The Private Attorney General Act of 2004

February 22, 2017 by Beck Law P.C.

Binding Arbitration and the Private Attorney General Act. Suppose, as a condition of employment, you signed an arbitration agreement, waiving your right to litigate future disputes or join class action suites. But then, after securing employment, you have an experience that causes you to consider filing a civil claim against your employer. What are your rights?

The intricacies of this situation and the use of the Private Attorney General Act may require the experienced guidance of California labor and employment attorneys; you want the aggressive team at Beck Law P.C., on your side.

Private Attorney General Act and the Uber Case

The situation described above is not unlike the position that Uber drivers found themselves in. Despite signing an arbitration agreement prior to hire, many drivers joined together to attempt to get the courts to support their efforts to be reimbursed for costs, such as gasoline, and to object to the company’s policy of telling customers that tips are included in the price of a ride.

What empowered these drivers to think they could bypass a signed arbitration agreement and go straight to the courts for relief? The Private Attorney General Act (PAGA) allows private citizens, or workers, in California to pursue legal remedies that might otherwise be initiated by the state itself. In other words, aggrieved employees may file a civil claim against employers who violate California employment law. Uber drivers filed suit, reasoning that PAGA would outweigh arbitration requirements. The final outcome in the courts is yet to be determined; at present the 9th Circuit Court is siding with Uber on the arbitration issue. But if drivers are able to get traction with their PAGA suit, what can they expect?

How Does Private Attorney General Act Work?

Private Attorney General Act has two requirements:

The complainant must notify the California Labor and Workforce Development Agency (LWDA) of alleged violations;
The LWDA does not itself pursue the case or issue citations.

If these criteria have been met, the employee is essentially “deputized” and may file suit, with the understanding that any civil penalties will be split, with the LWDA receiving the lion’s share of 75%, and the employee taking the remaining 25%.

Notably, when an employee brings this type of action against his employer, he does so on behalf of all employees who experienced the violation. For example, in the Uber case, if the employee sues on the basis of gas reimbursement costs, the final judgment would take into account the total number of Uber employees who had a similar experience.

Employer violations fall into three classes:

Serious violations.
Health and Safety violations.
All other labor code violations.

Each category of violations has its own set of procedures and prescriptions. [Read more…]

Employment Breach of Contract in California

February 16, 2017 by Beck Law P.C.

Employment breach of contract in California. Contracts are drafted, negotiated, and signed every day in this country. Employment contracts in California are sometimes designed to cover a precise time period, with or without options to renew the contract at a particular point. In other situations, teams are involved in collective bargaining for entire groups. What happens when one party does not live up to his or her end of the bargain? That is precisely when having an experienced contract law attorney in your court can make a huge difference.

What is Meant by Breach of Contract?

When one party fails to live up to a legally enforceable contract, or promise, it is breach of contract. In California labor law, an employee handbook or other policy statements might be considered contracts, in addition to more formal documents drawn up between particular parties. In the case of employee handbooks and written policies, the courts generally have found that statements within them are express promises. Even though California is a right to work state, these express promises must be adhered to.

Implied promises might be based on past history or length of service. It is the type of promise most California employers have with employees who have not negotiated individual contracts.

In determining wrongful discharge, the California Supreme Court ruled that employers must act in good faith when firing a contracted employee. The case of Cotran v. Rollins Hudig Hall International, Inc., 948 P.2d 412 (Cal. 1998) involved an employee who was terminated on the grounds of sexual harassment. Even though the employee denied the accusations, it was found that since the employer had acted based on a true and sincere belief that the harassment had occurred, the termination was not a breach of contract. The foundation for the court’s decision revolved around the idea that an implied contract, or promise, existed between the parties, wherein the employer’s “reasonable” belief in a good cause for termination was sufficient for termination procedures to take place.

In contrast, contracts obtained through collective bargaining are held to a different standard. Here, employees may not be terminated without proof of guilt. There are seven tests for just cause in due process hearings for these types of employees:

The employee must be afforded adequate notification of rules and sufficient warning that the employer is aware of a problem;
The issue must be one defined as real by a reasonable person;
There must be a complete investigation;
The investigation must be impartial and objective;
There must be conclusive proof of an infraction;
Rules and consequences must be administered uniformly,
The discipline or consequences must be reasonable.

