An Important Entertainment Law Ruling: Do Interns Have to be Paid?

August 19, 2015 by

do interns have to be paidDo interns have to be paid? A recent federal ruling provides some interesting insight into the issue of where the line is drawn between unpaid interns and paid employees. The case, Giatti v. Fox Searchlight Pictures, involved several unpaid interns in the film industry who sued for lost wages under the Fair Labor Standards Act (FLSA). In considering their case, the United States Court of Appeals for the Second Circuit adopted a “primary beneficiary” test, intended to determine whether workers should be considered employees.

The primary beneficiary test, as laid out in the decision, focuses on what an intern receives in exchange for his or her work. The test consists of the following “non-exhaustive” considerations, including the extent to which:

  • The intern and the employer clearly understand that there is no expectation of compensation. (If there is the promise of compensation, whether it be express or implied, this would suggest that the intern is an employee.)
  • The internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  • The internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  • The internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  • The internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  • The intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  • The intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

The court added that none of the factors are dispositive, and that they do not all need to point in the same direction in order to provide an indication as to whether an intern should be considered an employee.

The Department of Labor’s Test

The court rejected the test proposed by the interns, which was developed by the U.S. Department of Labor. This test provides that there is not an employment relationship if the following six factors all apply:

  • The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  • The internship experience is for the benefit of the intern;
  • The intern does not displace regular employees, but works under close supervision of existing staff;
  • The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  • The intern is not necessarily entitled to a job at the conclusion of the internship; and
  • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The Department of Labor filed an amicus curiae brief supporting the use of this test, but the court nonetheless chose not to apply it. The court held that this test was “too rigid for our precedent to withstand.”

The FLSA and Your Workplace

The experienced Beck Law P.C., employment and labor law attorneys  in Santa Rosa can provide you with advice about any questions you may have in Sonoma County, Mendocino County and Lake County California about the Fair Labor Standards Act. You can call or email our office today to schedule a consultation.

Filed Under: Employment Law Tagged With: , , , ,

The Public Policy Exception for At-Will Employment

August 14, 2015 by

at will employmentIf you ask an employer what “at-will employment” means, there’s a good chance they’ll tell you that it means an employer can fire the employee for any reason they want – or for no reason at all.

This is a very common definition of at-will employment, but it isn’t quite accurate. An employer can fire an at-will employee for almost any reason – but there are exceptions.

The best known of these exceptions is that certain forms of discrimination can be illegal grounds for firing an employee. (In California, these forms include discrimination based on race, national origin, gender, religion, age, sexual orientation, pregnancy status, marital status, genetic information, and disability).

There are other reasons for firing an employee that are prohibited by statute. These reasons include firing an employee for filing a claim for workers’ compensation, or for taking leave that is guaranteed to them under federal or state law, or for engaging in protected union activity.

Another exception is that it is illegal to fire an employee for a reason that is in opposition to public policy. This means that an employee cannot be fired for:

  • refusing to violate a statute;
  • performing a statutory obligation;
  • exercising a statutory right or privilege;
  • reporting a violation of a statute of public importance.

If an employee files a claim against an employer for wrongful termination in violation of public policy, he or she will have to demonstrate that:

  • He or she was an employee of the employer;
  • That he or she was discharged by his or her employer;
  • That the alleged violation of public policy was a motivating reason for the discharge;
  • That the discharged caused the employee harm.

Yau vs. Santa Margarita Ford

A good example of these circumstances can be found in the case of Yau vs. Santa Margarita Ford, Inc. It involved an employee of an auto dealership, who became aware that some of his coworkers were submitting fictitious warranty repair claims. He chose to notify the owner of the dealership about what was happening, and his coworkers responded to the accusation by falsely accusing him of being the mastermind of the scheme. He was later told that he was being fired for alleged warranty fraud, and then was promptly led out of his office by sheriff’s deputies.

The employee filed a complaint against his employer for wrongful termination. He argued that the motivation for his firing contravened public policy set forth in several different laws (such as laws prohibiting criminal conspiracy, theft, fraud and deceit). A California Court of Appeal held that these statutes were statutes of public importance, and that his allegations were properly tethered to the statutes.

Have Your Rights Been Violated?

If you’ve been fired from a job in Sonoma County, Mendocino County or Lake County California and believe that the reason for your firing was in opposition to public policy, don’t let anyone tell you that your employer had the right to fire you “for any reason they wanted.” You may very well have a case against your employer, even if you were an at-will employee.

