Employment Law | Dolan Law Firm

Is a Trial the Same as An Arbitration?

Written By Chris Dolan and Carole Okolowicz

This week’s question comes from John from San Francisco, who asks: What is the difference between having a trial versus going to mediation?

Dear John,

There are many ways to resolve a legal dispute, whether a lawsuit is filed or not. Most people have heard of a trial in front of a jury because the media has popularized it. However, most cases do not go to trial. Experts have estimated that some 98% of all legal disputes resolve before trial. I will explain these options for resolving legal disputes: settlement, mediation, arbitration, and trial.

Informal Settlement Negotiations

Most cases resolve through settlement. Mediation is a method used to achieve a settlement. (More on that later.) Where criminal cases typically seek to put a person in jail, civil cases seek monetary compensation for the harm caused. Since the goal is for the suing person to get money if the person sued agrees to pay, there is no longer a need for the lawsuit. Lawyers often write a demand letter, which is a letter that lays out the known facts of the case, any evidence the plaintiff has in their possession (a police report, medical records, photos, employment records), and the legal reasons why a jury would award money should the case go to trial. Sometimes the two sides can work out a deal through informal communications like emails and phone calls. In these situations, the plaintiff will typically agree not to file a lawsuit concerning the matter and the defendant will agree to pay the agreed amount. Note that this is a voluntary settlement. Neither party is forced to pay; no party is forced to dismiss the case or agree to not sue. The parties decide to avoid litigation, or further litigation, by resolving the matter informally.

Mediation

If informal settlement negotiations are not possible, the parties may seek to resolve the matter through mediation. Mediation is a means to achieve a voluntary settlement. When parties agree to mediate, they hire a neutral person to help resolve the case. At an agreed-upon time and place (or remotely), the parties go into separate rooms and the neutral mediator talks separately to both sides. Many mediators are retired judges or seasoned litigators so they will often provide insights as to how a jury might think about certain aspects of the case. The mediator’s goal is to get both sides to agree on a settlement amount. As with informal settlement negotiations, each party typically writes a brief that, like a demand letter, lays out the facts, law, and evidence.

It is a common saying that a good mediation is one in which both sides leave unhappy. The plaintiff worries they could have gotten more; the defendant worries they paid too much. But the benefits of settling at mediation are great. As with settling through informal negotiations, the parties save on continued litigation costs, including the cost of a trial which can be very expensive. There is a cost associated with litigation. The mediator charges a fee and mediations can often take a whole day of your attorney’s time. But the cost is much less than trial. Further, trials are risky, and the outcome can be hard to predict. Settlements are certain.

Arbitration

Arbitration is another route to settlement, but unlike the two options discussed above, where resolution is voluntary, it is typically binding. Arbitration is a private court. Like mediation, the parties must voluntarily agree to enter into arbitration; you cannot be forced into arbitration. However, embedded in fine print in many of the agreements we are asked to approve before using everyday items and services, like our cell phones, apps or software, streaming services, rideshare transportation, and medical services, is an agreement to arbitrate any legal disputes.

A judge following state or federal rules oversees your case when a lawsuit is filed. When the parties agree to arbitration, a neutral arbitrator or group of arbitrators oversees your case. The parties may agree to the rules they will follow, which often mirror state or federal rules. Arbitration can be faster, more efficient, and cheaper than court litigation and trial. As in court litigation, the parties can demand documents and information from each other through a discovery process, but it is expedited and limited. Arbitration typically ends with a hearing, like a trial, in which witnesses testify. At the end of the hearing, the arbitrator – not a judge or jury – decides. That decision is binding, which means the parties must abide by it. The parties can only dispute an arbitration award on narrow grounds; the intent is that the decision is final. Arbitration is costly but can often be less expensive than litigation and a trial, depending on the case.

Trial

A trial is often the last resort. Trials are a risk for both sides. First, they are expensive. At trial, the burden is on the plaintiff to prove their case. That means unless the defendant agrees that the plaintiff was injured, for example, the plaintiff has to prove that they was injured. That often requires getting the emergency room doctor, nurses, EMTs, orthopedic doctors, primary care doctors, and other health care providers to testify that you were injured. Your attorneys will likely have to hire experts to provide an opinion to persuade the jury. Healthcare providers’ and experts’ time can be very valuable and can get into the thousands of dollars. Your attorneys may hire someone to make trial exhibits to show the jury. Your attorneys will be working on your case night and day before and during the trial. Trials can easily cost hundreds of thousands of dollars. Trials are costly and risky.

