Generally, an employee is disqualified from unemployment benefits if that employee leaves employment volunatrily (resigns) without "good cause". A claimant who has a compelling reason for leaving employment or who was discharged or laid off for lack of work, but leaves voluntarily earlier than the circumstances reasonably required, leaves employment voluntarily without good cause and will be disqualified from unemployment benefits. (Precedent Decisions P-B-27, 37, 39, 228 & 242).  

In general "good cause" is such a cause as would, in a similar situation, reasonably motivate the average able-bodied and qualified worker to give up his or her employment with its certain wage rewards in order to enter the ranks of the unemployed. Evenson v. CUIAB (1976). 

Thus, under the law, demotion with significant wage reduction is usually not good cause of quitting a job, unless the reduction is so drastic that it reduces the employee's wages in a way that reasonable leaves him know choice but to quit.  Further, the law is clear that if you resign before you are laid off or terminated, even when you know for sure you will, you will likely be disqualified from benefits. 

It is strongly recommended that you counsult with an experienced employment attorney before you make the decision to quit your job to make sure that you explored all the options available to you under your circumstances to maximize your chances of eligibility for unemployment benefits.

Under the law, an individual who is otherwise qualified for unemployment benefits is not eligible to collect those benefits during the priod of time when he was unavailable to work. This means that if you become unable to work for a few days or a few weeks while collecting unemployment, you must report it on your weekly claim form (there are specific questions on that form that inquire into your health condition and your ability to work).

This is especially important if you are filing for any kind of disability benefits. If EDD finds out that you collect both unemployment benefits and disability benefits, they will charge you with fraud and will demand repayment of unemployment benefits in addition to penalties. As soon as you apply for any kind of disability benefits, you should either stop filling out weekly unemployment benefits claim forms or at the very least point out on your claim forms that you are unable to work due to your medical condition.

The recent case Gonzalez v Downtown LA Motors, LP (2013) is an important ruling on the wages and compensation law, favorable to employees of automotive repair shops and clarifying the California minimum wage law.   In that case, the employer - the automotive dealership that sold and serviced Mercedes Benz vehicles compensated its service technicians on a piece rate basis. This means that the technicians were paid on the basis of repair tasks completed and they were paid from $17 to $32 per task, depending on the technician's experience for each "flag hour" that a technician accrued actually performing those tasks. In addition to tracking those hours, the dealership also kept track of all the time that technicians spent on work site, whether they were working or were just present at their workplace. At the end of each pay period, the employer calculated how much each technician would earn if they were paid minimum wage, and if their earnings fell below that number, they would supplement the flag hour earnings to meet the minimum wage requirements.   

The technicians filed a lawsuit alleging that they should be paid at least minimum wage separately for each hour that they are present at the workplace and not performing the tasks in addition to their per-task compensation. 
The court sided with the employees, noting that California law requires that employees be compensated for each hour worked.   In its discussion, the court illustrated why the employer's manner of compensation in this case resulted in unfair compensation by way of example:  one worker who completes 4 hourly tasks at $20/task would earn $80 after 4 hours; the second worker who works the same task hours but remains on the job for additional 4 hours after completing the tasks would also be paid $80. However, averaging the wages of both technicians over an 8 hour day would show that the second technician was only paid $10/hour. This would be in contradiction of California Labor Code section 223, where the employee would not actually be paid for all hours worked - all the hours that employee had to be present at the workplace and was not free leave or engage in his personal matters. `

One of the common issues that hospital employees face at Kaiser and other major healthcare networks, is retaliation by their managers for reporting patient safety issues to upper management or outside agencies. 
Although completely illegal, it is almost natural for managers to feel both threatened and angry when an employee brings a complaint about the safety issues in their department. The unlawful workplace retaliation can take many forms - from false accusations of misconduct and violation of policies to administrative leave, suspensions, demotions and even termination.

