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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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Hourly Employees Eligible to Sue for Unpaid Overtime

Unpaid Wages , , , ,

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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Sleeping On The Job Must Be Paid For Security Guards

Unpaid Wages ,

Employees must be paid for time worked. However, this rule gets tricky for certain classes of employees who work long shifts. For example, security guards are commonly required to stay during long shifts that can stretch for 16 or even 24 hours. Some companies allow security guards to sleep while on shift, as long as they remain on call. A recent case before the California Court of Appeals explains how this can work in the case of Mendiola v. CPS Security Solutions, Inc.

The Case of Mendiola v. CPS Security Solutions

In Mendiola the employees provided security guard services for CPS Security. The employees were assigned to construction sites where they operated out of residential trailers for 16-hour regular shifts and 8-hour on call shifts during the night. During the night shifts, CPS only provided compensation for time spent conducting investigations, meaning that any time they spent not conducting investigations, but being on call, was uncompensated.

The employees filed a class action lawsuit to recover wages for their time spent being on call. The trial court granted the employee’s requests. The employer appealed. The California Court of Appeals said that the guards performed an important function for the employer and its clients by deterring theft and vandalism. Further, the guard’s ability to engage in their private wishes was “substantially restricted” because they did not enjoy the typical freedom of an off-duty worker.

Although federal wage and hour regulations do not require that employees who reside on work grounds be compensated for the time they are on the premises, the court declined to adopt that provision into California law.

Receiving Compensation for Overtime

The takeaway point is that just because an employee is not technically working during a shift, if they are on call and remain at the workplace they should be compensated. However, employers in these situations generally require employees to exclude a total number of 8 hours for sleep time that may take place during the job.

If your employer has not paid you the full amount you have earned, you may be able to recover your unpaid wages with a lawsuit. To learn more about your legal options contact the experienced California wage and hour attorneys at Baker Law Group, LLP. Call (858) 452-0093 today for a free consultation.

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Wrongful Termination Claims: Sparks v. Vista Del Mar

Wrongful Termination , ,

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.