Blog Archives - Page 10 of 24 - California Labor & Employment Law

Transgender Discrimination: A Case Study in California

October 31, 2017 by Beck Law P.C.

Immediately after pronouncing herself a transgender woman, 53-year-old Meghan Frederick experienced transgender discrimination via a lack of respect, isolation, and outright harassment. As a correctional officer in a maximum-security prison, she discovered that colleagues as well as supervisors were more likely to react to her with rejection than acceptance. Ultimately, she felt she had no choice but to file a discrimination lawsuit. If you can relate to this case, you may wish to contact an experienced employment attorney, as well.

Meghan’s Transgender Discrimination Story

A career in finance segued into a position in the California Department of Corrections and Rehabilitation for Meghan. There, colleagues welcomed an athletic man. But some years later Frederick began to transition, and after five years announced that she wished to be identified as a woman.

Since then, sergeants, lieutenants, and captains have all misidentified her gender. She filed internal complaints against them, but nothing changed. Her vehicle has been vandalized multiple times since her announcement, as well, signaling the loathing fellow employers feel toward her. She has spent years walking into rooms in the workplace, only to be ignored or stared at wordlessly. Meghan has been insulted over the intercom and has repeatedly had to correct peers who refer to her as “sir.” The least desirable assignments were given to Frederick, and her movements were frequently restricted for unusual periods of time. More significantly, Frederick claims her life was put in danger.

When inmates witnessed colleagues undermine her and openly disrespect her, it made her a target. In fact, inmates made death threats against her more than once – threats that her superiors failed to inform her about in a timely manner. Typical protocol requires that correctional officers be separated from inmates who have stated they wish to harm them personally. In Frederick’s case, she was not informed of the threats until weeks after they occurred, and she was required to work with the menacing inmates despite the accentuated risks associated with such threats.

Options When Transgender Discrimination / Discrimination is Pervasive in the Workplace

Why not find another job, some might wonder. Frederick says she will not be bullied. She is proud of herself and her work, and refuses to back down to transgender discrimination and retaliation. Frederick believes that fighting back through the courts will improve life for her, but the impact of the transgender discrimination suit may have much larger implications. Transgender men and women throughout the country experience workplace discrimination every day. This lawsuit shines a light on the types of behaviors condemned by state law. In California, the California Fair Employment and Housing Act (FEHA) specifically prohibits discrimination based on gender identity. Additional protections are in place related to housing, education, workplace dress codes, bathroom use, and hate crimes.

Aggressive Legal Help for Transgender Discrimination

If you have experienced discrimination in the work place, the law is on your side. At Beck Law, our aggressive employment team will go to the mat for our clients in Sonoma County, Mendocino County, and Lake County California discrimination cases. Contact us in Santa Rosa today for a confidential consultation.

Filed Under: Blog, Gender Discrimination Tagged With: Transgender Employees Rights Attorney

Termination Considerations for At-Will Employment

October 27, 2017 by Beck Law P.C.

Employee termination without cause. Can California workers be terminated without cause? California is an at-will state, meaning that either the employer or the employee may terminate the relationship at any time. Even so, California courts look at a number of factors when employees claim that a wrongful termination has occurred. If you find yourself without a job and believe the termination was unlawful, a local employment attorney can help.

Implied-in-Fact Contracts

Sometimes employers and employees have unspoken agreements that take precedence over an employer’s ability to fire at will. California courts do consider whether or not there is an implied contract. These determinations rest on the totality of several factors, including the employee’s length of employment with the company, employment practices within the industry, company policies, and employer actions that would give an employee a reasonable expectation of continued employment. One such case involved Wayne Pugh vs. Sees Candies. When Pugh was fired from his Palo Alto job without explanation, the courts found that, absent a written contract, the implied contract between employee and employer negated any right to fire without cause.

Express Contracts

When an employee’s contract expressly states that termination may only occur with cause, employers must have legitimate reasons documented for a termination. Often these contractual obligations are through a labor union, although oral agreements may be just as valid.