If you prove your case, a jury may award you damages. Some juries award larger damages, and some juries award smaller damages. Some jurors do not believe in compensating injured persons for pain and suffering and may only agree to award your medical costs. Most jurors in a civil trial must agree to form a verdict.

While trials can be dramatic, they are typically not as fun as watching a trial on tv, even a real one. That is because it is your money, your health, and your life that is going to be decided. If you win, it can be vindicating as well as exhausting. If you lose, it can be defeating – and exhausting. If you are a plaintiff or defendant, you generally must be present each day of the trial. You typically will testify at trial, possibly for a day or multiple days. Trials can be any length, from days to months.

However, sometimes trial is unavoidable. If the other side has offered nothing or very little, and your attorneys believe you have a strong case, you may have no option but to go to trial.

The Dolan Law Firm is a trial firm, meaning we will use all our legal resources available and are always ready to go to trial for you.

This week’s question comes from Laird in Oakland: I work in construction, and I am often at the worksite for 10-12 hours each day. I often don’t get off work until after 7 p.m. I am afraid that this will not give me time to vote on election day. I don’t feel comfortable mailing my ballot. I want my vote counted right there on election day. Can I use sick time to go to the polls on election day?

Dear Laird,
Thank you for this very important question which affects many workers. I completely understand that you would prefer to place your ballot in person rather than mailing it. I have good news. The law allows workers to take time off from their position in order to vote and doing so does not require the use of accrued sick leave.

California Elections Code § 14000 provides employees with the right to take reasonable time off to vote, without loss of pay, if a voter does not have sufficient time outside of working hours to vote in a statewide election. Specifically, the Elections Code states that,

“the voter may, without loss of pay, take off enough working time that, when added to the voting time available outside of working hours, will enable the voter to vote. No more than two hours of the time taken off for voting shall be without loss of pay,” and that, “time off for voting shall be only at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from the regular working shift, unless otherwise mutually agreed.” Furthermore, if a worker knows, or believes, on the third working day prior to the election, that time off will be necessary to be able to vote on election day, this code states that, “the employee shall give the employer at least two working days’ notice that time off for voting is desired…”

For you, if it appears that you will be at the job site for 12 hours on election day, and will not be off work until 7:00, as you suggested, that may not give you the opportunity to get to the polls to vote. You should notify your employer, in writing, three days prior to election day, that you will need to take time off to vote. You can work out with your employer whether it makes more sense to go to the polls when they open and then come in to work, or to leave early with enough time to get to your polling place.

Employers also need to be aware that for at least 10 days before every statewide election, every employer must keep posted a notice setting forth the provisions of California Elections Code § 14000 so that employees like you are aware of their rights. The notice must be placed conspicuously at the place of work, if practicable, or elsewhere where it can be seen as employees come or go to their place of work.

Another important aspect of this code is that it would likely be unlawful for an employer to retaliate against you, or any person who made use of these provisions of the Elections Code to vote. We would argue that an employer who terminates an employee for exercising their right to vote would have engaged in, “wrongful termination in violation of public policy,” a cause of action in a lawsuit available when someone is terminated in violation of a fundamental public policy. A wrongful termination cause of action provides for recovery of economic damages such as lost wages and benefits, non-economic losses such as anxiety, stress, emotional distress, fear and humiliation and, if the denial was the decision of an officer, director or, “managing agent,” of the employer, even punitive damages. Importantly, since you work in construction, a field with many Union employees, any collective bargaining agreement provision, which seeks to waive an employee’s right to pay for time taken off to vote, has been held by the courts to be against public policy, contrary to express provision of law and invalid.

Written By Mari Bandoma Callado

August is National Breastfeeding Month (and includes World Breastfeeding Week – August 1 to 7). This month is dedicated to promoting advocacy and protection of breastfeeding to ensure that all families have the support they need and the opportunity to breastfeed.

With all the obstacles that breastfeeding parents who return to work have to overcome, it’s not surprising that while the American Association of Pediatrics recommends breastfeeding parents to exclusively nurse their infants for the first six months, with the continuation of breastfeeding for 1 year or longer as mutually desired by parent and infant, the California Department of Public Health reported that in 2016, 94% of mothers began breastfeeding but only 24.8% were exclusively breastfeeding at six months.

Lactation Accommodation in the Workplace

Under the California Labor Code, lactating employees in California are entitled to a reasonable amount of break time to express breastmilk – this includes time to pump, time to get and put away the pump, as well as time to travel to and from the employee’s workstation. If possible, the break must run concurrently with any break time already provided to the employee.