If you suspect that your employer has engaged in retaliation campaign against you and is trying to build a paperwork to drive you out, it's important that you contact an employment attorney to discuss what legal and practical steps you can take to possible prevent your termination or make sure that you have a stronger retaliation claim later, if and when you decide to bring a claim against the employer.

Generally, brokers may classify their real estate agents as employees or independent contractors in California. By special statute, a real estate agent may be treated as an independent contractor, even if, when considering the factors that determine employee/independent contractor classification, that agent should be treated as an employee. In other words, a real estate agent can be classifed as a contractor even if the nature of that agent's work and the degree of control that the broker exercises over that agent would otherwise make that agent an employee.

This is because California adopted a law in 1991 that applies specifically to real estate agents. This law has been enacted primarily in order to help brokers protect themselves from liability for their agents' negligent or intentional misrepresentation (fraud). While brokers may be held liable for their employees' negligence or fraud, they are generally not liable for the same conduct by their independent contractors.

Under this law - California Business and Professions Code 10032, a real estate agent will be considered an independent contractor if: (1) he is licensed as a real estate agent under the law; (2) his income depends substantially on the sales made rather than hours worked; (3) that agent performs work under the written contract or employment agreement that specifically states that the broker and the agent agreed that the agent will be an independent contractor.  

Being covered by workers compensation insurance, having set hours, using the broker's office and equipement, and having to attend mandatory trainings and meetings does not change the independent contractor relationship, which is otherwise set between the broker and real estate agent, assume that the above-referenced three criteria are met.

Title VII makes it unlawful “to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's  sex․" 42 U.S.C. § 2000e-2(a)(1).  The Courts have recognized two bases on which an aggrieved employee may proceed in a sex discrimination claim:  disparate treatment and disparate impact. Disparate treatment arises when an employer “treats some people less favorably than others because of their ․ sex.” Disparate treatment is permissible under Title VII only if justified as a bona fide occupational qualification (“BFOQ”).   A BFOQ is a qualification that is reasonably necessary to the normal operation or essence of an employer's business.  See 42 U.S.C. § 2000e-2.

An employer's policy amounts to disparate treatment if it treats men and women differently on its face.   For
example, in UAW v. Johnson Controls, 499 U.S. 187 1991), defendant Johnson Controls barred fertile women, but not fertile men, from jobs entailing high levels of lead exposure.  The Court concluded this was disparate treatment:  “Johnson Controls' policy is not neutral because it does not apply to the reproductive capacity of the company's male employees in the same way as it applies to that of the females.”  The Court has made it clear that such an “explicit gender-based policy is sex discrimination under § 703(a) [of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-2(a) ] and thus may be defended only as a BFOQ.” 
 
However, an appearance standard that imposes different but essentially equal burdens on men and women is not disparate treatment and does not give rise to a gender discrimination claim.   For example, in Fountain v. Safeway Stores, Inc., 555 F.2d 753 (9th Cir.1977), the court held that a store may impose different hair length requirements on men and women, and may require men but not women to wear neckties. In that case, the court noted that regulations promulgated by employers which require male employees to conform to different grooming and dress standards than female employees is not sex discrimination within the meaning of Title VII.

On the other hand, a sex-differentiated appearance standard that imposes unequal burdens on men and
women is disparate treatment that must be justified as a BFOQ or it will be found an unlawful discrimination. Thus, an employer can require all employees to wear sex-differentiated uniforms, but it cannot require only female employees to wear uniforms.   See Carroll v. Talman Fed. Sav. & Loan Ass'n of Chicago, 604 F.2d 1028 (7th Cir.1979).   An airline can require all flight attendants to wear contacts instead of glasses, but it cannot
require only its female flight attendants to do so. (See Laffey v. Northwest Airlines, Inc., 366 F.Supp. 763 (D.D.C.1973). 

In one recent case United Airlines was found to have engaged in gender discriminatoin when it had a weight policy with respect to its flight attendants, that imposed stricter standards on women than on men. 

For more information about different kinds of discrimination, please visit our San Francisco Employment Lawyer Blog. 