[Read more…]

Filed Under: Blog, Employment Contract Tagged With: breach of contract, employment law

Workplace Discrimination Based on Mental and Emotional Conditions

February 6, 2017 by Beck Law P.C.

Workplace discrimination. For an employee with a mental or emotional disability, navigating the demands of the workplace can be especially perplexing. Unlike physical disabilities, which are often visible, mental challenges are visible only through the behaviors of the afflicted individual. Sometimes these behaviors carry with them social stigma and fear, which can actually exacerbate the underlying problems.

Employers may not wish to deal with the challenges of mental or emotional disabilities, but the law does not give them that choice. If you suffer from a diagnosed disability, you are entitled to workplace accommodations to give you every opportunity for success in the workplace. Absent those accommodations, a good employment law attorney may be necessary.

Common Mental Health Impairments and Workplace Discrimination

Bipolar disorder: Over 6 million individuals suffer from this disorder, which is characterized by shifting moods and energy.
Borderline Personality Disorder (BPD): 4-5%t of adults in this country suffer the instability in behavior, self-image and moods, impacting many aspects of the person’s life.
Obsessive Compulsive Disorder (OCD): Over 2 million Americans experience compulsions regularly that interfere with life functions;
Panic Disorder: 6 million people in the US have anxieties resulting recurrent panic attacks.
Post Traumatic Stress Disorder (PTSD): Nearly 8 million Americans experience decreased function and excessive emotions due to this disorder.
Seasonal Affective Disorder (SAD): Millions suffer recurrent depression, generally associated with winter weather.

Workplace Discrimination Legal Protections

Mental disabilities, including psychological conditions, cognitive disabilities, emotional and mental illnesses, and mental conditions are all protected under the California Fair Employment and Housing Act. This law provides even broader protections than those afforded by the Federal Americans With Disabilities Act (ADA), and were designed to prevent discrimination based on an individual’s history of mental illness. Conditions limiting major life activities (as opposed to the ADA’s substantial limitation requirement) are eligible for consideration.

What Does the Law Require of Employers?

Essentially, employers must accommodate these conditions to a reasonable degree in the workplace. That means assisting the employee to perform the most crucial aspects of the job. Appropriate modifications in the workplace will depend on the mental condition being addressed, but might include:

Reducing distractions by providing sound absorption panels;
Providing full spectrum lighting or more natural lighting;
Providing flexible scheduling;
Providing memory aids or organizers;
Allowing support animals on the premises;
Providing a supportive mentor;
References to Employee Assistance Programs or counseling;
Reducing triggering stimuli;
Providing disability awareness training for coworkers;
Providing various forms of feedback.

Supervisors can accommodate employees by creating an inclusive culture that values all employees. Open communication, regular feedback, and clear written goals are always helpful. Additionally, developing strategies to deal with conflicts and emotions may be essential in creating a positive work environment. [Read more…]

Filed Under: Blog, Disability Discrimination Tagged With: employee rights, workplace discrimination

Whistleblower Protection

February 1, 2017 by Beck Law P.C.

Whistleblower protection? Suppose you know that your place of employment engages in practices that contravene public policy or that are outright illegal. Let’s say you blow the whistle, and before you know it you are experiencing retribution for your actions, or perhaps are even fired? What are your options now?

Employees may not be retaliated against for being a whistleblower, but if retaliation does occur, an attorney who is schooled in labor law can be a lifesaver.

Whistleblower Case in Point

After a month-long whistleblower trial, Melody Jo Samuelson was rewarded a $1 million dollar verdict in her favor.

The case revolved around Samuelson’s claim that, as a state employee charged with evaluating the fitness of patients to stand trial, she was pressured into “returning patients to court to stand trial” even when they might not be ready. The complaint stated that the hospital’s chief of psychology compelled her and other staff to lower standards used in patient evaluations and otherwise depend on unreliable methods in order to taint the evaluations in favor of competence. The goal was improved outcome statistics, but , Samuelson believed this resulted in patients facing trials that they were simply not competent to stand.

