Under California disability laws, an employer has an affirmative obligation to engage with an employee who has actual or perceived disability (or medical condition) in an interactive process or direct communication to find reasonable accommodations to his or her condition.
After the employer provides an initial accommodation, the employer's duty under the law does not end, but the duty to re-initiate the interactive process is only triggered if the employer learns or the employee advises the employer that the offered accommodation is not working. The interactive process envisions a continuous flow and exchange of information between employee and employer.
Once an employer has provided an accommodation, there must be a continuous reassessment of whether the provided accommodation continues to be effective, but only if the employee notifies employer of that need or if the employer should reasonable know of such need, based on the obvious condition and the difficulties that the employee continues to experience and the employer witnesses.
If you work and reside in the Stockton area, and have questions about your rights as a disabled or potentially disabled worker, feel free to contact experienced California employment lawyer in the Stockton area for a free, no-obligation consultation to discuss your concerns.
California Labor Code section 98.6 prohibits employer from terminating, threatening to terminate, demoting, suspending, or otherwise discriminating against an employee who participates as a claimant or as a witness in proceedings before the state Labor Commissioner or otherwise exercises his or her rights under the Labor Code.
Labor Commission proceedings include claims for unpaid wages, claims for retaliation against employees for complaining about violation of wage and hour laws (such as meal/rest breaks periods, overtime, etc.), claims against en employer for preventing an employee from engaging in political activity or running for office or for requiring an employee to participate in political activity.
The employee has six months after the act of discrimination occurs to file a complaint with the Division of Labor Standards Enforcement (DLSE) as per Labor Code 98.7(a). Only employee who make actual complaint or claim are protected. Labor Code 98.6(b). Such an employee is entitled to reinstatement and reimbursement for lost wages and work benefits caused by the unlawful acts of the employer.
Arkady Itkin
San Francisco Employment and Wrongful Termination Law
Under Cal. Gov. Code 12950.1 each employer covered by this section shall provide sexual harassment training and education to each supervisory employee in California once every two years. The training and education required by this section shall include information and
practical guidance regarding the federal and state statutory
provisions concerning the prohibition against and the prevention and
correction of sexual harassment and the remedies available to victims
of sexual harassment in employment. The training and education shall
also include practical examples aimed at instructing supervisors in
the prevention of harassment, discrimination, and retaliation, and
shall be presented by trainers or educators with knowledge and
expertise in the prevention of harassment, discrimination, and retaliation. Thus, an employer must make sure that the trainer that provides harassment training to his staff is qualified and has the requisite credential to advise on California harassment law and prevention of harassment at workplace.
The training mandated by the statute need only be provide to "supervisory employees" and not to all employees. Although this statute doesn't define supervisor, generally FEHA defines supervisors as individuals who have the authority to hire, terminate and make other executive decisions with respect to other employees (subordinates).
Although the penalty for non-compliance appears to be relative minor, the implication of failure to provide harassment training to supervisors can be quite significant and egregious. The plaintiff, suing the company for harassment and failure to prevent harassment, will argue at trial that the company has failed to comply with harassment prevention laws, and the jury will be likely entitled to consider that evidence against the company when determining liability for harassment and failure to prevent.
Thus, it is in the employer's best interest to educate and train its supervisors and other employees not only about sexual harassment and general discrimination laws, but also about the provisions of Title VII, the FEHA (Fair Employment and Housing Act) and other statutes prohibiting harassment, discrimination and retaliation on the basis of race, religion, color, national origin, disability, sexual orientation, age, etc.
As I meet more aggrieved employees, I notice a clear, repeating pattern - and employee works and performs well, enjoying working with his professional team and in his work environment, having a good relationship with his supervisor. At one point, his supervisors leaves or is being transferred to another department, and a new manager is being appointed to supervise the same employee. The new manager might be coming from outside, might not be experienced or even worse - might be having his first management position, upon receiving which he or she is eager to exercise his new power and control (what we commonly call as "power trip.")
