Apprenticeship Plans

December 5, 2017 by

ApprenticeshipLet’s say you are involved in one of the many apprenticeship programs in one of the trade industries so prominent in California, but you are uneasy with the administration of the finances related to your retirement plan. Or perhaps you are new to the administration team in charge of an apprenticeship program, and are unsure of your responsibilities. What are your options? Only a good labor attorney familiar with your circumstances can tell you for sure, but you should know that the federal government does have oversight of apprenticeship programs and policies.

Fitzgerald Act Guidelines

The US Department of Labor has a guardianship role for apprentices. The Fitzgerald Act was established to ensure equity when it comes to access to apprenticeship programs, as well as to provide information relating to integrated employment and training.

Some of these programs involve private sector workers who are financed through trust funds. Through the power of the Employee Retirement Income Security Act of 1974 (ERISA), the Employee Benefits Security Administration helps to oversee them, as well. Because labor/management apprenticeship committee expenses must come out of money in a separate fund according to the Labor-Management Relations Act, ERISA regulations cover collectively bargained apprenticeship programs, as well.

What is Legally Required of a Retirement Savings Plan Associated with an Apprenticeship Program?

The law provides specific expectations related these plans:

  • There must be a written plan proving for a minimum of one official authorized to administer the plan;
  • There must be a trust established to hold any assets associated with the plan;
  • Documentation must be shared with employee participants, as well as with the government.

ERISA Standards

What does ERISA do? It determines standards of conduct for managers involved in benefit plans and assets, including several specific functions:

  • Fiduciary responsibilities;
  • Reporting to the government;
  • Sharing information with workers who participate in those plans;
  • Travel and credit card reimbursement for managers;
  • Bonding to protect against fraudulent acts.

Apprenticeship Programs – What is Expected of a Fiduciary?

Clear rules guide fiduciary behaviors:

  • Each action must be made exclusively in the best interests of employee participants and their beneficiaries.
  • Every duty must be performed with prudence.
  • All reasonable plan expenses must be paid and plans followed according to law.
  • Third-party service providers should be monitored and reviewed regularly, which changes considered when necessary.

What Actions are Prohibited?

Certain transactions are not allowed, including:

  • Sales, exchanges, or leases between the party in interest and the plan;
  • Extending credit or loans from the plan to a party in interest;
  • Providing facilities, goods, or services from the plan to a party interest.

[Read more…]

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

Teacher Tenure and Job Security

May 30, 2017 by

teacher tenureTeacher tenure is one of the most controversial issues in education today. Teacher tenure proponents claim that tenure provides educators a needed safety net. That more expensive teachers with time in the system will not be terminated in favor of cheaper, less experienced teachers. Nor will experienced teachers feel pressured to keep their opinions to themselves, fearing political or personal vendettas.

On the other hand, opponents of teacher tenure argue that ineffective teachers get locked into classroom positions that do not benefit students and schools. Regardless of where you stand on the issue, the California Supreme Court has upheld current tenure laws, refusing to hear Vergara vs. California appeal, a case that challenged teacher tenure. That being said, under what circumstances can teachers be fired? If you are a California educator who is facing dismissal, but feel it is unjustified, an experienced employment attorney may be helpful.

What is Teacher Tenure?

Tenure is essentially an unspoken, and literally unnamed in the law, policy giving professors and teachers a permanent contract. Educators prefer the term permanent status. But what does permanent mean? Well, permanent means permanent—assuming no severe misconduct or evidence of incompetence occurs, the job is guaranteed.  But that caveat is an important one:  Teachers may still be fired for just cause, meaning that if there is a clear reason, termination proceedings may be undertaken.

While opponents to the tenure system cite red tape and bureaucratic nightmares as impediments to ousting poorly performing teachers, the law really just requires due process. If administrators can prove that a teacher is not performing the job at acceptable levels, the tenure system requires that evidence of the shortcomings is well documented and that an impartial study of the facts of each individual case occurs.

What is Due Process With Regards to Teacher Tenure?

