Disability Discrimination Lawsuits Do Not Necessarily Result in Termination

One of the most easily misunderstood topics in discrimination law—including disability discrimination and retaliation lawsuits—is what actions actually constitute discrimination. In regards to disability discrimination, the Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA) offer two different definitions for discriminatory actions.

Discrimination According to FEHA

FEHA specifically lists actions that would be discriminatory under Government Code Section 12940, subd. (a). It includes all of the following employer actions that may be motivated by an individual’s perceived disability:

  • Refusing to hire;
  • Refusing to train for a program that would lead to employment;
  • Firing from a job or training program that would lead to employment;
  • Or discriminating in the terms of employment including compensation, conditions, or privileges.

Discrimination According to ADA

ADA, on the other hand, leaves the definition of “discrimination” open to more interpretation. ADA’s list of discriminatory acts includes the above list, but also includes discrimination in regards to job application procedures and job training. Additionally, Section 12112 of ADA forbids acts based on a job applicant’s disability that limits, segregates, or classifies the job applicant in a way that would “adversely affect the opportunities or status” of the applicant.

DisabilityAn Example from the California Court of Appeals

The California Court of Appeals recently reviewed a case that showed the limits of what an adverse employment action could be under California law. In the case of Jeffrey v. Temple City, 2013 WL 501426, (Feb. 11, 2013) an employee, Randolph Jeffery, brought a disability discrimination claim under FEHA. Jeffrey was a custodian for the Temple City School District who claimed that he was terminated from the school district after receiving a serious injury from a car accident. Jeffrey claimed that he was terminated directly because of the disability he received in the car accident.

However, the School District argued that it did not in fact terminate Jeffery. Rather, they sent Jeffrey a letter saying that he would be placed on a 39-month rehiring list, and that at the end of the 39 months Jeffrey would be rehired. However, Jeffery said that he believed that he was being terminated because the title of the letter he received read: “RE: Termination of Employment.” Ultimately, the court held that getting placed on a rehiring list in this case was not an act of discrimination, because Jeffrey could not prove that he could do his job duties with reasonable accommodation, and being placed on the list was not actually a termination because he was to be rehired at a later date.

The Jeffrey case demonstrates the limits of what a discriminatory action can be, but it also demonstrates the importance of getting legal advice as soon as possible to help you understand the full extent of your rights. If you have been the victim of discrimination contact an experienced attorney right away. Contact the experienced California attorneys of Baker Law Group, LLP today for a FREE Consultation.


Pregnant Mothers May be Entitled to More Than 19 Weeks Leave

Pregnancy DiscriminationAn Overview of Pregnancy Leave Law:

Pregnancy Disability Leave Law (PDLL) and the California Family Rights Act (CFRA) allow women to take disability leave while pregnant and after delivery. However, even with the above-mentioned leave afforded by both acts, some women experience complications or unique situations that keep them from returning to work before the statutorily imposed time frames.

According to the California Court of Appeals, some women may now be entitled to even more pregnancy leave.

Sanchez v. Swissport

In the case of Sanchez v. Swissport, Inc., Cal. Ct. App. Feb. 21, 2013 an employee, Ms. Sanchez, was diagnosed with a high-risk pregnancy that required extended bedrest. She applied for and pregnancy leave and was granted 19 weeks of leave from her employer as required by PDLL. However, Ms. Sanchez was still unable to return to work after the leave period expired and still had 3 months to go before she could return to work. As a result, her employer terminated her position. Ms. Sanchez then filed a lawsuit based on gender discrimination, citing the employer’s failure to engage in the interactive process to determine whether she could be provided with reasonable accommodations.

Her employer argued that it was not required to provide Ms. Sanchez with additional leave because she had exhausted all leave that was required by PDLL and CFRA. However, the trial court disagreed. The employer appealed and the California Court of Appeals upheld the decision that the employer was wrong.

The Role of FEHA and CFRA

The Court ruled that simply providing 4 months of leave under PDLL does not entitle the employer to avoid the separate requirements of the Fair Employment and Housing Act (FEHA), in which an employer must provide reasonable accommodations to employees with disabilities. Ms. Sanchez argued that she would have been able to return to work shortly after delivery and that it would not have been an undue hardship on her employer. The court agreed that this in theory could have been a reasonable accommodation.

Although the court did not address the issue of CFRA, it is worth mentioning that after giving birth an employee is entitled to up to 12 weeks of leave under the CFRA in order to care for a new child.

If your employer or former employer has taken action against you or terminated you after taking pregnancy disability leave, you may be entitled to a lawsuit to recover your wages and other damages. To learn more contact the experienced California Employment Law attorneys of Baker Law Group, LLP.  Schedule a free consultation by calling (858) 452-0093 today.


