Offensive Language May Not Be Illegal

Q: In my small office, one young woman uses offensive language in every sentence. We have reminded her many times and she does cut it down for a while, but it creeps back into her conversation within a few days. Even the owner has told her to watch it.

I am offended by this language. Do I have any recourse?

--C.S., Van Nuys

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A: You might have a claim of workplace harassment against your employer under the California Fair Employment and Housing Act. The act normally covers only employers with five or more employees, but in the case of harassment, employers with just one employee are covered.

Whether you have such a claim would depend on the answers to several questions, including:

* What is the nature of the offensive language that the young woman in your office is using?

Cursing and other generally inappropriate comments normally do not constitute workplace harassment under FEHA. The language must be sexually or racially offensive, or must contain references to some other legally protected category such as religion, age, sexual orientation, national origin or disability. The offensive comments also must be “severe” or “pervasive” in the workplace.

* Is the young woman a supervisor or manager, or is she a co-worker? If she is a co-worker, you must show that your employer knew or should have known about her misconduct but failed to take prompt and effective action to stop it.

Many employers have written anti-harassment policies and complaint procedures. It is a good idea to use these procedures because failure to do so may raise questions about the credibility of your legal complaint.

If you believe you have a valid claim of workplace harassment after exhausting your employer’s internal procedures, you can file a complaint with the California Department of Fair Employment and Housing.

--Stacy D. Shartin

Employment law attorney

Seyfarth Shaw

State Laws Don’t Cover Profit-Sharing Funds

Q. My fellow employees and I have been informed that because of the death of the owner, the business is going to be sold and we are going to be laid off.

We’ve been informed that all accumulated sick days, vacation pay, regular pay and severance pay will be paid to us on the day before the business changes hands.

We can’t find out when our profit sharing will be paid out. Since the profit sharing is also part of our earnings, shouldn’t those funds be paid out at the same time?

--M.C., Hollywood

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A. Since profit-sharing plans typically are covered by the federal Employee Retirement Income Security Act, state wage-payment laws do not apply to them.

You should review the profit-sharing plan document to determine how and when your balance in the plan will be paid out.

You also may have the opportunity to roll your balance into another retirement plan, which can avoid taxation on your balance.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

It Is Employee’s Job to Ask for Promotion Details

Q. I was hired a year ago as a sales associate for a large home-improvement retailer. In March, I was promoted to department head with a small raise in pay. I accepted, figuring I would receive another raise on my anniversary.

I later was told that department heads receive pay raises only in January of every year.

Should the company have told me this in advance? If I had known this, I would have insisted on a larger increase upon my promotion or not accepted the promotion.

--S.F., Dana Point

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A. It is critical to get the facts before accepting a promotion. Too often, someone is flattered when offered a promotion, only to discover later that they might have made more money as a lower-level worker eligible for overtime than as a salaried supervisor.

I don’t believe the company has a legal obligation to disclose every ramification of a new position. You should have asked for details.

The practical answer is that you still can explain your situation to your boss and ask for some benefit or bonus to compensate you under the circumstances.

--Don D. Sessions

Employee rights attorney

Mission Viejo

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873, or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice. Recent Shop Talk columns are available at http://161.35.110.226/shoptalk.