Statutory Protections from Termination

Despite being able to fire at-will employees without cause, employees cannot be terminated for a number of protected reasons.

Federal law calls out several protections, including race, gender, age, religion, and disability. California law piggybacks federal statutes, and adds additional protections for sexual orientation.
Public sector workers generally have termination policies and civil service laws that protect them from random terminations;
Union activity is also protected, so employees may join a union and exercise any collective bargaining rights without threat of termination.
Employees are also entitled to certain types of leave without fear of termination. Employees may miss work to vote in a state election, may take leave under the Family Medical Leave Act to care for sick family members, and may miss work to serve as a juror. Maternity leave is also protected for women. These are common reasons for which employees are entitled to take leave without fear of termination.
Federal whistleblower protections exist for individuals who report safety violations, discrimination, or other violations of either state or federal law.
Employees cannot be fired for their behavior or activities that occur outside of work. If the behavior is legal, employers cannot consider it in a termination.

I Want to Sue my Business Partner for Breach of Contract

October 23, 2017 by Beck Law P.C.

Breach of contract options. Let’s say you and some acquaintances are shooting the breeze about your ideas for a new business venture. One thing leads to another, and before you know it, you all agree that doing business together and sharing in the profits and losses is a great idea. This seems like a great opportunity for each of you to contribute your talents to a new enterprise. You come up with the basic tenets of the arrangement, and before you know it, you are all in business together. Everything is coming up roses, until you suspect that one person is in breach of contract. What are your options now? In a situation this complex, an experienced employment attorney could help.

Mediation/Arbitration

Oftentimes a good mediator or arbitrator can walk you and your partner(s) through any disputes you may have. Hopefully you have a written agreement, which will make it easier to hold everyone’s feet to the fire. Even if you do not, be aware that litigation will tend to enflame an adversarial relationship, which will make working together difficult if all partners wind up staying connected to the business.

Expulsion

When you wrote up your initial agreement, if you included an expulsion clause, you may now be able to expel the offending partner for breach. Otherwise, expulsion is not possible, unless you dissolve the partnership altogether.

In the event you do have that expulsion clause, and you choose to exercise it, be sure your actions are in response to a serious breach of your contract; otherwise you may be the target of a lawsuit yourself.

In either case, a knowledgeable employment attorney can advise you of the pitfalls and legal requirements you will encounter.

Suing for Breach of Contract

If you can not or are not willing to expel the offending partner, you may still have a legal option to sue if financial harm has come about due to your partner’s actions. There are several situations that might justify this course of action:

A partner walked away from the business with not justifiable reason, breaking an agreement for participation for a specific time-period;
A partner misappropriated assets;
A partner caused the business to lose inventory or clients.

Breach of Contract Statute of Limitations

You also need to be aware of time restraints when it comes to suing a business partner. If you have only a verbal agreement, the statute of limitations for filing suit is two years from the date of the alleged breach. When a written contract exists, the statute is four years from the breach. [Read more…]

Filed Under: Blog, Employment Law Tagged With: breach of contract, business, contract law

Firefighters Need Legal Protection

October 17, 2017 by Beck Law P.C.

Recent events in Mendocino, Lake, Napa and Sonoma County have highlighted the perils that firefighters face in the line of duty every single day. These heroes put their lives in danger in an attempt to salvage homes and businesses, not to mention crops, livestock, and of course, human life. For the most part, their bravery is rewarded with public adoration and appreciation. Sometimes, firefighters are placed in unpleasant situations that are legally untenable. In such circumstances, they have no choice but to seek local legal counsel.

