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Claiming Punitive Damages in Discrimination Lawsuits

CLC 510What are punitive damages and when can you claim them? Punitive damages are damages designed to punish an organization or individual for particularly bad behavior and deter them from doing it in the future. Punitive damages are possible to receive in employment discrimination lawsuits. However, these damages require a very high level of proof, including the following requirements.

Punitive Damage Proof Requirements

The first requirement is that the employer acted with oppression, fraud or malice. This must be shown with clear and convincing evidence. Clear and convincing evidence is a higher standard than the typical burden of proof in a civil case. Generally, to prove anything to the court requires a preponderance of the evidence, which means that the weight of the admissible evidence rests on your side; in other words it was more likely than not true. By contrast clear and convincing evidence requires that the admissible evidence shows a high probability that what you accuse occurred.

California Civil Code § 3294 defines more explicitly what oppression, fraud, and malice are. Oppression is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Fraud means an intentional lie, misrepresentation, or concealment of an important (“material”) fact that was made in order to deprive the person of their property of legal rights. Malice means acts where the employer intentionally caused injury to the plaintiff or acted despicably with a “willful and conscious disregard of the rights or safety of others.”

Should You Claim Punitive Damages?

In summary, unless the employer intentionally lied about an important fact to deceive the employee, committed some other fraud, or intentionally tried to injure the employee, the employee must show that the act of discrimination was despicable. Despicable means conduct that is so bad that it would be looked down upon and despised by ordinary decent people. Some examples of despicable conduct include conduct that is intended to humiliate an employee and force them to quit. It generally requires more than 1 act. For example in McGee v. Tucoemas Fed. Credit Union (2007) an employee with cancer was able to win punitive damages after the employer refused to give the employee extended leave after cancer treatment surgery, cancelled the employee’s medical insurance, and demoted the employee.

An employee must also prove with clear and convincing evidence that the employer either authorized the discrimination or learned of the discrimination and did nothing to prevent it; effectively ratifying the discrimination.

If you have been discriminated against due to your disability or perceived disability contact California employment law attorney Michelle Baker right away. Schedule your Free Consultation today or call us at (858) 452-0093.

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Phone Calls Eligible for Unpaid Overtime

Gavel with MoneyIn a recent case regarding phone calls and unpaid overtime, a police department was sued when it failed to pay a police officer who checked his work-provided cell phone while off duty.

Allen Versus the Chicago Police Department

Police Officer Jeffrey Allen estimated that he took an average of one or two off duty calls on his employer provided blackberry per day. Allen later sought payment from the Chicago Police Department (Chicago PD) for that time he spent taking the work related phone calls. Allen filed a lawsuit in the federal district court in the Northern District of Illinois alleging that the Chicago PD violated the Fair Labor Standards Act (FLSA) by requiring him to take calls while off duty.

The complaint alleges that Allen was a non-exempt employee, eligible to receive overtime pay for time when he worked more than 40 hours a week. In January the court approved a conditional certification of the class of plaintiffs, which meant that current and former Chicago police officers in the Bureau of Organized Crime also became eligible to join the lawsuit.

The Chicago PD responded to Allen’s claims by stating that it had procedures which allowed employees to report overtime worked, and that Allen and other police officers simply failed to comply with those procedures. However, Allen argues that there was an unwritten rule that if an officer wanted a promotion he or she should not report overtime for emails and calls taken off duty.

Emails and Phone Calls Count Toward Overtime

Legally an employer must pay an employee for all time worked. An employer may not discourage employees from reporting time worked just because it happens off their employer’s standard work schedule. An employer can get into trouble with the law if they schedule their workers for 40 hour weeks and then expect employees to also answer emails or take calls at home because extra time spent working off the clock needs to be compensated at the overtime rate for every hour worked over 40.

California’s fair pay law, Labor Code Section 510, also imposes stricter requirements that employers must comply with. In California an employer must also pay overtime when an employee works more than 8 hours in a single day and for any time spent working on the seventh consecutive day of the work week. In some circumstances double time also needs to be paid.

If your employer has failed reimburse you or pay your wages you may be entitled to a lawsuit. To learn more contact experienced California Employment Law attorney Michelle Baker. Schedule your Free Consultation today by calling (858) 452-0093.

 

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Organ Donors Eligible for Disability Benefits

Non Compete AgreementsCalifornia disability law allows those who are associated with disabled individuals to receive protection against disability discrimination. In this post, we will use a past case from the California Courts of Appeal to demonstrates this protection. In this case, a man who planned to donate a kidney to his disabled sister won a disability discrimination appeal.

