Are Uber drivers employees?

Today’s question comes from Jennifer T. in Diamond Heights who asks:

Q: “I drive for Uber, Lyft, and DoorDash. I have filed my taxes as an independent contractor as that’s what I was told to do by these companies. I heard that there is a new law which will provide me with protections that usually have only been provided to employees. What am I, an independent contractor or employee? What new protections do I have now?”

A: The new law that you have heard about, AB 5, amends Labor Code Section 3351, adds a new Labor Code Section 2750.3, and amends sections 606.5 and 621 of the Unemployment Insurance Code, to ensure the workers who are currently exploited by being misclassified as independent contractors are instead recognized as employees who have basic rights and protections. The legislative history produced during its enactment declared that when workers are unfairly misclassified as independent contractors: (1) these workers are harmed by the loss of significant workplace protections such as they deserve under the law, including a minimum wage, workers’ compensation if they are injured on the job, unemployment insurance, paid sick leave, and paid family leave; (2) it is unfair to other employers who must compete with companies that misclassify; and (3) there is harm to the state of California in the form of lost revenue from these companies avoiding obligations such as payroll taxes and premiums required under workers’ compensation, Social Security, unemployment, and disability insurance programs.

The new Labor Code Section 2750.3(a)(1) remedies these injustices by providing that a person providing labor or services for remuneration (money) shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that all of the following conditions are satisfied: (A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the terms of the contract for the performance of the work and in fact; (B) the person performs work that is outside the usual course of the hiring entity’s business; (C) the person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

The amended Labor Code Section 3351 provides that the law applies to every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and specifically includes: non-resident immigrants and those without proper documentation; minors; elected and appointed paid public officers; incarcerated persons engaged in vocational rehabilitation for pay; truck drivers; and tutors. The law also exempts a long list of occupations including, but not limited to: physicians and surgeons; dentists; podiatrists; psychologists; veterinarians; licensed lawyers, architects, engineers, private investigators, accountants, barbers, estheticians, and cosmetologists; registered security brokers and advisors; real estate salespeople; live-in nannies; direct sales people; and commercial fisherman. The law also does not apply to any workers who can negotiate for their rate of pay, control their hours, and market themselves to multiple businesses, such as: travel agents; outsourced marketing consultants; HR administrators; graphic artists; design professionals; grant writers; fine artists; tax preparers; some still photographers; photojournalists; freelance writers who only do occasional work; repossession agents; and construction trucking service providers.

You, as a Lyft, Uber, and DoorDash driver, are squarely protected under this law and must now receive the benefits other employees would receive, including earning at least the minimum wage. In its perpetual refusal to follow the law, Uber has indicated that it will not comply with AB 5 and filed a federal lawsuit at the end of last year claiming the law to be unconstitutional. Notably, it did not file in a California State Court, which it predicts would be a futile exercise because AB 5 was based on a groundbreaking California Supreme Court decision, Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 (“Dynamex”), which established the new test for determining whether a particular set of job circumstances make someone an employee or independent contractor. Uber hopes the conservative U.S. Supreme Court will be more receptive to their pleas. Fortunately, this will likely be an uphill battle as the Supreme Court has routinely upheld a state’s rights to legislate its own citizens’ working conditions.

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Pause and Think Before You Hit Record: The Implications of Secret Recordings in the Workplace

By: Christopher Dolan and Vanessa Deniston

 

This week’s question comes from Edgar M…

Q: “I work for a large corporation with offices nationwide. I was recently switched to a new department, and already, I have been having problems with my new direct supervisor. He regularly makes racially charged comments around me, which I find offensive. I have told him to stop, but that has only made things worse. I have tried complaining to my HR representative about this behavior, but she is good friends with my direct supervisor and doesn’t believe my reports. I feel the only way I will be taken seriously is if I am somehow able to record my supervisor’s racist comments as proof. Can I do this if no one will take me seriously?”

A: Thank you for your question, Edgar. Certainly, the impulse to capture an injustice on tape is a hard impulse to ignore, especially when those around you are turning a blind eye to or claiming it isn’t happening. Secretly recording someone without their knowledge and consent, however, is a criminal offense under state and federal law with serious consequences.

