All Jokes Aside, Happy Fourth of July!

Jul 16, 2021

All Jokes Aside, Happy Fourth of July!

By Martin P. Vigodnier, Esq.

July is here and so, too, is the beginning of probably everyone’s (including my) favorite season, summer! I love July not only because it means summer is ramping up and I got to enjoy awesome barbecues and fireworks on Independence Day, but did you know that July 1st is International Joke Day? As a regular person, I’m here to tell you how much I love these days. As an employment attorney, I’m here to tell you some things you might not be aware of regarding Independence Day and International Joke Day as they relate to the law.

Independence Day and Holiday Pay

Let’s say you own a business and your business was open on Independence Day. You might be thinking, “I know a ton of companies pay employees overtime or extra for working on holidays like Independence Day. But am I legally required to pay my employees more than what they’re usually paid for working on holidays like Independence Day?” The surprising answer is, generally speaking, under California law, you are not required to pay your employees more than what they are normally paid for working on holidays.

However, like all areas of law, there are certain exceptions. For example:

  • If you have a policy—for example, in your Employee Handbook—stating employees are entitled to increased pay for working on holidays.
  • If you have a contract with the state or federal government, and the contract states employees are entitled to increased pay for working on holiday days, or if they work on the same week as a holiday.
  • If you are subject to a collective bargaining agreement with a union entitling employees to holiday pay.

But, aside from exceptions like the ones described above, generally under California law, employees are not legally entitled to increased wages simply for working on holidays.

So, why do businesses pay employees more money to work on holidays if they don’t legally have to? The common answer is to incentivize employees to work on scheduled holidays.

International Joke Day: Workplace Jokes that Cross the Line Might be Legal Claims

Let’s go back to talking about July 1st and International Joke Day for a moment. Who doesn’t love a good joke? I am personally fond of lawyer jokes (even if they’re at my expense!). However, making inappropriate jokes at work or while conducting business comes with risks. In the business world, certain jokes might seem unprofessional, or worse, could lead to losing business. In the employment law context, inappropriate jokes that refer to a protected class may form the basis of a harassment claim.

I remember saying to myself when I was in law school, “what’s a ‘protected class?’ I’ve never heard of that before.” A protected class is a certain set of characteristics that are legally protected under harassment, discrimination, and retaliation laws. The following is a list of commonly known protected classes under California law (Note: there may be more under local laws):

  • Race
  • Religious creed (including religious dress and grooming practices)
  • Color
  • National origin
  • Ancestry
  • Physical or mental disability
  • Medical condition
  • Genetic information
  • Marital status
  • Sex
  • Gender
  • Gender identity
  • Gender expression
  • Sexual orientation
  • Military or veteran status
  • Age (if 40 or over)
  • Pregnancy, childbirth, breastfeeding, or related medical conditions

While most discrimination claims require an adverse employment action—for example, being fired or denied a promotion because the employee is a member of a protected class—a joke that veers into any one of the protected classes listed above may form the basis of a harassment claim as a hostile work environment.

Now, you might ask yourself, “what is a ‘hostile work environment,’ and what does an employee have to show to prove it?”

Generally speaking, a hostile work environment is harassing conduct based on an employee’s protected class that is so severe and pervasive so as to alter the terms and conditions of their employment.

Regarding what an employee must show to establish a hostile work environment under California law, they must generally demonstrate the following:

  1. The employee is a member of a protected class (see the list above);
  2. The employee was subjected to unwelcome conduct;
  3. The conduct was based on the employee’s protected class;
  4. The conduct was severe or pervasive;
  5. A reasonable person in the employee’s circumstances would have considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive;
  6. The employee actually considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive;
  7. The employer or a supervisor engaged in the conduct, or the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action;
  8. The employee was harmed by the conduct; and
  9. The conduct was a substantial factor in causing the employee’s harm.

California courts analyze the following factors to determine whether the harassing conduct was severe or pervasive enough to cross the line into a hostile work environment:

  1. The nature of the conduct;
  2. The severity of the conduct;
  3. The frequency of the conduct;
  4. The context; and
  5. Whether the conduct was physically threatening or humiliating.

While the above might be a doozy, it’s important to note that, for harassment claims, it’s not necessary for the victim to be subjected to unwanted physical conduct or touching. Indeed, in addition to physical harassment, unlawful harassment also includes:

  • Verbal harassment—jokes, insults, slurs, derogatory or demeaning comments, or threats, and
  • Visual harassment—posters, objects, cartoons, or drawings.

The identity of the harasser also has significant implications for employers:

  • If the harasser is the employer or a supervisor of the employee, then the employer is strictly liable.
  • The employer can also be liable for unlawful harassment even if the harasser was a co-worker and not a supervisor or the employer, if the employer, or the employer’s supervisors, knew or should have known about the harassing conduct and failed to take immediate and appropriate corrective action.
  • Not only can employers be on the hook for harassment claims, but employees who commit unlawful harassment can also be held personally liable.

So, now that you know the above, what should you do when it comes to making jokes at work? As a general rule of thumb, it’s best not to make jokes regarding any of the protected classes listed above.

Additionally, because employers have the affirmative duty to prevent harassment in the workplace, if you are a business owner, then it’s also best to not allow any jokes to be made regarding any of the protected classes listed above. You should also consult with an experienced employment attorney to develop preventative, proactive, and corrective measures to abide by the affirmative duty to prevent workplace harassment, and to limit potential liability. Some things you may want to discuss with your attorney are the following:

  • Developing clear and legally compliant policies regarding prohibited harassing, discriminatory, and retaliatory conduct at work.
  • Educating employees regarding protected classes and prohibited conduct.
  • Promptly investigating allegations of prohibited harassing, discriminatory, or retaliatory conduct.
  • Issuing immediate and appropriate corrective action for individuals who violate these policies.

So, now that you know about International Joke Day and may want to celebrate it in the future, please remember that if an employee or co-worker might be uncomfortable hearing a joke, then it’s best not to say it.

If you have more questions regarding employment matters such as the ones listed above, then please feel free to contact Bradley, Gmelich & Wellerstein LLP so we can help you with your specific needs.

Martin P. Vigodnier, Esq.

Martin P. Vigodnier, Esq. is a Senior Associate in Bradley, Gmelich & Wellerstein LLP’s Employment Law Department. Martin focuses his practice on labor and employment litigation, class actions, and Private Attorney General Act (PAGA) actions, including wage and hour claims, discrimination, leaves of absence, reasonable accommodation, defamation, trade secrets, retaliation, harassment, wrongful termination, breach of contract, and fraud. Martin also drafts, in both English and Spanish, contracts, regulatory compliance materials, agreements, and policies such as anti-harassment, discrimination, and retaliation policies, OSHA safety policies, employee reimbursement policies, employee stock purchase plans, independent contractor agreements, arbitration agreements, settlement agreements, cross-purchase buy sell agreements, and employee handbooks.

Prior to joining the firm, Martin was President and Founder of his solo law practice handling various employment matters. Prior to practicing law, he was an extern for the Equal Employment Opportunity Commission (EEOC) and awarded the prestigious Peggy Browning Fellowship to work for the Federal Labor Relations Authority (FLRA), assisting the Office of General Counsel analyze unfair labor practice charges against government agencies.

Martin is a native Spanish speaker and writer, and a former amateur boxer.
mvigodnier@bgwlawyers.com