covid 19 vaccination exemption requests denialIt is disappointing, to say the least, that so many employers in California continue require all of their employees to be “fully vaccinated” or be fired, given that we have now known for quite a while that the MRNA vaccines don’t prevent infection or transmission, and they are also most definitely not risk free. Moreover, the same employers continue to routinely deny their workers’ medical and religious exemption requests in violation of California Fair Employment and Housing Act. According to a recent data, for instance, Marin County apparently only granted 11 such exemptions out of hundreds requested by their employees.

Many lawsuits for these unlawful exemption denials have already been filed all around the country. We also hope to be involved in as many such cases as possible, in order to participate in this extremely important fight against continuing, unscientific and unlawful coercion.  We foresee that it will be particularly difficult for employers to justify denying an exemption to workers who are expected to work remotely, especially if they remote indefinitely. What rational basis can there be to insist that a worker, who never comes in physical contact with his co-workers or clients / customers, be vaccinated, and how is it that employer’s business?

Some employers deny exemption requests for political / partisan reasons. That is, they are already unhappy that the same employee chose not to get vaccinated, so now they are trying to make his life more difficult by unreasonably denying an exemption. If this type of spiteful motive is proven in court, it will make that employee’s case much stronger.

doing your own legal researchDespite the wide availability of legal information online that allows you to research just about any legal issue on your own, you should treat any such information you find on the internet with a grain of salt, and this is for two key reasons:

(a) Your own research will reveal what you theoretically can do, but this doesn’t mean that this is what you actually should do, i.e. this doesn’t mean that practically taking the step you can take is in your best interest. For instance, let’s say you feel harassed at workplace and you learn online that you have the right to file a harrasment complaint with your HR. But does this mean that you should do it? And if so, when? More importantly, can you afford the risk of being retaliated against and possibly losing that job? You are not going to find answers to these questions online, because none of the resources that are out there on the interent can take your own unique circumstances into consideration.

Here is another, even more obvious example – you were rearended very, very lightly on the road, where the driver at fault basically lift a small scratch on your already less than perfect bumper. Legally, you can bring claim against that driver for negligence, but is this worth trouble, given the potential of receiving such modest compensation? Again, your legal research will likely not provide you with what you should do in your specific situation.

personal liability for wage violations 558.1Under California Labor Code section 558.1, any employer or other person acting on behalf of an employer, who violates, or causes to be violated, any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission, or violates or causes to be violated labor code sections 203, 226, 226.7, 1193.6, 1194, or 2802 may be held liable as the employer for such violation. For purposes of this section, the term “other person acting on behalf of an employer” is limited to a natural person who is an owner, director, officer, or managing agent of the employer, and the term “managing agent” has the same meaning as in Civil Code 3294(b).  White v Ultramar, Inc., 21 Cal.4th 563, 573 (1999). This law was enacted to discourage business owners from rolling up their operations and walking away from their debts to workers and starting a new company. Voris v Lampert (1999).

It’s important to note that an individual could not be liable under section 558.1 simply by virtue of his status as an owner, director or officer but he must have been “personally involved” in the alleged violations or “engaged in individual wrongdoing”. Usher v White 64 Cal.App.5th 883 (2021). The Usher court noted that there is no bright-line rule when it comes to finding individual liability, and this determination requires an examination of the particular facts of each case. The Espinoza v Hepta Run Inc. (2022) case in instructive. There, the court found that the company owner’s approval of the policy regarding paying employees was sufficient to show that he caused labor code violations and therefore could be held personally liable, even if the same owner was not involved in day to day business operations.

covid-19 related accommodations at workplaceCalifornia employers may need to evaluate new kinds of potential disabilities and requests for accomodations as a result of Covid-19. One possible scenario is an employee’s claim that  Covid-19 infection itself is a protected disability as opposed to a temporary illness such as influenza. Employees may also claim that fear of contracting the virus is a disability that must be accommodated. If the employee’s fear is based on an unerlying, qualifying disability that puts an employee at increased risk of severe illness from Covid-19, the employer may need to consider whether reasonable accomomdation is available to address this hightened risk.