The federal Wiretap Act of 1968 (18 U.S.C. § 2511) provides it is illegal to secretly record any oral, telephonic, or electronic communication that the communicator would reasonably expect to be private. The California Penal Code § 632(a), enacted under the California Invasion of Privacy Act of 1967, makes it illegal for any person to intentionally and without the consent of all parties to a communication use a recording device to record a confidential communication, whether or not the conversation occurs in person or through some other medium, such as over the phone. Such an offense may be punished by a fine of up to $2,500 per violation and/or by a term of imprisonment of up to one year. California is one of a handful of states with a “two-party [or “all-party”] consent” law, meaning the consent of every single party to the conversation is required before a person can legally record a confidential conversation. In other words, if nine out of ten board members agree you can record a private board meeting, that is one too few.

These criminal consequences will outweigh any potential benefit you may derive from capturing such evidence on tape, especially because in nearly all cases, secret recordings are not admissible evidence in court. Penal Code § 632(d) provides that unless you are trying to prove a violation of section 632 itself, any evidence obtained as a result of recording a confidential communication is not admissible in any judicial, administrative, legislative, or other proceeding. In short, if you have a secret recording of your supervisor spouting racist inappropriate comments that you feel is a smoking gun for your case, it will likely be excluded long before a jury can ever hear about it.

The grey area lies in whether there is a reasonable expectation of privacy in the space where the recording is made. The answer to this question depends on the recording’s location and context. For instance, there is a big difference between recording a conversation in a busy airport terminal and recording a private disciplinary meeting between you, your supervisor, and a Human Resources representative in an office behind a closed door. This is because it is reasonable to expect that a conversation in public airport terminal to be overheard by people passing by. The same is not true for the private HR meeting. 

Context may be nuanced, however. There may be reasonable expectation of privacy in that same airport terminal at 4:00am on arrival of a red-eye flight if the conversation occurs in an empty corner of the terminal where there are no staff or people in sight. Likewise, a conversation at top volume in the doorway of your supervisor’s office adjacent to an open floor plan in earshot of the entire office. There is quite a different expectation of privacy in this context, as opposed to the private HR meeting.

Even if you believe, however, that you are in an environment where there is no reasonable expectation of privacy, there are many variables to be considered and it’s likely not worth the risk. If you believe your supervisor is doing or saying something inappropriate, rather than record them, make a written complaint to your Human Resources department, quoting the specific language you heard or describing the conduct you observed and indicating it made you feel uncomfortable. By creating a written record with your employer, you protect yourself far more than you do by making a recording that could potentially expose you to criminal liability.  Always contact an employment attorney to assist you in taking legal, effective steps towards addressing a difficult workplace issue.

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Who is liable for falling trees?

Recently, I addressed a question posed by a reader who asked who is responsible for damage caused by a tree branch falling from an adjacent yard and crashing through the roof of their house, narrowly missing their child. The article addressed the answer to that question with the assumption that it was a tree owned or maintained by a municipality. This week, I will address trees owned by individual, non-governmental owners.

The reader’s inquiry involved a neighbor’s tree overhanging their property. State law provides that the owner of a tree whose branches overhang an adjoining landowner’s property is liable for damages caused by the overhanging branches. Therefore, if your neighbor’s tree drops a branch and causes injury to a vehicle, person, or structure, they are liable to you for the damages caused.

In general, you are legally allowed to take it upon yourself to cut off any tree branch that overhangs your property from the point where it crosses the boundary. Courts have ruled that shade and debris cast by a neighboring branch, blocking light, clogging gutters, deteriorating a roof, etc., can constitute a nuisance, thereby making the tree owner liable for any and all damages caused. The recovery of damages is generally proportional to the extent of the injuries. Indeed, in the 1952 case of Grandona v. Lovdal, the Supreme Court of California ruled and reasoned as follows: “Trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land. To that extent they are nuisances, and the person over whose land they extend may cut them off, or have his action for damages and an abatement of the nuisance against the owner or occupant of the land on which they grow; but he may not cut down the tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil.”

However, there is a a major caveat: some jurisdictions, like Sausalito, have specific tree ordinances that may prohibit this kind of self-help. Before altering a tree, it is advisable to look into any such tree ordinance in effect. Additionally, even when no local ordinance exists, it would be beneficial to first talk to your neighbors before altering a tree rooted on their property; people can get very wound up over trees and it’s never wise to create unnecessarily hostile relationships with your neighbors.