It may be well worth your time to contact an attorney. Our experienced Beck Law P.C. labor and employment law attorneys in Santa Rosa can evaluate your individual situation, and help you decide how to proceed. Contact our office today for a consultation.

Filed Under: California Labor Law, Employee Rights Tagged With: , , , , , ,

Mental Health Related Disabilities and the Americans with Disabilities Act

August 5, 2015 by

mental health related disabilitiesMental health related disabilities. There are employers who will gladly provide accommodations for an employee who uses crutches or a wheelchair – but are unwilling to consider the needs of an employee with a mental illness. However, the Americans with Disabilities Act (ADA) applies to mental conditions as well as physical ones.

In fact, mental health-related disabilities are mentioned in the first line of the ADA. It states, “The Congress finds that physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical and mental disabilities have been precluded from doing so because of discrimination.”

What Mental Illnesses are Considered Disabilities Under the ADA?

There is no definitive list of which conditions (mental or otherwise) are covered by the ADA. The ADA defines a disability as “a) a physical or mental impairment that substantially limits one or more of the major life activities of (an) individual, b) a record of such an impairment, or c) being regarded as having such an impairment.” There are a variety of mental health conditions that meet those requirements.

The Equal Employment Opportunity Commission (EEOC) has provided examples of mental conditions that can be considered mental impairments under the ADA. These include:

  • Major depression;
  • Bipolar disorder;
  • Anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder);
  • Schizophrenia; and
  • Personality disorders.

To qualify as a disability under the ADA, the mental impairment must substantially limit a major life activity. And just as there is no definitive list of disabilities, there is also no definitive list of major life activities. However, the EEOC’s Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities states that all of following activities are considered major life activities:

  • Learning;
  • Thinking;
  • Concentrating;
  • Interacting with others;
  • Caring for oneself;
  • Speaking;
  • Performing manual tasks;
  • Working; and
  • Sleeping.

California Disability Law

The state of California has its own legislation that requires accommodations for employees with mental disabilities. The Fair Employment and Housing Act (FEHA) states that a mental disability includes, but is not limited to, all of the following:

  • Having any mental or psychological disorder or condition, such as an intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity.
  • Any other mental or psychological disorder or condition not described in paragraph 1 that requires special education or related services.
  • Having a record or history of a mental or psychological disorder or condition described in paragraph 1 or 2 that is known to their employer.
  • Being regarded or treated by the employer as having, or having had any mental condition that makes achievement of a major life activity difficult.
  • Being regarded or treated by the employer as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph 1 or 2.

Note that unlike the ADA, FEHA does not require that the condition “substantially” limit a major life activity. It only requires that the condition limit a major life activity.

Mental Health Disability Legal Questions

If you believe that your employer has discriminated against you on the basis of a mental disability – or if you are an employer, and a claim has been filed against you– it is important that you seek the advice of an attorney. You can call or email the employment and labor law attorneys at Beck Law P.C. in Santa Rosa, who have many years of experience in workplace discrimination cases.

Filed Under: Employment Law Tagged With: , , ,

Pregnancy Leave in California

August 3, 2015 by

pregnancy leave, pregnancy leave in california, labor lawLooking for information on pregnancy leave in California? Pregnant employees are protected by the Family and Medical Leave Act (FMLA), a federal law that guarantees medical leave for eligible workers. (The FMLA also guarantees medical leave for workers in other situations, such as when an employee’s spouse, child or parent has a serious health condition).

Most employers are familiar with the provisions of the FMLA, particularly the requirement that eligible employees must be permitted to take up to 12 workweeks of leave in a 12-month period for the birth of a child, and for caring for the child during its first year of life. (The requirement also applies to employees who adopt children or become foster parents, who are eligible for the work leave within one year of the placement of a child.)

Unfortunately, some California employers are unaware that pregnant employees also have protections on the state level. The California Family Rights Act (CFRA), which provides many of the same protections as the FMLA, is just one of the state laws that provides benefits for workers who are pregnant, and/or have new additions to their families.

California Pregnancy Disability Leave Act

Under California’s Pregnancy Disability Leave Act (PDLA), an employee can take up to four months off from work due to medical conditions related to pregnancy, with a guarantee that their job will be protected. This leave time can be taken intermittently – meaning that an employee does not have to take all of this leave time at once. Another important element of this legislation is that an employee who is taking pregnancy disability leave is entitled to continue receiving any health benefits that they typically get through their employer.