Due process was developed in order to protect students and schools from anything that interferes with students’ rights to a quality education. Due process exists to ensure that decisions relating to schools / teacher terminations are based on educational goals, not personal or prejudicial reasons. Every year, tenured teachers are dismissed when clear evidence makes termination defensible.

Teacher Termination Procedure

State law requires that teacher firing decisions be based upon behavior, performance, and overall fitness for the job. The process is necessarily lengthy and detailed:

  • Specific examples of concerns must be documented;
  • Teachers must be given written notice of the concerns and have 90 days to correct any problems;
  • If issues are not resolved, written dismissal charges must be approved by the school board;
  • Teachers may then request a hearing to be held within 30 days;
  • The school board must serve the employee with an accusation as per the Administrative Procedure Act (APA);
  • Teachers may then request a second hearing with the State Office of Administrative Hearing within 60 days;
  • A three-person commission consisting of one administrative judge and one appointee from the district and one from the teacher hears the case;
  • Teachers may further appeal to the state Court of Appeals.

[Read more…]

Filed Under: Blog, wrongful termination Tagged With: , ,

Employment Breach of Contract in California

February 16, 2017 by

breach of contractEmployment 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: ,

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

January 18, 2017 by

sitting downAre 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 Case is Settled – Who Pays Costs?

November 21, 2016 by

Employment CaseWho pays costs when an employment case is settled? The California Code of Civil Procedure makes it clear that in litigation, the prevailing party is generally entitled to recover its costs from the losing party. According to Section 1032, the “prevailing party” is either the party with a net monetary recovery, or the defendant in whose favor a dismissal is entered.

This rule is usually quite straightforward when a court awards a plaintiff money damages – or when a court dismisses a plaintiff’s entire claim. What about when the parties reach a settlement out of court, as is so often the case in employment cases? Has the plaintiff prevailed, or the defendant?

When the defendant pays a plaintiff to resolve a claim, one might expect the plaintiff to be regarded as the party with a net monetary recovery. But a California trial court recently had a different idea. After a Monterey hospital resolved a wrongful termination complaint by paying a former employee $23,500, the court ruled that the hospital had prevailed, and ordered the employee to pay the hospital’s costs.

The Facts of the Employment Case

Maureen deSaulles was hired by Community Hospital of the Monterey Peninsula as a patient business services registrar. She was fired the next year, and filed a wrongful termination complaint. Her complaint alleged seven different causes of action, including claims that the hospital failed to accommodate her medical condition, that the hospital retaliated against her for asserting her rights under California employment law, and that the hospital breached her contract (as well as an implied covenant of good faith and fair dealing).

At trial, the hospital filed a motion for summary judgment, and the court ruled that deSaulles could only make arguments and introduce evidence on two of her causes of action – breach of contract, and breach of an implied covenant of good faith and fair dealing. The parties then agreed to settle the employment case. The hospital would pay deSaulles $23,500, and the claims of breach of contract and breach of covenant would be dismissed with prejudice. The employment case agreement also allowed deSaulles the right to appeal the court’s rulings on the five other causes of action.

As expected, deSaulles appealed the court’s dismissal on the five causes of action. The appeals court upheld the trial court’s ruling on those causes of action, and the parties returned to the trial court, where both deSaulles and the hospital argued that they were entitled to recovery of costs. The trial court ruled that the hospital was the prevailing party, because it prevailed on five of the causes of action, and entered into a settlement on the remaining costs. The hospital was awarded $12,731.92 in costs, while deSaulles’s request for costs was denied.

The Employment Case Appeal

DeSaulles appealed the trial court’s ruling on costs, and a California appeals court overturned the decision, holding that deSaulles was the prevailing party. In DeSaulles v. Community Hospital of the Monterey Peninsula, a superior court ruled that when a plaintiff is paid money in exchange for a dismissal, the plaintiff has obtained a net monetary recovery, and is entitled to costs – even if the recovery is only partial. This default rule only applies, however, if the settlement agreement does not resolve the matter of costs, and does not have a provision stipulating alternate procedures for awarding costs. [Read more…]

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

Is Workplace Retaliation Impeding Your Career Path?

