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.

#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.

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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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When is Reasonable Disability Accommodation Required?

Disability Discrimination , , , , ,

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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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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When Obesity Discrimination is Illegal Disability Discrimination

Employee Discrimination , , , , ,

In certain California cities, including San Francisco and Santa Cruz, city officials and government contractors cannot discriminate against employees and job applicants based on their weight. In some situations an individual struggling with obesity can file a lawsuit under federal law when an employer or potential employer makes a decision against them based on their weight. However, note that under California law, weight and obesity discrimination is generally not illegal without additional physiological complications.

Protection at the State and Federal Levels

Both federal and California law protects individuals with disabilities or perceived disabilities from discrimination. At the federal level, the Americans with Disabilities Act (ADA) is an anti-discrimination law that defines disability as a condition that substantially limits one or several major life activities. In some cases Obesity might be classifiable as a disability under ADA. The department responsible for implementing ADA, the Equal Employment Opportunities Commission (EEOC), won a settlement against an employer in 2012 after a federal court agreed that obesity impairs major life activities including walking, digesting, and bending. See EEOC v. Resources for Human Dev., Inc., 827 F. Supp. 2d 688, 694 (E.D. La. 2011).

By comparison, California law is generally stricter than federal law. Under California employment discrimination law an employee must also show that if a major life activity is impaired, that the impairment is due to a physiological condition. This means that obesity must result from a physiological disorder to be considered a disability under California law; it must not merely be a condition resulting from an individual’s voluntary action or inaction.

The Importance of Proving Your Physiological Condition

As a result, California courts have been much more reluctant to allow obesity to be claimed as a disability than Federal courts. For example, in the case of Cassista v. Community Foods, Inc, 5 Cal. 4th 1050 (1993) a woman struggling with obesity applied to work at a grocery store. The store rejected her application and told her that they were concerned she would not be able to perform the necessary functions of the job because she was obese. The woman sued the store under California disability law, but the Supreme Court of California held that the woman failed to show that she had an underlying physiological disorder that caused her obesity or that the store believed she had such an underlying disorder.

When employers discriminate against job applicants or employees due to a disability the employer may be subject to liability. If you think you have been discriminated against in any way, find out how to get the justice you deserve by contacting experienced employment lawyer Michelle Baker today. Call (858) 452-0093 now to begin your free case evaluation.

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Supreme Court Limits Employee Retaliation Cases

Employee Discrimination , , , ,

Natl Origin DiscriminationThe U.S. Supreme Court decided a case that will have a significant impact on retaliation cases under Title VII of the Civil Rights Act of 1964. Generally, an employee can sue an employer if the employer made a decision about the employee and the motivating factor was based on race, color, religion, sex, or national origin under federal anti-discrimination law, even if motivating factors were also present. However, the language of the statue does not specify that the same language regarding the decision being only a “motivating factor” applies to cases of retaliation. A charge of unlawful retaliation can be brought “because [the employee] has opposed any practice made an unlawful employment practice by [Title VII], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].”

Up until now, courts have been split as to whether to interpret the cause of retaliation in the same way the cause of a direct discrimination act.

The Case: University of Texas Southwestern Medical Center v. Nassar

In the case of University of Texas Southwestern Medical Center v. Nassar, Nassar, a doctor of Middle Eastern heritage complained that he had experienced harassment due to his race. However, after he made the complaint he alleged that he suffered retaliation from his employer because of his complaints. He filed a retaliation lawsuit and won based on the jury instruction that the complaint he made only needed to be a motivating factor for suffering retaliation. The employer appealed the decision all the way to the Supreme Court.

The Supreme Court found that the law governing Title VII was originally based in the law of personal injury (Tort law). Tort law generally requires that a party prove that if it were not for the act of one party, the damage would not have resulted. As a result the court concluded that the lesser motivating factor requirement was incorrect. The court found that the correct standard is the higher, “but-for”, standard.

What The Ruling Means:

This finding essentially means that an employee must show that retaliation occurred because of an employee’s complaint. If there were other legitimate motivating factors for an employer’s actions after the complaint, the employer can escape liability for retaliation. This ruling will affect a wide variety of retaliation claims, including sex discrimination, race, and potentially even other discrimination law that is based on Title VII.

Employment discrimination law is a complex area that involves both employment and tort law. Having an experienced employment attorney on your side is vital to a successful discrimination lawsuit. The employment lawyers of Baker Law Group, LLP can help you if you have been wrongfully discriminated against. To schedule your free consultation call (858) 452-0093 today.