If you have suffered harm from your neighbor’s trees but the neighbor will not consent to altering the tree, you can file an “action for abatement” requesting the court to order your neighbor to remove the trees or to allow you to cut the branches back to your neighbor’s property line. In Bonde v. Bishop, again in 1952, the California Court of Appeals reasoned with respect to an action by a tree owner against his neighbor who cut back the branches: “The finding that the tree in question was a constant menace to the property of the defendants is sustained by the testimony to the effect that in the past large branches had fallen on the roof and porch of defendants’ house, one of such branches tearing a hole in the roof; that the leaves filled the gutters, and littered the porch and lawn. Clearly, under the testimony appearing in the record here and the findings of the trial court, this tree was ‘an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.’”

In this case, where a tree with previous, known rot damage fell on a house and punched through the roof into a child’s bedroom, there is likely have a strong case for holding your neighbor liable for negligence as well. Actions in negligence hold property owners responsible for failing to take reasonable care to prevent foreseeable damage to others as a result of dangerous conditions on their property. If one is successful in proving that a neighbor negligently maintained their property, one would have the right to recover both economic losses (property damage, cost for clean-up, medical expenses, etc) and non-economic damages such as pain, disfigurement, emotional distress, anxiety, and, in the child’s case, treatment for what sounds like Post Traumatic Stress Disorder.

Homeowner’s insurance covers economic losses caused by falling trees, so you should open a claim with them. They will later seek reimbursement from the neighbor’s insurance.

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You don’t need to put up with a hostile working environment

Today’s question comes from Geraldine T. in Berkeley:

“After reading your article on unlawful harassment two weeks ago, I have a couple of questions. I work in a warehouse and I don’t want to be a “narc,” but I don’t think I should have to put up with the offensive sexual type behavior going on here. One female worker and the male warehouse foreman have known each other for years and they say all sorts of sexual stuff to each other and laugh, all the time. For example, the foreman might say “where do you want me to stack these poles,” and the female worker might answer, “you know where you can put that pole baby, anytime, just don’t let your girl find out.” I don’t need, or want, to hear this crap at work. I am fairly religious and it makes me so uncomfortable that some days I don’t even want to go to work. Whenever I say anything like “I don’t need to hear that kind of talk,” they look at me with disgust and tell me to mind my own business. With Christmas coming, I need this job to buy gifts for my kids and pay the rent. What can I do?”

Geraldine, you shouldn’t have to choose between a workplace free of sexual harassment and your job. This happens all too often. The type of unlawful behavior you describe is known as “hostile environment” sexual harassment and can involve various forms of verbal and physical conduct of a sexual nature that have either the purpose or effect of creating a hostile or offensive working environment. The conduct need not be directed towards you — your awareness and objection is enough. As such, the foreman would be considered to be harassing you, but not his female friend because she participates in the conduct and therefore does not appear to find the conduct “unwanted.” 

A “hostile environment” case requires proof of three elements: (1) an employee subjected to unwanted conduct; (2) such conduct being based on sex; and (3) harassment “so severe or pervasive” as to “alter the conditions of the victim’s employment.” In cases like yours where there has been no direct impact on your work assignments or conditions, the law would require a “commensurately higher showing that the sexually harassing conduct was pervasive and destructive of the working environment”; that is, it has to be so bad that a reasonable person in your position would find it intolerable and detrimental to their working environment.

To hold an employer accountable, the employer must have had actual or constructive knowledge of the conduct and have failed to remedy it. Examples of actual knowledge include personal observation or another employee’s report. Constructive notice is found when the conduct is so prevalent that a reasonably aware employer would know about it. In cases like yours where a supervisor is involved in the conduct, the supervisor’s knowledge is imputed to the employer. 

I suggest that you look at your employee handbook to see if they have a process for reporting such conduct and follow that process. Don’t worry if it requires you to bring it up with your direct manager; you can skip that. I always suggest that a person in your situation file a WRITTEN complaint with their manager’s manager and human resources or, If there is no human resources department, then with the owner. Once in receipt of your complaint, the company is legally obligated to conduct a reasonable, good faith investigation and take “prompt and sufficient remedial measures” to put an end to the harassment. You may also file a complaint with the Department of Fair Employment and Housing at their website: dfeh.ca.gov.

