No employer likes to receive a harassment complaint. Yet, how the employer handles the complaint can cause even more of a nightmare. In the latest issue of Staffing Industry Review magazine, LVBH partner Jean Hyams discusses best practices for conducting a fair and thorough investigation.
July 21, 2020 – SAN FRANCISCO, CALIF. – Emily Kramer, former Carta executive and VP of Marketing, filed suit against the equity-management software maker today, alleging that Carta discriminated against her on the basis of gender, retaliated against her, wrongfully terminated her in violation of public policy, violated the California Equal Pay Act, and failed to take all reasonable steps to prevent discrimination, retaliation, and harassment.
Kramer is represented by Sharon Vinick and Hilary Hammell of Levy Vinick Burrell Hyams LLP, a boutique law firm in Oakland which specializes in representing employees in workplace disputes.
Carta, which is now valued at more than $3 billion, having raised more than $600 million from leading investors like Andreesen Horowitz, Lightspeed Ventures, and Goldman Sachs, promotes itself as a company dedicated to making corporate ownership more equal and democratic. As the suit alleges, Carta sought to establish itself as a leading voice and “brand” in exposing unfair equity practices, specifically gender inequities, and it did so under the leadership of Plaintiff Emily Kramer. According to the lawsuit filed today in San Francisco County Superior Court, during the same time Carta was claiming leadership on equity practices, the company paid Kramer less than men in similar positions, issued Kramer less equity than similarly-situated males, repeatedly refused to promote her while offering promotions to less qualified men, subjected her to sexist and subjective criticism about her “style” (despite her strong performance), and responded with escalating hostility when she pointed out these inequities.
Ms. Kramer explains about her time at Carta, “I thought my performance would speak for itself and I could use my voice to drive change internally, while educating people about fair equity practices externally. I wrestled with what I considered hypocrisy at Carta daily. I knew we weren’t interviewing or hiring more women onto the executive team even as the company was exhorting others to make change. I knew my compensation wasn’t fair. From what I experienced, this was due to my gender and the expectation that I was supposed to act a certain way because I’m a woman. I stayed as long as I could because I cared about my team and educating people about equity. I kept going thinking things would improve. But the more I spoke up, the worse it got.”
Sharon Vinick, lead counsel on the case says, “Carta’s mission of reducing income inequality and democratizing ownership of corporations is a laudable goal. But, we believe that equal treatment of employees must start from the inside. Based on the detailed allegations in the complaint, we believe the evidence will show that Carta’s discriminatory treatment of Ms. Kramer fell far short of matching its stated goals.”
For further information regarding the lawsuit, call Sharon Vinick at 510-318-7702.
Over the last few weeks, a lot of white people have been having some hard and long overdue conversations about systemic racism, police brutality, equal justice and the fact that Black lives matter. Talk needs to turn into action, not just in the streets but also in the workplace. Structural racism embedded in hiring decisions, identifying advancement opportunities, and promotion decisions have cascading effects on the lives of Black people, and not just at work. Healthcare is often tied to employment, so the hiring decisions broadens healthcare disparity. And the wage gap, widened by a lack of advancement opportunities and promotions, creates and hardens income inequality and intergenerational wealth disparities.
On paper, California laws prohibit discrimination based on historically targeted characteristics, including one’s race or national origin. California’s Fair Employment and Housing Act of 1959 (“FEHA”) (Government Code §§12900 – 12996), among other things, makes it illegal for businesses with five or more employees to discriminate against any employee or potential employee because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of that person. Cal. Gov Code § 12940(a). The FEHA also prohibits retaliation against any person who opposes discrimination in the workplace. Cal. Gov Code § 12940(h).
So, what can workers who want to be allies in the fight to end white supremacy do? Whether you are experiencing discrimination in the workplace targeted at your race, benefitting from systemic white privilege or witnessing discrimination or harassment, the response should be the same: Oppose discrimination and racism in all of its forms and notify the employer in writing. If you see a racist meme or hear a racists joke or comment, call it out for what it is and report it to management, in writing. If you notice Black job candidates are being repeatedly passed over, report it to management, in writing. If promotional opportunities are disproportionately going to white employees over Black employees, report it to management, in writing. If discipline and terminations disproportionally are applied to Black employees, report it to management, in writing.
