What the impact of the Supreme Court’s decision will mean for LGBTQ employees

Written by: Matt Gramly 

On Monday June 15, 2020, the United States Supreme Court handed down a decision stating with firmness and clarity that any employer who fires an employee for being gay or transgendered is in violation of the law. The law being violated in that instance would be the Title VII of the 1964 Civil Rights Act. Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” The basic argument is that if an employer has two employees, one male and one female, but only fires the male employee because he dates men, but doesn’t fire the female employee because she dates men, the employer has discriminated against the male employee on the basis of his gender. The employer accepts behavior from the female employee that he does not accept from the male employee and the only difference between the two employees is their gender.

This ruling is monumental for LGBTQ rights. The full complement of anti-discrimination employment protections found within the Civil Rights Act have now been extended to the LGBTQ community across the country. It is now illegal in the United States for any employer to fire an employee on the basis of their sexual orientation or gender identity. Prior to Monday’s decision it was still legal for an employer to do so in 26 states. With Pride celebrations and parades being canceled across the country because of the coronavirus pandemic, it is also fitting that this decision was handed down by the Court during Pride month.

Also of great importance is which Court Justice wrote this opinion. The decision itself was a 6-3 majority with conservatives Chief Justice John Roberts and Trump-appointed Justice Neil Gorsuch joining the Court’s four more liberal members.  The forceful, no-nonsense opinion was written by Justice Gorsuch in very clear language leaving no ambiguity to the Court’s decision.

An immediate backlash formed on the right in this country. Many religious conservatives decried the ruling as an attack on religious freedom. Evangelical leader Franklin Graham issued a fiery response to the ruling on Facebook, stating, “I believe this decision erodes religious freedoms across this country. People of sincere faith who stand on God’s Word as their foundation for life should never be forced by the government to compromise their religious beliefs. These are the freedoms our nation was founded on.”  He is arguing that his religious freedom is negatively impacted and should be prevented from firing someone from his church for being gay or transgender. The law now disagrees with him.

His argument strikes at a fundamental misunderstanding of the term “religious freedom” specifically as used by someone like Mr. Graham. Religious freedom means the freedom to practice whatever religion you choose. It also means, as stated in the First Amendment, that the government cannot force you to practice any particular religion against your will. For example, “I cannot do something because it goes against my religious beliefs,” is a perfectly distilled illustration of this. However, “YOU cannot do something because it goes against MY religious beliefs,” the position taken by Mr. Graham, is twisting the concept of religious freedom to a degree that is both unacceptable in this country and is in violation of the ideals of individual freedom embodied by our Constitution and Bill of Rights, as affirmed Monday by the Supreme Court. Very often, those who use the term “religious freedom” the loudest and most frequently leave off the two words that actually define this idea for them, “religious freedom to discriminate.”

Many take the position that their religious freedom, their freedom to BE a religious person and to practice their religion in the United States, is being destroyed because they will no longer be permitted to discriminate against members of the LGBTQ community in their hiring practices. Understand that no rights have been taken from Mr. Graham’s evangelicals or any other religious group in this Court ruling. Justice Gorsuch, as he wrote in his opinion, simply read the plain text of the 1964 Civil Rights Act and said, “it is a violation of the law for any employer to discriminate against an employee because of their gender,” which is exactly what the Act says. One astute observer put it this way; Equal rights for others does not mean fewer rights for you – it’s not pie. Another observer, Jesus Christ, put it this way, “You must love your neighbor as yourself.”

The Dolan Law Firm has fought tooth and nail for the rights of the LGBTQ community for decades and will continue to do so. We celebrate the Supreme Court’s ruling as we celebrate Pride month with our families, friends, co-workers, and community. Happy Pride everyone!

read more

Protecting doctors who voice concerns about inadequate patient care

Last week’s question was posed by a doctor, who wanted to remain anonymous, who asked what her/his rights were in a situation where they were working around COVID-19 patients, were told to re-use their personal protection equipment (PPE) such as masks, goggles and gowns, in violation of hospital policy.

The reader indicated that they were aware that PPE had been diverted from the treatment floors for the personal use of administrators and, she/he believed, for their families. The reader stated that she/he voiced concerns for patient safety, and her/his safety, caused by the reuse of PPE. Upon expressing those concerns the reader was told that they should, in essence, “mind their own business if they know what’s good for them.” Last week, I addressed the issue of an employer’s responsibility to provide a safe workplace with the required and appropriate safety gear and equipment. This week I am addressing the issue of a physician’s rights to express concerns about patient care without fear of retaliation.

