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Sex Discrimination in the Silicon Valley

gender-discriminationA handful of recent sex discrimination cases have revealed the ugly truth about the constant harassment and discrimination women in the workplace, and specifically in the Silicon Valley, face on a daily basis.

Reddit CEO Sues Former Employer for Sex Discrimination

A leading example is Ellen Pao, the current CEO of Reddit, who filed suit in San Francisco in 2012 against the venture capital firm Kleiner Perkins Caulfield & Byers for sex discrimination.  Kleiner Perkins is a leading Silicon Valley venture capital firm.  Pao claims that a Kleiner partner did not invite her or any other women to an important dinner because “women kill the buzz”; that another Kleiner partner inappropriately gave her Leonard Cohen’s sex-drenched “Book of Longing”; and that this same partner told her “the personalities of women” did not lead to success at Kleiner “because women are quiet.”  Ms. Pao is seeking lost wages of up to $16 million along with punitive damages of more than $100 million.  In a rare turn of events, her case has actually proceeded through trial but unfortunately she lost.  More on Ms. Pao’s case can be found here, here, and here).

FacebookFacebook Accused of Sex Discrimination

Facebook is also facing recent allegations of sex discrimination.  In a lawsuit filed by Chia Hong in San Mateo Superior Court, a former Facebook employee claims that she was “belittled” at work because of her gender, and was asked at one point “why she did not just stay home and take care of her children.” She also claims that she was punished for taking time off to volunteer at her child’s school, and “ordered to organize parties and serve drinks to male colleagues,” something that wasn’t in her job description.  More information on this emerging case can be found here.

More Instances of Sex Discrimination  

This alarming article from ValleyWag goes into great detail about the discrimination, harassment, and fear women face working in Silicon Valley and in the world of venture capital.  The brave few who do step up and call out their employers for allowing this behavior to occur have to do so by filing lawsuits in court, like Ms. Pao and Ms Hong were forced to do.  If you think you may be subject to sex discrimination please contact one our experienced employment lawyers for a free consultation.

What is sex discrimination?

Sex discrimination (also known as gender discrimination) is when you are treated differently because of your gender.  Sex discrimination takes many different forms, including differences in pay, job assignments, promotions, training, or even fringe benefits.  The cases discussed above provide good examples of sex discrimination.  Ms. Pao alleged that she and women in general were treated differently in that they were excluded from important meetings, and were told they couldn’t be successful because they were too quiet.  Ms. Hong alleged that Facebook treated women differently because it expected them to fill an old-fashioned idea of gender roles including that Ms. Hong should stay home to take care of children and that she should be the one responsible for serving drinks to male colleagues.

Isn’t Sex Discrimination Just Sexual Harassment?

Sexual harassment is a common form of sex discrimination, but not the only type of sex discrimination.  Broadly speaking, sexual harassment is any unwelcome sexual advance, including unwelcome verbal or physical sexual conduct.  More information on sexual harassment can be found here.

Can My Employer Terminate Me For Complaining About Sex Discrimination?

Absolutely not.  You are protected by Federal, State, and Local laws from retaliation for complaining about discrimination.  California has some of the toughest anti-retaliation laws available to employees in the country.  More information on the protections provided to employees can be found here.  If you have been retaliated against for raising a complaint regarding any form of discrimination or harassment then contact the Ottinger Firm, P.C. for a free consultation in New York or San Francisco.
With offices in New York and San Francisco, the lawyers of the Ottinger Firm have handled many sex discrimination cases against both big and small employers.  Contact us for a free consultation.

Dating in San Francisco

1) San Franciscan’s respect you as you are.  If you show up for a date half-naked, 9 times out of 10 the date will go on.  Go ahead and let it all hang out, most people won’t even blink – you are in San Francisco.  You will be accepted for who you are – let your freak flag fly!

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2) Calves are a huge sexy hit among many San Franciscans.  You’ve got the bike riders and the hill walkers.  How can you not be attracted to a San Franciscan with sexy strong strong calves?  You’ve got strength and will power – that says more than you know!