Workers are eligible for pregnancy disability leave if they work for employers with five or more employees. Many employees who are ineligible for the protections of the FMLA and the CFRA are covered by the PDLA.

Family Temporary Disability Insurance

California also has a program that provides temporary insurance benefits to workers who take leave for certain family-related reasons – including employees with new children. The provisions of the program, which is called Family Temporary Disability Insurance (FTDI), are laid out in Section 3301 of California’s Unemployment Insurance Code.

FTDI allows eligible workers to receive up to six weeks of wage replacement benefits if they take time off from work to care for a child who was born within the past year, or for a child who was placed with them via adoption or foster care. The amount received per week is based on the employee’s salary.

Responding to Pregnancy Leave Discrimination

If you are pregnant, or recently had a child, and your employer has denied you the rights to which you are entitled under federal or California law, it is important that you seek legal advice as soon as possible. The employment and labor law attorneys at Beck Law P.C. in Santa Rosa have handled many cases over the years dealing with the rights of employees with families. You can call or email our office today to schedule a consultation.

Filed Under: Employee Rights Tagged With: , , , ,

Amendments to California’s Sick Leave Law Are Passed

July 22, 2015 by

Amendments-to-California's-sick-leave-law-are-passedOn July 13, Governor Jerry Brown signed into law amendments to California’s sick leave law; the Healthy Workplaces, Healthy Families Act of 2014. The law (also known as Assembly Bill 1522) greatly increased the number of workers in California who are eligible for paid sick leave. The amendments make substantial changes to the law – many of which are favorable to California employers.

The amendments (which are contained in Assembly Bill No. 304) include the following changes to the Healthy Workplaces, Healthy Families Act:

  • They add an important stipulation to a provision in the original law. The provision stated that employees who work in California for 30 or more days within a year of beginning their employment are entitled to paid sick days (at a rate of at least one hour for every 30 hours worked). The new amendments require that an employee do that work for the same employer in order to qualify for the accrued sick leave.
  • They allow an employer to provide for employee sick leave accrual on a basis other than one hour for each 30 hours worked – provided that the accrual is on a regular basis, and the employee will have 24 hours of accrued sick leave available by the 120th calendar day of employment.
  • They allow an employer to limit an employee’s use of paid sick days to 24 hours or three days in each year of employment, or a calendar year, or a 12-month period.
  • They require employers to calculate paid sick leave based on an employee’s regular pay rate, or by the total wages divided by the total hours worked in a 90-day period, or the wages for other forms of paid leave.
  • They state that if an employee is rehired within one year of the end of their employment, then the employer is not required to reinstate the employee’s accrued paid time off, if the employee was paid off for their time when their employment ended.
  • They make a clarification regarding the original law’s rule that an employer is required under the original law to keep records for three years documenting an employee’s hours worked and paid sick days accrued. The amendments clarify that the employer is not obligated to inquire into (or record) the purposes for which an employee uses sick leave or paid time off.
  • They allow some employers who provided paid sick leave or paid time off to employers prior to January 1, 2015 to keep their old policies, so long as they make available an amount of leave applicable to employees that may be used for the same purposes and under the same conditions as specified in this section.

Can This Affect Your Business?

If you have concerns about what these amendments mean for your company’s policies, or you are considering making a change to your policies based on the passage of the amendments, it is highly advisable that you speak to an attorney. The employment and labor law attorneys at Beck Law P.C. in Santa Rosa are available for consultation. You can call or email their office today.

Filed Under: Paid Sick Leave Tagged With: , , , ,

California’s New Child Labor Regulations

July 15, 2015 by

child labor regulationsCalifornia’s new child labor regulations. As of January 1, 2015, California has new protections for victims of child labor law violations. Assembly Bill 2288, also known as the Child Labor Protection Act of 2014, has become Section 1311.5 of the California Labor Code.

The legislation reads as follows:

  • “The statute of limitations for claims arising under this code shall be tolled until an individual allegedly aggrieved by an unlawful practice attains the age of majority. This subdivision is declaratory of existing law.”

