california law on vacation payAn interesting case on the vacation policy issue has been ruled earlier this year by the court of appeal. Employees brought a class action suit against their employer claiming that the vacation policy that required them to work for at least one year before their right to vacation vested was illegal. The appellate court affirmed the dismissal of this case holding that the employer’s policy was not illegal, because it specifically provided that vacation pay was not earned during the first year of employment. The employees in this case claimed that the employer intentionally withheld their vested vacation pay.

The appellate court rejected Plaintiff’s argument finding that it was neither illegal not inconsistent with the existing law to impose a waiting period before entitlement to vacation pay vests. Minnick v Automotive Creations, Inc. 13 Cal.App.5th 2000 (2017). The court further emphasized that imposing a waiting time period before allowing vacation to accrue is not the same as taking away vacation which has already been earned / vested (the latter would indeed be illegal). The Minnick case also makes it clear that the language of the vacation policy is critical, and it must clearly state that vacation is not accrued until a certain period passes in order to be legal.

call center nurseCalifornia nurses will get roughly $6 million from health care giant Kaiser Permanente for time spent doing unpaid work.The payout settles a class action filed last year on behalf of 1,397 advice nurses who take calls from patients at three of the Permanente Medical Group’s call centers in Sacramento, Vallejo and San Jose. Debra Brown, Sandra Morton and Barbara Labuszewski sued in September 2016, claiming Kaiser didn’t pay them for time they spent logging in and out of call center computers before and after their shifts. Kaiser doesn’t consider call center nurses clocked in until after the log-in process is complete. Although this might sound like a minor issue, under the law these couples of minutes are compensable. A few minutes a day turn into 30 minutes a week and 26 hours a year that person is being not paid for per year. Each nurse will receive anywhere from $3,000 to $9,500 as part of the settlement. U.S. District Judge Vincent Chhabria also awarded the class’ attorneys fees in the amount of $1.8 million.

This case reminds me of a class action that ATT and other similar providers were for not paying their telephone customers service reps for the few minutes they show up early to start their computers.

cab drivers employees contractors Misclassifying an employee as an independent contractor is an easier mistake to make than many employers believe. The recent case Linton v DeSoto Cab Company, Inc., illustrates this very well. In that case, the first appellate district found that the plaintiff cab-driver was an employee despite having lots of control over how he performed his work, and despite signing the agreement expressing stating that there was no employment relationship of any kind between DeSoto and their drivers. There are a few key, critical, and often overlooked points in the court’s analysis in that case:

First, the court noted that strong evidence of employment relationship exist, when the company reserves the right to discharge at will, without cause. This means that if an “independent contractor” agreement contains language that states in so many words that the so-called contractor can be terminated at any time, for any reason or no reason, a strong presumption of employment will arise. Thus, employers who want to avoid this misclassification issue are advised to make sure that their independent contractor agreements do not contain this at-will language. Of course, not having that language has its downsides and every business should consider the unique and specific circumstances of their workforce needs before deciding whether to include the at-will language or not.

Secondly, the court noted that “liability to discharge for disobedience or misconduct is a strong evidence of control.” This means that if there is a policy that states that a “contractor” can be terminated for not following management’s directives or for some type of violation, this also creates a strong presumption of employment relationship between the parties. This presumption is especially strong if a “contractor” has no opportunity to dispute allegations against him before being terminated.

disability discrimination case against upsOn August 8, 2017, EEOC announced filing a lawsuit against UPS Freight, alleging violations of the Americans with Disabilities Act (ADA). “Employers must treat employees with disabilities the same as those without disabilities when issuing workplace benefits,” said EEOC St. Louis District director James R. Neely Jr. According to EEOC, Thomas Diebold began working at UPS Freight in 2006. Diebold suffered a minor stroke in 2013 and disclosed it to the employers during an annual driver physical examination. He was unable to renew his Department of Transportation (DOT) medical examiner’s certificate until December 2014. During the intervening period, Diebold allegedly was discriminated against.

The company, according to EEOC, had a policy of paying drivers who are reassigned to non-driving work due to a disability 10 percent less than drivers who are reassigned for non-medical reasons. Apparently, this was allowed under the union bargaining agreement. However, EEOC argues that this is not a valid justification for this pay difference. “Employers cannot seek refuge from the reach of the ADA by relying on a union agreement when the agreement itself requires discrimination based on disability,” said Andrea G. Baran, the EEOC’s regional attorney in St. Louis.

The agency seeks monetary compensation for Diebold, as well as injunctive relief requiring the company to change its policies and make sure that it does not treat its employees differently in terms of compensation because of their disabilities. This is a good example of how various policies and agreements cannot supersede the law.

The following are the key points of California law regarding entitlement to a day’s rest after working more than six consecutive days that both employees and employers should know:

  • California Labor Code sections 551 and 552 generally guarantee workers a day of rest after six days of work.
  • A day of rest is guaranteed for each workweek. An employer is not prohibited from employing workers for more than six consecutive days that stretch across more than one workweek.

witness statements in an employment case The importance of witnesses and witness statements in an employment or a wrongful termination case cannot be overstated. Even one witness can make a difference between having a no case and having a case, and between having a weaker case and having a very strong case. This is especially true in harassment case, which often come down to he-said-she-said situation, i.e. where the victim of harassment makes certain allegations against his or her manager, while the alleged harasser denies all or most of the allegations. Although the words of a victim count for something, this puts the judge / potential jury in a predicament: who should they believe?