Many people in your situation choose to make anonymous complaints because they are afraid of retaliation. However, there are good reasons not to complain anonymously, though. First, the law prohibits retaliation, including comments, altered job assignments, bogus discipline, or termination, against an employee who has made a good-faith complaint. Second, since your foreman and his friend already know your feelings towards their conduct, they will probably guess who reported them and possibly take actions against you, which the company can claim not to constitute retaliation because the complainant did not reveal their identity. As such, it is best to let them know up front.

Finally, I suggest that you speak to an Employment Trial Lawyer, who usually works on a contingency (taking a percentage of any recovery), for further advice. My firm believes in giving the employer an opportunity to “do the right thing” and avoid a lawsuit if possible, so our employment law team often counsels employees in effectively communicating with their employer to obtain a harassment-free workplace. If these efforts fail, the employer’s insufficient response can serve to strengthen a later lawsuit.

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New state laws expand workplace protections against sexual harassment

Ava G from The Haight asks: “I heard that there were some new laws on sexual harassment. As a member of a women’s empowerment group I was wondering if you could summarize them so we can discuss them at our next monthly meeting.”

Ava, the #MeToo movement started, and continues to run strong, in California. Over the next several weeks I will report on many of the new, progressive, laws extending important protections to California workers. As you have heard, the California Legislature and Governor Newsom have acted decisively in broadening California’s workplace protections in the areas of sexual harassment. As the owner of a law firm which has represented employees (only) in cases of harassment and discrimination over the last 25 years, I can say confidently that these new laws provide much needed additional protection for workers in California.

Former Gov. Jerry Brown signed two important measures into law on Sept. 30, 2018. Senate Bill 1300, propounded by Senator Jackson and codified as Government Code Section 12923, added a host of new employee protections. The law, with certain exceptions, prohibits an employer from conditioning continued employment, or incentives like raises or bonuses, on the execution of a release of a claim or right under the Fair Employment and Housing Act (FEHA), a nondisparagement agreement (an agreement that prevents the employee from disclosing truthful facts that may be negative), or other document that denies the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. The law further provides that any such agreement or document containing such a clause is unenforceable. In addition, SB 1300 extends the previous FEHA requirement that employers protect their employees from sexual harassment by non-employees to require protection from all forms of harassment on the basis of membership in a protected class, race, age, disability, sexual orientation, gender identification, etc.

SB 820, propounded by Senator Leyva and now codified in the California Civil Code Section 1001, renders unlawful any settlement agreement including a confidentiality provision that prevents the disclosure of factual information pertaining to civil or administrative complaints of sexual assault, sexual harassment, or workplace harassment or discrimination based on sex. The law provides that any such provision in a settlement agreement entered into on or after Jan. 1, 2019 is unenforceable. The law does permit a provision, however, that would safeguard, at the claimant’s request, the claimant’s identity and any facts that could lead one to discover the claimant’s identity (except in matters involving a government agency or public official), as well as a provision that prevents the disclosure of the amount paid to settle the claim, at the request of either party.

On Oct. 10, Gov. Newsom signed into law Assembly Bill 9, propounded by Assembly Member Reyes, which extends the time for an employee to file a complaint with the Department of Fair Employment and Housing, a prerequisite for the employee to file a lawsuit or, at the employee’s request, for the Department to conduct an investigation and prosecution of the claim within the administrative system. Until now, employees have been required to file a charge of discrimination or harassment (retaliation or other unlawful conduct) with the Department of Fair Employment and Housing within one year in order to preserve their right to sue their employer for unlawful harassment or discrimination. AB 9 amends Government Code section 12960 to extend the time that an employee has to file a complaint of discrimination and harassment by two years. Now aggrieved employees have up to three years to file a claim and initiate legal action. Moreover, certain additional extensions of time may be granted if the conduct is discovered after the expiration of the three-year period or the aggrieved party finds out the true identity of the unlawful actor.