A doctor who voices her concerns about inadequate patient care and safety is supposed to be protected against retaliation by California Business and Professions Code Section 2056. It is the public policy of the State of California that a physician is to be encouraged to advocate for medically appropriate health care for his or her patients. To advocate for “medically appropriate health care” includes protesting a decision, policy, or practice that the physician reasonably believes impairs the physician’s ability to provide medically appropriate health care to his or her patients.

Any person who renders a decision to terminate or penalize a physician employee or contractor for advocating for medically appropriate health care is in violation of the law. Section 2056 states: “No person shall terminate, retaliate against, or otherwise penalize a physician and surgeon for that advocacy, nor shall any person prohibit, restrict, or in any way discourage a physician and surgeon from communicating to patient information in furtherance of medically appropriate health care.” So the law goes beyond just advocating for patient care internally, it could also protect a physician who brings those concerns to the attention of the patient, outside regulators, and even the press.

When a physician is retaliated against they can bring a civil action for retaliation and/or termination in violation of public policy, a whistleblower complaint under the Labor Code, and several other common law causes of action. A prevailing physician could receive both past and future economic losses, non-economic damages for emotional distress, shame, humiliation, etc., and, in some cases where malice, fraud or oppression can be demonstrated, punitive damages to deter the individuals or facility from repeating the behavior.

When analyzing what is “appropriate patient care” the determination must factor in the locality and other circumstances under which treatment was given. For example in San Francisco, it may be the standard of care to do an MRI with contrast (radioactive dye). In a very rural urgent care facility, with no MRI, the standard of care would be different.

The same is true with COVID-19. Care and treatment of COVID-19 patients will have to be examined under the conditions which existed at the time of the care. There are circumstances wherein there may not be enough ventilators for everyone who needs one to get one. A doctor may be forced to “triage” the patients and determine who is more likely to survive and withhold treatment from a patient who is more likely to die. In your case, had there truly been a shortage of PPE, as we see across the country, the fact that PPE would be changed between patient visits in pre-coronavirus times, does not set the standard in coronavirus-time. Your question, however, involves members of the administration taking PPE for themselves and their families thereby diverting them from both employee safety and patient care. As I said last week, California Labor Code Section 6406 makes it illegal for anyone to remove, displace, damage, destroy or carry off any safety device, safeguard, notice, or warning, furnished for use in any employment or place of employment. If they are diverting safety equipment from you and patients, for their own personal use, it should not be justified because of COVID-19. In my eyes, it makes it that conduct much more despicable.

You should document all important facts concerning the inadequate patient care, who is taking the PPE home, and any claims or complaints you make, to whom, when, and who witnessed it. You want witnesses or, preferably, a date and time stamped (e-mail) contemporaneous writing. I would suggest that you examine your personnel folder before making a complaint so that if you later see backdated documents, you can identify them. If you feel strongly enough about what’s happening and are principled enough to take action, you should file a written complaint with the Medical Board.

Be aware, hospitals wield a lot of power. Doctors, hospitals and practice groups, will often terminate a doctor who advocates for patient care and then claim it was a result of a physician’s clinical deficiencies, or that they were psychologically unstable. I have handled three such cases. The hospitals’ conduct was despicable. Fortunately, on the whole, there are many more good doctors than that are unscrupulous ones and, if you properly document and escalate your complaint, hopefully proper action will be taken. If you are retaliated against then get yourself a good trial lawyer as the hospitals have legal specialists who do nothing but fight to cover up wrongdoing.

read more

What rights do physicians have when being denied protection from COVID-19?

This week’s question comes from an Anonymous who asks:

Q: “I work in health care in the Bay Area as a physician. I don’t want to say too much as I am afraid I might get fired. I am frequently exposed to COVID-19 patients. I love my job and I am proud to be on the front lines helping people who are suffering. That’s why I became a doctor in the first place. What is different now is that we are literally laying our lives, and the lives of our families, on the line every day we go into this battle.

