Fact Check Your Paycheck: Sorting Through Common Pay Issues

Employee Discrimination, Unpaid Wages, Wrongful Termination , , , , ,

Paychecks can be confusing. There are many factors that go towards your final paid amount. Some of the most common pay issues arise through unique changes to your paycheck. Whether that is commission payments, raises, or termination final payments, there are precautionary steps you can take to prepare yourself to understand what you are entitled to.

Although every circumstance is different, take the following steps at the beginning of your employment or as soon as possible to define how each situation would affect your paycheck and what you can expect.

Address It in Advance

Although addressing pay with your employer can feel uncomfortable, it is important to ask any questions you have directly. Work with your employer to make sure any questions are addressed in writing. If you will be working under a commission pay structure, make sure you determine the commission rate and when you are to be paid the rate. If you are offered a raise, take the time to determine what that means. Are you able to receive a raise in payment form only or can you receive it in the form of additional paid time-off days? Finally, one of the most uncomfortable conversations to have is if you are to be terminated, what is offered to you? How will you receive your accrued paid time-off and your final paycheck?

Asking the questions in advance provides you the knowledge to address any potential issues that may occur during your employment.

Know the Laws and Your Rights

We know you are not a lawyer, but it is important to educate yourself with the applicable laws that may protect you and your paycheck. If you are concerned about a situation and worry there may be some misuse of your time, money, and compensation, take the time to learn. If you need to address your employer, having the correct knowledge will allow you to protect yourself. The California Department of Industrial Relations is an excellent resource and can be found at: https://www.dir.ca.gov/iwc/wageorderindustries.htm

Speak Up

If you feel like you are not being properly compensated based on your discussed employment, be sure to stand up for yourself. You work hard and deserve your compensation. If your employer is not respecting your concerns or dismissing your rights, contact a lawyer and determine your best plan.

Asking the right questions at the beginning of your employment will provide you with the information and formalities to protect you from any mistreatment. However, if you find yourself unsure, it is important to educate yourself and be sure you have the tools to successfully stand up for yourself.

Contact us today at info@bakerllp.com or (858) 452-0093 if you have any questions regarding your compensation as an employee or if you are concerned about your paycheck.

You’re Expecting: Know Your Rights as a Mom-To-Be

Disability Discrimination, Employee Discrimination , , , , ,

Whether you are first time mother, or a master at raising kids, being pregnant is an exciting and uncertain time. As you are preparing for the arrival of your child, settle your worries by knowing your pregnancy leave rights and ensuring your employment is protected while you are away.

While you are planning for pregnancy leave, consider the following: How much leave is available to you? When can leave be taken? What reinstatement rights apply? What type of pay is provided during leave? Some of these questions can be answered through California law and some are decided by your employer.

California employees are protected by three laws for their leave when pregnant and after giving birth. These laws are California’s Pregnancy Disability Leave Law (PDLL), The California Family Rights Act (CFRA), and Federal Family and Medical Leave Act (FMLA).

So, which laws apply to you, and what do they offer?

Pregnancy Disability Leave Law

The law that is often referred to first is California’s Pregnancy Disability Leave Law (PDLL). PDLL applies to most employees and provides the best job protection. If you work at a company with at least five employees, PDLL applies to you. This law protects you starting on your first day of employment, whether you are full or part-time. PDLL requires that employers must reasonably accommodate any pregnancy related disabilities and allows for up to four months of pregnancy disability leave. PDLL falls within the California Fair Employment and Housing Act (FEHA) and therefore requires allowance of extended reasonable pregnancy disability leave unless the extension would cause undue hardship on the employer.

California Family Rights Act

An additional protection is the California Family Rights Act (CFRA). CFRA applies in more limited circumstances and affects companies of 50 employees or more. In order to qualify for CFRA, you must have been hired at least 12 months prior and worked at least 1,250 hours of work during that time. CFRA is bonding leave and will not eliminate your access to PDLL. With CFRA, you are provided with 12 additional work weeks of leave that can be taken at any time. CFRA and PDLL protection cannot be used concurrently.

Federal Family and Medical Leave Act

Finally, Federal Family and Medical Leave Act (FMLA) is a federal law and is not as protective as PDLL and CFRA. FMLA is only required of companies that employ at least 50 employees. Just like CFRA, you must have worked 12 months and at least 1,250 hours in order to for it to be available. However, FMLA provides protection for serious health conditions related to pregnancy for 12 weeks. FMLA runs concurrently with CFRA.

Simply understanding how you are protected through California’s laws is not enough to be fully prepared and confident in your leave. You should also speak with your employer to understand company-specific pregnancy leave policies. The California laws do not entitle you to your continued salary during leave unless your employer also provides paid leave to other temporarily disabled employees. Work directly with your supervisor or the human resources department to learn about your company’s policy on pregnancy leave.

Expecting is stressful enough, don’t let work leave add to it. If you have any concerns about your workplace policies, how you have been treated as a pregnant woman, or anything regarding workplace pregnancy leave, reach out to us today.