Employers may, but do not have to, pay employees for lactation breaks that take longer than regular paid break time. So if an employee usually receives a 10-minute paid break, and it takes the employee 20 minutes to pump, the employer does not need to pay the employee for the last ten minutes. However, reasonable travel time to and from the lactation space is not considered break time and should be paid.

The Labor Code also requires employers to provide adequate space to express milk in private (not a bathroom) that is in close proximity to the employee’s work area and be used only for lactation purposes while an employee expresses milk. It must also include a surface to place a breast pump and personal items, a place to sit, access to electricity, a sink with running water, and a refrigerator or cooler for storing breast milk. The space must also be clean and free of hazardous materials.

If you have questions bout your lactation accommodations in the workplace, or if you have questions about your employment rights, contact our employment attorneys.

By: Mari Bandoma Callado, Eric St. John & the Dolan Law Firm DE&I Committee

32 years ago, the Americans with Disabilities Act (ADA) was signed into law, making it unlawful for private employers, state/local governments, employment agencies, labor organizations, and labor-management committees to discriminate against qualified individuals with disabilities. Under the ADA, employers with fifteen or more employees cannot discriminate against qualified individuals with disabilities.

A person with a physical or mental impairment that substantially limits a major life activity is “disabled” and protected by the ADA. Major life activities are basic functions and may include: seeing, sleeping, learning, hearing, breathing, thinking, speaking, concentrating, reproduction, performing manual tasks, walking, interacting with others, sexual relations, caring for oneself, standing, reading, and working. It also includes bodily functions, such as normal cell growth, or the functioning of the respiratory, circulatory, cardiovascular, endocrine, immune, and digestive systems.

Disability discrimination occurs when an employee is treated differently at work because of their disability, perceived disability, or association with a disabled person. The ADA makes it unlawful to discriminate in all employment practices such as recruitment, pay, hiring, firing, promotion, job assignments, training, leave, lay-off, benefits, and all other employment-related activities.

The History of the Americans with Disabilities Act (ADA)

began far before July 26, 1990 when people with disabilities began to challenge the social barriers that excluded them from their communities, and when parents of children with disabilities began to fight against the exclusion and segregation of their children. It is important to recognize the uphill fight that generations past have endured to secure the rights for people with disabilities.

The ADA is one of America’s most comprehensive pieces of civil rights legislation that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life — to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services.

Olmstead v. L.C.

The landmark decision in Olmstead v L.C. was one of the first uses of the ADA to protect individuals unnecessarily held in a psychiatric unit. Two women (L.C. and E.W.) with mental disabilities were confined in a psychiatric ward for years prior to this decision.

In 1992, L.C. was voluntarily admitted to Georgia Regional Hospital at Atlanta (GRH), where she was confined for treatment in a psychiatric unit. By May 1993, her psychiatric condition had stabilized, and L.C.’s treatment team at GRH agreed that her needs could be met appropriately in one of the community-based programs the State supported. Despite this evaluation, L.C. remained institutionalized until February 1996, when the State finally placed her in a community-based treatment program, 3 years after doctors said her needs could be met outside of the psychiatric unit.

E.W. was voluntarily admitted to GRH in February 1995; like L.C., E.W. was confined for treatment in a psychiatric unit. In March 1995, GRH sought to discharge E.W. to a homeless shelter, but abandoned that plan. By 1996, E.W.’s treating psychiatrist concluded that she could be treated appropriately in a community-based setting. She nonetheless remained institutionalized until a few months after the District Court issued a judgment in the Olmstead v. L.C. case in 1997.

Both E.W. and L.C. were held for years of their life, even after doctors had suggested community based settings for treatment. The only reason they were allowed to re-enter their communities was because they successfully brought a lawsuit under the ADA to protect their rights against discrimination.

The two woman brought suit under Title II of the ADA arguing that unnecessary institutional segregation constitutes discrimination. The U.S. Supreme Court found that the unjustified segregation of people with disabilities is a form of unlawful discrimination under the ADA and both E.W. and L.C. were able to finally be released from their psychiatric units in 1996 and 1997.

Following the landmark decision, individuals with disabilities can demand they be provided with services for their disability in the most integrated setting appropriate to their needs.

The Court held that states are required to provide community-based services for people with disabilities who would otherwise be entitled to institutional services when:

(a) such placement is appropriate;
(b) the affected person does not oppose such treatment; and
(c) the placement can be reasonably accommodated, considering the resources available to the state and the needs of other individuals with disabilities.