I’m willing to do that as long as I have the proper equipment. You wouldn’t send a soldier into war with a gun and no bullets, but we are being sent into work with inadequate PPE [Personal Protective Equipment] every day. I get that we have to make do with what we have but I know that there are stores of supplies which senior medical and administrative staff have diverted for themselves and their families.

I am also fearful that we are putting patient safety at risk. I brought this up and I was told to mind my own business if I knew what was good for me. I was told that I should not get involved with things that don’t concern me and that we had to re-use our PPE. My work brings me into contact with COVID and Non- COVID patients. I am afraid that the lack of PPE is placing patients, and health care workers, at an increased threat of COVID and its complications. I am afraid that I may get fired or disciplined if I keep asking for PPE. What rights do we health care workers have under these circumstances?”
P.S. Please tell your readers to take this seriously, follow all safety precautions, and socially distance. Once you are a patient, the distance you worry about is the distance between life and death, and that’s out of your control.”

A: Thank you for the years you spent studying and training to be prepared for this emergency, reporting to duty and placing your life on the line for us all. Your question involves two areas of law:

  1. the right to a safe workplace, and
  2. freedom from retaliation for advocating for patient care.

The first question invokes the California Labor Code; the second invokes the Business and Professions Code. This article will address the application of the Labor Code. Next week’s column will address the Business and Professions Code.

  • California Labor Code § 6401, Duty to furnish safety devices and adopt safe practices and procedures, reads as follows: “Every employer shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe and healthful. Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.”
  • California Labor Code § 6403, Failure to furnish safety devices or adopt safe practices and procedures, reads as follows: “No employer shall fail or neglect to do any of the following:

(a) To provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe.
(b) To adopt and use methods and processes reasonably adequate to render the employment and place of employment safe.
(c) To do every other thing reasonably necessary to protect the life, safety, and health of employees.

This code provision requires your employer to provide you with PPE and an environment, which under the circumstances, are reasonably adequate to render your workplace safe. Healthcare employers and facilities are also required to have a set of practices and policies in place to provide for workplace safety including policies dealing with the handling contagious patients and the use of PPE to protect employees and others.”

(a) Remove, displace, damage, destroy or carry off any safety device, safeguard, notice, or warning, furnished for use in any employment or place of employment.
(b) Interfere in any way with the use thereof by any other person.
(c) Interfere with the use of any method or process adopted for the protection of any employee, including himself, in such employment, or place of employment.
(d) Fail or neglect to do every other thing reasonably necessary to protect the life, safety, and health of employees.

There is “no private right of action” to sue an employer to force compliance with these safety standards. An employee can call CAL-OSHA and report an unsafe work environment and they can inspect and enforce them. However, if an employee is retaliated against, in any way, for opposing violation of these laws, disclosing the violations to a supervisor or government agency, or demanding a safe workplace, an employee can maintain a legal action for what we refer to as the “wrongful termination, or retaliation, in violation of public policy” and for “whistleblowing” under California Labor Code Section 1102.5. This provides for a potential for recovery of lost wages, past and future, damages for emotional distress and, in some circumstances, punitive damages.

I suggest that you document your concerns so if you are retaliated against it is clear that it was in response to your exercising your rights to have a safe work environment. These are trying times. Hopefully nothing retaliatory will happen to you as all of our energies need to be focused on supporting you on the front lines and not in fighting legal battles. If something untoward does happen, contact an experienced employment trial lawyer to help you navigate the legal system.

read more

Discrimination and retaliation in reducing workforce is unlawful

By Christopher Dolan and Emile Davis:

The harsh reality of the COVID-19 pandemic, and the government shutdowns, is that businesses are not bringing in income that was once regular and expected. As a result, many employers will be forced to lay off or terminate hard working employees.

Businesses do have the right to terminate or lay off employees when the needs of the business call for a reduction in force and, generally, a non-union employer may make the decision about which employees to let go on whatever basis they chose. However, an employer may not make such decisions based upon a discriminatory or retaliatory motive.

For example, an employer may not use race or national origin as a basis for the decision of which employees to terminate. As is discussed elsewhere in this series of articles, there is an increase in discrimination and hate-crimes toward Asians since the onset of COVID-19. An employer may not use the national origin or race as a basis to deny Asians the right to return to work.