After Samuelson answered questions about the egregious practices under subpoena, she endured a backlash of retaliation ranging from the manipulation of her credentials file to outright false statements about her. She also claimed the peer-review process was used to “extort” her.

After months of such retaliation, Samuelson was eventually fired, purportedly for committing perjury while testifying in a patient’s criminal case. On appeal to the State Personnel Board, she was reinstated a year later.

Upon her return to work, Samuelson found herself in an entry-level position, rather than in a clinical job. Her pay was shorted, false documents remained in her file, and insurance deductions were taken for the months when she had no coverage.

Samuelson took the state hospital and three of its employees to court with a claim of whistleblower retaliation. The Department of State Hospitals was found liable for the lion’s share of damages, with an order to pay $890,000. Her immediate supervisor was ordered to pay $50,000, and two other employees were ordered to pay $30,000 each.

California Whistleblower Law

Under California statute, employees cannot be fired for refusing to break the law, for exercising any constitutionally protected right or privilege, or for reporting violations of statute for the public benefit.

What if your employer enacts a policy stating that you are not allowed to disclose violations that you suspect are occurring? Is it possible to be terminated for cause if you break the contract? The answer is no! Policies of this nature are unlawful to begin with, and you are not required to follow them. [Read more…]

Filed Under: Blog, Whistleblower Retaliation Tagged With: California employment attorneys, santa rosa whistleblower retaliation attorney

Reverse Discrimination? The Court Says No

January 25, 2017 by Beck Law P.C.

Reverse discrimination? Male prison guards performing strip searches on female inmates is an issue just asking for a lawsuit, right? The Washington Department of Corrections (DOC) needed a strong response to the lack of female correctional officers, and to a growing number of lawsuits involving the abuse and harassment of female inmates by their male prison guards. Complaints ranging from privacy breaches to sexual abuse were not uncommon. Authorities assigned the primary cause to the severe deficiency of female correctional officers in women’s prisons. The result was that male officers were responsible for sensitive duties, including supervising showers and performing pat-downs and other potentially delicate duties.

In response to this problem, officials designated 110 corrections positions as female-only, only to be slapped with a lawsuit from the Teamsters Union, claiming discrimination against male corrections officers. The Teamsters claimed that creating positions specifically for female officers was a violation of Title VII of the Civil Rights Act, in that males were denied jobs purely based on gender.

Reverse discrimination? The 9th Circuit Court found that the deliberation behind the decision to create female positions was sound. Because the DOC had undergone extensive study, including consultation with other states, expert soundings, case law reviews, and Human Rights Commission reviews, the decision to make the gender-specific positions was ruled not discriminatory, as gender was, indeed, a bona-fide occupational qualification (BFOQ) for the positions created.

Bona-Fide Occupational Qualification in Federal Law

Clearly, gender cannot be a disqualifier for hiring, promotion, or advancement in the majority of cases. On the other hand, a clear exception to Title VII regulations exists when sex is essential to a particular job. Hence, the BFOQ stipulations: They are narrowly applied, but deemed necessary in cases such as the corrections department scenario.

Employers need note that BFOQ is not an easy way out of hiring women for jobs that may traditionally be considered “men’s work.” Stereotypes, assumptions, or simple preferences are not acceptable arguments to use in denying employment based on gender.

Reverse Discrimination and Affirmative Action Programs

Many companies may have affirmative action goals designed to encourage a diverse workforce. These may be used to strive for parity, but actual quota systems are unlawful unless specifically court-ordered to rectify discriminatory practices.

It is noteworthy, however, that the Supreme Court has found that merit-based evaluations may, in fact, reflect evaluator bias. In an affirmative action plan that gave promotional preference to a woman who had scored marginally lower than her male counterpart, the court found that since the interviewers were all male, and one had a history of sexually degrading speech, the promotion was proper.