Individuals with disabilities have the right to dictate their life and treatment. Being institutionalized for mental disabilities is common in America. Following Olmstead v. L.C. many individuals have avoided unnecessary institutionalization and are now receiving services in their own communities.

Individuals with disabilities now have greater control over their community-based care and services. Individuals’ needs are met by providing reasonable accommodations in their communities, and not by moving to a more restrictive setting.

The stories of L.C. and E.W. are stories of bravery and courage. Thanks to their fight many Americans today do not have to face institutionalization by the State. Unfortunately though, institutionalization still occurs and individuals with disabilities are still discriminated against. We highlight this case and these individual’s stories to remind us all that the fight must continue and change is not made in one day. There is no place for discrimination in our society and it takes each and every one of us to make the changes necessary for everyone to have their rights upheld and protected.

To be protected by the ADA, an employee must disclose their disability to at least one person who represents the employer, such as a supervisor or human resource person. While the employee does not have to share every detail about their disability, they do need to provide enough information to show that they have a “disability” under the law and that they need accommodation.

If you believe that you have been discriminated against and/or harassed because of your disability, perceived disability and/or association with someone with a disability, contact our disability discrimination lawyers today.

Written By: Christopher B. Dolan and Vanessa C. Deniston

This week’s question comes from Amanda in Richmond CA who asks: I have a number of young female relatives living in states that are expected to ban abortion. I am deeply concerned for their safety and bodily autonomy should they have an unplanned pregnancy. As a native Californian, I feel deeply privileged to live in a state that recognizes fundamental reproductive rights, but what about my relatives? Can our state help them? If so, how and to what extent?

Thank you for your timely and thoughtful question. Weeks after the Supreme Court’s unprecedented decision to overturn Roe v. Wade and the constitutional recognition of a woman’s right to control her own reproductive destiny, many states with laws recognizing these rights are still reeling from the shock and grappling with how to respond. California lawmakers, however, have been anticipating and preparing for this moment for years and were ready with immediate, aggressive action. On June 24, 2022, the very day the Supreme Court announced its decision, Governor Gavin Newsom signed AB 1666, legislation designed to insulate patients and providers from civil liability in other states seeking to impose their anti-abortion laws on individuals within California’s borders. Newsom has been adamant California will welcome women from other states seeking abortion care, stating,

“We’re not going to be asking for your ID. We’re not going to be asking you a litany of questions that are asked in almost every other state. You have a right to confidentiality.”

Post-Roe, California is the nearest legal abortion provider for an estimated 1.4 million women. It is estimated that up to 16,000 people will travel to California seeking an abortion per year. There can be no doubt that this is a humanitarian health crisis of epic proportions and will greatly impact California, the state slated to become a west coast stronghold for reproductive rights. To meet these challenges, Governor Newsom has proposed a $125 million dollar package to expand access for women within the state and help the state prepare for the influx of out-of-state women seeking reproductive healthcare that are likely to travel to California from states imposing bans or otherwise restricting access.

In addition to AB 1666, there are twelve other bills currently under consideration by California’s legislature regarding reproductive rights within the state. Several of these bills address extending resources and support to out-of-state individuals seeking abortion access and shielding providers from out-of-state legal attacks. A few of these include:

SB 1142 – Establishes an “Abortion Support Fund” to provide grants to California organizations assisting patients, including out of state patients traveling to California, in overcoming barriers to abortion access through practical and logistical support such as covering the cost of travel expenses and medical procedures.
AB 2091 – Enhances privacy protections for medical records related to abortion care under California’s Reproductive Privacy Act, greatly limiting disclosures to out of state law enforcement and third parties seeking to enforce out of state abortion bans.
AB 2626 – Protects abortion providers in California by prohibiting the removal or suspension of medical licenses of a licensed providers performing or assisting in abortions in California, compliant with California law.

This November, Californians will have an opportunity to vote on SCA-10, a proposed amendment to the California State Constitution that would explicitly enshrine the fundamental right to seek an abortion and access contraceptives. Currently, that right exists under California’s Reproductive Privacy Act, which ensures privacy and liberty in personal reproductive decisions. SCA-10 seeks to further cement these rights by adding direct and unambiguous language to the state constitution. In relevant part, the proposed amendment in SCA-10 reads:

“The state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives.”

For the first time in this nation’s history, the U.S. Supreme Court has made the decision to revoke a fundamental right previously recognized nationwide. Prior to this Court’s recent reversal, cases concerning the interpretation and limits of fundamental rights have either been expanded or clarified, but upheld. The significance of this preternatural decision by the Supreme Court cannot be understated as it signals, unambiguously, that other fundamental rights currently recognized at a national level are at risk of being recalled and shifted back to individual states to define, redefine and interpret as their state legislature sees fit. This will inevitably create cultural polarization and legal inconsistencies state to state.