Similarly, most of the protected leave laws contain anti-retaliation provisions. That means that when an employer is making the decision of which workers to let go, they are forbidden from using the fact that an employee took accrued sick-time or other eligible leave as a basis for that decision. A worker who took CFRA leave to care for a family member who contracted COVID-19, may not be treated differently from one who did not take that leave. Having taken qualified leave cannot be held against an employee.

Employers are generally aware of these laws and will not often state specifically that the employee is being terminated for having taken leave. Often though, hints as to the underlying motive will slip. Employers may make statements indicating “they need someone who is reliable” or who “will put the business first.” These may be clues that the underlying reason may be that the worker took protected leave.

read more

Can I collect Unemployment? If so, how? (FAQ’s and Chart)

By: Mari Bandoma Callado


Employment Development Department (EDD) Benefits

EDD Program

Unemployment Insurance (UI)

State Disability Insurance (SDI)

Paid Family Leave (PFL)

Apply for this program if

 You lost your job or have had your hours reduced for reasons related to COVID-19 You’re unable to work due to medical quarantine or illness related to COVID-19 (certified by a medical professional) You’re unable to work because you are caring for an ill or quarantined family member with COVID-19 (certified by a medical professional)

Program Background

 Program provides temporary and partial wage replacement for workers transitioning between jobs.  

Its weekly payments are designed to meet living expenses and allow the unemployed a short breathing space to find another job.

 Provides partial wage replacement to workers who are temporarily unable to work because of illness, injury, or disability.

SDI is designed to protect people with disabilities from losing wages when they are unable to perform their regular or customary work because of illness, injury, or mental or physical disability

 Provides up to six weeks of partial wage replacement benefits for employees who take time off work for reasons including but not limited to: to care for a child, parent, spouse,  domestic partner, grandparent, grandchild, sibling or parent-in-law who experiences a serious health condition.

Immigration Status

 Must have work authorization Unlike UI, undocumented workers are eligible for SDI. All employees currently covered by SDI (including new or probationary employees) in California qualify for benefits under PFL.

Past Earnings Requirement (base period)

 Generally,, the “base period” is the 12 months that ended between four and six months before the claimant filed for UI. Same as UI Same as SDI

Sufficient Earnings Requirement

 Applicant must be (1) paid at least $1,300 during at least one of those four quarters of the base period, or (2) paid at least $900 in one of the four quarters of the base period and have gross earnings for the entire base period at least equal to 1.25 times her earnings for the highest quarter.  In order to be eligible for SDI, a claimant must have earned at least $300 during a 12-month “base period” prior to the claim date Same as SDI

Covered Employment

 Covered employment includes most services performed as an employee for any form of wages.  However, there are certain categories of workers who are excluded because their employers are not required to pay into a reserve account on their behalf.

Note that there are some employment that are excluded from being covered by UI.

If an applicant is an independent contractor or self-employed, contact an employment attorney and/or the EDD to determine if the applicant was misclassified and/or eligible for other benefits such as the Pandemic Unemployment Assistance.

 Most workers in California are covered by SDI, unless they work in one of the areas of excluded employment, or if they are covered by an employer’s voluntary plan.

An employee paid exclusively in cash or by personal check (i.e., “under the table”) during the base period will not have contributed to the SDI program through mandatory payroll deductions, and consequently, will not be eligible to receive SDI benefits

 All employees currently covered by State Disability Insurance (SDI) (including new or probationary employees) in California qualify for benefits under Paid Family Leave. 

This includes all private sector workers and some public sector workers; however, federal employees do not pay into PFL and are therefore not entitled to PFL. 

Paid Family Leave also applies to employees working for small employers, unlike the federal and state unpaid leave laws (i.e. FMLA or CFRA), which do not apply to employers with less than 50 employees.

No-Fault Separation Requirement

 

 Unemployment benefits are designed to assist workers who became unemployed through no fault of their own – e.g. COVID-19 related layoff or voluntary quit with “good cause” such as caring for minor children.

Workers applying for benefits are presumed to have separated  from most recent employer through no fault of his own unless employer gives written notice to the contrary with facts sufficient to overcome the presumption.

Reduced Hours and/or temporarily unemployed

 If worker’s hours are reduced or shut down operations, the worker may be eligible for partial wage replacement benefit payments to workers who lose their job or have their hours reduced, through no fault of their own. 

If the worker is temporarily unemployed due to COVID-19 and expected to return to work with his or her employer within a few weeks, he or she is not required to actively seek work each week.