In truth, although there are detractors who believe reverse discrimination is a serious problem in our country, fewer than 2% of discrimination cases pending before the Equal Employment Opportunities Commission might be categorized as such. That is because affirmative action plans are designed to assist individuals who already have germane qualifications. [Read more…]

Filed Under: Blog, Employment Discrimination Tagged With: affirmative action, California employment attorney, gender discrimination, gender equality

Sitting Down on the Job? California Supreme Court Gives You Permission

January 18, 2017 by Beck Law P.C.

Are you a California worker who spends the day on your feet, even though a portion of your work is done at a workstation where sitting down would be reasonable? If so, a recent California Supreme Court decision on seating may impact your work in the future.

2016 California Supreme Court Ruling

The case, Kilby v, CVS Pharmacy, Inc, involved a clerk-cashier who, in addition to stocking shelves and otherwise supporting the organization and cleanliness of the store, was required to run the register and provide customer service. Kilby was not permitted to sit in the course of the workday.

Kilby maintained that the lack of available seating was in violation of Section 14 of Wage Order No. 7-2001, which provides that seating should be available to employees when they are not engaged in active work and when it does not interfere with the performance of duties.

The court considered the Wage Orders’ seating requirements, noting that it intended for “humane consideration for the welfare of employees” and was designed to provide a certain level of protection for those workers who could reasonably perform at least some of their duties while sitting down. It sided with employees, stating that “overall job duties” must be considered when making a determination as to seating provisions.

Specifically, the court sided with Kilby on three important points:

Although an employee’s responsibilities may include a variety of tasks, if even a portion of those tasks can reasonably be performed while sitting, it is incumbent upon the employer to provide seating.
The determination as to whether or not seating should exist should be made while considering the way in which the job is typically performed, as opposed to physical attributes and capabilities of particular workers.
When an employer determines that suitable seating is unavailable, it is incumbent upon the employer to prove why.

Employer Considerations Under the Ruling

So when are employers expected to provide seating? The court’s ruling gives employers these factors to consider:

Will completing the work while sitting down degrade the quality or effectiveness of the work?
Would frequent transitions between sitting down and standing interfere with the quantity or quality of the work?
Will providing seating interfere with the completion of other tasks that require standing or moving?
Would employers’ objectively reasonable expectations for standing be minimized by providing seating (not just their preference for standing)?
Does the physical configuration of the workspace lend itself to employees sitting down?

[Read more…]

Filed Under: Blog, Employee Rights Tagged With: employment law, sitting on the job

Immigrant Workers: Protections Expanded in California

January 6, 2017 by Beck Law P.C.

Immigrant workers make up roughly one-third of California’s workforce, paying over $5 billion in state taxes each year. Even so, the political climate has undoubtedly been alarming of late, leaving many to feel vulnerable. Many people now worry about losing their homes, jobs, and families. In these challenging times, understanding California labor law can bring a bit of comfort in the workplace. If you are an immigrant living and working in California, there are laws on the books to protect you. Let our experienced legal team fight on your behalf.

The Battle Against Immigrant Workers Wage Theft

In an effort to combat wage theft, Governor Brown signed SB 588 into law in 2015. Wage theft occurs when employers illegally withhold wages from an employee. It occurs in numerous ways:

Offering hourly rates below minimum wage;
Failing to pay overtime at the state and federal rates;
Compelling workers to put in time “off the clock.”

Research indicates that immigrant workers and low-wage earners tend to be disproportionately impacted by these actions because they are unaware of the laws or they fear losing their jobs if they complain.

SB 588 seeks to give workers greater protections and more leverage when they do file a claim. Now, employers may face a levy on their business bank accounts or a lien on their property if they are found guilty of wage theft.

Offensive Language Eliminated

SB 432 took effect in January 2016, and it effectively removed the word “alien” from the California Labor Code. The elimination of the derogatory term was intended to recognize the value and contributions of immigrant communities in California.

Eliminating E-Verify Except for Federal Work

The Employment Acceleration Act of 2011 provides key protections to laborers.