Some workers may claim that an employer’s vaccination requirement should not apply to them because of a current medical condition or fear of having an allergic reaction or injury from the vaccine. Employer who require workesr to wear masks or other PPE may be asked to make exceptions to those policies as well. For example, an employee with a latex allergy may seek an accommodation of waering non-latex gloves. Whate the scenario, the same legal principals apply. An employer may require that an employee provides medical information confirming having a disabile condition.

If an employee doesn’t have a disability or sincerely held religious belief  for not being vaccinated, there is no obligation on the part of his employer to honor any request for exemption from the vaccination requirement. California employers that do require vaccinations (except for those employing 25 or fewer employees) must provide supplemental sick leave for time spent to receive a vaccine and for any time the employee can work as a result of symptoms related to a Covid-19 vaccine. Employers are allowed to aks why an employee has missed work, and whether the employee is expeirencing Covidf-19 symptoms.

Employees and ewhite privilege anti-racist trainingmployers should know that in many cases implementing and promoting “anti racist” training in the office that demonizes any race, including white race, is every bit as discriminatory and unlawful as any other type of illegal discrimination under California law. Employers should be careful not to push the “white privilege” idea on their workers because this can backfire in a significant way, and not only lead to litigation, but also cause an embarrassment to the company as a whole.

There is nothing potentially wrong about making seminars or information in written form available to emploeyees who wish to enrich their understanding of race related issues at workplace, as long as this informaiton doesn’t single out and doesn’t target any specific race more than others. Even thought mandatory DEI (diversity, equity and inclusion) training sessions haven’t been subjected to significant legal challenges so far, these types of events can be used as evidence of racial discrimination and racial harassment at workplace, if the content of those events demonize one race more than others. This includes being forced to acknowledge one’s race based privilege.

Employees who feel uncomfortable participating in these types of events should consider seeking help from their human resources department, upper management or an attorney.

To prevail on a claim for intentional interference with prospective economic advantage in California, a plaintiff must plead and prove (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) the defendant’s intentional acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff  caused by the defendant’s acts. Youst v. Longo

(1987) 43 Cal.3d 64, 71, fn. 6.

Does company “A” have a claim for intentional interference with economic advantage under California law, when company “B” induces Company “A” at-will employee to leave them and switch to work for Company “B”?

on-call payThe California on-call pay laws are largely based on balancing fairness between employees and employers. Generally, hours for which an employee has been hired to do nothing while merely waiting for something to happen are hours subject to the control of the employers, and constitute hours worked. (Armour & Co. v Wantock (1944); Skidmore v Swift (1944)). In the case of “standby” or “on-call” time, if the restrictions placed on the time of employee are such that the employee is unable to effectively engage in personal activities, the time is subject to the control of the employer and constitutes hours worked. (Madera Police Officers Association v. City of Madera (1984)).

The determination whether standby time is “controlled” such that it constitutes compensable hours under California law is a multi-factor analysis, set in the 9th Circuit case Berry v County of Sonoma (1994). These factors are:

  1. The geographic restrictions on the employee’s movements;

reasonable accommodation requestBoth California employees and employers must know that an unprotected medical leave without a promise of reinstatement is not an accommodate under California disability laws. An accommodation by definition is a change or adjustment which allows disabled individuals to perform their job. A leave of absence without a corresponding right to return to work is not an accommodation but rather a delayed termination. Burnett v US Air, Inc., 228 F.3d 1105, 1114-5 (9th Cir. 2000). After all, it has been expressly held that requesting an accommodation to a qualifying disability as a protected activity. Head v Glacier Northwest, Inc. (9th Cir. 2005).

All too often, employers “accommodate” an employee by allowing him to go on medical leave and then, upon return, try to get rehired by searching for open, available positions within the company at the time of his return.  In many cases, this practice unlawful, as it’s tantamount to terminating an employee and then allowing him the opportunity to apply for an open position, just like any other candidate.  On the other hand, offering a vacant position may be a reasonable accommodation, even if the position pays less than the disabled employee’s former job,   if he or she can no longer perform the former job’s duties. Gov. Code 12926(p).

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