In Rope v. Auto-Chlor System of Washington, Inc. a recently hired employee informed his employer, Auto-Chlor, that he intended to donate his kidney to his disabled sister. The employee then attempted to take time off under a new law associated with such cases, known as the Michelle Maykin Memorial Donation Protection Act (DPA). The employee’s manager did not respond to his request to take leave, so the employee complained to management. However, just two days before the law took official effect, Auto-Chlor terminated the employee for allegedly “poor performance.”

The Employee’s Claim

The employee then sued Auto-Chlor for several violations including associational disability discrimination, retaliation for a protected activity, violation of the DPA, and wrongful termination in violation of public policy. The trial court dismissed the employee’s claims but the court of appeals reversed the decision, allowing the associational disability discrimination and wrongful termination claims to proceed.

California Court of Appeal’s Decision

The California Court of Appeals decided that the employee had provided enough evidence to show that the employer had discriminated against him. The discrimination was determined to be based on his relationship to his disabled sister and the fact that the employee would soon become disabled himself after the kidney donation surgery was complete. These facts could have supported a claim for wrongful termination and associational discrimination.

What Is Associational Discrimination?

Associational discrimination claims are a powerful tool to fight discrimination in the workplace. Such claims cover situations in which the employer takes adverse action (such as termination or harassment) against the employee for a disability that an employee’s close family member or spouse has. It also covers claims as the one in Rope discussed above, where the employer fears incurring expenses due to the employee’s association with a disabled person. It is possible that an employer may fear that due to the relationship with the disabled family member, the employee will have to take time off to care for them, or possibly raise the costs of the employer-sponsored medical benefits plan.

Keep in mind that the employer here seemed to be trying to illegally discriminate against the employee before the new law that would have protected him took effect. Today, this would be much more difficult as the DPA is now in full effect and protects employees by allowing them to take 30 days off in order to donate organs.

If you have been the victim of discrimination contact an experienced attorney right away. Call attorney Michelle Baker at (858) 452-0093 or submit your information online for a Free Consultation.

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When is Reasonable Disability Accommodation Required?

DisabilityBoth the Americans with Disabilities Act and the Fair Employment and Housing Act (FEHA) require employers to make reasonable accommodations for their disabled employees and job applicants. These accommodations can range between accommodations like giving the employee a special tool, providing the employee with extra breaks, or even allowing the employee to take leave or work from home.

An employee is not required to specifically ask for “reasonable accommodations” or to even figure out what the accommodation would be. The employer has a duty to engage with the employee in the process of figuring out what a reasonable accommodation would entail, this is called engaging in the interactive process.

Exceptions to Reasonable Accommodation Requirements

An employer is not required to provide reasonable accommodations in a few limited circumstances. First an employer is not required hire or employ an individual who will endanger the health and safety of themselves or others because they will be unable to perform the essential duties of the job. The essential functions of a job are the duties that are necessary due to one or more of the following:

  1. The reason the position exists is to perform the function at issue.
  2. The amount of employees available to perform that function is limited.
  3. The function is highly specialized and the individual is hired for his or her ability or expertise in performing the function.

Whether a job duty is an essential one is a fact intensive question and can bring up a significant amount of debate. In determining whether a job function is essential the following factors are relevant: the employer’s judgment, the job description, the amount of time the individual performs the job function, the work experience of past individuals in the job category, the current work experience of individuals in the job category, and the terms of any associated collective bargaining agreement.

Reasonable accommodation is also not required if an employee suffers from alcoholism and they perform alcoholism-related misconduct. For example, in the case of Gonzalez v State Personnel Bd. (1995), an employee was absent without leave on several occasions, was proved to be an alcoholic, and was justifiably terminated.

Disability discrimination is a major problem. Legally confronting it enforces your right to be free from discrimination also helps others by preventing employers from engaging in discrimination the future. To learn more about how to get monetary recovery for disability discrimination, contact employment lawyer Michelle Baker today. Schedule your free consultation by calling (858) 452-0093.

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Addressing Unpaid Time Off

Private AG ActHappy New Year from Baker Law Group! As the holiday season comes to a close, you may be returning to work after your longest vacation of the year. Now is the perfect time to assess whether your employer is providing you with the paid time off and wages you are entitled to.