October 17, 2016 by

Workplace RetaliationDo you feel that not getting promotions at work is because of workplace retaliation? Suppose you are a high-ranking individual with your company and a heavy decision looms before you and your management team. You hold many discussions, and ultimately, you disagree with the direction chosen by your immediate supervisor and the rest of the team. Fair enough. The majority rules, and what is done is done. Or is it?

Fast-forward a few years. Your management peers have moved up in the company, leaving you behind. You cannot prove it, but you have the sinking feeling that your career stagnation is a direct result of your stance in that meeting back in the day. In retribution for speaking your mind, you have been sidelined.

Alleged Workplace Retaliation – LAPD Captain Whittingham

Your situation may not be unlike that of LAPD Police Captain Peter Whittingham. The once-successful captain on an upward trajectory found five years with no promotions unsettling, to say the least. In 2014, Whittingham filed a lawsuit against the LAPD alleging workplace retaliation and discrimination. The courts now must weigh the evidence and determine the legitimacy of Whittingham’s workplace retaliation claim.

What Constitutes Unlawful Workplace Retaliation?

Workplace Retaliation may mean promotions passing you by. But that is only one of many ways in which employers may unlawfully express their dissatisfaction with you. Other common examples include:

  • Demotion, suspension, refusal to hire, reduction in hours;
  • Threats, unjustified negative evaluations, unjustified surveillance;
  • Any other action designed to deter individuals from pursuing their rights.

Legal Response to Workplace Retaliation

The US Equal Employment Opportunity Commission (EEOC) is tasked with holding employers accountable when they retaliate against employees. Whether the retaliation is in response to an employee complaint of some kind, or, as in Whittingham’s case, a response to differing management tactics, it is unlawful and subject to legal remedy.

Additionally, the California Division of Labor Standards Enforcement (DLSE) allows employees, as well as applicants for employment, to file to file a complaint when they believe they have experienced retaliation for lawful activities.  Your employer cannot legally punish you for sharing information with the DLSE.  It is a protected activity, and employers may not discipline employees for answering questions or filing complaints with government agencies.

Proving Workplace Retaliation Causation

Proving that your employer took action against you as retaliation is held to the “but-for-causation” standard. This means that you are responsible for drawing a clear line between the protected activity and the employer response. Your employer will doubtlessly contend otherwise; it is up to you to undermine your employer’s rationale for unlawful actions. [Read more…]

Filed Under: Blog, Employee Retaliation Tagged With: ,

Age Discrimination Incurs Financial Settlements in California

October 14, 2016 by

The $26 million settlement in a Los Angeles Superior Court confirms what federal law states unequivocally: Age discrimination is against the law. 66-year-old Bobby Nickel was fired after being the brunt of age-related jokes and receiving pressure to retire. Although the company claimed the job action was related to other issues, the court found that Nickel was discriminated against due to his age.

A Fresno-based company paid $11,500 to a claimant who was denied a cashier’s position, which was ultimately given to a younger, less experienced applicant. The Equal Employment Opportunity Commission determined that hiring decisions were based on age, and the claimant was discriminated against.

Legal Protections Exist for Older Workers

Fortunately, the Age Discrimination Employment Act of 1967 protects both applicants and employees who are over the age of 40 from workplace bias. If you feel you are a victim of workplace discrimination based on your age, contact the experienced Santa Rosa attorneys at Beck Law P.C. for a free consultation.  Successful litigation of workplace bias may be based on a variety of issues, including:

  • Harassment or name-calling;
  • Compensation discrepancies;
  • Duty differentiation;
  • Benefit disparities:
  • Educational opportunities or lack thereof;
  • Promotion, or lack thereof;
  • Hiring, or disinclination to hire;
  • Firing.

When The Company Claims Factors Other than Age Impacted their Actions

Naturally, the problem of workplace discrimination is generally clandestine, and although you, as a worker or potential employee, may feel the effects, it is not a part of any written, or even spoken policy.