Recent Firefighters Cases in the News

When firefighter Todd Milan spilled the beans on an OSHA violation that occurred, putting him in a particularly dangerous situation, he felt the response from his department was outright retaliation. A jury thought the same thing, awarding him over $2.3 million for emotional distress, past and future wages, and legal fees.
Santa Rosa firefighters filed suit in District Court in the spring of 2017, alleging an improper calculation of overtime pay. According to the suit, they wish to be reimbursed for the past three years of work, in addition to attorney’s fees. Why three years of back pay? That is the time frame allowed by the Fair Labor Standards Act.
A 27-year veteran firefighter in Los Angeles won a lawsuit in which he was awarded damages of over $1 million for racial discrimination, harassment, and retaliation. According to the suit, Jabari Jumaane’s captain falsified performance evaluations with the sanctioning of his battalion chief. Jumanne was disciplined, and even suspended for the poor evaluations. After over two weeks of deliberation, the jury found in favor of Jumaane.
Merely hours after learning of needed neck surgery, Chula Vista City fired their fire chief, James Garcia. He filed suit claiming discrimination based on a disability. The jury agreed, awarding him over $1 million.

Do Not be Deterred by the Fireman’s Rule

In addition to injustices, firefighters may wish to file civil suits base on injuries that occur during the workday. Because Workers’ Compensation laws seem adequate to cover injuries, the California Fireman’s Rule disallows firefighters from filing civil suits based on workplace injuries. However, there are specific exceptions to this rule:

When the injury was intentionally caused;
When unintentional actions occur that lead to injury, and the person causing the injury knew or should have known a public safety officer was involved;
When statutes, regulations, or ordinances created to protect public safety officers are ignored or violated.

[Read more…]

Filed Under: Blog, California Employment Law Tagged With: California employment attorney, firefighters

Employers: Prevent a Sexual Harassment Case

October 6, 2017 by Beck Law P.C.

As an employer, are you liable if one of your employees is accused of sexual harassment? Although every case is different, there are things you can do to provide an affirmative defense in the event a lawsuit comes your way. Beyond that, having an experienced employment law attorney on your side is a must.

Sexual Harassment Prevention Training

The first thing every employer needs to do is ensure that adequate and appropriate training is provided. In California, state law AB1825 mandates that employers with 50 or more employees provide training for supervisors. That training must occur every two years.

Who Must Experience Sexual Harassment Prevention Training?

Although everyone can benefit from training, supervisors must be trained. That means anyone who has the authority to reward or discipline other employees or deal with grievances, even if the official job title is not supervisor.

What Must Sexual Harassment Training Embody?

The training itself may be delivered on-line, if linked to a trainer who is available to answer employee questions within two days. Another option is to have information delivered by an instructor in a classroom, or in a large format like a seminar, if the trainer follows the regulations laid out by law and uses best instructional practices. There are specific requirements as to who may be a trainer:

Attorneys who practice employment law, or;
Professors with a post graduate degree or teaching credential with experience in employment law, or;
Human resource personnel with at least two years experience designing materials or delivering trainings, dealing with such complaints in a workplace, investigating such complaints, or advising employers or employees in such matters,

The training must encompass information about state and federal laws prohibiting sexual harassment, in addition to remedies for victims of such activity. There must also be practical case studies of sexual harassment, discrimination, and employee retaliation, and information about how to prevent each.

In the Event of a Sexual Harassment Lawsuit

What if an employee brings a sexual harassment lawsuit? Having complied with the training requirements does not necessarily abdicate the employer of responsibility, but it is a first, minimum step. Other steps employers should take:

Have a printed policy defining sexual harassment and company policy as to consequences for such behavior. Discuss it with new employees, and review it on occasion with all employees.
Provide training to workers, as well as supervisors.
Establish a clear grievance procedure and methods of dealing with complaints. Then keep the information confidential.
Investigate all complaints quickly and effectively, and document everything related to the complaints.
Protect the victim from the moment the complaint is filed, and correct the issue expeditiously. Then ensure that no form of retaliation ensues.

Workplace Drug Testing

October 4, 2017 by Beck Law P.C.

Drug testing has become a routine part of the job in many industries these days. In the past 30 years, in fact, drug testing has risen by nearly 300%. But is such testing accurate? With over 22 million tests being administered in this country every year, even a 5% false positive rate could result in over one million people’s lives being impacted in a negative way. Furthermore, are workers’ rights to privacy in the workplace being protected? If you feel your rights have been violated due to drug testing, an employment attorney may be able to help.