California Section 2812 deals specifically with electronic employment verification, known as the e-verify system. It states that, except when required federally, employers may not require employees to use the e-verify system. The exceptions include:

When it is required in order to receive a government contract;
When required to apply for or maintain a business license:
When being penalized for violating other licensing laws.

Basically, this means that it is illegal for an employer to use the federal E-Verify system to check a worker’s authorization status except in the case of government work. This applies to both current and potential workers.

Professional Licensing Available to All Californians

SB 1159 allows all Californians the opportunity to become licensed in 40 different professions. By allowing the use of either a social security number (SSN) or an Individual Taxpayer Identification Number (ITIN), the law essentially allows anyone in the state to obtain a license, irrespective of immigration status. [Read more…]

Filed Under: Blog, California Labor Law Tagged With: immigration-related employment retaliation

Workplace Race Discrimination – Stanley Wilson v. CNN

January 3, 2017 by Beck Law P.C.

Race discrimination in the workplace? What would you say if someone told you “there is no biological reality to human race.” That is right: Anthropologists have believed for years that there is no such thing as variation in biological races. Despite these scientific conclusions on race, racism itself continues to be pervasive in America. U.S. courts are working overtime to protect the rights of Americans who face discrimination due to their skin color, heritage, or culture. If workplace discrimination due to race has impacted you, an experienced employment law attorney can help.

CNN Race Discrimination Lawsuit is Not Going Away

A California Appellate court found that CNN was not off the hook in the case of Stanley Wilson v. CNN. In a 2014 suit, Wilson claimed that after years of being passed over for promotions, he was ultimately fired from CNN. While CNN asserts the firing was a result of plagiarism, Wilson contends that race discrimination was at the root of the termination.

In an anti-SLAPP (strategic lawsuit against public participation) motion against Wilson, CNN argued in favor of its “protected activity” in the free speech arena. The trial court granted CNN’s motion, and Wilson’s claims were dismissed.

But in December of 2016, the Second Appellate Court essentially found that free speech does not trump an employee’s right to a discrimination-free workplace, nor the does it give employers the right to retaliate against employees. Wilson’s suit is alive and well and will proceed.

What Constitutes Race Discrimination?

Race discrimination is a violation of the Civil Rights Act of 1964, and comes in many variations. Some markers of this type of unlawful activity include:

Job Accessibility: Not being recruited, hired, or being fired, due to race;
Segregation: Experiencing physical isolation or exclusion from positions, responsibilities, or relationships; even having one’s employment files coded according to race;
Being passed over for promotions despite experience, seniority, or qualifications, particularly if specific groups are disparately impacted;
Harassment: Exposure to derogatory or unflattering racial comments or labels causing one discomfort in the workplace;
Lower Pay: Experiencing significant pay differentials which appear to be based on race;
Duties: Being assigned to tasks which are more menial in nature, with less authority or impact;
Fewer Training Opportunities: Being excluded from opportunities for professional development.

How Common is Race Discrimination in the Workplace?

Unfortunately, discrimination occurs more often that many Americans would like to admit. In fact, the number of complaints received by the Equal Employment Opportunity Commission (EEOC) since 2011 based on race is approaching 50,000. [Read more…]

Filed Under: Blog, Employment Discrimination Tagged With: California employment attorneys, racial discrimination

Can an Employee Be Required to Pay Back the Cost of Their Training if They Quit?

December 27, 2016 by Beck Law P.C.

It is a common arrangement for an employer to offer to pay for an employee’s education or training, so long as the employee agrees to pay back some (if not all) of these costs if he or she leaves the company within a certain period of time. However, a former employee of a California steel plant recently sued after he was required to pay back the cost of his education – and he argued that these kinds of reimbursement agreements violate state law.

The employee, Floyd Case, worked as a laborer for USS-Posco Industries (UPI), which introduced a program allowing workers to be trained to become Maintenance Technical Electrical workers. The training was provided to each participating employee free of charge, unless an employee voluntarily quit his or her job within 30 months of completing the training. In that case, the employee would be required to pay back $30,000, minus $1,000 for each month the employee worked after the training ended.