 If work hours must be reduced as the result of a disability and the worker has wage loss due to being unable to perform his or her regular or customary work for at least eight consecutive days, he or she may be eligible to receive DI benefits. If work hours must be reduced as the result of family care, and the worker has a wage loss due to being unable to perform his or her regular or customary work for at least eight consecutive days, he or she may be eligible to receive DI or PFL benefits.

Benefits

 Range from $40-$450 per week for up to 26 weeks.

Note that the Pandemic Unemployment Compensation (PUC)
provides all regular UI and Pandemic Unemployment Assistance (see below) claimants with an additional $600 per week in compensation on top of their usual calculated benefit through July 2020. 

PUC is a flat amount provided to those on UI or PUA, including those who are receiving a partial unemployment benefit check.

  • Starting on week ending 4/11 (automatically added to the weekly benefit amount as lon gas it’s $1)
  • Retroactive payments for week of 3/29-4/4 will be processed later
 Approximately 60-70 percent of wages (depending on income); ranges from $50-$1,300 a week for up to 52 weeks. Approximately 60-70 percent of wages (depending on income); ranges from $50-$1,300 a week for up to 6 weeks.

How to apply

 More information about UI

How to file

 More information about SDI

How to file 

 More information about PFL

How to file

 

read more

Anti-Asian hate crimes and acts have increased during the COVID-19 Crisis

By: Mari Bandoma Callado & Emile A. Davis

The sudden emergence of racist and violent attacks towards people of Asian descent is reminiscent of the discrimination and harassment faced by American Muslims, Arabs and South Asians in the United States after 9/11. Reports of microaggressions in public, discrimination by business establishments, workplace discrimination and harassment, and threats of and actual acts of violence towards Asian Americans and Pacific Islanders have been on the rise. The online reporting forum Stop AAPI Hate shared that it has received over 650 direct reports of discrimination against primarily Asian Americans since its inception on March 18, 2020.

Racially-motivated hate crimes and threats from white supremacists and other domestic groups have also been on the rise. There are ongoing federal investigations related to extremists exploiting the Covid-19 pandemic. The Federal Bureau of Investigation’s New York office issued an alert reporting that extremists groups are encouraging intentional spread of the coronavirus to police officers and members of the Jewish community. The Department of Homeland Security also warned about white supremacists calling to spread the virus and target diverse neighborhoods and places of worship.

Discrimination and hate-based attacks like these have far-reaching implications for our society. It is a problem that should not be ignored, lest it grow worse. This article discusses the various available causes of action, theories of liability and potential defendants to address the heinous attacks on individuals or groups based on race, national origin and ethnic background in civil court.

Discrimination by Business Establishments
—
The Unruh Civil Rights Act specifically outlaws discrimination by all business establishments in California based on sex, race, color, religion, ancestry, national origin, mental or physical disability, age or medical condition (including HIV status). “Business establishments” includes but is not limited to hotels, restaurants, theaters, hospitals, and retail stores.

Workplace Discrimination and Harassment
—
An employer who treats an employee differently because of race, national origin, or ethnic background or fails to protect an employee from race, national origin or ethnicity-based harassment is violating Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act (“FEHA”). There are two main types of workplace discrimination: disparate treatment and disparate impact. Disparate treatment occurs when an employment action is taken by an employer against an employee because of their race, national origin, ethnicity or other protected characteristic. Disparate impact happens when an employer’s actions create a policy that discriminates against an entire protected group of employees.

Hate Crimes, Ralph and Bane Acts
—
The core causes of action in a hate-crime based civil action will likely be the Ralph Act or Bane Act. If you are a victim of violence, both are likely to apply.

The Ralph Act guarantees that each person in California be free of violence, intimidation and the threat of violence, against their person or property based upon actual or perceived protected classifications, including, but not necessarily limited to: citizenship, immigration status, political affiliation, race, and national origin.

The Bane Act is slightly different. It guarantees that people in California be free from interference by the actual or attempted “threat, intimidation, or coercion”… “with the exercise or enjoyment”… “of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.”

Related Causes of Action
—
The perpetrator of the hate crime may also be liable for Intentional Infliction of Emotional Distress, Assault and Battery and potentially general negligence. Intentional Infliction of Emotional Distress occurs when an individual purposely causes severe emotional distress to you as a result of extreme and outrageous conduct.