Although these periods have been extended, it is always best to act promptly when dealing with these matters as documents disappear, memories “fade,” witnesses change jobs and frequently move, making the accumulation of evidence more difficult. It is also important to note that AB 9 is a prospective law, meaning that it does not revive claims which have already expired. As always, it is advisable to consult an experienced sexual harassment attorney to ensure the best outcomes in prosecuting your claims.

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Most gift cards come without expiration dates

This question comes from Kim M. in Pacific Heights, who asks:

Q: “I want to get my daughter a gift card for the holiday, but I have heard that they have fees and expiration dates that can result in the card losing most or all of its value. What is the law regarding these gift cards?”

A: Gift cards can be good for the retailer and the receiver. The receiver can take advantage of the Cyber Monday and Black Friday sales to get more for his or her money, and the retailers get cash upfront without reducing inventory. These cards used to be more of a benefit for retailers, but the California Legislature, in combination with certain consumer-rights groups, has enacted legislation designed to protect consumers.

California Civil Code Section 1749.5 contains the bulk of the law regarding gift certificates and gift cards. Section 1749.5 makes it illegal to sell a gift certificate that contains an expiration date. Likewise, it provides a prohibition against service fees, including any fee for dormancy (unless it has been dormant for more than 24 months, the fee is clearly stated in 10-point type on the card, the fee is no more than $1 per month and the remaining value of the card is $5 or less each time the fee is assessed).

Any gift certificate sold after Jan. 1, 1997, is redeemable in cash for its cash value or subject to replacement with a new gift certificate at no cost to the purchaser or holder, and any gift certificate with a cash value of $10 or less is redeemable in cash for its cash value.

There are certain exceptions to the no-expiration rule. Namely, gift certificates issued pursuant to an awards, loyalty or promotional program without any money or other thing being given in exchange for value, gift certificates donated or sold below face value at a volume discount to employers or nonprofits for fundraising purposes and certificates for perishable food products. Certificates of this type must have the expiration date in capital letters printed on the front.

One issue with gift cards that are not redeemed is the company may go bankrupt. This has happened in the past, leaving countless individuals with gift cards with no value beyond that of the plastic in their hands. California law states that the value of a gift card is held in trust by the issuer such that when and if the issuer goes bankrupt, the gift card value is not considered part of the bankrupt entity’s estate but is considered the holder’s property.

Civil Code Section 1749.6 states that an issuer of a gift certificate who is bankrupt shall continue to honor a gift certificate issued prior to the date of the bankruptcy filing on the grounds that the value of the gift certificate constitutes trust property of the beneficiary (holder). Under certain limited circumstances, gift certificates with an expiration date can be rendered valueless, but the money therefore does not go to the retailer it escheats — i.e. it reverts back to the state’s general fund if it is uncollected property.

Before purchasing gift cards or gift certificates, ask the vendor about their redemption policy. For a gift card that can be used by many non-affiliated vendors, ask for expiration dates and any relevant fees. In addition, ask about where the unused portion of the value can be redeemed and how that amount can be redeemed. This is also important for “single seller” cards, many of which can be purchased at an unaffiliated location.

So, Kim, this is probably more than you were asking for, but there it is. Unless the certificate meets these exceptions above, it can not be subject to an expiration date and your daughter should be able to benefit from your generosity.

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Who is eligible for paid sick leave?

This week’s question comes from Angela in Berkeley, who asks:

Q: “I work part-time at a restaurant to help pay for school. My mother is not in great health and lives alone, so sometimes I’m the only person who can help her when she’s too sick to perform daily functions. I’ve heard that even shift workers in California earn paid sick leave, but I don’t understand how that works or if I can use it to take care of my mother. I’m afraid to ask my employer in case they think they should stop scheduling me for as many shifts.”

A: Thank you for your question, Angela. I am sorry to hear about your mother and the tough situation you find yourself in. Luckily, both the state of California and the city of Berkeley have paid sick leave (“PSL”) laws that should offer you some comfort. By law, your employer is required to post a notice of your rights to paid sick leave in a conspicuous place at the worksite.

