You consider yourself an at-will employee, don’t you? You probably are. Unless you signed an employment contract that guarantees your job for a certain number of years you are working “at-will.” You can resign any time. Your employer can let you go at any time. But, you are still protected if your employer discriminates against you.
The California Fair Employment and Housing Act ("FEHA") provides that even an at-will employee cannot be terminated if the termination is based upon a "protected characteristic." Under the FEHA, no termination or demotion can be based upon the following protected characteristics: employee’s disability, age (40 and over), gender, race, religion, national origin, sex or sexual orientation, or sexual identity. Obesity may be protected if caused by a serious medical condition.
If your employer refuses your return from medical leave or places roadblocks in front of you that make it impossible to return, then you have been wrongfully terminated because of a disability. If your employer terminates you because your younger co-workers cannot relate to your 65-year old sensibility, then you have been wrongfully terminated because of your age. If your employer terminates you because you are African-American and your co-workers would prefer to work with someone of another race, then you have been wrongfully terminated because of your race. In each of these examples, the fact you are an at-will employee is irrelevant.
Employee discrimination occurs when an employer treats an employee differently because they fall within a protected class. An employer can discriminate in many ways, such disfavoring employees with medical conditions, refusing to accommodate employees’ religious practices and harassing workers of a certain age to encourage them to quit.
Several different categories of employment discrimination include age (40 and over) ancestry, color, religious creed (including religious dress and grooming practices), denial of Family and Medical Care Leave, disability (mental and physical) including HIV and AIDS, marital status, medical condition (cancer and genetic characteristics), genetic Information, military and veteran status, national origin (including language use restrictions), race, sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding), gender, gender identity, and gender expression sexual orientation.
Discrimination may take the form of an employer providing training necessary for advancement only to male employees, while discouraging females from participating. Discrimination may also take the form of encouraging an employee suffering from debilitating stress, anxiety and depression to resign or by discouraging such an employee from returning from medical leave. In each case, the employee is motivated, at least in part, by the employee’s protected class.
What is unlawful harassment? Although employees often believe otherwise, a supervisor's poor management skills and generalized ill-treatment of employees is not necessarily unlawful harassment. Terrible, but not unlawful. Unlawful harassment reflects a bias someone such as a supervisor, co-worker, or business associate has about you because of your race, sex, religion, disability or other protected characteristic and that individual expresses or communicates that bias through interpersonal relations in the workplace. Harassment of this type can result in a hostile work environment.
Harassment can be written (e.g., email or text), verbal, visual, or physical, and includes things like inappropriate jokes or comments, graphic or degrading comments or slurs, physical interference or unwanted touching, derogatory cartoons or posters, inappropriate gestures and other expressions and behaviors.
A hostile work environment is one of the most common employment claims. Such situations can place employees in intolerable working conditions. Employees in these situations may decide they have no alternative to resign. This may be considered a wrongful termination if no reasonable person could be expected to withstand with the hostile working environment.
For example, it would be important to know who made the degrading comments, when they were made in relation to any adverse employment action, who was in a position to influence the individual taking the adverse employment action, and what was the context in which the remarks were made. Exploring these factors will determine the relevance of such comments to any harassment claim and the weight such remarks should be given.
The California Fair Employment and Housing Act ("FEHA") defines a disability as a condition that impairs a major life activity. Work is a major life activity. Under the FEHA, physical disabilities, mental disabilities and medical conditions are construed broadly and allow broad protection from discrimination based on an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling.
Two fundamental considerations arise when acting pursuant to FEHA’s prohibition on disability discrimination. First, it is an unlawful employment practice to “fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee” unless accommodation would “produce undue hardship to the employer’s operation.” Second, it is also unlawful to “fail to engage in a timely, good faith, interactive process with the employee to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee.
Examples of reasonable accommodations under FEHA include making facilities accessible to and usable by disabled individuals; job restructuring, such as offering part-time or modified work schedules, reassignment to a vacant position, acquiring or modifying equipment; providing qualified readers or interpreters. Even holding a position open for an employee who needs time to recuperate or heal can be a form of reasonable accommodation itself.
If you go on medical leave so you can have back surgery, then your employer is obligated to accommodate your disability by holding your job open so you can return. If you are a 65-year old employee working amongst a slew of 25-year olds your boss cannot treat you differently because of your age. If you happen to be the sole minority employee, your boss cannot treat you badly because he or she thinks you do not “fit in.”
The law protects employees who report employer wrongdoing to law enforcement or a state or government agency. Employees who report violations are generally known as “whistleblowers.” The law protects whistleblowers because it is important that employees speak up when violations occur. Employees who decide to speak up for their rights or the rights of co-workers have a legal claim for whistleblowing retaliation if their employer punishes them for speaking out.
An employee does not need to know for sure whether an employer has violated the law before reporting the potential violation. An employee only needs to have a reasonably based suspicion of illegal activity.
Finally, an employee does not have to be fired from work to file a whistleblower claim. Any negative action taken by an employer to punish an employee for speaking up for their rights or reporting a legal violation supports a legal claim. Examples of negative actions by employers are poor performance reviews, undesirable transfers, and providing less work hours or overtime.
