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Practice
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Practice Area Definitions
WRONGFUL TERMINATION: Being fired from a job for an unlawful reason. If you are fired and the employers' motivating factor is your race, sex, ethnic origin, pregnancy, disability, or medical condition it is a violation of the California Fair Employment & Housing Act. If you are terminated because you complained about or exercised your rights pursuant to a law, statute or regulation which has been adopted for the benefit of the public, you may have a cause of action for wrongful termination in violation of public policy. If you believe you have a cause of action for wrongful termination, it is prudent to seek the advice of an attorney as soon as possible.
WORKPLACE DISCRIMINATION: the area of law dealing with unfair or unequal treatment of a person or persons in the workplace based upon their belonging to a protected class, such as race, sex, ethnic origin, pregnancy, disability, or medical condition disability, or medical condition. If you believe you are being discriminated against, it wise to seek the advice of a lawyer as soon as possible.
If an employee is discriminated against or harassed, he or she must utilize the employer's grievance procedure and should consult an attorney.
When an employee is utilizing the employer's internal complaint procedure, it is often helpful to consult an attorney so that the employee takes the proper steps to remedy his or her complaint. If the employee follows the guidelines and the employer fails to take reasonable corrective action designed to prevent and curtail discrimination or harassment, the employer can be liable for violation of California's Fair Employment & Housing Act or Title VII.
If an employee fails to utilize the employer's internal complaint procedure, an employer can utilize a defense to defeat the claim. This defense allows employers to insulate themselves from liability for harassment charges if they can show they exercised reasonable care to prevent and correct harassing behavior (which requires an effective anti-harassment policy), and the complaining employee unreasonably failed to utilize the employer's internal complaint procedure. This defense, however, can be sustained if employers educate their employees and supervisors about harassment and other inappropriate workplace behavior. Training is an employer's first line of defense and should be conducted on an annual basis by a qualified trainer.
RACE DISCRIMINATION: if an employer takes an adverse employment action, including termination, failure to promote, or demotion, against the employee based on race or if an employee is subjected to harassment because of his or her race, it is a violation of the Fair Employment & Housing Act under California state law or Title VII under Federal law. Harassment is a form of discrimination. If you believe you are being discriminated against by your employer, getting legal advice from an attorney is the first step in effectively responding to the discrimination or harassment.
A person may establish what is called a "prima facie" case under Title VII or FEHA by showing (1) he or she belongs to a protective class; (2) he was subject to an adverse employment decision; (3) he was treated differently than similarly situated employees not in the protected class; and (4) there is sufficient causal connection between the different treatment and the protected status.
Prima facie means that you have evidence which is sufficient to establish a fact or case unless disproved. Once a plaintiff has established a prima facie case, the burden then shifts to defendants to articulate a legitimate, non-discriminatory reason for the act in question. If a plaintiff can prove a prima facie case and provide sufficient evidence to prove that the employer's asserted justification for its conduct is false, a judge or a jury can conclude that the employer unlawfully discriminated against the employee.
Additionally, if the
plaintiff can submit additional evidence of discrimination, such as the
employer's discriminatory statements or that the employer has discriminated
against other individuals, it can help prove a case of race discrimination.
For example, discriminatory remarks can create an inference of discriminatory
motive to prove that the employer's decision was in fact motivated by
discrimination.
SEXUAL HARASSMENT: the area of law dealing specifically with discrimination consisting of unwelcome verbal or physical conduct directed at an employee because of his or her sex. The motivation for the unwelcome conduct or comments can be sexual attraction or hostility. The harassment can involve same sex harassment, harassment by a man against or a woman or a woman against a man. Sexual Harassment can take the form of a hostile work environment or quid pro quo sexual harassment.
Hostile work environment: Sexual harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives its victim of his or her statutory right to work in a place free of discrimination, when the sexually harassing conduct sufficiently offends, humiliates, distresses or intrudes upon its victim, so as to disrupt his or her emotional tranquility in the workplace, affect his or her ability to perform his or her job as usual, or otherwise interferes with and undermines his or her personal sense of well-being. The Fair Employment and Housing Act prohibits sex harassment and discrimination as well as other types of harassment and discrimination in California.