When Unpaid Interns are Eligible to Collect Unpaid Wages

With many unemployed entry-level professionals and students seeking work in today’s economy, many young professionals are turning to unpaid internships. These internship opportunities are intended to provide a “foot in the door,” along with the experience that will enable the launching of a paid career.

However, not all employers legally qualify to allow interns to work without pay. The Department of Labor has outlined six criteria for determining whether an individual may be eligible to participate in an unpaid internship at a for-profit company.

1. First, the internship must include similar training as would be given in an educational environment.

This does not necessarily mean that the employer must provide formal training in a classroom setting, but the intern should enjoy a good deal of training during the program. Ideally, an unpaid intern’s time would be split between work and training.

2. The experience of the internship must primarily benefit the intern, rather than the employer.

This is probably the most difficult part of the test for private employers to pass. The surge in the number of unpaid interns is not a benevolent phenomenon. The fact that the economy is so tough at the moment means that some employers try to take advantage of the oversaturated job market in order to cut their own costs. A true internship should provide interns with transferable skills, rather than having them engage in less meaningful work such as filing documents or fetching coffee and mail.

3. The intern may not take over the duties of a regular employee and must work under close supervision of the staff.

An employer simply cannot lay off regular employees just because they know that they can hire unpaid interns to do the same work at no cost.

4. The employer may not receive an immediate advantage from the intern’s activities.

This means that the employer’s operations should be reasonably impeded from time to time due to the engagement with the intern. For example, by taking time out of the normal schedule to provide the intern with reviews, or formal training and mentoring.

5. The internship is not contingent on a job offer at the end of the term. In other words, a job is not necessarily available at the end of the term.

Although the intern should be able to receive employment at the end of the internship, the Department of Labor wants to avoid setting a trend that would allow employers to require their employees to work for a short time unpaid in order to get a paid position.

6. Finally, both the intern and employer have to both understand that the intern is not eligible to receive wages for the internship.

This is usually not the biggest issue: with so many individuals looking to distinguish themselves in anyway they can from their colleagues, many interns are more than happy to forgo pay. The problem arises when the employer takes advantage of the intern’s inability to get a job by making them perform work that directly benefits the employer without pay.

If your employer owes you unpaid wages due to contradiction of the Department of Labor rules above, contact the experienced California employment attorneys of Baker Law Group, LLP. Call us at (858) 452-0093 today to schedule your free consultation.


Recovering Damages in Disability Discrimination Lawsuits

When an employer illegally discriminates against a disabled employee, the employee is entitled to a wide array of damages. A major issue in many disability cases involves calculating and proving damages. These issues are sometimes not fully fleshed out until trial. Although many individuals are discriminated against, and file claims against their employers, less than 5 percent of cases actually go to trial. This means that damages are decided either by the court on a motion or by the parties through settlement and other alternative dispute resolution means. This is usually a good thing for the employee because it means they can save significant time in their case.

Disability discrimination cases are brought either under the Fair Employment and Housing Act, the Americans with Disabilities Act, the Rehabilitation Act, or bring a claim for wrongful termination. Although an employee can allege violations of all these laws at the same time, they can only recover from such claims under one of the above theories. This post will focus on remedies under the Fair Employment and Housing Act (FEHA).

Fair Employment and Housing Act

Under FEHA, employees can receive back pay for wages they should have been paid for the past 2 years from the time of the illegal action of discrimination until the date of judgment. This is also the case if the employee is reinstated or is no longer available for reinstatement, because the employee got a new job. Front pay may also be also available. Front pay is designed to compensate the employee for wages he or she would have earned after judgment, up until the court determines that the employee has recovered from discrimination.

Employee Responsibilities

However, an employee has a duty to mitigate damages. An employee can mitigate their back or front pay damages by looking for suitable employment. An employee may have to show the court that they have been making a reasonable job search. Further, some income sources may be deducted from back pay, such as severance pay received. Unemployment or other similar state benefits would not be deducted.

Emotional Damages

Emotional distress damages can also be recovered, and these damages are potentially significant. However, once an employee or job applicant puts their emotional state at issue in the litigation, it opens the door for a wide range of questions involving the employee’s emotional state, and can involve the hiring of experts to determine the truthfulness of the employee’s claim for emotional damages.

Punitive Damages

Punitive damages are possibly available in a FEHA case against private employers, but these damages are more difficult to prove than other damages because they require that the employer acted with malice, oppression, fraud, or a conscious disregard for the plaintiff’s rights. Punitive damages are not available against a public employer. Other damages may also be available in FEHA cases, including compensatory damages.