California’s Healthy Workplace Healthy Family Act of 2014 provides the equivalent of one PSL hour per 30 hours worked by any employee who works for at least 30 days within the state for a given employer, with very limited exceptions. Unless you work on an airplane crew or are a member of a union that has explicitly waived PSL rights by contract, you are covered by PSL protections. Employees begin accruing PSL hours on the first day of employment and may begin to use them starting on the 90th calendar day of employment. Employers must record the number of PSL hours accrued by all non-exempt employees on end of pay-period wage statements and retain all records of PSL hour accrual and use for three years. If an employee is rehired by an employer within one year of the date of separation, all previously accrued PSL hours must be immediately reinstated. PSL hours must be paid on the payday for the next payroll period as usual, at the average hourly wage over the previous 90 days of employment.

Where city and state laws conflict, employees enjoy the rights provided by the more protective policy. Effective October 2017, the City of Berkeley’s minimum wage ordinance further protects PSL rights for any employee who works at least 2 hours in a calendar work week within the city. Another difference between the protections provided by the state and city involves the maximum number of PSL hours an employee may use and accrue over each year of employment. California law allows all employers to cap use of PSL hours to 24 per year and cap accrual at 48 per year. The City of Berkeley’s ordinance provides different limits for smaller employers (with 24 or fewer employees) versus larger employers (with 25 or more employees). Smaller employers in Berkeley may cap both use and accrual of PSL hours at 48 per year. The city ordinance allows larger employers less leeway, allowing them to cap accrual of PSL hours only at 72 per year and does not allow such employers to limit employees’ use of PSL at all.

As to your question about taking PSL to care for your mother, PSL hours may be used for any medical need of an employee or the employee’s children, parents, spouse or registered domestic partner, grandparents, grandchildren, and siblings. Children and parents under this law include step, adopted and foster children and parents. Additionally, Berkeley’s ordinance provides the employee the ability to designate one additional person for whose care PSL may be used if that employee does not have a spouse or registered domestic partner.

An employee must provide their employer with “reasonable” advance notice of taking PSL if the need is foreseeable. For example, an employee cannot ask to take paid sick leave on the same day for a medical appointment scheduled weeks ahead of time. However, if the need is not foreseeable, such as when your mother needs you to care for her unexpectedly, the employee must merely provide notice as soon as possible. Under state law, an employer may not require an employee to provide documentation of the medical need causing the PSL use.

The law specifically provides that if you accumulate paid sick leave and take it for a valid reason, your employer cannot retaliate against you for doing so. There is a rebuttable presumption of retaliation if the employer takes any negative employment action, including reducing your scheduled shifts, within 90 days of taking PSL; that is, the law will presume the employer is retaliating unless they provide an unrelated lawful business reason for the action. If your employer retaliates against you for requesting or using a paid sick day, you can file a complaint with the California Labor Commissioner’s office or consult with a trial attorney to protect your rights.

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Identifying liability in an officer-involved accident

This week’s column focuses on a recent incident about which we have received a number of inquiries. On Sept. 18, a Redwood City police officer en route to a reported crime scene lost control of his patrol vehicle and struck a pedestrian standing in the median of El Camino Real, as well as two other cars approaching from the opposite direction. The pedestrian was hospitalized with critical injuries. Readers have reached out wondering who bears responsibility when an officer-involved accident results in serious injury.

In general, the California Vehicle Code (CVC) regulations apply to all drivers, whether or not they are acting in a law enforcement or other public capacity. However, an exception provided in CVC Section 21055 applies when an authorized emergency vehicle is either: (1) responding to an emergency call or fire alarm; (2) engaged in rescue operations; or (3) in immediate pursuit of an actual or suspected violator of the law. In any of these situations, emergency vehicle drivers are required to warn the public with red lights visible from the front of their vehicles and, when reasonably necessary, activation of sirens. This exception is designed to ensure emergency vehicles a clear and speedy pathway when the risks to the public from an emergency outweigh the risks to the public from the emergency vehicle’s haste.

Municipalities may also establish “general orders” governing local practices for handling emergency vehicle responses in line with CVC requirements. For instance, Redwood City Police Department’s General Order 316.4 further requires officers to “reduce speed at all street intersections to such a degree that they shall have complete control of the vehicle” and to “elect to respond to the call without the use of red lights and siren at the legal speed limit” where the officer judges that violating traffic laws would present an unreasonable risk given present road and traffic conditions.