For now, out-of-staters seeking refuge in California from oppressive laws in their home states limiting or revoking their reproductive rights, have resources that are likely to expand even further by the end of the year.

Written By Christopher B. Dolan and Emile A. Davis

This week’s question comes from Mel in Oakland who asks: I worked for a temp agency and was assigned to work reception at a startup company. While I was working, the boss of the startup asked a few of us to move a large desk in the entrance way. When we were moving the desk, one of the employees lost their grip, and the desk fell directly on me, fracturing my ankle. I was the only temp and hoped to be made permanent.

Am I entitled to get worker’s compensation; can I sue them in court? Who is responsible for this- the startup or my temporary agency? I am lost, please help.

Dear Mel,

I am sorry you suffered an injury at work and that the lack of guidance from your employers has compounded your frustration. Your question raises some interesting legal issues. The first issue is whether you would be entitled to worker’s compensation benefits. Generally, a person is entitled to worker’s compensation benefits if they are injured within the scope of or arising out of their employment. At first glance, that appears to be the case with your situation, but the employer who provides your paycheck is the temporary agency. The law has anticipated this type of situation, and there is something known as the “dual employment” or “borrowed servant” doctrine. The dual employment doctrine, at its core, recognizes that while the agency is your “employer,” the startup company is controlling the day-to-day activities of your work, and should also be recognized as your employer. The agency is considered the “general employer” and your relationship with the startup is what is known as a “special employer.”

Whether this dual employment relationship exists is a question of fact and comes down to questions of control. The special employer must be controlling many of the aspects of the employment to be deemed responsible. They are very similar questions as determining if a person is an employee or independent contractor:

who determines when the workday starts and ends;
the ability to hire or fire;
the assignment of tasks and projects;
who is paying for the tools of the trade; and
similar issues of control.

In some cases, this can be a difficult analysis. However, in the standard reception position, the startup would be able to terminate your contract, ask you to answer phones in a specific way, greet people coming in, or even, move a desk. It seems, on the limited facts presented, that the startup would indeed be your special employer. That means that you would be eligible for worker’s compensation benefits since your injury arose out of and within the course of your employment.

The best practice would be to immediately notify both the startup as well as the temporary agency of your injury and the manner it occurred. One of the two will likely provide contact information for their worker’s compensation insurance to administer your claim. The startup and the temp agency may have contractually determined who will be responsible for providing worker’s compensation benefits between themselves. Either way, you should be covered.

The last part of your question is whether you could sue the startup company in court. Generally, where someone is entitled to worker’s compensation benefits, those are the “exclusive remedies” available. You cannot sue either employer directly in court since the exclusive remedies are within the worker’s compensation system. However, it is important to look whether a third party (someone other than your employers) contributed to the harm. A third party is not subject to the limitations of the worker’s compensation system. If a separate company was moving a new desk in and they dropped it on your foot, you would likely be entitled to worker’s compensation from your employers and have a right seek recovery from the third- party desk movers in court. Notably, that does not allow a person to seek recovery two times for the same injury. The worker’s compensation provider would have a right to recovery of what they provided (wage loss and medical bills) from any recovery in the third-party court case.

I hope that helps you understand the complexities underlying your straightforward question.

Written By: Christopher Dolan and Aimee Kirby

This week’s question comes from Victoria, who asks: My son, who is 24 years old, recently took a job at a manufacturing facility. They have a cleaning crew at night to make sure everything is clean for the next day. My son befriended one of the young female workers of the cleaning crew, as he sees her every day. While his friend was working, she suffered an amputation of her pinky finger on her left hand. My son told me that the company routinely leaves the equipment on so that their workers can start working the minute they hit the yard and don’t have to lose time starting everything up again. My son feels terrible for his friend. and wants to know if she can sue his company despite the worker’s compensation that his friend might get from her cleaning job.

Hi Victoria,

I am sorry your son’s recent work experience. Workplace safety is generally, on a state level in California, overseen and regulated by Cal-Osha. Cal-Osha most likely inspected the yard after this severe accident. Cal-Osha probably sent an inspector out to determine if any workplace safety violations contributed to the incident, loss of her finger. Cal-Osha will then give the company a chance to respond to any proposed violation and issue a citation if they don’t find the explanation voids the citation. An easy way to think of a Cal-Osha violation is to compare it to a ticket issued by the police for violating a safety vehicle code section. These tickets can range thousands of dollars if the violation is serious.