If you have been discriminated against due to your disability or perceived disability, contact a California employment law attorney right away. You may be entitled to a lawsuit or settlement. Contact the experienced California Employment Law Attorneys of Baker Law Group, LLP. Call (858) 452-0093 to schedule your free consultation.


Ninth Circuit Says No Cause Termination Can Be Wrongful Termination

The Ninth Circuit recently released an opinion that upholds the burden of proof that an employer must claim in retaliatory discharge lawsuits. In Westendorf v. West Coast Contractors (9th Cir. 2013) an employee alleged that her male employee and supervisor made sexist remarks towards her. The remarks allegedly included suggestions that the employee wear a French maid’s uniform; and also involved obscene comments about tampons, women’s breasts and orgasms.

The employee made a formal complaint to her company’s president. The president allegedly reprimanded the supervisor but apparently did not seem to take the allegations seriously. The employee then alleged that the supervisor began making strange demands of her and harshly criticizing her for not following them. She complained a second time to the company president, who she says exclaimed that he was tired of listening to her and thought it was ”would be best if she got her personal items and left.” At which point she was escorted off the building. The company president alleges she had quit, but the employee maintained that she was wrongfully discharged for reporting sexual harassment.

Unfair Retaliation

The employee sued the company alleging it had created a hostile work environment and that it retaliated against her for speaking out about it. The district court dismissed the employee’s case on the grounds that she had been unable to prove either claim in the complaint. However, on appeal the Ninth Circuit found that the retaliation claim should not have been dismissed.

The Ninth Circuit held that because the company failed to provide any explanation for the alleged firing except that the employee quit, it could not get the case dismissed. The court highlighted that even if the company defended itself by saying that they fired the employee because of the employee’s failure to follow the strange directions that her supervisor gave her, that the reasoning would be pretextual because the employee had no record of insubordination before she complained about the harassment.

An Important Precedent

This case sets helpful precedent for employees in discrimination and harassment retaliation cases because it shows that when an employer fails to provide a reason for a termination or provides a frivolous reason, the employer cannot get the case dismissed early.

Wrongful termination because of sexual harassment and discrimination is illegal. To learn more about how to exercise your legal rights, contact the experienced California Employment Law Attorneys of Baker Law Group, LLP. Call (858) 452-0093 to schedule your free consultation.


Is Failure to Pay Wages Equal to Wage Theft?

California and Federal law requires employees to be paid for work performed, in the amount of at least the minimum wage, as well as any applicable overtime. Unfortunately, many employees are not paid at the rates they should be. Many believe that when employers do this, it is tantamount to stealing their workers wages because the employees have rightfully earned them, making the wages the property of the employee. By keeping this property it is no different than taking the money right out of their wallet.

The California Labor Commissioner in particular is fond of using the expression wage theft. In a recent case the commissioner filed a mechanic’s lien to recover more than $240,000 in unpaid wages from 31 construction workers at a Holiday Inn Express in Eureka California. The construction contractors were not properly licensed contractors, and had been purposefully misclassified as independent contractors in order to avoid properly paying them for every hour worked and to avoid paying overtime.

This action was taken as a part of the Labor Enforcement Task Force (LETF), an agency formed by members of the Labor Commissioner and Cal-OSHA offices to tackle labor and employment law violations in the underground economy. The complaint against the employer was first filed to the LETF by the local Carpenters Union.

The investigation also uncovered significant workplace safety violations, including unsafe scaffolding, ladders, and training, which totaled up to $27,000 alone in workplace safety citations on top of the $247,681 in unpaid wages. One reason the amount of unpaid wages was so high for workers on this single project is because the workers were paid with checks that bounced, and the employer also violated meal and rest break requirements.

The mechanic’s lien placed on the property will be used to ensure that the workers will be paid for all the time they are owed, and that the fines and assessments for the violations of the labor code are also paid off.

This case shows the problems of working in the underground economy. Business who try to operate under the radar of regulatory agencies often do so in order to cheat their workers and avoid paying income taxes. If your employer has committed wage theft against you, contact the experienced California employment attorneys of Baker Law Group, LLP today. Call (858) 452-0093 to schedule a free consultation.


Unpaid Overtime for Personal Attendants and Caregivers

This year the California Court of Appeals clarified the standard for when a caretaker is eligible to receive overtime. California law allows employers to avoid paying overtime to persons employed as “personal attendants.” Personal attendants perform tasks such as dressing, feeding, and supervising their clients. However, what if the personal attendant performs more tasks than these?