Vacation Pay Rules

Although employers are generally not required to offer paid time off (PTO), many do. However, the employer can place restrictions on when you use your PTO. If an employer refuses to allow you to take off the requested days, and you refuse to take off days that are available, the employer must compensate you for the time not used.

Additionally, California Labor Code section 227.3 provides that employers are not allowed to require employees to use or lose their PTO or unpaid vacation time. The employer can put a reasonable cap on the amount of vacation time that an employee may accrue. However, if a court finds that the implementation of a cap is simply to deny or make it more difficult for employees to use their accrued benefits the policy will be invalidated. Also, keep in mind that these benefits can be enhanced or limited by a collective bargaining agreement.

Sick Pay Rules

Sick time and sick pay are governed by a separate set of rules. Sick time is treated differently because unlike vacation time or PTO, sick time is not considered earned compensation because it is only to be used in the event that you become ill.

Another common question is whether an employee can simply deduct PTO or vacation leave for parts of the day. This is usually up to the specific agreement between the employer and employee, and it is best to consult your employee handbook to determine this information. Some employers provide PTO, vacation, or sick time in 1 hour increments, but require that employees use their time in 4 hour increments.

Obtaining Compensation

This type of compensation can amount to a lot of unpaid wages over the years. This is one reason why so many workers are not receiving the full amount of compensation they are entitled to.

Although most employers are not required to provide PTO, vacation or sick leave, some cities and municipalities throughout the country have modified this trend by requiring employers to provide a minimum amount of these benefits. One example is San Francisco, where an employer must provide employees with 1 hour of sick leave for every 30 hours worked.

California employment law attorney Michelle Baker has many years of experience handling wage and hour cases, including lawsuits for unpaid wages due to failure to provide proper breaks. To schedule your Free Consultation, contact us at (858) 452-0093 today.

 

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EEOC Disability Guidelines: Part 2

family-medical-leave-actThis post is the second in our two-part December blog series highlighting key aspects of the EEOC’s interpretation of the Americans with Disabilities Act (ADA). Today we will focus specifically on the ADA’s interpretation of intellectual disability and severe illness disability.

Intellectual Disability

2.5 million Americans have been diagnosed with an intellectual disability. However, just as with all other disabilities, the ability to ask an applicant or employee about the disability are very limited. However, once an individual with an intellectual disability is hired an employer may ask about an employee’s intellectual disability to the extent necessary to support the request for a reasonable accommodation, to verify the use of sick leave related to the disability, and for the employee to participate in a wellness program.

Accommodations for intellectual disabilities include not only on the job accommodations, but also application accommodations such as:

  • Providing a reader or interpreter to process complex information for the applicant with the disability.
  • Showing, rather than explaining what the job requires.
  • Providing modified tests, manuals, or training materials.

Individuals with intellectual disabilities also may be entitled to reasonable accommodations on the job including, but not limited to:

  • Reassigning marginal tasks to another employee
  • Providing more detailed, slower, and more extensive training on the job
  • Provide a tape recorder so that the employee can record tasks
  • Acquire other equipment to assist an employee in performing the duties of the job
  • Provide a job coach
  • Modify a work schedule

These accommodations can be requested by anyone other than the employee.

Severe Illness Disability

The EEOC does not provide as robust of an interpretation for individuals with severe illness diagnosis, such as cancer patients. However, it does list a number of special accommodations related to such cased, including:

  • Leave for doctors’ appointments
  • A private area to rest or for periodic breaks
  • Permission to work from home
  • Changes in office temperature

The EEOC also lists the job accommodation network as an additional resource, which provides a list of accommodations for many types of disabilities.

If you have been discriminated against by an employer, former employer, or potential employer due to your disability or perceived disability, contact California employment law attorney Michelle Baker right away. You may be entitled to a lawsuit or settlement for an employer’s discrimination or discriminatory practices. To learn more, schedule a free consultation online or us at call (858) 452-0093.

 

 

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EEOC Disability Guidelines: Part 1

CFRAThis blog is the first of a two-part series this month that will explore the Equal Employment Opportunity Commission guidelines regarding how specific diagnosis may be handled under the Americans with Disabilities Act (ADA). In this post, we will highlight some of the key aspects of the EEOC’s guidelines when it comes to disability.

Diabetes Disability

The EEOC says that most people with diabetes should have no problem being considered disabled for the purposes of the ADA because most people with diabetes are limited in one or more major life activities.