3) Every date can end as if you were in post card.  Take your date to the top of Coit Tower or Battery Spencer and check out the amazing view of The Golden Gate.  It’s a sure fire win to the end of the date and could potentially call for a 2nd date…


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4) Did you get lost in the city again?  Most San Francisco natives know the grid layout of the 7 square miles of downtown and will share the quickest route.  You may even score a date this way because San Francisco natives are quite friendly.

5) A few different outings to take a date on: (A) How Weird Street Faire – show your weird side; (B) Green Festival – get green at this event; (C) San Francisco Gay Pride Festival – show your pride and (D) Bay to Breakers – run in costume from downtown San Francisco to the beach with several bands playing along the way.  These are all events you can take a date on.  If you don’t have a date for any of these events, you probably won’t have hard time getting a date at one of these events.

6) Tan lines are not something you need to worry about in San Francisco – so nobody is judging you for your natural skin color.  Remember we live in a Fog – this is not Los Angeles.  Bring a date to the beach and have a picnic.  You won’t really want to lay out and catch some rays and perfect your tan lines.  Instead you’ll probably enjoy flying a kite, skim boarding or simply just walk your dogs.

7) Always a win on date is going to a Giants Baseball Game.  Whether you are baseball fan or not – the roar of the crowd, the people watching, the junk food, the cheering, the nail biting of who might win.  It is an event not to missed and you will definitely have something to talk about once the game is over.

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8) Saturday Night – the end of the date weekend in San Francisco: what do you do?  Go to The EndUp!   It’s an underground place where you dance until dawn.

9) Finally the morning after – BRUNCH…  We clearly need the Bloody Mary’s, Mimosas, French Toast, Greasy Eggs and Bacon.  Let’s hope our date knows the perfect spot in San Francisco because we did plan all the dates throughout the week!

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Minimum Wages for San Francisco Restaurant Workers

RestaurantSan Francisco’s restaurant industry is the worst for wage violations.  (Article here).  Wage violations for San Francisco employees are a serious issue that leads to underpayment of wages and can often times impact an employees right to overtime.  Both Federal and California State laws protect an employee’s right to minimum wage as well as to overtime and meal and rest breaks.

Beyond just not paying the minimum wage, San Francisco employers and restaurants in particular use some common ploys including deducting tips from a server’s paycheck (a practice banned in California), and making illegal deductions from salary.  Many San Francisco and Bay Area restaurant employees are paid in cash, making violation claims hard to verify.  A San Francisco employer’s failure to keep adequate pay and time records is a violation of the law and will not undermine an employee’s claims.
Other San Francisco and Bay Area service employees like construction workers, hotel employees, security guards, home health aides and others are also frequently illegally paid below the city’s base wage

WHAT HAPPENS IF YOU ARE NOT PAID MINIMUM WAGE

San Francisco and other Bay Area employees who are not receiving the minimum wage should contact us to discuss their rights.  You may be entitled to recover all unpaid wages as well as penalties. San Francisco employees are entitled to a minimum wage of $11.05.  (See this recent blog post on the issue of minimum wage).  San Francisco employees are also entitled to overtime pay of 1.5 times their hourly rate after working more than 8 hours in a day, and to meal period and rest breaks. More information on overtime and meal and rest breaks here.
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WHY SAN FRANCISCO EMPLOYERS DON’T PAY MINIMUM WAGE

Many San Francisco employers – including restaurants – try to save money by taking advantage of their employees and not paying the minimum wage or overtime and not providing meal or rest breaks.

SAN FRANCISCO EMPLOYEES ARE PROTECTED FROM RETALIATION

San Francisco employees may fear losing their job if they speak up about their employer’s unfair pay practices.  While this is a serious concern, California laws protect employees from retaliation for complaining about unfair pay practices.  If you have been retaliated against after complaining about the minimum wage, overtime payment, or meal and rest break periods please contact us.