Pregnancy can lead to workplace conflicts due to the needs of pregnancy, such as the need to attend doctor visits during work hours and taking a pregnancy leave. Employers are often frustrated by a perception a pregnant woman is less productive or committed to the workplace. Many employers immediately assume a woman will not return to work after giving birth and taking the three-month leave of absence allowed for under the Family and Medical Leave Act. It is common for an employer to ask a newly-minted pregnant woman if they intend to work after giving birth. This question is not only presumptuous and patronizing, it is also indicative of management's perception a pregnant employee is a "problem employee." The resulting discrimination comes in various forms, such as removing pregnant women from important projects, discouraging doctor visits during work hours, and pressure to take as little time off as possible. In such instances, employers may take their discriminatory animus one step further, such as laying off a female employee who has given birth before they even return from pregnancy leave. Explanations comes in all shapes and sizes, but two common employer explanations for terminating a woman during her pregnancy leave are (1) an employer's claim a woman's job no longer exists and (2) holding a pregnant women's job open during pregnancy leave is too burdensome to the operation of the business. Both excuses are often merely pretext meant to hide discriminatory animus. Litigation can uncover evidence of discrimination by determining if the woman's job duties are still performed in-house (even if by an employee with a different job title) and establishing any burden created by an employee's pregnancy or pregnancy leave is so great the business literally suffers. Employer are required to put up with inconvenience created by a pregnancy, and inconvenience alone is not a legitimate basis for a legal termination.
Pregnancy laws in California are vast and complicated, and most situations implicate multiple laws such as FMLA, CFRA, PDL, and FEHA that must be explored to determine both a pregnant woman's right to reasonable accommodations while pregnant at the workplace and leave rights pre-birth and post-birth, not to mention unfortunate circumstances involving pregnancy complications. The attorneys at Taylor Labor Law, PC are happy to explain your rights step by step.
Workers are misclassified when an employer claims they are independent contractors rather than employees. There are many reasons employers are motivated to misclassified workers, but they all boil down to one thing: money. Employers are not required to pay for workers’ compensation insurance for independent contractors; for employees, they do. Employers are not required to pay independent contractors over time; for employees, they do. Employers are not bound by the California Labor Code for independent contractors; for employees, they are. This amounts to great cost savings for employers willing to break the law. This amounts to great hardship for employees misclassified as independent contractors, as they do not have workers compensation insurance to rely upon if they are injured at work, they are not paid for the long hours they work, and they have no recourse if they are discriminated against, harassed or even terminated because of their race, age, gender, sex, disability or religion.
To determine if a worker is an employee rather than an independent contractor it is necessary to consider several factors, all which are based on a central theme: the amount of control the employee has over the worker. The factors include whether the services rendered require a special skill, the degree of permanence of the working relationship; the method of payment, whether by time or to job; whether the worker is engaged in an occupation or business distinct from that of the employer; whether the worker or employer supplies the tools necessary to perform the work; the workers opportunity for profit or loss depending upon his managerial skills; the length of time which the worker will be performing services; and many others. The presumption is that the worker is an employee, and an employer must present evidence to the contrary.
Meals and Rest Breaks
Nonexempt workers in California are entitled to meal and rest breaks. These amount to a 30-minute meal break for five or more hours-worked and a 10-minute rest break for every four-hours worked. Nonexempt workers required to work through a meal or rest break are entitled to penalty of one-hour’s pay for each missed meal or rest break, with a maximum of two penalties per day. In other words, if an employer forces an employee to miss his or her meal break and rest breaks during one work day, then he or she is entitled to a penalty amounting to two hours of pay.
An employer may not require employee to work through a meal period, such as eating at one’s desk while answering the phone or performing other work. Additionally, an employer may not require an employee to remain on the premises during their meal break. An employer is required to provide a dedicated sitting area and access to amenities to prepare hot food.
There is a move by employers in California to convince the public employees are griping about nothing when missing meal or rest periods, and the law amounts to nothing more than an opportunity for disingenuous employees to file suit. In truth, employees rely upon breaks for many legitimate reasons such as taking medicine, checking on ill family members or childcare and much-needed rest. Loyal employees are willing to work through meal and rest breaks, and employers know this and take advantage. Missed meal and rest breaks are common in certain types of work such as nursing, retail and construction.
National Labor Relations Act
The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers and to engage in other protected concerted activity. The NLRA was established to provide employees with the right to organize unions to negotiate with employers over wages, hours, and other terms and conditions of employment. Courts have extended the rights of organized employment to nonunion employees. Thus, an employee acting on behalf of others in communicating with management over wages or other common benefits may be protected by the Act. This communal conduct by one employee is considered “protected concerted activity.” Protected concerted activity may extend to one employee’s acts on behalf of coworkers concerning health and safety issues and illegal conduct. In recent years, the NLRA has also been found to protect employee’s comments through social media to coworkers regarding workplace concerns, such as wages and unfair management practices.
A class action is a lawsuit in which a representative employee files one or more claims against an employer on behalf of him or herself and all other employees present and past. The law requires the representative employee to bring claims and make decisions that are beneficial not just to him or her, but also to all other employees (i.e., the class) represented in the lawsuit.
It is common for class suits to involve claims for unpaid wages and/or meal and rest breaks common among all employees over many years. It is also common for these claims to involve employees misclassified as independent contractors. This is commonly seen in fields such as delivery, where unknowing workers are hired as independent contractors to deliver furniture, electronics and other goods for delivery companies run at arm’s length by large retail outfits that wish to avoid overtime, and most recently by ride-share outfits such as Uber and Lyft, that insist their drivers are independent contractors and therefore need not be paid overtime or be given meal and rest breaks.