does not practice this type of termination enough times to establish a statistical pattern that may be detected by an Equal Employment Opportunity Commission investigation.

I would like to know what you think, because the “at will” clause seems to me to allow employers to drive a truck through the Equal Employment Opportunity laws that are supposed to protect employees.

--S.A., Costa Mesa

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A There is no doubt that in California there is a basic presumption that everyone is an “at-will” employee who can be terminated with or without cause. And employers can avoid Equal Employment Opportunity sanctions unless there is proof of discrimination, illegal retaliation or a violation of contractual promises to terminate employees only for good cause.

It’s easier to provide proof than you might think, however. “Circumstantial evidence” can be a convincing, useful tool. Perry Mason seldom had a murderer admit guilt at the beginning of the show. It was only after piecing together the alibis, footprints, fingerprints, eyewitness testimony and other evidence that he was able to prove his case.

In proving discrimination, it certainly helps to have statistical evidence of a pattern of discrimination. You might make note of jokes, stories, comments and profanity that show bias. Interview others at work to determine if they perceive a biased attitude too.

Make a chart and compare yourself with your peers. Was there a double standard? Did they treat you differently than other people? How do you compare in terms of education, tenure with the company, tenure on your particular job, benefits, ways in which you are treated and, most important, performance? The more obvious the difference between you and your peers, the easier it might be for you to prove discrimination.

Equal Employment Opportunity laws are alive and well in California. Employment discrimination cases are won every week. Employees have more rights today than ever. The challenge is to fully understand them.

--Don D. Sessions

Employee rights attorney

Mission Viejo

When Workweek May Be Changed Q I took a new job seven months ago, and at that time I was hired to work Monday through Friday. Now I am told by my supervisor that I am required to work on Saturdays. Can my employer force me to work Saturdays after having already arranged a Monday-Friday workweek? I told my supervisor that I am unable to work this extra day. What should I do?

--T.W., San Clemente

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A An employer can change workweek schedules if it provides advance notice. An employer can also require nonexempt employees to work extra days and overtime, but it must pay employees at the overtime rate. If you are considered an exempt employee, the employer would not have to pay you overtime pay.

The employer could be prohibited from requiring you to work the Saturday if you have a written agreement with the employer that states your workweek is Monday through Friday.

If you have a job offer in writing or a written contract with the employer that sets out your days of work, the employer may be in breach of that contract by changing your workweek without negotiating with you. If the workweek was not identified in the offer letter or employment contract, however, the employer is free to change the days of work.

Employers who extend workweeks often create unexpected issues. First, employees may feel it is time to start up a union. Second, the employer may be infringing on an employee’s religious beliefs regarding days of rest. Finally, the employer may find itself with increased costs associated with workers’ compensation and disability claims.

--William H. Hackel III

Employment law attorney

Spray, Gould & Bowers

Keeping Pay History Secret Q I am an engineer and presently my compensation is about 30% below the going rate in the job market. I have been trying to change my job in order to get my salary adjusted, but potential employers hesitate to offer me 30% more than I’m making.

Please advise if I can avoid declaring or authorizing release of my salary information to prospective employers.

--R.Z., San Diego

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A There is no law that requires you to divulge your current salary to a prospective employer. California’s constitutional right to privacy also covers personnel information in the private sector, so you could direct your current employer not to reveal your compensation to a prospective employer, and you could refuse to authorize a prospective employer to obtain this information from your current employer.

As a practical matter, however, you are unlikely to get a new job if you refuse a prospective employer access to information on your current compensation. Employers today are well-advised to obtain as much information as possible about the people they hire. Information from previous employers is especially helpful in the screening of job applicants, as one’s work record is usually an accurate indicator of how that person will perform in a new job. Compensation information from previous jobs is also useful information for a prospective employer. An employee who was paid substantially more than is being offered at the new job may become dissatisfied with the lower pay and leave after a short time. An employee who was paid substantially less in a previous job may lack the skills or experience required in the new, higher-paying job.

Thus, you may not be able to avoid revealing your current compensation to prospective employers. You should be prepared to explain to prospective employers why you think such a dramatic pay increase is warranted, or be prepared to accept a more modest increase to start.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

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More on Overtime

* Times on Demand has prepared three pamphlets based on the Shop Talk column. They are answers to readers’ most-asked questions on overtime; unemployment insurance, terminations and medical leave; and job benefits. To order, call (800) 440-3441. Order Item 2826 for overtime; Item 2827 for unemployment insurance, terminations and medical leave; and Item 2828 for job benefits. Each pamphlet costs $5.41, plus 50 cents delivery. Please allow two to three weeks for delivery.