(“Tolling” a statute of limitations simply means suspending it. So, for example, let’s say an employer in California violates a child labor law, thus giving a 16-year-old employee a cause of action, and the statute of limitations for the particular offense is 3 years. The employee would be able to file a claim until he or she turns 21. This is because, with regard to the statute of limitations, the clock would not start ticking until the employee turns 18.)

  • “In addition to the other remedies available, an individual who is discharged, threatened with discharge, demoted, suspended, retaliated against, subjected to an adverse action, or in any other manner discriminated against in the terms or conditions of his or her employment because the individual filed a claim or civil action alleging a violation of this code that arose while the individual was a minor, whether the claim or civil action was filed before or after the individual reached the age of majority, shall be entitled to treble damages.”

(Treble damages are, effectively, triple damages. Laws such as this one allow for victims of certain violations to receive three times their “actual” damages. So if an employee files a claim alleging that his or her employer violated a child labor law, at a time when the employee was a minor – and the employer subjects the employee to retaliation for filing the claim – then the employee will be entitled to three times the damages that he or she would otherwise receive.)

  • “A class ‘A’ violation, as defined in subdivision (a) of Section 1288, that involves a minor 12 years of age or younger shall be subject to a civil penalty in an amount not less than $25,000 and not exceeding $50,000 for each violation.”

(A class “A” violation is when an employer violates California’s child labor laws in such a way as to present an imminent danger to minor employees, or a substantial probability that death or serious physical harm would result therefrom. Under Section 1288, a class “A” violation carries with it a civil penalty of $5,000 to $10,000 for each and every violation. Under the new legislation, that amount is increased to $25,000 to $50,000 if the employee involved is 12 or under.)

Seeking Legal Counsel Regarding Child Labor Regulations Issues

If you are believe that you were subjected to violations of child labor laws as an employee – or if you are an employer, and you have been accused of violating a child labor law – you may benefit from the advice of a qualified attorney. You can schedule a consultation with the employment and labor law attorneys at Beck Law P.C. in Santa Rosa by calling or emailing their office today.

Filed Under: Child Labor Tagged With: , , ,

The Ninth Circuit Rules on Binding Arbitration Agreements

July 6, 2015 by

binding arbitration, arbitrationsIt has become extremely common for employers to encourage their new employees to sign binding arbitration agreements, in which they waive their right to a jury trial. (These agreements are intended to compel the employees to resolve any future disputes they have with the company via arbitration, which is generally cheaper than going to court.)

Some employers request that their employees sign a binding arbitration agreement directly, but others take a different approach. They simply include an arbitration agreement in their employee handbook, and then ask their employees to sign a statement agreeing to the terms of the handbook.

The advantage to the latter approach is that if the employer decides to update certain aspects of its arbitration agreement, it can revise the handbook, and then ask employees to acknowledge the changes – rather than asking them to sign brand new arbitration agreements.

Court Challenges to Binding Arbitration Clauses in Employee Handbooks

However, one problem that employers have had with this approach is that in some cases, courts have ruled that it is insufficient. One such case was Nelson vs. Cyprus Bagdad Copper Corporation, in which the Ninth Circuit Court of Appeals held that an employee was not compelled to arbitrate, despite an arbitration clause in the company’s employee handbook.

When the employee was hired, he signed the following statement:

“I have received a copy of the Cyprus Bagdad Copper Corporation Handbook…and understand that the Handbook is a guideline to the company’s policies and procedures. I agree to read it and understand its contents. If I have any questions regarding its contents I will contact my supervisor or Human Resources Representative.”

The Court ruled that arbitration cannot be compelled unless the employee has knowingly agreed to waive his or her right to a jury trial. And because the statement above did not mention that the handbook contains an arbitration clause – or that signing the statement constituted a waiver of the right to a judicial forum – the Court ruled that the employee had not knowingly made such a waiver.

Ashbey vs. Archstone Prop. Mgmt.

But what if an employee signs an agreement to abide by the terms of a handbook, and the agreement itself mentions the duty to arbitrate? In May 2015, the Ninth Circuit ruled that such an agreement is enough to compel arbitration.

In Ashbey vs. Archstone Prop. Mgmt., the Court ruled that an employee waived his right to a jury trial when he signed an agreement that contained the following language:

“I acknowledge that I have received directions as to how I may access the Archstone Company Policy Manual, including the Dispute Resolution Policy. I understand that Archstone can administer, interpret, discontinue, supplement, amend or withdraw any of the employment and personnel policies and procedures set forth in this Company Policy Manual. I understand that it is my responsibility to understand the Archstone Company Policy Manual, including the Dispute Resolution Policy, and to adhere to all of the policies contained herein.”