Your new supervisor might have very different expectations from the previous one, which can be legitimate as every professional has different idea of what and how the performance of his or her subordinates should be. But when the new person abuses his power, nit-picking an employee, who has been working for the same company for much longer, this will necessarily cause undue stress and confrontation between the employee and his new manager. This eventually leads to a range of legal claims by an employee - from harassment and hostile work environment, to retaliation (if the employee complains about his supervisor to the higher up, and as a result gets disciplined or terminated).
How can such problems at workplace and potential liability be effectively prevented and avoided?
One effective way to prevent this problem is to have the new manager undergo training and not only on discrimination, harassment and other laws that cover California workplace, but also generally on employee relations and on what makes a great manager who receives respect and admiration from his employees and who increases productivity, as opposed to one who creates bitterness, frustration and unnecessary stress on his employees.
In addition, it is important to consider supervising closely the new manager and his ways of handling and communicating with his employees - at least in the beginning stages of that new supervisor's job.
It is unfortunately for me to see how many companies-employer fall victims to bad legal advice, whether it's a result of intentional misleading or lack of knowledge of employment law on the side of the defense attorneys.
Here is a typical scenario. A company gets sued for discrimination, harassment, retaliation or wrongful termination. They refer the case to their defense counsel who might be a very experienced employment lawyer or an attorney who doesn't know much about the specific area of employment law.
The lawyers who are competent in employment law will be able to tell right away whether the lawsuit has merit, and yet they will still advise their client - the employer - against settling the claims early, as these attorneys are being paid for their services hourly and thus are interested in billing at least a certain minimum amount of hours before they let the case go. An honest, ethical firm will act in the best interest of its client, as it should, and will urge their client to settle, rather than litigate the case, pay attorneys fees, and be potentially liable for a trial verdict in favor of employee and for employee counsel's attorneys fees.
The lawyers who do not know much about employment law won't even be able to evaluate the case properly and decide whether it should be settled early rather than litigated. Thus, many of those lawyers, governed again by the desire to bill a certain number of hours before they settle, will still move forward and defend the case even when the liability is clear, potentially exposing their client to a much greater loss, including punitive damages and the opposing party's attorneys fees.
Many employees suffering from a disability or a particular medical condition qualify for FMLA leave, under which they are entitled to be placed on unpaid leave for up to 12 weeks in a year, assuming that certain FMLA conditions are satisfied.
However, very few employees are aware that upon expiration of FMLA leave, they might be entitled to additional time off as a reasonable accommodation to their disability / medical condition. Under California law, an employer must engage with an employee in a good faith interactive process to find out if the employee may be provided reasonable accommodation to his or her disability / medical condition at workplace. One of those reasonable accommodations can be extending the employee's leave beyond FMLA leave, unless this extended leave would impose undue hardship on the employer's business. An employer who fails to engage in this interactive process to investigate whether reasonable accommodations can be provided to the disabled / sick employee may be liable for disability discrimination, failure to accommodation and other violations of employment laws in California.
If you believe that your employer did not fulfill it's obligation under California law and you would like to discuss your situation at workplace, contact San Francisco employment attorney Arkady Itkin for a free, no-obligation consultation.
An issue often arises in connection with the off-duty conduct of employees of whether an employee can be disciplined or even discharged by his employer based on such off-duty conduct. This answer to this question will often depend on the facts surrounding the employee's conduct. Where the conduct is offensive and egregious, however, the courts will often rule in the employer's favor.
In a recent New York case, for example, a male nurse employed in a hospital visited the hospital while on vacation. The employee, who was intoxicated, got into a violent scuffle with security guards at the hospital and was terminated. The employee brought action for wrongful termination arguing that his off-duty conduct should not have been considered by the jury. The court disagree, however, holding that his off-duty conduct was relevant to the issue of whether he posed a threat to the safety of others.
Employers should avoid taking adverse action against the lawful off-duty conduct of employees unless:
* The conduct represents a conflict or potential conflict of interest (e.g., working for a competitor or engaging in self-employment in competition with one's employer).
* The conduct impairs an individual's job performance (e.g., drop in an employee's productivity because a second job makes the employee too tired to work at expected performance levels).