Title VII is the federal law which prohibits sex discrimination and harassment as well as discrimination and harassment because the person belongs to a protected class. The United States Supreme Court has stated that Title VII is violated where "the environment would reasonably be perceived, and is perceived, as hostile or abusive," and that "there is no need for it to be psychologically injurious."
Quid Pro Quo Sexual harassment: where a term of employment is conditioned upon submission to unwelcome sexual advances. A cause of action for quid pro quo harassment involves the behavior most commonly regarded as sexual harassment, including, for example, sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee's body and the sexual uses to which it could be put. To state a cause of action on this theory, is it sufficient to allege that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor's unwelcome sexual advances.
When is an employer liable for harassment based on race, sex or some other protected class?
An employer is liable if a management level employee engages in the harassment. Courts have also held an employer liable when a management level employee is aware of co-worker harassment but fails to take adequate steps to stop the harassment. An employer can be liable where its own negligence is a cause of the harassment. An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. Negligence sets a minimum standard for employer liability under Title VII. Employers are liable for failing to remedy or prevent a hostile or offensive work environment of which a management-level employee knew, or in the exercise of reasonable care, should have known.
RACE HARASSMENT: the area of law dealing specifically with discrimination consisting of unwelcome verbal or physical conduct directed at an employee because of his or her race.
Hostile environment harassment is conduct which has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
If an employee is discriminated against or harassed, he must utilize the employer's grievance procedure and should consult an attorney.
When an employee is utilizing the employer's internal complaint procedure, it is often helpful to consult an attorney so that the employee takes the proper steps to remedy his or her complaint. If the employee follows the guidelines and the employer fails to take reasonable corrective action designed to prevent and curtail discrimination or harassment, the employer can be liable for violation of California's Fair Employment & Housing Act or Title VII.
If an employee fails to utilize the employer's internal complaint procedure, an employer can utilize a defense to defeat the claim. This defense allows employers to insulate themselves from liability for harassment charges if they can show they exercised reasonable care to prevent and correct harassing behavior (which requires an effective anti-harassment policy), and the complaining employee unreasonably failed to utilize the employer's internal complaint procedure. This defense, however, can be sustained if employers educate their employees and supervisors about harassment and other inappropriate workplace behavior. Training is an employer's first line of defense and should be conducted on an annual basis by a qualified trainer.
When is an employer liable for harassment based on race, sex or some other protected class?
An employer is liable if a management level employee engages in the harassment. Courts have also held an employer liable when a management level employee is aware of co-worker harassment but fails to take adequate steps to stop the harassment. An employer can be liable where its own negligence is a cause of the harassment. An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. Negligence sets a minimum standard for employer liability under Title VII. Employers are liable for failing to remedy or prevent a hostile or offensive work environment of which a management-level employee knew, or in the exercise of reasonable care, should have known.