When an officer is sued for personal injuries or property damage resulting from a vehicular accident, CVC Section 21055 may be raised as an affirmative defense, meaning an officer may avoid liability if they can prove every element of the exception. Such a legal determination depends heavily on the facts of a particular case. However, the defense will generally not apply if the officer: (1) neither received information to justify an emergency response nor reasonably determined from observation that such a response was necessary; (2) failed to warn the public by illuminating a red light visible from the front of their vehicle and, if reasonably necessary, activating a siren; (3) failed to drive with due regard for public safety given the extraordinary circumstances; or (4) exercised their emergency privileges “arbitrarily,” which courts have interpreted to mean acting either with knowledge that serious injury will probably result or with wanton or reckless disregard of the possible consequences.

In the case of the Sept. 18 crash, it appears that the officer was dispatched pursuant to a legitimate emergency, namely reports of a home invasion. However, the affirmative defense still may not apply if a court finds any of the other three conditions to exist. For example, it is not clear from available video footage whether the officer’s vehicle was operating the minimum required forward facing red light, or siren if conditions are found to warrant one. It is also unclear why the officer lost control of the vehicle and, given such a result, whether he would be found to have been driving with due regard for public safety. The narrative initially offered by the Redwood City Police Department relies on a finding of wet, slippery road conditions. However, as stated above, the Department’s own General Order requires officers to use sound judgment, including taking road conditions into account, when considering their manner of response to an emergency. The Department has turned investigation of the accident over to the California Highway Patrol.

Employers are generally liable for the negligence of employees acting within the “scope and course” of their employment. Therefore, if the officer is found to have acted negligently, the city of Redwood City can be held responsible for any injuries caused and forced to pay for legal damages. However, if a court finds the officer to have acted with knowledge or wanton and reckless disregard that serious injury will probably result, this level of culpability may be found to be outside the “scope and course” of his employment, relieving the city of employer liability.

The city may also be found liable for the legal damages involved in this accident if it is found to have resulted from a vehicle defect and a court finds the Department failed to properly maintain, inspect, or repair the patrol car. If the car is found to have been defective upon purchase, the manufacturer and dealer may also bear responsibility under a products liability theory.

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A balancing act for employers: service animals and allergies in the workplace

This week’s question comes from Brian T., who asks:

Q: I work in an office with a fairly liberal policy on pets in the workplace. While I love animals, I am unfortunately allergic to certain types of longhaired dogs and cats. A co-worker of mine, who has a physical disability, brings his service dog to work every day to help him navigate around the office. The dog is very sweet, but I often find myself having an allergic reaction when I have to interact with this co-worker or walk by his office. Although I want to be sensitive and respectful of my co-worker’s needs, I also need to be able to work without having a serious allergic reaction. What are my options?

A: Thank you for your question, Brian. You raise a number of valid concerns and, under both California and Federal law, your employer will have to negotiate them with care. First, it is important to note that it sounds like your co-worker is utilizing a service animal, rather than an emotional support animal. Under the Americans with Disabilities Act (ADA), a service animal is defined as a dog that has been individually trained to perform tasks for an individual with a disability. On the other hand, federal law defines an “emotional support animal” by exclusion: as any animal used to assist, support, or provide service to a person with disabilities, but which does not meet the stricter definition of a service animal.

Both the ADA and the California Fair Employment and Housing Act (FEHA) prohibit discrimination on the basis of disability in employment and housing matters. As part of their anti-discrimination requirements, both the FEHA and the ADA mandate that employers must extend reasonable accommodations to qualified employees with disabilities in order to allow them to perform the essential functions of their job, so long as doing so does not pose an undue hardship on the employer. Both laws regard bringing a service animal to work as a possible reasonable accommodation under appropriate circumstances.

In the case of your co-worker, it sounds like he uses a service animal because his job requires him to get up and move around the office and his own physical limitations make doing so difficult. Therefore, unless having the animal at work presents undue hardship, your employer is likely required by law to allow him to utilize a service animal at the office as a reasonable accommodation to aid in his mobility.

Adding the concern of your allergies into the mix, however, makes things more complicated.  Having a serious allergy that prevents or hinders you from performing the essential functions of your job is also a valid concern, and could potentially qualify as a disability deserving of reasonable accommodations. As such, your employer will likely have to perform a balancing act in order to make sure that all employees with disabilities are treated fairly under the law.