Drug Testing And False Positives

Recent studies indicate that 5-10% of drug tests produce false-positive results. Poppy seeds—even just a teaspoon—can produce a positive test for opioids, even three days after consumption. Prescription antidepressants and cold medicines can indicate amphetamines or benzodiazepine, and HIV medications can indicate that marijuana is in the bloodstream. Even ibuprofen has been connected with positive results for marijuana.

Drug Testing is Intrusive

Testers worry about potential tampering with test samples. That sometimes leads them to observe the employee, or to remove the sample provider’s outer attire and collect the urine sample in a room in which the water has been turned off. For many, this experience is degrading and invasive.

Once the sample hits the lab, testing may reveal much more than the presence of illegal substances. Some legal drugs may be in the sample, and human error may make the distinction between legal and illegal substances difficult. False positives are a real possibility. Additionally, pregnancy or the genetic predisposition to diseases may also be detected. Sound impossible? Unfortunately, there are documented cases in which this has occurred.

Systematic Errors with Drug Testing

While no one would argue that a safe workplace is not in in the best interests of employers and employees alike, many employers simply do not have sound practices in place when it comes to drug testing.

Random Testing: If the selection process for employees chosen for testing is not truly random, it may be discriminatory. In California, random testing is only allowed under narrow circumstances.
Legal Compliance: The law allows for testing of employees under reasonable suspicion of drug use only if objective facts are in evidence. Barring a good reason, singling out someone for testing is not lawful. Employers need to be aware of specific laws carved out by various municipalities or by other authorities in particular industries.
Uneven Implementation: One study indicates that just over 20% of respondents conducted drug testing on workers after employment. If policies are not administered uniformly, employees may have reason to suspect discrimination.
Medical Marijuana: While marijuana has been approved for medicinal purposes in California, it is still considered a schedule one drug at the federal level. Employers may have a zero-tolerance policy for marijuana, even though it is legal in the state.

[Read more…]

Filed Under: Blog, California Labor Law Tagged With: California employment attorneys, drug laws, drug testing

Balancing Family Care and Your Job

September 20, 2017 by Beck Law P.C.

Worried about your job and balancing family care? Can you be fired for calling in sick at the last minute because your child is ill? Let’s say you were just on your way out the door when your little one experienced a disturbing flu symptom. You can’t drop your child off at daycare under those circumstances, so you have no choice but to stay home to tend to him or her yourself. Your employer is understandably not thrilled; but can you actually lose your job?

Caring for Sick Family Members

Many Americans have dual roles of both breadwinner and caregiver. Sometimes juggling these responsibilities gets tricky.

69% of caregivers report having to rearrange their work schedules at times;
Female caregivers are almost three times more likely than their male counterparts to take less demanding jobs in order to provide care;
34% of caregivers wind up leaving a job due to inflexible work schedules.

SB 579

Under California law, employers who employ at least 25 employees and who provide any sick leave to employees must allow employees to use at least one-half of their time to care for sick family members, including children, parents, spouses and domestic partners, as well as the in-laws of the same. Even grandparents and grandchildren qualify for care under SB 579. Employees cannot be threatened with demotions, suspensions, or firing based on the use of this leave.

Beyond this protected sick leave, the law may provide limits on an employers’ ability to require doctors’ notes for absences. Such a requirement may appear to be discriminatory or a form of retaliation against employees who use Protected Sick Leave.

Furthermore, the use of Protected Sick Leave should not be counted against employees in performance evaluations or when making determinations as to excessive absenteeism.

Additional Family Care Protections

SB 579 expands protections for employees who wish to take time off for child-related activities for children in grades k-12 or who are being cared for with a licensed care provider. This means employees may take time off of work to find and enroll a child in school or licensed day-care. Moreover, if a parent is called due to a child’s behavior or discipline issues, time off must be allowed.

Who Qualifies as a Family Care Parent?

