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Sacramento Sexual Harassment Law Blog

Understanding whistleblower protections under Sarbanes-Oxley

The federal Sarbanes-Oxley Act was passed in 2002 and has come to be known as SOX in business environments. SOX addresses fraudulent financial activity in publicly traded companies and provides some specific protection for those who report such activity.

SOX protections extend to employees of publicly traded companies. They also cover contractors and subcontractors who are working with or for such companies as well as agencies of those companies. The type of reporting protected under SOX is fairly broad. You might be protected whether you make a report to a federal agency or to a law enforcement agency. Reporting to your supervisor or through internal compliance channels is also protected.

What are adverse actions?

In the context of employment law, adverse actions are a type of retaliation against workers. The law prevents employers from taking retaliatory action against workers who report or otherwise oppose an illegal action such as discrimination practices. The purpose of the law is to protect the job and opportunities of such workers in the face of an employer or supervisor who might be upset about a report or other action.

One of the most extreme examples of an adverse action is termination. An employer is not allowed to fire or lay off a worker simply because that worker reported or opposed discrimination in the workplace. Employers can't otherwise cause a worker to not have a job for the same reason, and that includes failure to promote or hire a worker solely because of his or her actions with regard to opposition of discrimination.

Can you sue because your employer fired you?

You can't file a lawsuit that will be potentially successful simply because your employer let you go. In many cases, this is true regardless of why your employer let you go -- as long as the company didn't break any specific rules or laws in their reasons for terminating you.

When a company terminates your employment for a lawful reason, you can't typically file suit. Lawful reasons for termination include the end of a contract, failure to perform required job duties or simply the fact that the company doesn't need your services any longer.

Is sexual harassment training contributing to the problem?

A study from the U.S. Equal Employment Opportunity Commission notes that sexual harassment training that has become traditional in many workplaces during the past few decades isn't as effective as many people think. In fact, the studies indicate that in some cases, the training might be counterproductive.

According to the EEOC, training in corporate and university environments tends to revolve around limiting the legal risks associated with sexual harassment incidents. That training might include information on identifying sexual harassment, how to report and deal with it and how organizations and managers can mitigate exposure. What it doesn't do, says the EEOC, is actually curb the instances of misconduct in the first place.

Understanding your employee classification

Most of the time, we talk about the important of not classifying employees in the workplace along lines according to race, gender, age, sex or nationality. But there is one classification that is critical and it's really important that employers get it right. That classification is whether you are an exempt or non-exempt employee.

What exactly does that mean? An exempt employee is someone who is not generally eligible for overtime. Typically, these are people in management positions of some kind, but they don't have to be supervisors. The federal government and state law mandate certain provisions regarding who can be called exempt -- including cutoffs for how much people make per year. If you don't make a certain amount each year, you can't usually be considered exempt.

Four tips for potential whistleblowers

You've found shady practices at your company -- things that you think break the law or cause unfair treatment for employees that could violate federal discrimination or safety regulations. The next steps you take depend on your situation, your comfort with any leaders in the company and what you are willing to do to see any type of justice.

First, it's always a good idea to understand the reporting structure in your company. Is there someone in leadership, compliance, human resources or legal positions who you don't believe is involved in the illegal activity? Are you comfortable reporting the issues to them? If so, and they handle the issue or cause it to be handled, then that might be the end of the story.

Why is sexual harassment case law so inconsistent?

While sexual harassment might seem like a straightforward scenario -- particularly if you are the victim -- that isn't always the case in court. Sexual harassment can be broken into two major categories: quid pro quo harassment and hostile work environment. The latter is sometimes harder to prove in court.

As we've previously discussed in the past, quid pro quo sexual harassment involves someone demanding sexual favors of someone else in exchange for something. That something could be a raise, promotion or job offer, but it could also be silence about a certain thing that might interfere with your career.

Are you dealing with a workplace bully?

You are protected from a hostile workplace in certain conditions. Your employer must take action to protect you from sexual harassment or address sexual harassment in the workplace. Discrimination is also not allowed in the workplace, and various discrimination types are illegal in each state. California actually has some of the most comprehensive discrimination laws protecting workers.

That being said, not all hostility in the workplace is illegal, which makes it difficult for some people who deal regularly with workplace bullies. According to OvercomingBullying.org, several types of bullies are common in the workplace. It identifies eight bully types, including the Constant Critic, who attacks the confidence of others through constant negative criticism.

What questions should you ask if you are fired?

If you are fired from a job, then you might be wondering all manner of things. Reactions to being fired can range from relief because you knew it was coming to bewildered confusion because you didn't have any clue it was coming. While it can be a stressful and awkward time, there are some questions that you should seek answers to as you speak to supervisors or human resource representatives on your final day.

First, ask for a reason. Why are you being fired? Does the company perceive that you did something wrong? Asking about a reason can help you understand if you might have a claim for wrongful termination, especially if you have expressed concerns about sexual harassment in the workplace.

Some common workplace rights don't actually exist

The rights you have in the workplace can be a gray area, and the information you might get from family and friends isn't always correct. For example, you don't always have a right to free speech in the workplace, and you can be fired for saying certain things. In most cases, individuals who work for private companies are only protected when it comes to speech that is protected under another type of law — for example, what you say might be protected under a whistleblower law.

Surely you're protected when you speak out against what you perceive as wrong-doing in the workplace, right? Not always. You can lose your job for speaking out against actions that aren't covered by specific laws. If you speak out against discrimination, illegal financial activity or health concerns, then these might be covered under federal or state laws.

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