One common scenario where AWOL (Absent Without Leave) rules and an employee's FEHA/ADA disability rights collide and conflict is state agencies and other employers that have set and rigid AWOL policies that they apply to everyone universally. The two common problems with such policies repeat themselves over and over in many wrongful termination claims, and these bad policies can work to an employee's advantage in proving their case in court:

* Rigid, uniform AWOL policies that are applied the same way to all employees. Even though it sounds fair to apply the same leave policy to all employees, it goes completely against the very essence of ADA and FEHA disability laws, which call for an individualized assessment of a qualifying disabled employee's disabilities, restrictions, and limitations. Indidivually evaluating a disabled employee's needs is a cornerstone of the "interactive process" in which the employer is required to engage in with a disabled employee.

* The language of the AWOL government code statute and other AWOL related statutes makes granting leave discretionary. The AWOL rules typically say that an employee who is out for a certain number of consecutive days without "approved" leave may be deemed AWOL resigned. The problem is that whether that leave is approved is completely up to the management. A manager may decide not to approve a disabled worker's medical leave for whatever reason, even though all the necessary medical documentation to support the requsted medical or disability leave has been provided.  

The above two issues open a lot of doors for some employees, and especially state and county employees, terminated due to being AWOL, to legally attack their termination in court through a wrongful termination and/or disability discrimination lawsuit.  

Having represented both employees of start-ups and start-ups themselves in wage related claims, I have had a chance to see for myself what the reasons are that so many start-ups and other kinds of new companies get in trouble with the law, when it comes to overtime pay and misclassification of employees as contractors.

Consider the evolution of a typical start-up. A small group of bright, highly motivated and very hard working professionals gather and start working around the clock in order to build all aspects of their business, and to make their idea, which they hope will be at least in some ways revoluationary, come true as soon as possible. Just a few people are trying to handle every aspets of this newborn business - from basic logistics, such as renting a workspace, buying furniture and office supplies, to company administration, accounting and marketing, among many other things. If their idea gets attention and they are good and lucky enough to raise capital, they will immediately start hiring people to move their business forward. Between hiring and working with new people, training, developing online presence, and working on launching their business full gear, the last thing these enterpreneurs have in mind is worrying about compliance with labor laws that they have never even heard of. Upon superficial study of how the wage laws work, they decide that classifying some of their employees, who work 12 or more hours a day every day, as exempt will be a good idea for at least three reasons: first, the owners don't need to worry about keeping track of the number of hours that these employees work; secondly, there is no incentive for those exempt employees to work more hours than than need to get the work done, since they will not be paid more regardless of how much they work, which is supposed to promote their efficiency; and 3. classifying employees as exempt will save that young company the funds that are so desperately needed at the start-up stage for so many other things.  

However, the legal point that these start-up managers are missing is that simply calling someone "exempt" doesn't make that employee exempt, unless they meet the criteria of an exempt employee under California law, based on their duties and their hourly rate. Caling someone a manager, doesn't make that employee a manager, unless his or her duties are in fact managerial under the law. Many low-level accountants, office administrators and HR personnel are classified as exempt by these new companies, when in fact these employees are almost never exempt under California law, because their duties are not related to managing the company, and they do not exercise significant independent judgement and discretion in company's operations.   

So, how do these legal problems with overtime pay for these companies start? Here are two of the most common situations:
 
1. As the company grows to a hundred or more employees, one of the curious employees, who has been classfiied as exempt, but who believes that he should be entitled to overtime, approaches a class action lawyer, who then encourages him and a number of other employees to bring a class action lawsuit against the company for failure to pay overitme. That lawyer would only need three or so claimants to represent a class of many other employees in order to file a class action.  

2. Another common situation is where a disgruntled employee who is being fired and who believes he has been wrongfully terminated goes to a lawyer, and that lawyer determines that regardless of whether the employee has a wrongful termination case, he has an overtime claim. That individual claim is filed, and then other employees file their own claims aftering finding out about that first claim.   