RECENT CASES IN CALIFORNIA

Some recent examples of cases bringing these issues include:
  • Dick Lee Pastry, a local San Francisco pastry shop was ordered to pay $525,000 in minimum wage and overtime to its employees.
  • San Francisco’s Michelin rated Yank Sing was hit with a $4 million dollar settlement for failing to pay its employees the San Francisco minimum wage.
  • In another suit in Southern California, famed Wolfgang Puck restaurants Spago Beverly Hills, Wolfgang Puck Bar & Grill in Los Angeles, and Chinois in Santa Monica reached a $1.7 million class settlement with a class of nearly 900 current and former employees who allege they weren’t paid overtime or provided meal and rest breaks.  This wasn’t the first time Wolfgang Puck-affiliated companies were in hot water over alleged labor law violations.  In 2012, Wolfgang Puck Catering & Events LLC settled a wage-and-hour class action with its employees for $500,000, covering nearly 1,900 employees who had worked for the company beginning in 2006.
The Ottinger Firm has experience representing San Francisco and Bay Area employees, including restaurant workers, in claims for minimum wage, overtime, meal and rest breaks, and expense reimbursement.
Contact us, or submit a free case evaluation here.

Are Uber and Lyft Drivers Employees or Independent Contractors?

Two San Francisco ride hailing companies – Uber and Lyft – are facing class action lawsuits from their drivers based on independent contractors misclassification.  (Article Here)  Both companies treat their drivers as independent contractors.  However, those drivers have now brought class action lawsuits in an effort to get all drivers reclassified as employees.  While it is well-known that classification as an independent contractor changes ones tax status, it also is an essential question into the rights of workers to the protections of the Federal Fair Labor Standards Act and California’s wage and hour laws.

The current lawsuits will not only impact Uber and Lyft drivers,  but will also likely set precedent for the entire industry of on-demand companies, known as “Uber for X” companies.  These companies utilize independent contractors in place of employees as part of their business model.  If you think you may be misclassified as an independent contractor please contact one of our San Francisco employment lawyers.

The Uber and Lyft Lawsuits

Both Uber and Lyft are in the midst of litigating claims by their drivers that turn on whether the drivers were independent contractors or not.  These cases are still pending before the court.

LyftThe Claims by Lyft Drivers:

Lyft is a transportation network company that uses a mobile-phone application to facilitate ridesharing by connecting passengers who need a ride to drivers who have a car.  In 2013, a Lyft driver brought suit against Lyft, alleging that the company treats its drivers as full-fledged employees, and that Lyft therefore violates California labor laws when it skims 20 percent off drivers’ tips as an “administrative fee.”
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The Claims Against Uber:

Uber is smartphone application provider that provides transportation and taxi services.  Uber drivers sued the company in August 2013, accusing Uber of misclassifying them as independent contractors.  The lawsuit against Uber makes similar allegations to the Lyft lawsuit, mainly that drivers were cheated out of a 20 percent gratuity.
It will be interesting to continue to watch these cases and to follow the developments and guidance they may provide for future misclassification cases. Below is a look at the different factors used in making a determination regarding independent contractor status for wage and hour purposes.

California’s Independent Contractor Determination

While employers may wish to simply enter in contracts that designate their workers as independent contractors, the law does not allow them to do so.  In fact, an employer’s designation of its employees as independent contractors and the fact that a worker is issued a 1099 form rather than a W-2 form is not determinative with respect to independent contractor status.
Instead, California’s Labor Code starts with the presumption that a worker is an employee.  An employer can rebut this presumption and the actual determination of whether a worker is an employee or independent contractor depends upon a number of factors, all of which must be considered, and none of which is controlling by itself.  The California Supreme Court adopted a “multi-factor” or “economic realities” test to use to make the determination.  The crux of this test is whether the employer has control or the right to control the worker both as to the work done and the manner and means in which it is performed. Other factors may come into play depending on the circumstances.