The law requires your employer to engage in a good faith, interactive process with you, as well as your co-worker, to arrive at a lawful solution that works for both parties. This will likely require some creativity and flexibility. The particular accommodations discussed during the interactive process will depend on the severity of your allergies, the extent of your co-worker’s need for the specific accommodation of a service animal, and the unique environment in which you both work.

One solution might involve eliminating in-person contact between you and the service animal by simply relocating your workspace to the opposite side of the office and arranging to use separate bathrooms and common spaces. If physically separating you from your co-worker would create an undue hardship, as may be the case in a small office environment, your employer should still make reasonable efforts to minimize your exposure. This could mean adjusting each of your work schedules, temporarily removing the service animal at any time when you and your coworker have to attend meetings together, providing options for one or both of you to work remotely, and/or allowing you to wear protective equipment such as an allergen mask.

If your allergies are so severe that even working in the same environment as the service animal present serious health risks for you, speak to your employer about these concerns immediately. To ensure that your legal rights are fully protected, you should contact an employment attorney, such as those at the Dolan Law Firm PC, to help you navigate the situation.

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C.R.O.W.N. Act Natural Hair Grooming Protections in the Workplace

This week’s question comes from Maya in San Francisco, who writes:

Q: Dear Chris, I interviewed for a receptionist position at a San Francisco company. The person interviewing me offered me the job, but said that I would need to conform to the company’s “grooming policy,” which states “hairstyle should reflect a business and/or professional image.” When I said that I would prefer not to cut my dreadlocks, she rescinded the job offer. I told her that I do not understand what how I wear my hair has to do with my ability to do the job and she told me that “dreadlocks are simply not professional.” Isn’t this discrimination?

A: Thank you for your question, Maya, and I’m sorry for the frustration you’ve experienced in the job market. It certainly does sound like your situation could qualify as unlawful discrimination, under not only the general anti-discrimination provisions of California’s Fair Employment and Housing Act (FEHA) but also under the newly-enacted Create a Respectful and Open Workplace for Natural Hair Act (the “C.R.O.W.N. Act”). When the C.R.O.W.N. Act was signed into law in July, California became the first state in the nation to legally protect people in workplaces, as well as K-12 public schools and charter schools, from discrimination specifically based on their natural hair.

Under FEHA, employers have long been prohibited from implementing dress or grooming policies that adversely impact one race more than another. By stating that “dreadlocks are simply not professional,” without any rational justification related to your ability to perform the job, the interviewer appeared to indicate that the company’s “grooming policy” establishes different employment standards based on race by prohibiting one of various natural and protective hair styles available to black employees. An arbitrary employment policy like this would likely be deemed contrary to FEHA, even before the C.R.O.W.N Act takes effect on Jan. 1, 2020.

However, any legal debate that might have been made previously on this issue will soon be rendered moot when the C.R.O.W.N. Act supercedes the more general existing anti-discrimination policies to expressly provide that hairstyles fall within the definition of race. The C.R.O.W.N. Act expands statutory protections by amending the FEHA and the California Education Code to define “race or ethnicity” as “inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”

When it takes effect next year, the C.R.O.W.N. Act will prohibit employers from enforcing purportedly “race neutral” grooming policies that restrict natural hair styles, such as Afros, braids, twists, cornrows and dreadlocks, that that disproportionately impact employees of color. The C.R.O.W.N Act expressly defines “protective hairstyles” as including, but not limited to, “braids, locks, and twists” and makes clear that traits historically associated with race, such as hair texture and hairstyle, should be protected from discrimination in the workplace and in schools. The C.R.O.W.N. Act recognizes that “[p]rofessionalism was, and still is, closely linked to European features and mannerisms, which entails that those who do not naturally fall into Eurocentric norms must alter their appearances, sometimes drastically and permanently, in order to be deemed professional.”

You should note that an employment discrimination claim must be filed with the Department of Fair Employment and Housing (“DFEH”) within one year of the unlawful event or your rights to seek recovery may be barred. The DFEH’s phone number is 1-800-884-1684 and their web site is: http://www.dfeh.ca.gov/. In addition, it is always a good idea to contact a trial lawyer with knowledge of employment laws to discuss your case.

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