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In it recent decision, filed in November 6, 2008, the 9th Circuit clarified an important point of California Overtime Law. In that case, the issue was whether Oracle employees, who are not residents of California, are entitled to the protections and privileges of California overtime compensation laws, if they work in California. In its well reasoned decision, the court summarized California Labor Code section 510(a). The court reminded that this law requires overtime pay of one and one-half regular pay beyond 8 hours worked in any single day, 40 hours in one week, and the first 8 hours of work on the seventh day worked of any one workweek. Additionally it requires double pay for hours worked beyond 12 in a day or 8 hours on the seventh day of any one workweek.

California Supreme Court has concluded that California’s employment laws govern all work performed within the state, regardless of the residence or domicile of the worker, citing Tidewater Marine Western Inc. v. Bradshaw 927 P.2d 296. That case held that California employment laws implicitly extend to employment occurring within California state law boundaries. Please feel free to read the full decision on California Overtime Law as it applies to non-residents of California.

Thus, this recent decision suggests that all employees who would otherwise qualify for overtime compensation, regardless of the state of their residence, are entitled to overtime compensation under California law, if they perform the work at issue within the territory of state of California.

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It is not uncommon for an employer to terminate an employee because of his or her disability in violation of FEHA and other anti-discrimination laws, and attempt to mask disability discrimination and failure to provide reasonable accommodations by telling an employee while terminating him that he can apply for other jobs in the company that might suit him. This move seems to be particularly obvious when the employer tells the employee that he should apply for any job externally, like any other outside applicant, not having any priority in hiring or consideration for any position.

The California courts are unimpressed with this move to go around the law protecting disabled workers. The Ninth Circuit specifically held in Barnett v. U.S. Air. Inc. (9th Cir. 2000) 228 F.3d 1105 that an offer to bid on other jobs, “a right the employee already had,” did not represent reasonable accommodations as required by law. Reassignment involves more than a mere opportunity for disabled employees to compete. Quoting EEOC guidelines, the court concluded that reassignment within the meaning of reasonable accommodations means that the employee gets the vacant position if he/she is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congresses intended it when it enacted disability anti-discrimination laws.

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The California Fair Employment and Housing Commission (FEHC) defines “harassment” as:

– verbal harassment, such as epithets, derogatory comments or slurs (or repeated sexual comments and jokes or prying into one’s personal affairs);

– physical harassment, such as unwanted touching, rubbing against someone, assault and physical interference with movement or work; or

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A qualifying employee (who worked for his employer for 1,250 hours or more during the past year for a company with 50 or more employees within a 75 mile radius) invokes his CFRA / FMLA rights when she asks for leave for her own serious health condition or that of a family member, and need not mention CFRA or FMLA by name in order to be entitled to leave. The employer may grant the leave without ever requesting medical certification. However, if the employer requires such certification, it should do so either at the time that the employee gives notice of her need for leave or within two business days thereafter, or – if the leave of the employee was unforeseeable – within two business days after the employee’s leave starts. Cal. Gov. Code section 12945.2(j)(1), (k)(1).

Under CFRA, the certification is legally sufficient if it includes the dates on which the condition started, and the estimated time the employee will require the leave. Once an employee provides adequate certification of her serious health condition, the employer must grant the leave, unless it has “reason to doubt the validity of the certification.” The employer may request an employee to undergo a second or third opinion of his condition if and only if the employer has a reason to doubt the validity of the original certification provided by the employee. Employers are required to obtain the opinion of a second and third doctor before denying leave or terminating an employee because of doubts about the validity of certification.

If you believe that you suffered an adverse employment action or were wrongfully terminated in retaliation for exercising your rights under FMLA / CFRA, contact San Francisco employment lawyer Arkady Itkin to discuss your rights.

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cfra-300x180California Family Rights Act (CFRA) is a part of FEHA (Fair Employment and Housing Act) and generally provides that it is unlawful for an employer to refuse an employee’s request for up to 12 weeks of family care and medical leave in a year. An employer is also forbidden from discharging or discriminating against an employee who requests family leave or medical leave. Family care and medical leave includes leave because of an employee’s own serious health condition that makes the employee unable to perform the functions of his position. “Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves either of the following: (a) Inpatient care in a hospital, hospice, or residential care facility; (b) Continuing treatment or continuing supervision by health care provider.

 

To be eligible for CFRA leave, an employee must have more than 12 months of service with the employer and have at least 1,250.00 hours of service with the employer during the previous 12 months of employment. It is important to note that this condition must be satisfied not at the time the employee suffered an adverse employment action (termination, suspension, etc.), but whether the employee was eligible to take CFRA leave when she took the leave that resulted in adverse employment action.

It is also unlawful to retaliate against an employee for exercising his rights under CFRA. The Dudley v. Caltrans 90 Cal.App.4th 255 was the first court to outline the elements of proving CFRA retaliation, adopting FMLA retaliation analysis used by the federal courts. The court concluded that the elements of retaliation claim under CFRA are as follows: (1) the defendant was the employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose, and (4) the plaintiff suffered an adverse employment action, such as termination, fine, demotion, or suspension because of her exercising her right to CFRA leave.