Examples of Intentional Infliction of Emotional Distress claims can include racial insults and conduct that threatens your physical security (although a physical injury is not necessary). The “legal” definition of assault differs from how the word is normally used in everyday language. According to the legal definition, assault occurs when a person demonstrates the intent to hurt you and you believe that you will be hurt, but there is no actual contact or physical injury. Battery requires the actual use of force. It occurs when a person intentionally and harmfully touches you without your consent. A person acts intentionally if their action was on purpose, regardless of whether they actually intended to harm you with their action.
Other Theories of Liability and Potential Defendants
—
Most often, hate crimes are criminally prosecuted against the individuals responsible. In a civil suit, it is imperative to look for other potential theories of liability and other defendants. Individual defendants rarely have the resources to compensate the victim for the damages they caused.

An employer may be liable for hate-crime based actions when the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. Theories of negligent hiring and supervision may also reach to the employer of the perpetrator of the hate crime.

The surrounding area and circumstances should be explored for a potential premises liability cause of action. Did the incident occur at a bar or restaurant? If so, several dram-shop based duties may come into play and are impacted by levels of knowledge, security, and past events. It may not even be enough for a licensed dram shop to merely warn of dangerous persons outside the premises, they may have an active duty to assist to avoid danger to a patron.

If a vehicle was involved in the attack, other avenues of recovery may be open for the victim of the hate crime.

Groups or organizations of which the perpetrators of the hate crime are members may be responsible under agency theories depending upon the circumstances. Or, if the perpetrator of the hate crime is a member of a hate-group, that group may be independently liable for their own wrongful acts in organizing, planning or otherwise encouraging the crime.

If you think you are discriminated against or harassed by a business establishment or in the workplace, or if you have been the target of a hate crime, contact the Department of Fair Employment and Housing, or consult with a trial attorney to protect your rights.

The Asian Pacific Policy and Planning Council (A3PCON) and Chinese for Affirmative Action (CAA) have launched a reporting center to allow Asian Americans and Pacific Islanders to report incidents of hate they have experienced. To file an incident report, please go to Stop AAPI Hate’s website: http://www.asianpacificpolicyandplanningcouncil.org/stop-aapi-hate/

read more

Employees affected by COVID-19 are entitled to use sick leave

All California employees accrue sick time at their jobs. At a minimum, an employee must accrue one hour of paid sick leave for every 30 hours worked. For a regular full-time employee, that works out to approximately 1.3 hours of sick time earned each week or 5.3 hours each month. This leave may be used for the diagnosis, care or treatment of an existing health condition, or, importantly, preventative care for you or a family member.

Employers in California are required to track sick time on each employee paystub. Those workers that are unsure how much sick time they have remaining should be able to review their most recent paystub to see both:

a) whether the sick time is accruing correctly; and,

b) exactly how much sick time is available currently.

In San Francisco, local government has, in response to the pandemic, implemented an ordinance guaranteeing an additional five days of paid leave for each San Francisco worker affected by COVID-19 (known as the Workers and Families First Program). Importantly, this program will also provide support for local businesses by using funds specifically reserved for small businesses (50 or fewer employees) to contribute up to 40 hours at the $15.59 minimum wage per employee to help cover the impact the additional sick leave will have on employers.

Employees who Contract COVID-19, or whose family members do, may be entitled to leave under the California Family Rights Act (CFRA).

The CFRA allows leave from work for serious medical issues. This type of leave may be available for workers affected by COVID-19. Not all employers must allow this leave, and not all employees are eligible.

An employer is a covered entity under the CFRA and must allow leave to eligible employees if they employ more than 50 employees in a 75-mile radius of your worksite. Roughly, if there are 50 or more employees in the Bay Area, with a few specific exceptions, they are likely a covered employer. In order for an employee of a covered entity to have leave rights under the CFRA, the employee must have worked for that employer for at least 1 year and must have worked 1250 hours within the last 12 months. That works out to an average of just over 24 hours a week.

If the eligibility requirements are met, the CFRA allows an employee to take up to 12 weeks of unpaid leave for a number of issues including the employee’s own serious health condition or the serious health condition of a spouse, child, or parent. If an eligible worker contracts COVID-19, is quarantined because it is suspected, or if they must stay home to care for a close family member who has contracted the virus, they should be entitled to 12 weeks of leave.