RETALIATION:
when an employer takes an adverse employment action against an employee
because he or she made any type of complaint of harassment or discrimination
based on a protected class such as race, sex, ethnic origin, pregnancy,
disability, or medical condition disability, or medical condition. California
law prohibits retaliation against an employee for opposing employment
practices which an individual reasonably believes to exist and believes
to be in violation of the Fair Employment & Housing Act. It is good
faith and reasonableness, not the fact of discrimination, that is the
critical inquiry in a retaliation case. How does a
person prove a retaliation claim? To succeed on a retaliation
claim, a plaintiff must first establish a prima facie case. To establish
such a case, the plaintiff must show that he or she engaged in a protected
activity, that he or she was thereafter subjected by his or her employer
to adverse employment action, and that a causal link exists between the
two. A prima facie case of retaliation is established by a showing by
the plaintiff that the adverse employment decision occurred after the
protected activity of which the employer was aware. The causal link may
be established by an inference derived from circumstantial evidence, such
as the employer's knowledge that the employee engaged in the protected
activities and the proximity in time between the protected action and
the allegedly retaliatory employment decision. If the plaintiff makes
out a prima facie case, the burden shifts to the defendant to articulate
some legitimate, non-retaliatory reason for the adverse action. The burden
then shifts back to the plaintiff to show that the asserted reason is
pre-textual. How does a
person prove the employer's reason for termination if pre-textual? Pretext may be demonstrated
by showing that the proffered reason had no basis in fact, the proffered
reason did not actually motivate the discharge, or, the proffered reason
was insufficient to motivate discharge. Pretext may also be inferred from
the timing of the company's termination decision, by the identity of the
person making the decision, and by the terminated employee's job performance
before termination. Pretext can be proven if an employer is lying about
the reasons why it terminated an employee. The United States Supreme Court
has held that "it is permissible for the trier of fact to infer the
ultimate fact of discrimination from the falsity of the employer's explanation." PUNITIVE
DAMAGE CLAIMS: When an employer has acted intentionally to cause
its employee harm or has engaged in despicable or fraudulent conduct in
conscious disregard of an employee's rights. How does an
employee establish a claim for punitive damages? An employer can be
liable for punitive damages if an officer, director, or managing agent
intends to injure a plaintiff or acts despicably with a willful and conscious
disregard of the rights or safety of others or subjects a person to cruel
and unjust hardship. Under California Civil
Code section 3294(b), an employer shall not be liable for punitive damages
based upon acts of an employee of the employer, unless the employer had
advance knowledge of the unfitness of the employee and employed him or
her with a conscious disregard of the rights or safety of others or authorized
or ratified the wrongful conduct for which the damages are awarded or
was personally guilty of oppression, fraud or malice. With respect to
a corporate employer, the advance knowledge and conscious disregard, authorization,
ratification or act of oppression, fraud, or malice must be on the part
of an officer, director or managing agent of the corporation. An employer may not
employ or continue to employ an employee who harasses another employee
without taking action reasonably designed to protect the rights or safety
of others. If the employer, after knowledge of or opportunity to learn
of the agent's misconduct, continues the wrongdoer in service, the employer
may become an abettor and may make himself liable in punitive damages. DEFAMATION:
An false attack on the good reputation of a person, by slander or libel.
Slander is verbal or spoken defamation. Libel is defamation by writing
such as in a newspaper, book or a letter. WHISTLE
BLOWER COMPLAINTS: if an employee provides information to his
or her employer or a government agency that he or she, in good faith,
believes shows that the company or its managers, supervisors or employees
are violating a law, statute or regulation which exists for the benefit
of the public, and the employer takes an adverse employment action because
of the complaint, an employee has a complaint for wrongful termination
in violation of public policy. If an employee believes he is being retaliated
against because he provided information to the employer that the company
or its managers, supervisors or employees are violating a law, statute
or regulation which exists for the benefit of the public, the employee
should consult with an attorney as soon as possible. FAMILY
LEAVE VIOLATIONS: The California Family Rights Act requires private
and public employers with 50 or more employees in a 75-mile radius to
grant an unpaid family leave of up to 12 weeks annually to eligible employees. Eligibility
for Family Leave Violations To be eligible to
take such leave the employee must have worked for the employer for at
least one year and must have worked for at least 1,250 hours during the
year before the leave. The Family Medical Leave Act ("FMLA")
allows eligible employees of a covered employer to take unpaid leave or
to substitute appropriate paid leave for up to 12 workweeks in any 12
months with the assurance of job restoration. An employee is entitled
to FMLA leave for the birth or care of a newborn or newly adopted child,