Parents are defined as biological parents, legal guardians, foster parents, stepparents, grandparents, and in loco parentis (one who is standing in and acting in the parenting role). [Read more…]

Filed Under: Blog, Parental Leave Tagged With: family leave, sick leave

Employers: Will Your Liability Insurance Cover Discrimination Lawsuits?

September 15, 2017 by Beck Law P.C.

As a business owner, will you be covered by your general liability insurance policy if an employee sues for discrimination? It seems at first glance that you ought to be covered if there are no exclusions specified in the policy, so many employers are surprised to find that insurers may deny coverage. If you find yourself in this situation, an experienced employment law attorney may be able to help.h0Hey

Reasons for Liability Insurance Claim Denials

Liability insurance claims may be denied for any number of reasons, but three very particular issues may come into play with a discrimination case: The lack of coverage for economic issues, requirements associated with mental health claims, and the purposeful nature of discriminatory acts.

Let’s say an employee purports to have been passed over for a promotion due to race, age, or other protected status. He seeks compensation for multiple economic losses, including past and future earnings and benefits. Additionally, he is claiming psychological injury, as the entire incident caused a serious blow to his confidence and mental health. Your general liability policy does not cover those things: it covers three key areas:

Property damage;
Bodily injury;
Personal/advertising injury.

Now, while some might think the mental health piece of the claim to be covered under the bodily injury portion of the policy, in practice those types of problems are covered only if associated with a physical injury.

Coverage may not kick in for another reason: The injury to your employee was not due to an accidental occurrence. General liability policies do not cover intentional actions.

Umbrella Policies and Employment Practices Liability Insurance Coverage

In some instances, discrimination claims may be with protected with umbrella coverage under Personal And Advertising Injury Liability. In other cases, Employment Practices Liability Coverage (EPL) may be necessary. This type of coverage kicks in when a lawsuit is filed, not when an alleged incident occurs. Of note, while such policies typically cover situations involving discrimination, they often do exclude intentional acts of wrongdoing. In discrimination cases, the claim is typically surrounding intentional behaviors. In other words, if the jury finds that an employer purposefully discriminated against an employee, the policy may not cover damages. Even so, court costs may still be covered up until a finding of intent is delivered. Having those costs covered often makes holding a policy of this kind worthwhile.

Liability Insurance – Other Considerations

As an employer, there are other factors to be aware of when purchasing liability insurance of this kind:

Lawsuit Decisions: Who chooses the attorney? If the insurer has someone in mind but you have your own ideas as to counsel, who gets to make the final decision? It is not something you want to haggle over in the face of a lawsuit.
Settlement issues: The insurance company may not see eye-to-eye with you when it comes to settlement decisions. You need to know just how much control you will have over final pronouncements when discussions like this are underway before they occur

Intellectual Property: Who Owns Your Ideas?

September 12, 2017 by Beck Law P.C.

Intellectual property ownership. Let’s say a corporation hires you as an employee or an independent contractor. After completing a number of projects, you decide it is time to move on, and figure you would like to take your ideas with you. After all, none of the new programs, flow charts, and materials you created would exist without you. Your employer, however, believes that the intellectual property belongs to them, as it was created while in their employ. Who is right? An experienced employment attorney may be necessary to unravel those legal answers.

Intellectual Property – Things to Consider

While both you and your employer claim ownership of the intellectual property, your employer will have a stronger claim on these materials if you signed a contract agreeing to as much prior to starting work. These documents, referred to as an assignment of inventions or ownership of discoveries, generally assign the company ownership of all intellectual property created in the course of employment. If such an agreement does not exist, you have a greater claim to your ideas. Your case could be even stronger if you called out specific areas of ownership interest in an employment addendum prior to employment or preceding work on a specific assignment.

Written Contracts

Again, if there is no written agreement outlining specific ownership provisions, you may have a strong case for ownership. If there is a written contract, consider the following:

Does it assign rights or ownership of intellectual property, copyrights, or trademarks?
Was it executed prior to employment or later? If later, were you offered additional compensation or consideration in exchange for giving up ownership?
Were you, as a prospective employee or independent contractor, allowed to specify any intellectual property you owned prior to this contract?
Was there a regular communication as to what intellectual property you owned and what you did not?
Does it specify consequences for infringing on company ownership of intellectual property?