However, if there was even witness who is willing to come out and testify or sign a one page document stating what he saw, this will likely make a critical difference in your ability to prove your case. This is as important at trial as it is during any type of settlement discussions.  Here are a few common examples where a witness can turn a potentially weak case into a strong case:

(a) Harassment case – an employee claims that her manager was grabbing her by her buttocks and was refer to her on multiple occasions as “cute enough to eat.” That manager denies ever doing or saying the above. However, one witness – co-worker is willing to testify or sign a declaration that she saw that manager grab the complainant by her rear on at least two occasions.

California anti-retaliation laws Unlike many other claims that can only be brought against employers or individual employees, California anti-retaliation laws extend much further. In many cases, a retaliation case can be made in many cases against “any person”.  This certainly applies to FLSA (Federal Labor Standards Act) and many California Labor Code provisions.

In a recently decided case by a 9th Circuit – Arias v Raimondo – the court illustrated that point very well. In that case, a plaintiff, who did not have a lawful authorization to work in the US, brought various wage claims against his employer under FLSA. The employer’s attorney retaliated against the claimant by reporting him to the immigration authorities and by planning for the US Immigration authorities to take him into custody at his deposition. The 9th Circuit ruled that Plaintiff could proceed with his retaliation claim against both  – the employer and the attorney.

Further, the court noted that the FLSA anti-retaliation provision specifically states that liability can be imposed on … “any person”, or “employer” which is defined as anyone acting directly or indirectly in the interest of that employer as relates to the employee making a claim. Surely, under this definition an employer-defendant’s attorney retaliating against a Plaintiff falls square within the definition of both “any person” and “employer” as noted above.

presenting wrongful termination case to a lawyerHere are my top three tips on presenting your potential employment case or wrongful termination case to a lawyer:

I. Be able to explain the basics of your case in just a few sentences to capture a lawyers attention right away. For instance the following would be an excellent way to initially describe your case: “I have been employed with company x for 10 years and received mostly good reviews. 3 weeks after returning from medical leave or after filing a workers comp claim, I was terminated for not being a “team players” or based on false accusations.”  There is no reason with telling the lawyer that your case is very complicated, because  lawyers believe that “complicated” case all too often means no case.

When describing the employer’s actions against you, be specific and do not use generic adjectives. For instance, “verbal assault” or “harassment” doesn’t really tell your lawyer about what happened. But, “I am going to kill you” or “he grabbed me by my breast” gives that specific information that would be really useful to your lawyer.

fired while on disability leave“Can I be fired while on disability leave?” – this is one of the most common questions that I hear from employees, who have suffered an injury and have to be off work due to that injury or some other illness. The answer to this question is twofold:

(1) The reality is that you can be fired at any time regardless of your disability, disability leave or any other circumstances. No one can force the employer to continue employing you if they don’t want to, except in limited circumstances (i.e. employment relationship covered by a labor union agreement, employment with a public agency and a few other limited circumstances). Otherwise, if you are an at-will employee at a private company, you can leave at any time and you can be terminated at any time.

(2) The more correct question is whether firing you while on disability leave or medical leave would be illegal and could be a basis for a disability discrimination and wrongful termination case. The answer to this question depends on the specific circumstances of your employment and your termination. However, the most important factor is whether the employer had a legitimate reason for terminating you, or there is sufficient evidence that the reason given is just an excuse or a pretext for terminating you because of your disability and disability leave.

what to expect from EEOC investigationEEOC (Equal Employment Opportunity Commission) and DFEH (Department of Fair Employment and Housing) are two main administrative agencies charged with address workplace discrimination. EEOC is federal agency, while DFEH is its California counterpart. These agencies pursue a very small number of cases that they pick from all the many inquiries they receive every year. EEOC investigation can take anywhere between 4-6 months and up to a year or longer, depending upon how busy your local EEOC branch is, the nature of allegations and the degree of cooperation of the employer with the process. A charge of discrimination must be filed within one year of the most recent discriminatory event. Obviously, if you believe you were terminated for discriminatory reasons, your termination would be that most recent event.

Most complaints received by these agencies result in no findings, and and issuance of a right to sue letter many months after a complaint is submitted. This is in part because these agencies have limited resources, and in part because many inquiries are either very hard to investigate or they simply have no merit. However, obtaining a right-to-sue letter is a requirement before a lawsuit for discrimination can be filed in California.

In some cases, allowing those agencies to investigate your discrimination allegations is a good idea. In other situations, especially if you have a strong case, it’s better to obtain an immediate right-to-sue letter, which can be done online through an attorney, and file a lawsuit without delay. This is especially important if there is a concern that with time evidence will “disappear” and witnesses will become unavailable.