Independent Contractor Status Under the FLSA

Under the Fair Labor Standards Act (More info Here and Here), the factors considered in determining independent contractor status can vary, and while no one set of factors is exclusive, the following factors are generally considered when determining whether an employment relationship exists:

1) The extent to which the work performed is an integral part of the employer’s business.

2) Whether the worker’s managerial skills affect his or her opportunity for profit and loss.

3) The relative investments in facilities and equipment by the worker and the employer.

4) The worker’s skill and initiative.

5) The permanency of the worker’s relationship with the employer.

6) The nature and degree of control by the employer.

Similar to California law, under the FLSA there are certain factors which are immaterial in determining the existence of an employment relationship. For example, a worker cannot sign away his or her status as an employee.  Instead, it is the reality of the working relationship – and not the label given to the relationship in an agreement – that is determinative.  Even a worker that has incorporated a business, or is licensed by a State or local government agency may be considered an employee depending on the employment relationship.

For more information or if you would like to speak to one of our San Francisco employment lawyers please contact us.

21 Reasons to Love San Francisco

Steve Perry from the band Journey said it best “The City By The Bay” is a magical place.  San Franciscans LOVE their city and all that comes with it.  Here are some examples that are obvious:

images1) The 49er’s.  We did not have the best year in 2014, but we believe in our team and don’t give up and know we can make it to the Superbowl!  We will continue to buy the paraphernalia and support our team because we believe.

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2) We love our baseball team – THE GIANTS!  We can’t deny that the Giants are #1!  3 world series wins in the past 5 years.  We don’t have a payroll like the Yankee’s, but our players have heart and love for the game like no other!

 

 

 

 

3) San Franciscans are without a doubt a friendly bunch.  We are laid back and a bit odd at times, but will always lend a hand when needed.  We aren’t afraid to jump in and offer directions or help you cross the street if we see that you are having difficulty.

4) Huge Side Note:  It’s NOT called SAN FRAN.  If you want everyone to know you are tourist than call it “San Fran” (ick).  But take note – it’s mostly called SF or The City.  These are not hard terms to master.  Please learn them and don’t insult yourself or “The City by the Bay.”

images-15) Prepare yourself and embrace the windblown look!  Women with long hair – carry a hair tie on your wrist if you can’t handle eating your hair or just put your hair in a pony before you go out.  There are rare occasions when the wind isn’t whipping, but I wouldn’t count on it – because it can surprise you at any time!  Men with toupee’s – make you sure you it’s held on tightly because that would not be fun to see that flap of hair fly away!

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6) Do you know Karl?  Karl is a large part of the community.  Don’t be angry with him.  He’s part of the scenery of San Francisco and it’s foggy.  Most likely you came to walk across the Golden Gate Bridge, but along your walk you realized you couldn’t see much because of the fog – that’s Karl.  Just think of Karl as part of your tour.

7) When you packed for your trip to San Francisco, you probably brought a ton of fun, sexy and fancy clothes.  OOPS – don’t need those.  We are a CASUAL city.  We like to keep it casual here.  It’s rare to see folks in heels and beautiful shimmery dresses or men in suits.  You are in the wrong city if you want that.  We are about comfortable, casual – socially and physically.

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8) We don’t really pick apples from tree’s in San Francisco, but rather from other people’s pockets – YIKES!  Watch your iPhones and iPad’s – get it?  Keep them close if you want to keep them.  You have been warned!

9) Your Muni Ticket is something you do NOT want to crumple up or tear.  This thin little piece of paper that feels so slight in your hand is your proof of payment for your return ride.  You can enter the bus from the back – just flash that Muni Ticket so the driver can see it and you’ll be on your way to your next destination…

10) Oh the weather in San Francisco is never quite the same in the different neighborhoods.  It could be windy and foggy in the Inner Richmond District.  Drive a couple of miles and enter Noe Valley another pocket and it’s sunny and warm and the temperature has risen and you start to shed layers.  San Francisco is known for it’s microclimates due to the steep hills and pockets of wind & fog.  If you aren’t happy with the weather, just walk a few blocks and find an area that makes you smile!