The Court held that because the agreement “expressly notified” the employee about the dispute resolution policy – and did so twice – it was sufficient to compel arbitration. The Court also held that it is not a requirement for the statement to actually list the terms of the policy.

Crafting an Effective Binding Arbitration Agreement Policy

If you want to feel secure that your company’s arbitration agreements will stand up in court, the employment and labor law attorneys at Beck Law P.C., in Santa Rosa can help. You can call or email our office today to schedule a consultation.

Filed Under: Binding Arbitration Tagged With: , , , ,

Sexual Harassment In The Workplace – Quid Pro Quo vs Hostile Work Environment

July 1, 2015 by

sexual harassment in the workplace, sexual harassmentWhen it comes to sexual harassment in the workplace, there are many people who can easily give examples of it, but know very little about sexual harassment law itself. An important, basic fact about sexual harassment law which very few people understand is that there are two different categories of sexual harassment cases: quid pro quo sexual harassment, and harassment that takes the form of a hostile work environment. Both of these types of harassment are prohibited by Title VII of the Civil Rights Act of 1964, and by the California Fair Housing and Employment Act (FEHA).

Quid Pro Quo

The term “quid pro quo” means “something for something” in Latin. Quid pro quo sexual harassment is when someone tries to obtain sexual favors from a coworker by abusing their workplace authority. This can be done with the offer of something positive (for example, “If you sleep with me, I’ll give you a raise”), or with the threat of something negative (for example, “If you don’t sleep with me, I’ll fire you.”)

“Sexual favors” does not necessarily have to mean sexual intercourse – or any kind of physical sex act, for that matter. Offering someone a promotion if they’ll talk dirty to you would be a form of quid pro quo sexual harassment. Telling a subordinate employee that you’ll cut their benefits if they don’t go on a date with you is also an example of quid pro quo sexual harassment, even though you weren’t specifically requesting sex from the employee.

If an employee is subjected to quid pro quo sexual harassment, s/he will not be prevented from filing a claim on the basis of whether or not s/he gave in to the harassment.

Hostile Work Environment

Sexual harassment that takes the form of a hostile work environment does not necessarily involve threats or propositions. A hostile work environment occurs when an employee is subjected to unwelcome sexual conduct in the workplace, and this conduct is severe and pervasive enough that it unreasonably interferes with the individual’s work performance, or it creates an abusive or offensive working environment.

This conduct can take many forms, including:

  • Sexual jokes, questions and/or comments
  • Displaying inappropriately sexual images (such as pornography)
  • Lewd behavior and/or gestures
  • Frequent, inappropriate physical contact
  • Repeated requests for dates
  • Physical interference with an employee’s movement

The Importance of Proper Legal Advice

If you believe that you have been the victim of sexual harassment in the workplace, an employment discrimination attorney will be able to answer your questions, and help you determine your best course of action. Likewise, if you are an employer, and you have concerns about sexual harassment in your workplace (or you have concerns about your sexual harassment policy), speaking to an attorney may help you avoid litigation, and better serve your employees.

The employment and labor law attorneys at Beck Law P.C. have considerable experience in sexual harassment cases. You can call or email today to schedule a consultation.

Filed Under: Sexual Harassment Tagged With: , ,

Training on Prevention of Abusive Conduct – New Rules for California Employers

June 26, 2015 by

prevention of abusive conduct, labor lawAssembly Bill (AB) No. 2053, “prevention of abusive conduct”, signed into law by California Governor Jerry Brown has added new requirements for employers regarding their harassment policies. AB 2053 amended Section 12950.1 of the California Government Code, which lays out necessary elements in the employee training programs that are required for employers with more than 50 employees. As a result of the new bill, these employers will be required to include training for supervisors on “prevention of abusive conduct.”

What Does “Abusive Conduct” Mean?

AB 2053 contains a definition of abusive conduct. It reads:

“For purposes of this section, ‘abusive conduct’ means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.”

While the law requires employers with more than 50 employees to provide training to avoid abusive conduct, it does not actually ban abusive conduct in the workplace. This is to say, it does not create a cause of action for employees who have been subjected to abusive workplace conduct. (However, many forms of abusive conduct were already illegal under other statutes, such as sexual harassment laws.)