The EEOC guidelines state that an employer may not ask a job applicant questions about diabetes. However, if the applicant voluntarily provides the information the employer may ask follow-up questions such as whether the applicant uses insulin or experiences episodes of hypoglycemia, or whether the applicant will need assistance when her or his blood sugar drops. Additionally, the employer may question whether reasonable accommodation would be necessary if the applicant has an obvious disability.

An employer may also ask disability related questions if performance on the job becomes an issue after being hired. For example, if an employee experiences extreme fatigue or irritability the employer may ask questions as to the reason why. If an employer feels that an employee may be unable to perform the job or poses a direct threat to him or herself or others then the employer may ask for medical information about the employee’s condition. However, the employer is only allowed to obtain enough information as necessary to ensure that the employee can perform the duties of the job safely.

The guidelines also go on to list a number of accommodations that employees with diabetes may require, including:

  • A private location to test insulin levels
  • A place to rest when blood sugar becomes abnormal
  • Breaks to drink, eat, take medication, or test blood sugar
  • A leave of absence for treatment, or to obtain training on managing diabetes
  • Modified work schedules
  • Distribution of inessential tasks to other workers
  • Reassignment to a vacant position, with equivalent status and pay

Epilepsy Disability

As with diabetes, an employer may not ask disability related questions, except if the applicant voluntarily brings it up or the disability is obvious. The EEOC also requires that employers who know an employee has epilepsy, keep the information confidential even if the employee suffers a seizure on the job. Accommodations for epilepsy include:

  • Breaks for ingesting medication
  • Leave of absence to adjust to a new medication regimen or to recuperate from treatment
  • A private area to recover from a seizure
  • A cushion to break a fall
  • Work schedule adjustments

If you have been discriminated against by your employer due to a disability, stand up and fight discrimination. Contact employment law attorney Michelle Baker as soon as possible. Schedule your free consultation online or call (858) 452-0093 today.

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How Long do You Have to File a Disability Discrimination Lawsuit?

CA Labor board claims_HOMEIf you are currently deciding whether or not to file a disability discrimination lawsuit against your current or former employer, know that there are time limitations you should be aware of regarding your legal complaint.

An employee must first receive a right to sue letter from the Department of Fair Employment and Housing (DFEH) prior to filing a disability discrimination lawsuit. An employee generally has 1 year from the time of the violation to file this charge. This 1-year period is known as the first statute of limitations. After receiving the “right to sue” letter, an employee has another 1-year period within which he or she can sue the employer. This is known as the second statute of limitations.

As with any law, there are exceptions, and they can get rather complicated. There are two major exceptions to these rules: the continuing violations doctrine and equitable tolling.

Continuing Violations Doctrine

The Continuing Violations Doctrine essentially depends on whether the incident was “discrete” or “ongoing.” The doctrine allows employees to bring a charge to DFEH more than 1 year after discrimination occurred if the charge involves continuing discrimination and is brought within 1 year after the discriminatory behavior stopped. For most one-time instances of discrimination, such as firing or failing to hire or promote, the continuing violations doctrine will not apply. The doctrine will only apply to cases where discrimination is ongoing to a specific individual, even if most of the discrimination occurred more than 1 year before filing a charge. In practice, this usually means that the 1 year period does not actually start running until the employee quits, is terminated, or the employee responsible for the discrimination is terminated or leaves.

Equitable Tolling Doctrine

The Equitable Tolling Doctrine is a principal created by judges that seeks to impose fairness on statutes of limitations. It can potentially apply in many situations; however in practice it is usually effective in two specific situations. The first is when an employee files a charge with the federal equivalent of DFEH, the Equal Employment Opportunity Commission (EEOC). If DFEH gives the employee a right to sue letter, but the employee also files a charge with the EEOC, the 1 year period does not run for the duration of the EEOC’s investigation.

The second situation is when the employee is following internal grievance procedures. For example, if an employee suffers disability discrimination, they may bring a formal grievance charge, which will prevent the 1 year period from running during the pending grievance. However, there are limitations. The grievance system must have a hearing where the employee is able to present their claim and evidence of the discrimination.

Contact a Discrimination Disability Lawyer

To learn more about your rights under disability discrimination law, call California employment attorney of Michelle Baker today. Give us a call at (858) 452-0093 or use our online submission form to schedule a Free Consultation.

 

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Hourly Employees Eligible to Sue for Unpaid Overtime

CLC 226If you are an hourly employee working without a guaranteed monthly rate of pay, you are likely eligible for unpaid overtime even if your hourly wage is high. Don’t get caught in the trap of working constant overtime. If you are not a salaried employee, this is a violation of your legal rights.