By notifying your employer in writing about instances and systems of racism in the workplace, you are giving the employer an opportunity to address and cure the problem, and you are taking away from the employer the ability to pretend they didn’t know. California’s employers are required to conduct prompt, thorough and fair investigations of any report of discrimination in the workplace. Employers are also required to take reasonable steps to prevent and correct any unlawful behavior in the workplace, including discrimination. Thus, speaking out about discrimination in the workplace can have a meaningful and lasting impact.
If the employer refuses to address the discriminatory practices or retaliates against you for standing up for your rights and the rights of others, you should certainly contact an employment attorney. Whether through your attorney or on your own, another important step is to file a complaint with the Department of Fair Employment and Housing.
Our laws can be a tool in our collective toolbox to help end systemic racism if we are willing to enforce them.
Levy Vinick Burrell Hyams LLP has been in the fight against race discrimination for over a decade and our attorneys have more than 100 years of combined experience representing employees in discrimination, harassment, and retaliation cases. If you believe you have been subjected to discrimination in the workplace or retaliated against by your employer because you have opposed discriminatory practices at work, please contact us.
Imagine that you are having a problem at work. Perhaps your boss is sexually harassing you, or saying that you aren’t eligible for promotion because you took maternity leave. Or, maybe you are being blamed for mistakes made by someone else on the team. Or, perhaps you are being bullied. You want to report the behavior to the human resources department, but you are concerned that your boss will simply deny it, and no one will believe you. So, you decide that the next time you have a conversation with your boss, you are going to record the discussion on your cell phone, which you always keep in your pocket, so you can prove exactly what was said. What a great idea, right? Wrong, at least if you live in California.
Under Federal law, it is legal to record a conversation as long as one-party gives consent to the recording. This is known as a “one-party” consent rule. But, there are twelve states — including California — in which it is illegal to record a conversation unless all parties to the conversation have consented to the recording. This is known as a “two-party” consent rule. And, in those states where there is a “two-party” consent rule, recording a conversation without getting the consent of all of the participants is also violation of criminal law.
In California, it is a misdemeanor to record a conversation without the consent of all parties to the conversation, which can lead to fines of up to $2,500 and/or imprisonment for up to a year. Typically, law enforcement officials are not interested in bringing a criminal action against someone who has illegally recorded a conversation. However, that doesn’t mean that illegally taping a conversation won’t cause problems. Moreover, in most cases a recording which has been made illegally won’t be admissible in court.
So, what’s an employee to do in such a situation? Ask if you can record the conversation. If everyone in the room agrees, you can go ahead and record. Or, take copious notes, either during the conversation, or as soon as you leave the room. (Just don’t do it on on your work computer, because anything on a electronic device may be the property of your employer . . . but that’s for another blog post).
In California, employees have a legal right to review and copy their personnel files. Part 1 of this article explained the reasons why employees should consider finding out what’s in their personnel files. Part 2 provides the nitty-gritty details about the California law that protects an employee’s right to review their own personnel file.
California Labor Code Section 1198.5 provides that, whether you are a current or former employee, you or your representative has the right to inspect and copy any records your employer maintains regarding your performance.
How to Get Your Personnel File
How do you do it? Request the records in writing. We suggest directing the request to your company’s human resources department and following-up via email. Employers have 30 days to provide you access to the file.
If you are currently employed, your employer must make the records available for inspection and, at your request, provide a copy of the records at your workplace, although you and the employer may agree on another location. Your employer does not have to permit you to review the records during your work hours, so you may have to take time off or come in during your off hours to inspect your file. If the employer requests that you review the records at a place other than where you usually work, however, you can’t lose pay because you have to travel to review the records.
Keeping track of what is contained in your personnel file can save you from unpleasant surprises down the road, when it’s too late to do anything about it!
If you are a former employee, the employer must make the records available at the location where the employer stores the records, unless you and the employer agree to a different location. A former employee may request to receive a copy by mail but must pay for the actual cost of postage. If the employer says you were terminated because of harassment or workplace violence, the employer can provide the records by mail or choose somewhere other than the workplace to may make the records available. But the location has to be within reasonable driving distance of your residence.