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The California Supreme Court held that high blood pressure (hypertension) may be a protected disability at workplace within the meaning of Fair Employment and Housing Act (FEHA) in American National Insurance Co. v. Fair Employment and Housing Commission 32 Cal.3d 603 (1982). In that case, an insurance company terminated a sale and debit agent because of his elevated blood pressure. The Supreme Court held that high blood pressure may be a “physical handicap” under the FEHA, since the statutory definition of the protected disability under Cal. Gov. Code section 12926(h) permits consideration of all handicaps that are physical, and not only those are are presently disabling.

In explaining section 12926(h), the court resorted to the literal definition of the term “handicap” as defined in Webster’s dictionary: “physical handicap includes …, or any other health impairment which requires special education or related services. The Court further emphasized that the law protecting workers from being discriminated based on their disability clearly was designed to prevent employers from acting arbitrarily against physical condition that, whether actually or potentially handicapping, may present no current job disability or job-related health risk.

Thus, the mere fact that a worker isn’t constantly experiencing the symptoms of high-blood pressure, doesn’t mean that he is not disabled within the meaning of FEHA, as he or she does face an actual risk of experiencing those disabling symptoms.

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The second district made an important distinction between disability discrimination and failure to provide reasonable accommodations in Jensen v. Wells Fargo Bank 85 Cal.App.4th 245 (2000). In that decision, the court noted that the elements of a failure to accommodate claim are similar to the elements of disability discrimination under under California Gov. Code section 12940(a), but there are several important differences. For the purposes of the failure to accommodate claim, the employee does not need to show that he is able to perform the essential functions of his present job (like it is necessary to show in order to prove discrimination), but only that he or she is able to perform the duties of the job which he or she is seeking to be reassigned to.

Even more importantly, in claims for failure to accommodate, it does not matter whether the employee was terminated, suspended or otherwise disciplined in retaliation for his disability (like it is required in discrimination claims). The employer’s mere failure to reasonable accommodate a disabled individual is a violation of the statute in and of itself. Cal.Gov. Code section 12940(k).

In other words, prevailing on a disability discrimination claim is harder than proving failure to accommodate, because it requires showing that the employee suffered an adverse employment action, and that there is a causal link between the disability/medical condition and the adverse employment action, while no adverse employment action needs to be shown in order to prevail on a separate claim for failure to provide reasonable accommodations to a disabled worker.

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A new municipal law has been enacted by San Francisco in 2007, under which all employers must provide paid sick leave to each employee (including temporary and part-time employees) who performs work in San Francisco.

This “San Francisco Paid Sick Leave” began to accrue on February 5, 2007 for employees working for an employer on or before that date. For employees hired by an employer after February 5, 2007, paid sick leave begins to accrue 90 calendar days after the commencement of employment.

Under this law, for every 30 hours worked, an employee shall accrue one hour of paid sick leave. Employees of employers for which fewer than 10 persons (including full-time, part-time, and temporary employees) work for compensation during a given week may not have more than 40 hours of accrued paid sick leave saved at any time. Employees of other employers may not have more than 72 hours of accrued paid sick leave saved at any time. An employee’s accrued paid sick leave carries over from year to year. Employees are entitled to paid sick leave for their own medical care and also to aid or care for a family member or designated person.

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The California Fair Employment and Housing Act basically defines two categories of disability: mental disability and physical disability. Each category contains its own specific definitions. In addition, under FEHA, an employee with a “medical condition” which is not quite considered a disability is also entitled to a reasonable accommodation.

The following are the specific definitions of physical disability under FEHA:having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that affects one or more of several body systems and limits a major life activity. The body systems listed include the neurological, immunological, muscular and skeletal, respiratory, speech, reproductive, digestive, urinary, lymphatic, skin, and endocrine systems. The major life activity is considered limited if it makes the achievement of that major activity difficult.

It should be noted that sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting form the current unlawful use of controlled substances or other drugs, are specifically excluded and are not protected as disabilities under FEHA.

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It is common for an employee who is subjected to discriminatory conduct or harassment at workplace in California to be afraid to complain about the harasser to his superiors for fear of retaliation and losing a job. However, an aggrieved employee simply has nothing to gain by keeping quiet. In most cases, the harasser’s unlawful conduct not only doesn’t stop, but becomes progressively more unacceptable and egregious, causing more stress to the victim of potential discrimination and harassment.

Even more importantly, by not complaining, and employee not only doesn’t allow the employer to address discrimination and harassment and possibly discipline the harasser, but the victim virtually forecloses possibility of having viable legal claims for discrimination and harassment in the future. Unless the harasser is the aggrieved employee’s supervisor, and employer is not liable for discrimination and harassment, if the employer did not know or had not reason to know that such discrimination or harassment took place.

Therefore, if you believe that you are subjected to unlawful discrimination and/or harassment at workplace, it is crucial that you complain about the conduct in writing to your human resources department and higher if necessary. In your complaints, you should outline in detail the facts and the circumstances of what you believe to be an unlawful conduct toward you at workplace, requesting prompt, thorough, formal investigation of your allegations as required by law.

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