* The conduct puts the employee in a position where his judgment or authority can be compromised (e.g., a manager dating a subordinate and having authority for employment decision affecting that individual.) It is important to note, however, that the adverse employment action against the manager should be based on job-related factors and not his off-duty conduct. Such job-related factors may include a loss in confidence in the manager's ability to manage the subordinate; on-the-job conduct, such as spending excessive time with the subordinate with no business justification; or making decisions that negatively affect other employees and could be in violation of the company's sexual harassment policy (e.g., showing favoritism with respect to a promotion). http://www.sanfranciscoemploymentlawfirm.com
The California Fair Employment and Housing Act specifically prohibits harassment based on “race, religious creed, color, and national origin.” Hostile work environment claims based on racial harassment are reviewed under the same standard as those based on sexual harassment. Thus, allegations of a racially hostile workplace must be assessed from the perspective of a reasonable person belonging to the same racial or ethnic group as plaintiff.
The California Standard of Conduct for Racial Harassment
To constitute racial harassment, the conduct must be sufficiently “severe” or “pervasive” to later the conditions of the victim’s employment. The victim of the racial harassment must show a concerted partner of harassment of a repeated, routine or a generalized nature” and that the conduct constituted an “unreasonably abusive or offensive work-related environment or adversely affected the reasonable employee’s ability to do his or her job.”
Although occasional, isolated incidents are usually not enough to create hostile work environment, even a single act by a supervisor may be severe enough to alter the conditions of employment. Thus, while the co-workers single racist remark may not be sufficient to constitute harassment, the same statement by the victim’s direct supervisor might be actionable, due to the authority that the supervisor has over a victim and the increase stress/injury resulting as a result of being subject to harassment by the person in a position of authority.
Employer’s Duty to Prevent Harassment
As with sexual harassment claims, an employer has a duty to prevent and remedy instances of racial and national origin harassment. An employer who fails to remedy problems of which it has actual or constructive knowledge may be held liable for harassment despite the existence of a formal policy against harassment.
Harassment by Member of Same Race At least one federal court held that racial slurs may constitute harassment even if made by one member to another member of the same race, as the court held in Ross v. Douglas County (8th Cir. 2000).
When Racial Harassment is Aimed at OthersBecause the injury from harassment focuses on the workplace environment as a whole, a hostile environment may exist even if some of the hostility is directed at other workers. Thus, where racial slurs have been directed at a minority race of which plaintiff is a member, similar slurs directed at other minorities may contribute to the overall hostility of the working environment.
Negative job performance evaluations are usually held to be statement of opinion rather than fact, and hence not properly the subject of a defamation action, unless an employer's performance evaluation falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics of behavior. Thus, in one case the court held that no defamation action lies even when the employer's opinions about the employee's performance are objectively wrong and cannot be supported by reference to concrete, provable facts. (Jensen v. Hewlett Packard, Co.) Even calling a teacher at a particular school a "babbler" and the "worst teacher" was found to be a subjective judgment and again - not grounds for defamation. (Moyer v. Amador Valley J. Union High School Dist.)
As stated above, while a statement of opinion is not grounds for defamation, a publication of false fact may be actionable. Thus, while a statement accusing plaintiff of poor performance is clearly a statement of opinion, a statement that an employee made a $100,000 mistake in estimating a business bid is a statement of fact and therefore, if false and published to third parties, is actionable as unlawful defamation. (Gould v. Maryland Sound Industries, Inc.)
Under California law an employer can authorize alternative workweeks of workdays exceeding eight hours without overtime pay if specified criteria are met. Such flexible scheduling requires full disclosure to affected employees and the affirmative vote of at least two-thirds of the employees in the affected workplace voting in a secret ballot election before performance of the week.
However, the employer must pay overtime at one-and-a-half times the regular rate after 10 hours per day in a 40 hour workweek, and a double the regular rate after 12 hour per days and for any work in excess of eight hours on those days worked beyond the regularly scheduled alternative workweek days.
Thus, if, for example, the alternative workweek is 3 12-hour workdays per week, the employees on that schedule must be paid overtime at 150% of their regular rate for the two hours per day, exceeding the ten-hour limit on each workday.
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