That company’s Workers Compensation policy will cover your son’s friend as an employee of the cleaning crew. Workers Compensation Insurance covers injuries on the job and is considered no-fault insurance. No-fault insurance would mean insurance that covers medical expenses and loss of earnings, past and future, even if your son’s friend was responsible for her injury.

If I understand what you son is asking, it is if, on top of the Worker’s Compensation benefits, anyone at his company can be responsible for their negligent actions regarding leaving on the equipment to save time.

The question seems straightforward, but the law behind it is very complex. In the Seabright vs. US Airways case, the Supreme Court held that contractors that subcontract for work could delegate all duties to maintain a safe work environment of their facility to the subcontractor. Seabright clarified issues that conflicted with the various appellate courts in California regarding this issue. While it doesn’t make much sense that your son’s employer could delegate safety concerns to the cleaning crew that they knew existed and they created, that is essentially the holding in Seabright. The court’s rationale in Seabright was that the subcontractor was in the best place to take measures in their work to make the condition safe. What is remarkable is that often the subcontractor can’t force the contractor to do something. Still, the court indicated that they must not take the job, if the subcontractor can’t make the job site safe and that if an injury happens, the subcontractor always has the Workers Compensation policy of their employer to fall back on.

The “Privette Doctrine” has governed the extent of liability that general contractors and property owners have for worksite injuries suffered by a subcontractor’s employees. In Privette v. Superior Court (1993) 5 Cal.4th 689, the California Supreme Court held that “Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work.”

There are some exceptions to the Privette doctrine that was discussed in the Seabright case. One exception is if the subcontractor is, really, an employee of the contractor. Another exception is if the company your son works for maintained control of the premises and deliberately acted to increase the dangers to his friend. Lastly, an exception exists if there was a mandatory duty imposed on the company that the Privette Doctrine cannot eliminate.

Lastly, a theory called Federal Preemption is an even more complicated part of this analysis. It stands for the concept that if there is a law in conflict with any federal law, that federal law will always win over state law. Because of all the twists and turns in this particular law, your son’s friend should speak to an experienced attorney on these issues to see if she can sue your son’s employer for their separate negligence.

Written By Christopher Dolan and Mari Bandoma Callado

My partner and I are waiting for the arrival of our baby at the end of June. We are adopting her and cannot wait to become parents. I will be asking for some time off from work to bond with our baby and would like to know more about my rights as an adoptive father. How much time off can I take? Am I entitled to paid leave? Do I get to keep my health benefits? In the three years I have worked for my company, I noticed that not a lot of the men I work with take time off to bond with their newborn. I am worried about being retaliated against for requesting paternity leave I work for a small tech company with 15 employees in Oakland, California. Thank you and I hope you have a great Father’s Day! – James

Thank you for your question, James. Congratulations and Happy Father’s Day to you too. It is really unfortunate there is still a stigma against taking paternity leave.

Time Off to Bond with Newborn, Newly Adopted or Foster Child

The California Family Rights Act (CFRA) requires California employers with 5 or more employees nationwide to provide employees who worked for their employer at least 1,250 hours in one year just prior to taking leave up to 12 weeks of unpaid, job-protected leave to bond with a newborn, newly adopted, or foster child within the first year of birth or placement in the home. Employees do not have to take this leave all at once as time off from work can be taken intermittently.

Employees are required to provide “reasonable notice” of your intent to take baby bonding or family leave. How much notice is required depends but it would be prudent to try to notify your employer at least 30 days in advance of your plans to take time off. We recommend providing notice in writing and including the dates you plan to begin your leave, the anticipated duration of that leave, and a brief explanation of why you are taking that leave (e.g. to bond with adopted baby).

Benefits and Payment During Paternity Leave

If you have health benefits through your employer, they will continue while on CFRA leave.
Note: you may have to pay for your portion of your premiums.