or for the care of a close family member with a serious health condition
or the employee's own serious health condition. If an employer retaliates
or takes an adverse employment action because of an employee's exercise
of his or right to family leave, it is a violation of the California Family
Rights Act. An eligible employee is entitled to 12 workweeks of unpaid
leave during any 12-month period for any one or more of the following
reasons: 1. to give birth
or to care for an infant son or daughter; Definition
of a serious health condition A serious health condition
includes an illness, injury, impairment, or physical or mental condition
that involves inpatient care, i.e., an overnight stay in a hospital, hospice,
or residential medical care facility. A serious health condition also
includes an impairment or condition that involves a period of incapacity
or any subsequent treatment in connection with that inpatient care, as
well as continuing treatment by a healthcare provider which includes one
or more of the following: (1) any period
of incapacity of more than three consecutive calendar days and any subsequent
treatment or period of incapacity relating to the same condition that
also involves (a) treatment two or more times by a healthcare provider,
or (b) treatment by a healthcare provider on at least one occasion that
results in a regimen of continuing treatment under the supervision of
the healthcare provider; An employee
can be required to provide medical documentation of the serious health
condition. An employer may require
an employee to submit written certification from a healthcare provider
to substantiate that his or her leave is due to a serious health condition
of the employee or the employee's immediate family member. An employee's
failure to comply with this requirement may cause an FMLA leave to be
delayed or denied. An employer
may require the employee to go to a second and third doctor at the employer's
expense. DISABILITY
DISCRIMINATION: The Americans with Disabilities Act (ADA) requires
employers to make reasonable accommodations so that workers with disabilities
can secure and retain employment. Reasonable
Accommodation The ADA prohibits
employers from engaging in a broad range of discriminatory conduct on
the basis of an employee's disability. Employers may not limit, segregate
or classify jobs in such a way as to discriminate; contract or arrange
with others to discriminate; utilize discriminatory standards, criteria,
or methods of administration; or exclude or deny qualified individuals
from jobs or benefits on the basis of disability. In addition, an employer
must make "reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability."
Congress might have stopped with this language and allowed employers and
the courts to determine what steps reasonable accommodation required.
Instead, the law provides an exception if accommodation would cause "undue
hardship" to the employer's business. The ADA therefore strikes a
balance between the accommodations an employee desires to meet the job's
requirements, and the investment and modifications an employer has to
make to accomplish the accommodations. Reasonable accommodations
under the law can include changes to the physical work environment, or
to the job. Changes of the former type include making facilities accessible
and usable for persons with disabilities. Such changes might include wheel
chair access doors, ramps or elevators, handrails, different chairs, desks
or computers, different lighting, and different configurations for furniture
or machinery. Job changes include such things as restructuring the job,
shortening or modifying the work schedule, transferring the employee to
another vacant job, acquiring or modifying necessary equipment, and adjusting
examinations, training materials or policies. An employer
has a mandatory obligation to engage in the interactive process with the
employee to determine whether reasonable accommodation is appropriate. Employers are required
to engage in an interactive process with employees in order to identify
and implement appropriate reasonable accommodations. The interactive process
is a mandatory rather than permissive obligation on the part of employers
under the ADA and this obligation is triggered by an employee or an employee's
representative giving notice of the employee's disability and the desire
for accommodation. An employer is liable if it fails to engage in the
interactive process when a reasonable accommodation would otherwise have
been possible. What constitutes
undue hardship for an employer? "Undue hardship"
under the ADA means "significant difficulty or expense" for
the employer. Factors the employer may consider in weighing undue hardship
include: 1) the nature and cost of the accommodation; 2) the financial
resources of the facility requiring the accommodation; 3) the number of
workers at the facility; 4) the impact of the accommodation on the facility's
expenses, resources or operations; 5) the employer's overall size, nature
and resources; 6) the type of operations covered; and 7) the relationship
between the facilities covered and the business entity (employer) as a
whole. Disability
Harassment: In order to prevail
on a disability harassment claim, an employee will have to prove that
they: (1) are disabled
or regarded as being disabled; The disability-based
harassment must be "sufficiently pervasive or severe to alter the
employee's conditions of employment and create an abusive working environment."
In determining whether a work environment is abusive, Courts consider
the frequency of the complained of conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance,
and whether it unreasonably interferes with an employee's work performance.