An employer may require that a worker provide medical certification of the underlying serious medical condition. That may be impractical during this pandemic given that doctors and other health care providers are working to diagnose and treat urgent medical needs. It would be advisable for a worker seeking leave under the CFRA to request a stay-at-home instruction from a physician and provide that to the employer when requesting the leave. In a pandemic, employers will be expected to use their judgment as well as public health recommendations to determine whether to require, or waive, the usual certification requirements.

A worker seeking leave should give the employer notice of the need for leave as soon as practical. However, the law anticipates that some medical conditions are emergent and do not allow for a lengthy notice period.

While CFRA provides job protection, it does not provide monetary benefits. However, up to 6 weeks of payments may be available concurrently through California Paid Family Leave.

California Paid Family Leave

California Paid Family Leave (PFL) is a program administered through the Employment Development Department. PFL provides partial wage replacement benefits to employees who need to take time off from work to care for a seriously ill family member (child, parent, grandparent, grandchild, sibling, spouse, or registered domestic partner) or to bond with a new child. There is no requirement that an employee have worked at a given employer for any specific amount of time. This is a broader scope than the CFRA, so it is possible that some persons may be eligible for these monetary benefits, but who are not given job protected leave under the CFRA.

Eligible applicants for these benefits may receive approximately 60-70% of their wages, depending upon income. The length of time at a job does not determine eligibility. However, the amount of benefits will be calculated based upon the wages that the applicant earned in the period five to 18 months prior to the claim period.

Starting on July 1 of this year, the six weeks of paid leave will be increased to eight weeks available per 12-month period. An applicant may file a claim online by going to https://edd.ca.gov and searching for “SDI Online”, or an application may be filed by mail.

read more

Leave laws under COVID-19

This week’s question comes from Carl who writes:

Q: “Last week I was at a dinner party and one of the people who attended eventually got sick and was told they may have Coronavirus. However, he has not been tested.  I feel fine, but I called my doctor to see what I should do. She said that I absolutely must self-quarantine for at least two weeks. I work in an office and I don’t have very much sick time to cover me and I am afraid I will lose my job.  Can they fire me if I don’t come in?”

A: Carl, I am sorry to hear that you have come in direct contact with somebody that may be positive for Covid-19 (the coronavirus).  This is a very trying time for all of us. Employers and employees are each attempting to cope with the many changing disruptions.  You should know that in California, you have a number of protections if you need to take time off because of a health condition.

All California employees accrue sick time at their jobs.  At a minimum, an employee must accrue one hour of paid sick leave for every 30 hours worked.  For a regular full-time employee, that works out to about 1.3 hours a week or 5.3 hours each month.  You may use this leave for the diagnosis, care or treatment of an existing health condition, or, importantly, preventative care for you or a family member.   

You mentioned that you did not have a lot of sick time remaining.  Employers in California are required to track sick time on your paystub. You should be able to review your paystub to see if the sick time is accruing correctly, and also, exactly how much time you have available to you. 

Currently, in San Francisco, they are attempting to implement an additional 5 days of paid leave for San Francisco workers affected by Covid-19, as well as support for businesses. However, that has not yet gone into effect.

The California Family Rights Act (CFRA) also allows leave for health issues.  However, not all employers or employees are covered by this law. 

An employer is a covered entity under the CFRA leave if they have more than 50 employees in a 75-mile radius of your worksite.  Roughly, if there are 50 or more employees in the Bay Area, with a few specific exceptions, they are likely a covered employer. In order for an employee of a covered entity to have leave rights under the CFRA, the employee must have worked for that employer for at least 1 year and must have worked 1250 hours within the last 12 months.  That works out to an average of just over 24 hours a week.  

If each of the eligibility requirements are met, the CFRA allows an employee to take up to 12 weeks of leave for a number of issues including the employee’s own serious health condition or the serious health condition of a spouse, child, or parent.

I would argue that because your primary health care provider instructed you to stay home, that you are covered under this law and would be entitled to leave.  It may also be considered a request for an accommodation given that you are being regarded as a person with a disability. However, since you do not currently have symptoms, others may argue differently.  Best practices would be to get the stay-at-home instruction from your doctor in writing and provide that to your employer when requesting the leave.  