Unfortunately, your employer is not required pay you while you are on leave (unless your employer pays employees on CFRA leave), but here are a couple of ways you can receive payment during paternity leave:

State benefits: California offers Paid Family Leave (PFL) which provides up to 60% or 70% of weekly wages, depending on income for a maximum of 8 weeks to bond with your newborn, adopted child or foster child within the first year. To be eligible for this partial wage replacement, you must have paid into State Disability Insurance during the base period. This is often noted as CASDI on most paystubs. To learn more about eligibility and/or to apply for paid family leave, go to edd.ca.gov.
Paid Sick Leave: California’s paid sick time law gives employees sick time that can be used to recover from physical/mental illness or injury; to seek medical diagnosis, treatment, or preventative care as well as to take care for a family member who is ill or needs medical diagnosis, treatment, or preventative care; or to address needs that may arise if the worker is a victim of domestic violence, a sexual offense, or stalking. Therefore, if your baby gets sick or you want to take your child to medical appointments, you may also use your paid sick days. Your employer may not require you to use sick leave; however, you and your employer can mutually agree that you may use sick leave.
Note: some California cities have their own sick time laws which may provide additional rights.
Accrued Paid Time Off: Your employer may require you to use vacation time unless you are receiving PFL from EDD to bond with a new child.

Retaliation/Returning to Work

California laws protect employees from retaliation. It is unlawful for an employer to violate an employee’s family leave rights and retaliate against an employee who takes time off to bond with their baby. Retaliation occurs when an employer takes an “adverse action” against an employee because s/he has exercised a “protected legal right” such as requesting parental leave. An adverse action is any act by an employer that negatively and significantly affects the terms and conditions of one’s employment such as termination, demotion, suspension, reduction in pay or hours, and any other action that would discourage a reasonable person from pursuing their rights.

When you return to work after parental leave, your employer must return you to the same or comparable position they had prior to the leave. If you notice any changes to your job title, duties, or a reduction of pay of hours, or if you hear any offensive comments about taking time off, consult with an attorney to help protect your rights.

Written By: Christopher B. Dolan and Emile A. Davis

Laird E. in Alameda asks: “I work in construction, and I am often at the worksite for 10 – 12 hours each day and often don’t get off work until after 7:00 p.m. I am afraid that this will not give me time to vote on election day. I don’t feel comfortable mailing my ballot. I want my vote counted right there on election day. Can I use sick time to go to the polls on election day?”

Dear Laird,

Thank you for this very important question which affects many workers. I completely understand that you would prefer to place your ballot in person rather than mailing it. I have good news. The law allows workers to take time off from their position in order to vote and doing so does not require the use of accrued sick leave.

California Elections Code § 14000 provides employees with the right to take reasonable time off to vote, without loss of pay, if a voter does not have sufficient time outside of working hours to vote in a statewide election. Specifically, the Elections Code states that, “the voter may, without loss of pay, take off enough working time that, when added to the voting time available outside of working hours, will enable the voter to vote. No more than two hours of the time taken off for voting shall be without loss of pay,” and that, “time off for voting shall be only at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from the regular working shift, unless otherwise mutually agreed.” Furthermore, if a worker knows, or believes, on the third working day prior to the election, that time off will be necessary to be able to vote on election day, this code states that, “the employee shall give the employer at least two working days’ notice that time off for voting is desired…”

For you, if it appears that you will be at the jobsite for 12 hours on election day, and will not be off work until 7:00, as you suggested, that may not give you the opportunity to get to the polls to vote. You should notify your employer, in writing, three days prior to election day, that you will need to take time off to vote. You can work out with your employer whether it makes more sense to go to the polls when they open and then come in to work, or to leave early with enough time to get to your polling place.

Employers also need to be aware that for at least 10 days before every statewide election, every employer must keep posted a notice setting forth the provisions of California Elections Code § 14000 so that employees like you are aware of their rights. The notice must be placed conspicuously at the place of work, if practicable, or elsewhere where it can be seen as employees come or go to their place of work.

Another important aspect of this code is that it would likely be unlawful for an employer to retaliate against you, or any person who made use of these provisions of the Elections Code to vote. We would argue that an employer who terminates an
employee for exercising their right to vote would have engaged in, “wrongful termination in violation of public policy,” a cause of action in a lawsuit available when someone is terminated in violation of a fundamental public policy. A wrongful termination cause of action provides for recovery of economic damages such as lost wages and benefits, non-economic losses such as anxiety, stress, emotional distress, fear and humiliation and, if the denial was the decision of an officer, director or, “managing agent,” of the employer, even punitive damages. Importantly, since you work in construction, a field with many Union employees, any collective bargaining agreement provision, which seeks to waive an employee’s right to pay for time taken off to vote, has been held by the courts to be against public policy, contrary to express provision of law and invalid.