In Cash v. Winn, 205 Cal.App.4th 1285 (2012) the court examined this issue. The plaintiff in this case, Joy Cash, was employed by Iola Winn. Ms. Cash was not a licensed nurse, but cared for the 90 year old Ms. Winn as her personal assistant. However, after she stopped working Ms. Cash sued Ms. Winn for unpaid overtime. Ms. Winn claimed that Ms. Cash was only a personal attendant, and was thus exempt from California overtime requirements. The case went to trial and in a special verdict the jury found that Cash was actually more than a personal attendant because she had engaged in regular health care related services such as taking blood pressure and administering medication. Although the jury found that these services accounted for less than 20% of Ms. Cash’s total responsibilities.

Nevertheless, the court sided with Winn on appeal, who argued that the law did not provide an exception to the personal attendant exemption just for the regular administration of health care services. The court found that someone who is not a trained professional will not qualify under the health care services exemption if they perform these duties less than 20% of the time they work.

What Caretakers Are Eligible to Sue for Unpaid Overtime

Although the court ruled that Ms. Cash was not eligible for overtime, it also clarified the types of positions that are eligible. A personal attendant can be eligible to receive overtime if they perform a significant amount of work in addition to tasks such as feeding, clothing, and supervising their clients. If 20% or more of a personal attendant’s time is taken up with other tasks above feeding, clothing, or supervising then the worker may be eligible for overtime.

For example, housework is included in supervision, but personal attendant housework is limited only to the clients’ direct personal space. Any additional housework would count towards finding that the employee is more than just a personal attendant. If the attendant also performed grounds keeping duties as a part of their regular employment agreement, these duties could push them into the caretaker rather than personal attendant category, entitling them to overtime.

Further, a personal attendant who has received special training, including but not necessarily limited to a licensed nurse of any type (professional, registered, graduate, or trained) would likely qualify under the health care services exception of the personal attendant category.

So although the ruling in Cash v. Winn was unfavorable for personal attendants without medical training the case left the door open for caretakers who perform grounds keeping or other non-supervisory duties; and also left the door open for those with medical training to sue employers for unpaid overtime.

If your employer has failed to pay overtime the California employment law attorneys of Baker Law Group, LLP can help. Call us today for a free consultation.


Wrongful Termination Claims: Sparks v. Vista Del Mar

Employers often try to limit employee’s abilities to sue them in court by requiring that employment disputes be resolved through arbitration. Arbitration is a less expensive and less formal method of dispute resolution than the courts. However, arbitration often favors the interests of the employer more than the employee. Because employees do not always benefit as much as employers in arbitration California courts are reluctant to uphold agreements to arbitrate where the employee is only put on notice via an employee handbook. For example, the California Court of Appeals recently held that a policy handbook generally cannot create a binding agreement to arbitrate all employment disputes.

In Sparks v. Vista Del Mar Child and Family Services an employee, Perry Sparks, was hired as a controller, but was fired. Mr. Sparks claims that the reasons he was given for the termination were actually not true, they were merely pretextual. Mr. Sparks alleged that he was really fired because he had filed a complaint against the company for a violation of wage and hour law. Mr. Sparks filed a lawsuit for wrongful termination, unfair business practices, and intentional infliction of emotional distress.

The employer then tried to pause the claims in the court and have them moved to arbitration on the basis that Mr. Sparks had agreed to arbitrate all disputes against the employer. The employer argued that Mr. Sparks had acknowledged that he received the arbitration clause by signing a statement acknowledging that he received an employer handbook that contained the arbitration agreement.

The court disagreed with the employer. First, the court pointed out that the handbook contained a statement that the handbook was not meant to be a contract, so the arbitration agreement within it could not be binding according to the will of the employer. Further, even if the employer had intended the arbitration clause to be binding, the court held that the agreement could not hold up in court because it would take away an employees rights under federal and state law, which is not allowable without providing extra consideration such the right to demand documents from the employer in arbitration.

This case is very helpful for employees because it sets a very high standard as to when an employer can force its employees to arbitrate rather than sue in court. Employees generally lack the ability to bargain with employers to protect their rights any more than the law allows, so employers exploit this by trying to get the employee to voluntarily give up as many rights as they can. Employers think they can get away with this because there will always be someone willing to waive their rights in order to get a job. This case means that employers may not take away an employee’s right to discovery in a wage or discrimination dispute.

Employers May Not Fire Employees Who Assert Their Rights

California employers are not allowed to take any negative action against an employee who has asserted their rights to receive unpaid wages or unpaid overtime. If you have been denied wages or have been fired or demoted for making a complaint against your employer contact the experienced California employment law attorneys of Baker Law Group, LLP. Call us today for a free consultation.

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