This is the same legal standard employed by Courts when examining hostile
work environment claims under Title VII, the federal law which prohibits
disability discrimination and harassment in the workplace. MEDICAL LEAVE
VIOLATIONS: The California Family Rights Act ("CFRA")
and the federal Family and Medical Leave Act ("FMLA") provide
eligible employees with a medical leave of absence for up to three months,
plus a guarantee of reinstatement to his/her same or
comparable job upon returning to work. Employee Eligibility:
Barring some narrow exceptions, an employee is eligible for a leave of
absence of up to twelve weeks, with guaranteed reinstatement,
if the employee works for an employer who has 50 or more employees,
and the employee: (1) Has been employed by the employer for at least 12
months; (2) Has been employed for at least 1,250 hours during the 12-
month period immediately preceding the leave; and (3) Is employed at a
work site within 75 miles of where the employer employs 50 or more employees.
If an employee meets
these requirements, then he or she must be granted a leave of absence
for any of several reasons specified by law, such as when the employee
is incapacitated due to a "serious health condition"
which renders the employee unable to perform the essential functions
of his or her job. Other permissible reasons requiring a leave of absence
under both the FMLA and CFRA include the birth of a child, placement of
a child for adoption/foster care, and the serious health condition of
the employee's spouse, child, or parent. PUBLIC POLICY
VIOLATIONS: When an employer terminates an employee or takes
an adverse employment action because an employee complained that the employer
or it employees engaged in a violation of any law, statute or regulation
that is designed for the benefit of the public. Additionally, if an employer
terminates an employee or takes an adverse employment action because of
an employee's race, sex, ethnic origin, pregnancy, disability, or medical
condition, it can constitute a public policy violation. SEVERANCE
NEGOTIATIONS: When an employee is terminated from employment,
laid off, unjustly accused of misconduct, or is constructively discharged
because of an employer's mistreatment of the employee, an attorney can
often negotiate a settlement of the employee's termination or resignation.
In this type of action, the employee can be compensated for having to
leave employment without filing a lawsuit. WAGE AND HOUR
VIOLATIONS: Some employers illegally claim that a salaried employee
with a management title is not entitled to overtime pay. In fact, your
title and method of compensation have nothing to do with your right to
overtime in California. Exempt or
Non-Exempt: An employee's title is not what is controlling in
determining whether they are truly Exempt or Non-Exempt. In California,
under the Labor Code as well as Industrial Wage Orders, a 50/50 test is
used. To be considered exempt from overtime, one must spend over 50% of
their time performing managerial, non- administrative duties. If an employee
does not perform managerial duties over half the time, they are entitled
to overtime compensation under California law. If you are concerned that
your employer is not properly paying your wages, you should consult with
an attorney.
(1)"Malice" means conduct which is intended by the defendant
to cause injury to the plaintiff or despicable conduct which is carried
on by the defendant with a willful and conscious disregard of the rights
or safety of others.
(2) "Oppression" means despicable conduct that subjects a
person to cruel and unjust hardship in conscious disregard of that person's
rights.
(3) "Fraud" means an intentional misrepresentation, deceit,
or concealment of a material fact known to the defendant with the intention
on the part of the defendant of thereby depriving a person of property
or legal rights or otherwise causing injury.
2. to care for a child placed with the employee for adoption or foster
care;
3. to care for the employee's spouse, son, daughter, or parent who has
a serious health condition; or
4. to address the employee's serious health condition making the employee
unable to perform his or her job.
(2) any period of incapacity due to pregnancy or prenatal care;
(3) any period of incapacity or treatment for incapacity due to a chronic
serious health condition which requires periodic treatment visits to
a healthcare provider or assistant under direct supervision of such
a provider, (b) continues over an extended period of time, and (c) may
cause episodic rather than a continuing period of incapacity;
(4) any period of incapacity that is permanent or long-term due to a
condition for which treatment may not be effective;
(5) any period of absence to receive multiple treatments (and recovery
from those treatments) by a healthcare provider or provider of healthcare
services (by order or referral) either for restorative surgery or for
a condition that would likely result in a period of incapacity of more
than three consecutive calendar days in the absence of medical intervention
or treatment.
(2) were subjected to unwelcome harassment;
(3) the harassment was because of their disability;
(4) the harassment affected a term, condition or privilege of employment;
and
(5) the employer knew, or should have known, of the harassment and failed
to take prompt remedial action.
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