Intellectual Property and Rules for Independent Contractors

Independent contractors often experience this conflict when it comes to intellectual property, even though it may be assumed they can keep what they create. They generally own their work, except in specific situations, such as:

A cooperative project;
Audiovisual work;
A translation;
A supplement to an existing piece;
A compilation of works;
An atlas;
Any test;
An answer key to a test.

Determining Whether Ideas Were Developed During the Course of Employment

If there is no written contract regarding intellectual property, determining ownership becomes a bit trickier. The courts generally then consider whether your ideas were developed during the course of the employment relationship. That is, were they a direct result of your work, beyond simply occurring during the time frame in which you were employed? Making that determination requires the court to examine the reasons for employment, including any directives or job descriptions. Is the material in question a direct result of your employment goal? If so, it may belong to the employer. Even if the work was completed at home, on your personal computer, it may still belong to your employer if it can be directly connected to your work responsibilities. [Read more…]

Filed Under: Blog, Employee Rights Tagged With: California employment attorney, intellectual property

Criminal History? Can’t find Employment?

September 8, 2017 by Beck Law P.C.

Do you have a criminal history? An ex-felon perhaps? You’re trying to get a job and finding nothing but brick walls in your path? You are not alone. Between 1.5 and 1.7 million former offender were unemployed according to 2010 statistics, and all indications tell us that things have not improved much since then. If you are trying to get your life back on track but are carrying your criminal history around with you, is finding a decent job simply out of reach?

Why Employers Screen for Criminal History

Employers surveyed report a number of reasons for screening job applicants for criminal convictions:

In a effort to avoid workplace fraud and theft;
Due to concerns about workplace violence;
Fear of liability due to negligence in hiring practices;
Compliance with state and federal laws.

Criminal History, Race, and National Origin Disparities

While federal law prohibits discrimination based on race, religion, national origin, and other factors, criminal history is not a protected status. That said, the Equal Employment Opportunity Commission recognizes the potential for disparate treatment when employers refuse to hire felons:

Disparate treatment liability is a potential problem if employers view an applicant’s criminal history differently depending on the national origin or race of the applicant;
Factually, excluding workers based on a criminal history does have a disparate impact on certain races.

Indicators of Illegal Criminal History Discrimination

Proving discrimination requires the documentation of specific behaviors. If an employer refuses to hire, for example, someone with a criminal record who is a member of a racial minority group, but hires an equivalent applicant who is white, that may be one indicator that discrimination is at work. In fact, if it can be demonstrated that an employer utilizes a practice, such as screening for criminal history, and it has a disparate impact on race or another protected category, the practice itself may be unlawful. Other problems include:

Biases or stereotypical comments related to race;
Inconsistent hiring practices with regard to racial minorities;
Indiscriminate application of the screening process;
Statistical analysis that reveals discriminatory practices with regard to hiring, promoting, etc.

EEOC Recommended Procedures

To avoid liability, the EEOC provides guidelines to employers who choose to screen for criminal history:

Conduct an individual assessment of each applicant;
Tailor screenings narrowly to correspond with job requirements;
In general, avoid making inquires about criminal history;
When such inquiries are made, make sure applicants would only be excluded based on job-related factors;
Keep information about criminal histories confidential.

Government Incentives to Hire Former Offenders

The Federal Bonding Program (FBP) and the Work Opportunity Tax Credit (WOTC) are a couple of incentives available to support employers who hire former offenders. Credits of 25-40 percent of wages earned in the first year are available to employers.

Additionally, California laws are working to protect those with convictions that have been set aside or are sealed (Cal. Lab. Code § 432.7(a)). Additionally, this legislation puts the burden on employers to show that their screening policy is necessary to the job at hand and takes into account several factors:

Nature and severity of the crime;
Time passed since the arrest;
Nature of the job responsibilities.