Legal Question in Sexual Harassment in California

Paid under the table and sexual harrasment.

Hello a month ago a friend of mine got a job working for a contractor. He told her that she would be put on the payroll and even had email communication about the wages she would receive and health benefits. Now she worked for only a month and he never put her on the payroll but kept saying she would but in the meantime paid her in cash under the table. She was doing clerical work for him as well as intro project managerial work at different jobsites. He recently made a pass at her which she dismissed and made it clear that she was not interested in a personal relationship and this was strictly a professional relationship and he apologized and said he did not have a problem with that. This week he made another pass at her and she said it was not ok and it made her feel uncomfortable. He said he liked her and that he couldn't seperate his emotional feelings from their working relationship and that this wouldn't work out and he would have to let her go. Now my question is, what kind of legal recourse, if any, does she have? She says she knows she was doing a good job and was not let go due to underperformance as she was getting great feedback from him, his clients, and sub contractors she was interfacing with. She is not looking to capitalize on this situation by any means. She believes she was wrongfully terminated, however was never on the books just a promise that it was going to happen. If anything she feels she at least deserve two weeks notice. Her and I also are both concerned about him continuing this innapropriate behaviour with any future employees with no consequences. Do you have any legal advice in this situation?


Asked on 12/22/10, 11:23 am

2 Answers from Attorneys
Michael Kirschbaum Law Offices of Michael R. Kirschbaum

Losing a job because of a refusal to go out with the boss, is a classic example of sexual discrimination/harassment (we call it "quid pro quo") and is actionable under the law. The trick, however, as with any case, is being able to prove what happened because it is often her word against his. Your friend is going to have to discuss the details with experienced employment counsel to determine the strength of the case and how to approach it. She should get different opinions and then determine what she wants to do. She has one year from the date of her termination to file a complaint with the California Dept. of Fair Employment and Housing (a mandatory prerequisite to a lawsuit), but the sooner she seeks help the better.

It is also illegal to employee someone "under the table" and the EDD imposes strict penalties on employers who are proven to do this. There is a fraud unit of the EDD that investigates employers who do not deduct payroll taxes from employees' paychecks.

Before your friend decides what to do, she should get some professional legal advise to help steer her in the right direction.

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Answered on 12/27/10, 1:43 pm

The employer's conduct was illegal on several levels. Mr. Kirschbaum's analysis is spot on. I maintain facilities in Cupertino and San Jose, and would be happy to meet with her about her case, at no charge and no obilgation.

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Answered on 12/30/10, 6:41 pm


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