I was recently demoted for refusing to do the same amount of work as my male counterpart for fewer wages (I am a female). I am now being paid less than I was before he asked. In addition, I have on several occasions requested that our working conditions improve and my boss has taken no steps to see that they improve. I work around hazardous materials and do not make enough money to pay for health insurance. Can I sue him based on these counts? I have reported him to OSHA and nothing has changed.
Employment / Labor Attorney
If you were demoted because you were complaining about the fact that you are not being the same wages as a male counterpart who has the same job and seniority and skill set as you then it is possible you have a claim. Much more would need to be known before anyone could give you strong advice on that.
If you were demoted because you reported bad conditions to OSHA, you might have a claim there too.
If you were demoted because you complained to the employer about working conditions or because you do not make enough money, it is unlikely you have a legally recognizable claim.
If you believe you have been subjected to unlawful pay policies or retaliation for reporting hazardous conditions to OSHA, you should consult with an employment law attorney to see if you have any remedies.
Good luck to you.
This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.
Employment / Labor Attorney
This situation needs an assessment of the specific facts. The Avvo board is not set up to handle the kind of detailed analysis needed to offer helpful guidance. Avvo works best for short, specific questions that allow for short, specific answers. Perhaps more importantly, anyone can read the discussions on Avvo so they are not confidential. The employer or whomever is involved in the dispute can read everything written here.
It is possible your demotion was unlawful retaliation for your complaint about sex discrimination. You would need evidence to support that your complaint was at least part of the reason for the demotion. Of course your employer will say the demotion was due to your insubordination, so consider what evidence you can produce to prove the employer wrong. Please look at my guide to unlawful discrimination: http://www.avvo.com/legal-guides/ugc/what-is-unlawful-employment-discrimination--federal-law?published=true which should help you understand lawful and unlawful discrimination, how to pursue a claim and time limits.
If your question regarding OSHA is not involved in the demotion, then the mere fact that you reported your employer for an unsafe workplace is not enough to support a law suit. There would have to be some harm to you, such as demotion, termination, or other retaliation. For more information about whistleblowers and their rights, please see my Avvo guide: http://www.avvo.com/legal-guides/ugc/whistleblowers-and-their-rights?published=true
It sounds like you would be wise to consult with one or more experienced employment law attorneys with whom you can go over the details of your employment. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area.
I hope you can resolve your situation and wish you the best.
*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***
Administrative Law Lawyer
It is a myth widely held among employees that an employer must pay the same compensation to employees who do the same work. In some versions of this myth, it is also stipulated that the work done by the comparison employees is of equal skill or value. In truth, the law allows employers to take many subjective and even invisible factors into account in setting the compensation for individual employees. For example, employers may pay higher wages to employees who have more time on the job; who have experience from other employment; who have skills that the employer values even if those skills are not part of the present assignment; whom the employer believes will quit otherwise, or whom the employer believes has a long-term utility and value for the business. It would take pages to list the individual factors that can lawfully account for a difference in the compensation of employees doing the same work, and the existence of many of these factors would not be known to or visible by other employees.
One of the important benefits of a union-represented workforce is that employees doing similar or the same assigned tasks are classified into compensation categories and generally paid the same or comparable wages.
The list of factors that the law does not allow to be the basis for a difference in employee compensation is relatively short: race, gender, age, religion, etc., the "protected classifications" are the most commonly cited unlawful bases, and there are some additional public policy considerations that must not be the employer's reason for a compensation differential. But the law leaves a great deal of discretion and latitude to the employer in this issue of managing the business.
It is possible that some of your conduct, as summarized in your post, is protected by public policy considerations. There are not enough details here to make that determination and this is not the place to get into that degree of detail. But, in general, employers are not required by law to take action to improve working conditions at the demand or complaint of employees. Instead, the employer's obligations for working conditions are specified by law. And in some circumstances, an employee may (MAY) be protected from employer retaliation for having made a demand for employer compliance, even where the employer is not required to act on the employee's report or demand.
As for the issue of your compensation not being enough, the law sets a minimum wage applicable to employment. If you are represented by a union, then the union has bargained for your wages. If your compensation meets or exceeds the legally mandated minimum wage, and if you do not have a collective bargaining agreement in place, then it is unlikely that you can sue your employer over the base amount of your wages.
You should certainly schedule a time for a consultation with a local employment attorney to discuss all of these issues more deeply. I strongly encourage you to do that because some of the actions you report about your conduct can put your employment at risk depending on some very small and technical details. So, you need good advice not only about whether you have any claims to pursue, but for preserving your employment and understanding the limits of your legal protections.
My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.
Criminal Defense Attorney
You may have a valid clim if they are treating you differently than male coworkers and that you can establish that your gender is the motivating factor . I always say be the devils advocate and ask yourself what would the employer say if presented with this claim. If their response sounds like an excuse or a pretext then you may have a case. Always consult with experienced counsel.