Your employer can require that you use up your sick leave and any vacation time you have prior to implementing this leave.  In your case, since you believe you don’t have much sick time left, it would be another source of potential leave, however, it is not paid leave.  

At this point, if you are forced to stay home longer than 2 weeks and are on unpaid leave, you may contact the Employment Development Department regarding the possibility of receiving unemployment insurance benefits.  

If you do take eligible leave, the law protects you from retaliation.  You cannot be lawfully fired for taking leave for which you are entitled. Unfortunately, many businesses are also hurting from the effects of the coronavirus.  If an employer is forced to conduct layoffs, they are prohibited from using either the fact of your CFRA leave or a request for an accommodation or leave as a basis for determining which employees will be laid off. If a business goes out of business completely, employees may have little recourse other than to seek unemployment insurance.

This is a difficult time for all of us and I hope you all stay safe and know that there are protections for employees like you who are forced home for the good of their own health and the health of public. 

 

If you take eligible leave and do suffer retaliation or a termination because you took that leave, you should immediately contact a qualified employment attorney like those at Dolan Law Firm P.C.

 

read more

Fraud and Misrepresentation in the Workplace

Fraud and Misrepresentation in the Workplace

By Christopher Dolan and Mari Bandoma Callado

This week’s question comes from Arthur B.

Dear Chris,

I was contacted via Linkedin by the Chief Financial Officer of a San Francisco-based start-up.  He offered me an opportunity to join the start-up as a program director with an annual salary of $120,000 plus a $30,000 raise by the end of the year.  I was flattered by the offer but was concerned about job security and the start-up’s financial stability. The CFO assured me that the position is permanent and long-term and that the start-up is in the midst of receiving a capital injection from an investor.  Based on the CFO’s statements, I uprooted my family and moved from Portland to San Francisco last August.  

At the end of the year,  I did not receive the raise I was promised and instead learned that I was being terminated because my position was being eliminated due to a “restructuring due to an impending acquisition”.  I protested that the CFO assured me that my position was long-term and permanent. The CFO responded that my position was in fact “at-will”. I have been unsuccessful obtaining comparable employment.  Do I have a claim for wrongful termination?

Thank you for your question, Arthur.  It can be difficult to establish a cause of action for wrongful termination for employees who were not terminated on the basis of discrimination or retaliation.  However, employees who were enticed to relocate their residence based on representations made about the job that later turned out to be false may have a claim pursuant to California Labor Code section 970, as well as other tort claims such as negligent misrepresentation.

California Labor Code section 970 was enacted in 1937 to protect migrant farm workers.  Experienced farm workers were often offered higher wages to entice them to relocate. However, once they get there, they learn that the wages would be much lower than what was promised or the hours they would work would be considerably less.  The law therefore recognizes that after spending considerable resources to move and/or turning down other job offers, these workers would have no choice but to accept terms that were different from what they were promised.

Often, experienced farm workers were offered higher wages and/or clean housing to induce them to relocate. Many times these employees would turn down other job offers and spend a lot of money to relocate. However, once they would get there, the job would not be anything like what was promised. For example, their wages would be much lower than what was promised and/or the duration of their job would be much shorter. Many times, because these employees had already spent considerable amounts of time and money, they would have no choice but to accept these less favorable terms.

Today, the statute applies to all classes and types of employment. California Labor Code section 970 prohibits employers from enticing employees to relocate to, from, or within California by falsely representing the:

  • Kind, character, or existence of work;
  • Length of time work would last;
  • Compensation for work;
  • Sanitary or housing conditions relating to work;
  • Existence or nonexistence of any pending strike, lockout or other labor dispute affecting work.

California Labor Code section 970 is supplemented by sections 971 and 972.  Section 971 provides criminal penalties (fine up to $1,000 and/or 6 months of jail time) against employers who violate section 970, while section 972 provides a for a “private right of action” allowing the employee to bring a civil action as well as an entitlement to recover double damages.  These damages may include but are not limited to moving expenses, rejecting other job offers, loss of income due to inabilities to find another job, sale/purchase of a home, a lease, transportation, buying furniture, etc.

A claim for fraud under the labor code must be filed within one year from the date of the misrepresentation so we recommend that you contact a trial attorney and/or the Department of Labor Standards Enforcement immediately.

read more

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.

read more