11) Why rent a car in San Francisco, when you have UBER, Lyft and Sidecar?  The convenience is unbeatable!  Install the app on your phone, press a button and one of these three drivers will appear will you request.  They will take you to your destination and your credit card will be charged and no cash will be exchanged.  What could be easier.  Make your life easier and don’t rent a car and have to deal with finding parking, worry about drinking while driving, parking tickets, getting lost if you are tourist.  Add the app to your phone and get on with your life and let someone else do the driving for you!

12) Hybrid Cars are everywhere in the city – WOW!  If you rent one (why you would I don’t even know why when you have UBER, Lyft and Sidecar) – be prepared to have a hard time finding where you parked it.  Hybrid Cars are the most populated electric car areas there are – they are everywhere if you own one.  Too many to even count, it’s ridiculous!

13) Have we talked about the Mission Burritos yet?  Oh my – they are the size of an extra large toddler!  The burritos are enormous, tasty and always fresh.  You must come to the Mission District if you want the real deal.  Several places to try in the Mission District – El Farolito, La Taqueria, Gracias Madre and Taqueria Cancun.  Live your life and come to one of these places if you want a real burrito!

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14) Have you been to Chinatown?  I bet you think you have, but let me let you in on a little secret – it’s not what you think.  Chinatown is actually on Clement Street.  Some people like to refer to it as the “New Chinatown.”  Clement Street has a plethora of cafes, restaurants, produce shops and businesses.  It’s vibrant with a cultural mix of Asian flavor.  It’s not stagnant with your typical grumpy waiters who throw your order on your table and walk away.  You’ll know now find, Burmese, Persian, French and Thai Food to boot!  Times are changing and people are more friendly – give it a try before you dismiss it.

15) Pugapalooza – what exactly is that?  It’s the first Sunday of every month that is NOT to be missed whether you have a Pug or not!  Have no fear you will have plenty of time for brunch since this meal does not begin until 2:30.

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16)  On to brunch – this is one of the most important meals of the week in San Francisco!  It can’t be missed.  It comes with all the fixin’s you could hope for – bloody Marys, Mimosas, eggs (Benedict of every kind(, French toast and of course reliving Saturday night’s escapades…

17) North Beach has an extremely hot spot for Pizza.  Over 2,000 Yelper’s agree – Tony’s Pizza Napoletana.  If you haven’t tried it, you are certainly missing out.  Give it a shot and a least get a slice and see what all the Yelper’s are raving about.

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18) Although you think you are in California and it’s going to be warm, that’s not always the case.  San Francisco is definitely an exception to that rule.  San Francisco is a layering city.  The day starts out brisk in the morning (no matter the neighborhood) and then starts to warm up in the afternoon.  But, don’t be fooled – make sure to have that hoodie and hat in tow.  When the sun goes down, hoodie goes on, hat goes on and add a jacket.  You may want to carry gloves too if you are one of people who get the chill to the bone.  Be prepared – not worth getting a cold just to look fashionable!

19) Have you noticed all the bikers on the road?  If you are going to drive a car and not take UBER, Lyft or Sidecar – be careful because cyclists are everywhere!  San Francisco is one of the top 10 bike friendly cities in the United States.  Great way to get around the city, but just be careful when you are opening your car door and try to avoid a collision with biker’s.

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20) If you do have a car – USE YOUR PARKING BRAKE ALWAYS! 

21) If you want to rent in San Francisco – expect to pay A LOT!  Rent is OUT OF CONTROL!  A room in a one bedroom can cost $1,600 – that’s just a room.  People are paying this amount because they want to live in the City By The Bay.  You can’t quite blame them, but let’s hope this break soon and life goes back to normalcy where landlords becomes decent human beings again.

Come to San Francisco and enjoy all the wonderful things our city has to offer.  We are a friendly, vibrant city full of life and charm!  You won’t know unless you experience it first hand yourself!  We welcome you with open arms!