So, how much can the company be potentially liable for in these overtime cases?  

Lets take an average situation as an exemple, which is likely to happen and which has happened many times before in California. After 5 years of operating, the company has 50 employees who are improperly classfied as exempt. They are paid $40,000 year but work on average 60 hours a week. All of the employees have been working for the company for more than 3 years. They decide to bring a class action claim against the employer.  
The employer's liability in that case, excluding any penalties and attorneys fees, can be calculated as follows:  
each employee can go back as far as three years (and in some cases four years) in claiming unpaid overtime.  
Those employees' hourly rate is $20/hour based on the above annual salary. This means that for every week they worked 20 hours over their 40 hour schedule, they are entitled to their overtime hourly rate of $30/hour times 20 hours which equals to $600 per week in unpaid overtime. If those employees worked on average 50 weeks a year then, 50 times 3 years equals 150 weeks times $600 equals $90,000.00 per employee per three years. This means that the company's total liabiltiy to all the fifty employees will be $90k times 50 equals $4.5 million. This amount doesn't include legal fees, penalties, interest which can add up to another million or more, and above all - the distraction that this kind of process will cause to the company's management and its operations.   

The above headaches and liability are relatively easy to avoid, if the company decides to complay with overtime laws from the very beginning and only classify those employees as exempt, whose duties actually make them fall into that category. Consultating a knowledgeable employment attorney and reviewing compensation practices before any legal issues arise is a much better and a much cheaper option than disregarding the rules or not bothering to find out what these rules are, because history shows that sooner or later every company that doesn't comply with wage and hour laws and overtime pay laws gets hit with a class action, which ends up costing the company millions of dollars.

One of the large employer's favorite ways to get rid of an employee, for a lawful or unlawful reason (i.e. due to discrimination or retaliation) is to start creating a record of poor performance, through series of negative performance evaluations, warnings, and PIP's (performance improvement plans). Since the manager has pretty much full discretion and allowed to exercise his/her judgment in evaluating an employee's performance, driving an employee out that way for fabricated performance issues is relatively easy.  

Last week we represented a former employee of Well Fargo Bank at unemployment benefits appeal hearing, who has been terminated for alleged poor performance after receiving an award for outstanding 5 years service with the company just a few months before being fired. He was fired shortly after turning fifty five. Our client's manager written him up twice before terminating him for alleged inaccuracies in his work. Reversing the denial of unemployment benefits by EDD and awarding benefits to our client, the appeals board reiterated yet again that "mere inefficiency, unsatisfactory conduct, poor performance as a result of inabiltiy or incapacity, isolated instances of ordinary negligence or inadvertance, or good faith errors in judgment or discretion are not misconduct within the meaning of unemployment insurance code that would disqualify claimant from unemployment benefits."   

I can smell age discrimination all over this termination. The question is whether we will have sufficient evidence to prove it when we file a wrongful termination lawsuit.  

Leave under FMLA or CFRA shall not be deemed to have granted unless the employer provides the employee ... a guarantee of employment in the same or a comparable position upon the termination of leave. Gov. Code 12945.2(a). It is an unlawful employment practice for an employer, after grating a requested CFRA medical leave, to refuse to honor its guarantee of reinstatement to the same or comparable position at the end of leave, unless the refusal is justified by a number of limited circumstances, the most common of which is lay-offs, which everyone is equally subject to.

When an employer defends against a wrongful termination claim based on FMLA intereference claim, the employer must demonstrate a legitimate reasons to deny reinstatement to the qualified employee, whose leave is about to expire, and who expects to return to work. 

One significant power of FMLA and CFRA laws favoring employees is that intent or motive is irrelevant in bringing claims for FMLA or CFRA violation. As long as the law has been violated, even if it an innocent mistake on the part of the employer, the employer will still be liable for CFRA/FMLA violation. The remedies may include payment of damages, reinstatement to work or both. For more information about your rights under FMLA and CFRA, as well as your disability rights at workplace, please visit our other California Employment Lawyer Blog.