Case quit his job two months after finishing the training, and was expected to repay $28,000. He filed a complaint, arguing that the reimbursement agreement he signed violated the California Labor Code, the California Business and Professions Code, and the federal Fair Labor Standards Act. Had the courts sided with Case, the result could have been disastrous for employers, as their reimbursement agreement contracts with employees could have been rendered invalid across the board.

However, Case’s complaint was dismissed at trial, and a California appeals court upheld the dismissal. The ruling, USS-Posco Industries v. Case, asserts that reimbursement contracts like the one signed by Case are valid. However, the ruling also makes it clear that there are certain types of reimbursement contracts that courts should not enforce.

Which Reimbursement Contracts are Valid, and Which Are Not?

The court held that the training program offered by UPI was strictly voluntary and optional, and thus UPI could enforce a contract requiring an employee such as Case to pay back the program’s costs. The court pointed out that Case:

Did not incur any losses or make any expenditures when he took part in the training program, as it was paid for entirely by his employer,
Was not required to participate in the program,
Had other ways of securing a position as a Maintenance Technical Electrical worker, such as devising a training program of his own, or taking the test without a training program, and
Understood that he would be required to pay back the costs of the training if he quit his job within 30 months of completion.

If, however, an employee was required to make expenditures in order to perform his or her job, the employer would not be able to recoup these expenses from the employee – even if the employee signed a contract agreeing to reimburse the employer. An example offered by the court is In Re Acknowledgement Cases, in which Los Angeles police officers who quit their jobs after less than five years on the force were required to reimburse the city for their training costs. The policy was ruled impermissible at court, because the officers were required to undergo the trainings. [Read more…]

Filed Under: Blog, Employment Contract Tagged With: California employment attorney

Pregnant Workers That Face Discrimination in California

December 16, 2016 by Beck Law P.C.

Working mothers and pregnant workers face challenges that many employers struggle to understand. This is never truer than when women try to balance pregnancy with the demands of a job. If you have faced discrimination based on pregnancy, you want an experienced attorney to assist you in securing your rights, and compensation when those rights have been violated.

Common Workplace Violations Against Pregnant Workers

The U.S. Equal Employment Opportunity Commission (EEOC) is dedicated to ensuring fair treatment for all workers under the law. That includes employment opportunities for women who are pregnant and who wish to continue working at their jobs, but who require temporary accommodations at their workplaces. Title VII of the Civil Rights act prohibits discrimination on the basis of pregnancy.

Unfortunately, there are still some employers who need a little push when it comes to doing what is right. Since 2011, in fact, the EEOC has filed 44 suits involving discrimination claims for women who were pregnant. The suits have revolved around a number of claims of unlawful activities related to violations that occurred during the workers’ pregnancies:

Refusing to hire pregnant workers, or firing workers when employers learned of pregnancy;
Failing to promote, or, in some cases, demoting pregnant workers;
Curbing employment growth opportunities by compelling pregnant workers to take involuntary leave, restricting work hours or limiting assignments;
Refusing accommodations for pregnant workers that would be available to other non-pregnant workers;
Participating in retaliation when pregnant workers and/or coworkers complained about discrimination.

Legal Protections Continue After the Pregnancy

Discrimination sometimes persists after the pregnancy, as well, when employers resist providing appropriate leave and/or accommodations for lactating employees.

The law provides protections for workers who wish to take unpaid leave in order to care for and/or bond with a newborn. Under the Family and Medical Leave Act (FMLA), workers who qualify are entitled to up to 12 weeks of job-protected leave.

Pregnancy Disability Leave (PDL) is another option for pregnant workers who have complications related to pregnancy or childbirth. Under this provision, workers have up to four months of leave, with continued health benefits. Finally, the California Family Rights Act provides up to 12 weeks of unpaid leave for workers to bond with newborns. It is unlawful for your employer to refuse such leave, or to retaliate against you by leveraging promotions or imposing other workplace restraints on you.

Accommodations for Lactation

California labor codes require employers to provide accommodations for lactating mothers including:

Reasonable break times;
A private location other than a bathroom.