The Case: Negri v. Koning & Associates

In 2013, the California Court of Appeals reviewed a situation where an employee who had been making significantly more money than the average worker, was still subject to California overtime law. In Negri v. Koning & Associates, Mark Negri was an insurance claims adjuster for Koning & Associates. He was paid $29 per hour but was given no minimum guarantee of pay per month. Although he worked more than 40 hours per week, every week, he was never paid more than $29 per hour. As a result Negri sued his employer for violating California overtime law. The employer argued that Negri was a salaried employee, subject to exemption from overtime.

The Definition of a Salaried Employee

Under California law employees are not subject to overtime pay when:

  1. they meet one of the duties tests for exemption,
  2. they customarily and regularly exercise discretion and independent judgment in performing their duties,
  3. they earn a monthly salary that amounts to twice the minimum wage.

In reviewing these elements the court determined that Negri seemed to satisfy all of the above prongs of the test, except for the salary aspect. Although he earned much more than twice the minimum wage, there was a question as to whether his pay could be classified as a salary. The court found that the definition of salary is quite specific, it does not merely mean pay. Rather, it is “a fixed rate of pay as distinguished from an hourly wage” that is not subject to reduction because of the quantity of hours worked or the quality of work. The employer had admitted that Negri was paid based on the number of hours he worked, and that alone dictated his pay. Because of this the court held that Negri had not been paid a salary and was thus entitled to overtime pay.

What This Case Means for You

This is a very helpful case for employees because Negri would have been exempt from overtime pay if his employer had merely set an established pay rate. There are many reasons why an employer would want to require employees to be paid hourly. The biggest reason is that it ensures that they are only paid for time the employee is productive. However, if an employer does not guarantee a set amount of pay per month or year, the work is considered hourly and subject to overtime law.

Keep in mind that different categories of employees have different overtime requirements. To view a full list of the categories of employees exempt from overtime law visit the California Department of Industrial Relations website.

If your employer has not paid you the full amount you have earned you may be entitled to a class action lawsuit or settlement against them. Contact experienced California wage and hour attorney Michelle Baker today. Call (858) 452-0093 for your Free Consultation.

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EEOC Wins Case for Man With Disabled Family Member

Age discriminationA recently settled case out of Texas demonstrates that if you have a disabled individual in your immediate family, you may qualify for protection under the Americans with Disabilities Act (ADA). The case clearly demonstrated that an employer may not base his or her employment decisions on your association with the disabled family member.

The Case: EEOC v. DynMcDermott Petroleum Operations Company

In EEOC v. DynMcDermott Petroleum Operations Company, an employee worked for DynMcDermott (DM) as a planner and scheduler. He was laid off in 2003, but was later encouraged to reapply in 2007 after his wife developed terminal cancer. He applied, and the supervisor, Ray Wood, identified the former employee as the best qualified candidate. However, the site director, Tim Lewis, believed that the former employee should not be rehired because of his wife’s cancer, which would require him to spend time at home, and because he believed DM had too many older employees already. At the time the former employee was 56.

The site director then sent an email to the former employee explaining that even though others had wanted to hire him, he could not be hired because of his age, health problems, wife’s cancer, and former attendance problems. Wood told Lewis that the actions were illegal; Lewis disciplined Wood for insubordination as a result. But Wood nevertheless scheduled an interview with the former employee, who was allegedly the only qualified applicant. Nevertheless, another applicant, who was 34 years old was also interviewed and received the job offer.

A Violation of the Americans with Disabilities Act

The Equal Employment Opportunity Commission (EEOC) then brought a lawsuit on the former employee’s behalf, alleging the DM had violated the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act. During the lawsuit, the site director admitted that when the employee worked for DM he had not had attendance problems.

DM first won the case at the district court, which based its ruling on the fact that Wood made the actual hiring, rather than Lewis. However, the 5th Circuit Court of Appeals reversed the decision, requiring the case to go to a jury because as Wood’s supervisor, Lewis exercised a significant amount of influence over Wood. The 5th Circuit believed that it was enough that Lewis mentioned the former employee’s disabled wife and age as factors in the decision.

This case demonstrates that one does not need to be disabled in order to qualify for protection under ADA. Association with a disabled person is enough to qualify for protection. To learn more about your rights under disability discrimination law, contact California employment attorney Michelle Baker today. Call us at (858) 452-0093 or use our online form to schedule your Free Consultation.

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