There are limitations on personnel file requests. The employer is only required to comply with one request per year by a former employee. The employer is not required to allow inspection or provide copies of records regarding investigation of a criminal offense, letters of reference, or records that were obtained prior to your employment. If you are covered by a union contract that includes a procedure for the inspection and copying of personnel records, you must comply with that procedure. You may be charged for copying the file, but the charge cannot exceed the actual cost.
As more employees learn about their right to look at their personnel files, employers will hopefully begin to treat requests as something routine, rather than looking with suspicion on employees who exercise the right to review their file.
A personnel file can serve as the road map to a person’s employment. It often contains the initial employment application, performance evaluations over the years, commendations the employee has received, as well as disciplinary records or other written documentation critical of the employee’s performance. Supervisors and managers often read through personnel files when it comes time to make critical decisions about an employee’s career. Raises, bonuses, even continued employment often ride on what can be found inside the file. Yet most employees have never even seen the full contents of the important file bearing their name.
When to Review Your Personnel File
If you are an employee (and most of us are), here are some prime examples of times when you might do well to review your personnel file –
- When you are headed into an interview about a potential promotion. The manager who is going to interview you is certainly going to have a look at your personnel file. Make an appointment with HR to have a look at it yourself to make sure the information in the file accurately reflects your work history and performance.
- When you have filed a worker’s compensation claim, requested medical leave or asked for reasonable workplace accommodations for a disability. In each of these instances, you may have provided medical information in support of your request. Reviewing your personnel file will help you make sure that your employer is not keeping your private medical information in the same file with the rest of your personnel records. (A number of laws require medical records to be kept in a separate file.)
- When your boss seems to have it out for you. It is rare, but we’ve come across more than a few cases where there is evidence that managers have papered personnel files with fake disciplinary write-ups. If a manager is treating you unfairly in the workplace, make sure she or he is not creating a secret record to use to terminate you.
- When you have been terminated. Even after you have been terminated, you can review your file. In fact, your employer must keep your personnel records for at least three years following your termination.
In California, employees have a legal right to review and copy their personnel files. Employees and employers have a stake in fair workplace practices. Human resources professionals and managers should view employee requests to review their personnel files as a chance to fulfill the promise of their open door policies.
Part 1 of this article explained the reasons why employees should consider finding out what’s in their personnel files. Stay tuned for Part 2 for the nitty-gritty details about the California law that protects an employee’s right to review their own personnel file.
This blog is for anyone who believes that employees matter. And those who believe that fair employment practices lead to better workplaces. We know that description includes a lot of thoughtful, hard-working employees. We hope it also includes a lot of human resources professionals, diversity consultants, career coaches, management consultants, and managers.
The authors of this blog are employment rights attorneys who spend most of our time trying help people who have endured workplaces where something has gone terribly wrong. Collectively, we have almost 100 years of experience in representing employees in workplace disputes. In the course of our work, we have seen how decisions made by managers and employees have landed everyone involved in a lot of very hot water. Like a gripping movie, the story behind every lawsuit is filled with turning points – moments when someone made a decision that changed the course of events. Having narrated hundreds of these stories for juries, arbitrators, and judges, we would like to share the strategies and perspectives that could help you to make the best decision when there is a problem in the workplace, or, at the very least, to understand the implications of the decisions you make. We won’t be offering legal advice, of course. (That only comes with an attorney-client relationship.) But we will certainly make practical suggestions based on our experience in litigating employment cases.
It might surprise you to know that our fondest hope is to become unemployed someday. While we like the work that we do, we dream of a day when workplace fairness, non-discrimination, and equal treatment are so deeply engrained in the American workplace that there is zero need for our services. In the meantime, the goal of this blog is to put information in the hands of employees, as well as those who value and advise them. We hope to demystify the laws surrounding the employee-employer relationship, suggest strategies for employees to advocate for themselves in the workplace, cover legislation and court decisions that will affect the workplace, and spotlight practices and situations that put employers and employees on the road toward litigation. We hope you will join us on this journey.
We are actively recruiting subscribers who believe in our credo — The Employee Matters. All others need not apply.