Sometimes employers claim a firing is simply a necessary reduction in force.  In this case, it is incumbent upon the employer to show that the RIF does not disparately impact older employees.  Additionally, the action must be justified by a “reasonable factor other than age.”

Older workers may be targeted due to the higher costs of insuring them. The Older Workers Benefit Protection Act of 1990 requires employers to provide equivalent payout for all employee benefits.  Therefore, although some workers may have higher deductibles than others, the employer contribution to all worker benefits must be equal.  Additionally, employers may not decide to exclude older workers from insurance plans in an effort to reduce negative impacts on the insurance pool. [Read more…]

Filed Under: Age Discrimination, Blog Tagged With: ,

Disability Accommodations for a Disability That Does Not Require Accommodations?

September 21, 2016 by

Disability AccommodationsDisability accommodations – Moore v. Regents of the University of California. Let’s say that an employee approaches his or her manager, and asks for disability accommodations. And, let’s say that the employee does not actually have any conditions that qualify as a disability under California’s Fair Employment and Housing Act (FEHA). In this case, can the employee be protected by FEHA if the employer refuses to consider granting the disability accommodations?

The answer, according to a California appeals court, is yes. In the case of Moore v. Regents of the University of California, the Court of Appeals of California for the Fourth District, Division One, found that an employer’s unwillingness to engage in an interactive process with an employee who requested an accommodation could constitute a violation of FEHA – even if the employee did not have a condition that meets FEHA’s definition of a disability.

Did the University of California Violate an Employee’s Disability Accommodations FEHA Rights?

Deborah Moore worked in the Marketing and Communications Department of the University of California San Diego. After she was diagnosed with idiopathic cardiomyopathy, she informed her employer. She was later demoted, and eventually, her position was eliminated.

Moore filed a complaint asserting that UCSD discriminated against her on the basis of a disability, in violation of FEHA. She alleged, among other claims, that UCSD failed to accommodate her disability. She also alleged that UCSD failed in its duty, under FEHA, to engage in a “timely, good faith, interactive process” with an employee who has requested accommodation for a disability.

The trial court that originally handled Moore’s case dismissed her complaint. It held that Moore did not have a disability that required disability accommodations under FEHA, and thus UCSD did not have an obligation to engage in an interactive process with her.

However, the appeals court disagreed. The court held that it is possible for an employer to violate FEHA by refusing to engage in the interactive process with an employee who claims to require disability accommodation, even if the employee ultimately was not entitled to disability accommodations.

According to the ruling, if an employer regards an employee as having a disability, then the employee is entitled to make a FEHA claim, on the grounds that the employer failed to engage in the interactive process. The Court held that the point of this process is to find appropriate accommodations for employees who have conditions that are considered disabilities under FEHA, or for employees who are merely regarded as disabled by their employers.

The Court held that it would be reasonable for a finder of fact (such as a judge or jury) to conclude that UCSD regarded Moore as disabled. On this basis, the Court ruled that the trial court had erred in granting summary judgment on Moore’s cause of action related to failure to participate in the interactive process. [Read more…]

Filed Under: Americans With Disabilities Act, Blog Tagged With: , , ,

Employer’s Social Media Policy

August 30, 2016 by

Social Media PolicyWhat is your employer’s social media policy? Can employees be punished for criticizing their employers on social media? James Kennedy wrote some complaints on Twitter about Chipotle restaurants. One of these tweets criticized Chipotle for charging extra for guacamole. Another complained that the prices of Chipotle’s meals were excessive, considering the salaries of its crew members.

These kinds of tweets might not please Chipotle’s marketing department, but one would not expect there to be much fuss about them. There was a complicating factor, however – Kennedy himself was a Chipotle crew member. And Chipotle had a Social Media Policy Code of Conduct, which prohibited employees from posting “disparaging” statements on social media platforms such as Twitter.

Chipotle insisted that Kennedy delete some of his tweets. When Kennedy circulated a petition among employees in protest of the company’s break policies (Kennedy alleged that the company was not following its own regulations), his manager directed him to stop. When Kennedy refused to stop circulating the petition, he was discharged.