#MeToo is for You, Too: Part 2

Employee Discrimination, Harassment , , , , ,

The #MeToo movement is working towards eliminating harassment or assault from daily concerns. While many companies are striving towards more transparent workplaces, some still struggle to provide harassment or assault protection resources for their employees and colleagues. Changes being made within the workplace to end harassment reach much farther than sexual harassment; because of the #MeToo movement, systems are evolving to protect against many forms of harassment.

It is unlawful employment practice in California for an employee to “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Government Code 12940(k).) You have the right to take action to ensure your workplace meets the standards of the U.S. Government in protecting you and other employees.

The hardest part about moving forward is finding the next steps to take. Here are three next steps if you are concerned about a situation in your workplace.

  1. Contact an attorney.

It is important to contact an attorney before moving forward. Attorneys are up to date on local, state, and federal laws that will apply to your specific case. Your attorney will work with you on every step along the way and will provide key instruction to ensure your success in communication and steps forward.

  1. File a Claim.

Provide as many details and examples of the incident(s) to your attorney. All details will be helpful in compiling a full report and providing examples of all work place policy discrepancies to win your case. Your attorney will use this information to write a claim showing fault and intent for action.

  1. Fight for Your Rights.

Once your claim has been sent and received, the next steps can be variable. Whether the threat of a claim is enough to solve your problem, or you must file a lawsuit, you have begun your journey towards fighting for your right to be supported and protected against harassment.

Harassment in the workplace can be a difficult subject to approach, especially if there are no support systems in place to protect you and your job. Luckily, there are many resources for you to utilize and a lot of support backing the end of harassment today.

If you have any questions regarding harassment, protective systems provided by your employers, or specific cases, we are happy to answer your questions or set up an appointment with you today. Visit www.bakerlawllp.com for more information.

#MeToo Is For You, Too

Employee Discrimination, Harassment , , , ,

If you’ve had access to a smartphone, computer, television, or even a newspaper in the last year, it is no surprise to you that harassment is prevalent in the news and not to be taken lightly. The #MeToo movement has surfaced unfortunate truths of what can take place in public areas, at home, or even at work. People are standing up for themselves and all industries should be working towards creating a safe space that holds people accountable and protects employees.

 

Movements like this are eye-opening for employers and employees. It begs the question, what constitutes harassment and what are our rights?

 

Luckily, there are measures you can take to protect yourself. To begin, we will start by defining harassment.

 

According to Roby v. McKesson Corp (2009), harassment “refers to bias that is expressed or communicated through interpersonal relations in the workplace.”

 

There are multiple types of harassment in the business world, but some of the most common are sexual, racial, and gender. So how do you keep this from happening to you?

 

Here are five simple questions you can ask and steps you can take to protect yourself from harassment within your work environment.

 

  1. What is the written policy regarding harassment?

Ask your employer if there is a written harassment policy. If so, familiarize yourself with the policy and related resources. If not, work with human resources or your superior to request the creation of a written policy. Allowing full transparency of the policy will allow all employees, including yourself, to feel comfortable with knowing what you are protected from and what is considered inappropriate behavior that should be brought to light.

 

  1. Is the complaint process clear and comfortable?

Understand the steps needed to file a harassment complaint. Speak with your employer to determine the best point of contact and to identify an option who is not your direct superior. It is important for you to know you can speak with a member of the company who is not your direct supervisor. Filing a complaint is stressful and the additional stress of approaching a superior can be enough to deter you from speaking up, causing further problems.

 

  1. Is there a thorough, fair, and timely investigation process?

If there are no systems to protect you in the workplace, you may not be taken seriously or cared for. Speak with your employer or superior to determine set protocols. If there are none, contact human resources to request the outline of an investigation process in writing.

 

  1. Will you have confidentiality and protection if you speak up?

No matter the situation, this is a sensitive subject for all parties involved. Confidentiality is key to providing the support necessary for you and allows you to feel comfortable and safe through the process. It could also protect you from opinions and criticism that may result in increased harassment by co-workers. You have a right to feel safe from judgement or further harassment through the reporting and correction process.

 

  1. Will your company/employer follow through with action?

The most important step is to confirm the processes are in place that leave you confident your company or employer will take every incident seriously and will take the necessary steps to protect you. If you are ever in an incident of harassment, your company should assure you of their value of you as an employee and person and demonstrate the necessary steps to insure your safety and protection.

 

The #MeToo movement has inspired change and a voice for this ongoing problem within the workplace. You, too, can step up to prevent harassment in the workplace. Follow these five steps, ask the right questions, and work with your company or employer to perfect your prevention plan.

 

If you are concerned about the resources offered by your company to protect you from workplace harassment or if you have experienced harassment and need additional support outside your company, reach out to us today.

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Claiming Punitive Damages in Discrimination Lawsuits

Disability Discrimination, Employee Discrimination , , , , , ,

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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Organ Donors Eligible for Disability Benefits

Disability Discrimination, Employee Discrimination, Wrongful Termination , , , , , ,

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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EEOC Disability Guidelines: Part 2

Employee Discrimination , , , , ,

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

Employee Discrimination , , , , ,

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?

Employee Discrimination , , , , , , , ,

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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EEOC Wins Case for Man With Disabled Family Member

Employee Discrimination , , , , , , ,

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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