Other Requirements of Section 12950.1, Prevention of Abusive Conduct

Under the previously existing requirements of Section 12950.1, California employers with more than 50 employees must provide their supervisory employees with at least two hours of “classroom or other effective interactive training and education regarding sexual harassment.” The training must occur within 6 months of when the employees assume their supervisory positions.

The training must be offered to supervisory employees at least once every two years, and it must include “practical examples aimed at instructing supervisors in the prevention of harassment, discrimination and retaliation.” It must also be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination and retaliation.

12950.1 contains language making it clear that if any particular individual at a workplace does not receive the training, that will not in and of itself cause their employer to become vulnerable to an action alleging sexual harassment. It also states, however, that simply providing the training will not insulate an employer from liability in an action alleging sexual harassment.

(In other words, a sexual harassment suit will not be automatically successful just because a supervisor wasn’t given the proper training. But at the same time, an employer cannot claim that a supervisor cannot be guilty of sexual harassment just because he or she received the training.)

Advice on Meeting the Requirements of 12950.1

AB 2053 went into effect on January 1, 2015 – so if you are a California employer with more than 50 employees, and you have not yet updated the trainings that are given to your supervisors, it’s time to make some changes. If you have any questions about how to comply with the requirements of the new legislation, you can call or email the employment and labor law attorneys at Beck Law P.C., in Santa Rosa Labor Lawyer, to schedule a consultation.

Filed Under: Workplace Harassment Tagged With: , , ,

Employment Discrimination Based on Genetic Information

June 12, 2015 by

employment discrimination based on genetic informationEmployment discrimination based on genetic information. When you think of employment discrimination cases, you probably think about issues like race, gender and age discrimination. What you may not be aware of, though, is that employment discrimination based on genetics is illegal under both federal law, and California law.

In 2008, the Genetic Information Nondiscrimination Act (GINA), a federal statute, was signed into law. GINA makes it illegal for both employers and health insurance providers to discriminate on the basis of genetic information. Three years later, California Governor Jerry Brown signed into law the California Genetic Information Nondiscrimination Act (CalGINA), which amended the California Fair Employment and Housing Act. CalGINA is significantly broader than GINA, as it applies not only to employment and insurance coverage, but also to the realms of housing, public accommodations, and education.

Many California employers paid little attention to CalGINA, because they were aware that federal law already prohibited the use of genetic information as a factor in employment decisions. What many of these employers did not realize, however, is that CalGINA made a substantial change to the employment law landscape in California. Unlike GINA, CalGINA places no limits on the amount of damages that an employee can receive, if he or she has been the victim of genetic discrimination. This makes it significantly more important for employers to ensure that they are not using genetic information improperly.

What is Genetic Employment Discrimination?

If your employer (or a potential employer) obtains information about you, or a member of your family, that is related to genetic tests – and uses that information as a factor in any kind of an employment decision – then you have been the victim of genetic discrimination. The same applies if the employer obtains information about your family’s medical history, and uses it as a factor in an employment decision.

It is generally illegal under federal law for employers to even request genetic information. However, the EEOC acknowledges six exceptions to this rule:

  1. When an employer inadvertently acquires an employee’s genetic information.
  2. When an employer offers genetic services, and is offered the genetic information voluntarily (although this is only permissible in some situations).
  3. When an employee seeks FMLA leave in order to care for a family member.
  4. When an employer obtains genetic information through commercially and publicly available documents, such as newspapers. (However, it is impermissible for an employer to use these sources for the purpose of finding genetic information about employees. )
  5. When an employer obtains genetic information through certain voluntary genetic monitoring programs, if the programs are monitoring the effects of toxic workplace substances.
  6. When employers that conduct genetic testing for law enforcement purposes use employees’ DNA for quality control.

Legal Counsel for Employers and Employees

Now that California employers can face substantial damages in genetic discrimination lawsuits, it is well worth their effort to ensure that they have policies on the use of genetic information that are in compliance with both GINA and CalGINA. A skilled employment lawyer can help determine if a company’s policies need revision.

Employees, too, are advised to look into their employers’ practices regarding genetic information. If you believe your rights have been violated, you may wish to speak to an attorney.

Whether you are an employer or an employee, you can schedule a consultation today with the Sonoma County employment and labor law attorneys at Beck Law P.C., in Santa Rosa.

Filed Under: Genetic Discrimination Tagged With: , , ,
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