Kennedy alleged that he was fired in violation of the National Labor Relations Act (NLRA). On August 18, 2016, the National Labor Relations Board (NLRB) ruled that he was wrongfully terminated. The NLRB’s opinion states that many of Chipotle’s policies are unlawful, including its Social Media Code of Conduct.

The Chipotle Social Media Policy Ruling

The Board’s social media policy ruling ordered Chipotle to do all of the following:

  • Offer Kennedy his job back, or a substantially equivalent job (if his former job no longer existed).
  • Pay Kennedy for his lost salary and benefits.
  • Remove any references to Kennedy’s discharge in its files.
  • Allow its workers to circulate petitions regarding employment conditions.
  • Stop enforcing its Social Media Policy Code of Conduct, which prohibits employees from posting “incomplete, confidential or inaccurate information and making disparaging, false, or misleading statements.”
  • Stop enforcing its “Solicitation Policy,” which prohibits employees from soliciting even when they are off the clock, if they are in working areas, and the solicitation could be seen or heard by customers.
  • Stop enforcing its “Chipotle’s Confidential Information” rule, which limits how employees may use the name of the restaurant.
  • Stop enforcing its “Ethical Communications” rule, which directs employees to “avoid exaggeration, guesswork, and derogatory characterizations of people and their motives.”
  • Stop prohibiting its employees from discussing politics, and from using the restaurant’s name for political purposes.
  • Post notices in specified locations in Chipotle facilities which inform employees that the NLRB found that their employer violated federal labor law. The notices also inform employees of their labor rights, and explain that Chipotle will no longer maintain certain policies (such as the Social Media Code of Conduct, the Solicitation Policy, the Chipotle’s Confidential Information rule, and the Ethical Communications rule).

[Read more…]

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

Transgender Employees Health Plan Discrimination

August 29, 2016 by

Transgender EmployeesRobinson v. Dignity Health When does a health plan discriminate against transgender employees? A complaint has been filed against the San Francisco-based company Dignity Health on behalf of one of its employees, a transgender nurse. The complaint alleges that his employer categorically discriminates against transgender employees on the basis of their gender by denying coverage of their health care expenses related to gender dysphoria.

The plaintiff, Josef Robinson, works as a nurse at a medical center in Arizona operated by Dignity Health. Robinson was assigned the sex of female at birth, but identifies as male. He sought coverage through his employee health plan for health care related to gender dysphoria, including hormone therapy treatments and double mastectomy surgery.

However, the Dignity Health Plan denies “treatment, drugs, medicines, services and supplies for, or leading to, sex transformation surgery.” As a result, Robinson has paid out of pocket for his hormone therapy treatments, and his request for pre-authorization for double mastectomy surgery was denied. The denial letter stated that the Dignity Health Plan’s exclusion of expenses related to sex transformation surgery means that all treatments related to the diagnosis of gender dysphoria are excluded. After learning about this denial, Robinson cancelled the surgery.

Allegations of Transgender Employees Discrimination                          

After Robinson was denied coverage, Dignity Health was asked to revise its policies regarding medical expenses related to gender dysphoria. The company responded that it would look into the matter, and later issued a statement expressing that it determined that there was no evidence of discriminatory practice in the health plan. Robinson then filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging that these policies discriminate against transgender employees on the basis of gender. This led to the ACLU filing a complaint against Dignity Health in the U.S. District Court in San Francisco on June 6, 2016.

The ACLU’s complaint argues that denying coverage for health care related to gender dysphoria is a form of gender discrimination in violation of Title VII of the Civil Rights Act of 1964 because it discriminates based on gender nonconformity. The complaint also argues that the denial of coverage is a violation of the Affordable Care Act, which states that covered entities providing health insurance may not categorically exclude all health services related to gender transition.

In May 2016, a judge in Minnesota dismissed a federal lawsuit filed against an employer by an employee whose teenage son was denied health care coverage related to gender dysphoria. In that case, the complaint was rejected on the grounds that the employee was the wrong defendant because she did not personally suffer discrimination. [Read more…]

Filed Under: Blog, Employment Discrimination Tagged With: , , ,
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