Written By Christopher B. Dolan and Vanessa C. Deniston

This week’s question comes from Jessica R., who asks: I’ve been working at a big tech company in the South Bay for about three years now as a software developer. At the outset of my employment, I signed several documents contained in a hiring packet, one of which was an arbitration agreement. I didn’t understand what it was at the time. I just signed it because I thought that’s what I had to do to start work. After some research, I now realize I gave up my right to file a civil case, and any claim arising from my employment will be handled confidentially out of court. A few weeks ago, one of the newly hired managers began making inappropriate sexual remarks to me and one of my co-workers. The behavior has only gotten worse. HR doesn’t seem to take it seriously, either. I’m starting to regret ever having signed that arbitration agreement. Do I have any options, or am I going to be stuck with it?

Hi Jessica,

Thank you for your question. We have some excellent news for you. Last month, on March 3, 2022, President Biden signed H.R. 4445 into law, ending forced arbitration of all claims of sexual assault and sexual harassment arising under federal and state law. The law is effective immediately nationwide. It applies to all past and future agreements, including arbitration agreements signed before the new law went into effect.

The new law applies to any “dispute or claim that accrues on or after the date of the enactment of this Act.” Does a claim “arise” or “accrue” when the actionable conduct occurs or when a case is actually filed? It is unclear. Given the law is so new, its interpretation, thus far, has been limited. There is likely to be a wave of test cases over the next six months, however, seeking to further clarify the applicability of the new law to acts of sexual harassment and assault that occurred before March 3, 2022, and how cases involving sexual harassment and sexual assault occurring before, on, and after March 3, 2022, are to be treated.

What does this mean for you and your circumstances?

First, the arbitration agreement you signed when you were hired by the company three years ago appears to be covered under this new law.
Second, the new law will likely apply to your claims as the sexual harassment your supervisor subjected you to appears recent – post-dating March 3, 2022 – and ongoing, which removes some doubt regarding the Act’s applicability to your claims.

Does this Act completely prohibit the arbitration of these types of claims?

No. Depending on the circumstances, an employee that previously signed an arbitration agreement may still wish to avail themselves of the arbitration process. The confidential nature of arbitration may appeal to some employees who don’t wish to have their names publicly associated with embarrassing or explicit sexual harassment or assault details. This law places the power in the hands of the victim to choose which forum they prefer. Thus, should you decide to pursue legal action, you may, at your election, choose which forum you prefer, whether it be arbitration or civil court. If you choose to file sexual harassment claims in civil court against your employer and your supervisor, your employer is unlikely to be successful in compelling you to arbitration, despite your former agreement with them to do so.

Now, for the curveball. As the law is brand new in its application, it is less clear at present how cases will be handled that involve a mix of different claims, one or more of which involve sexual assault or harassment. Suppose for instance, you wish to bring a sexual harassment claim and claims for wage and hour violations. The law is silent on whether the wage and hour violations will be compelled to arbitration. Forcing a victim to pursue two related claims arising out of their employment in two separate forums is neither practical nor a cost-efficient option for them. Time will bear out how such cases will be handled.

One final note for those of you out there that don’t fall squarely within the protections offered by new law. If you do end up in arbitration, there are some further protections for you as a Californian. On January 1, 2019, Senate Bill 820 known as the Stand Together Against Non-Disclosure (STAND) Act became law, prohibiting settlement agreements designed to silence employees from sharing factual information about their experiences of sexual harassment or sexual assault in the workplace. This law also applies to settlement agreements that contain a non-disparagement provision. Thus, despite the confidential forum of arbitration, if a settlement is reached prior to the hearing, your former employer cannot prevent you from discussing about what happened to you. Since 2019, the California legislature has taken it a step further. On January 1, 2022, Senate Bill 331 known as the Silenced No More Act was signed into law, expanding the prohibition to all claims of harassment, discrimination and retaliation under the Fair Employment and Housing Act (FEHA), including claims based on race, sexual orientation, disability, and many others.

If you or someone you know has signed an arbitration agreement and experienced harassment, discrimination, or retaliation in the workplace based on their membership in a protected class under FEHA, contact an attorney such as the Dolan Law Firm to analyze your particular circumstances.

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Taking Time Off to Vote is a Right in California

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(a) such placement is appropriate;

(b) the affected person does not oppose such treatment; and

(c) the placement can be reasonably accommodated, considering the resources available to the state and the needs of other individuals with disabilities.

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Written By: Christopher B. Dolan and Vanessa C. Deniston

“We’re not going to be asking for your ID. We’re not going to be asking you a litany of questions that are asked in almost every other state. You have a right to confidentiality.”

AB 2091 – Enhances privacy protections for medical records related to abortion care under California’s Reproductive Privacy Act, greatly limiting disclosures to out of state law enforcement and third parties seeking to enforce out of state abortion bans.

AB 2626 – Protects abortion providers in California by prohibiting the removal or suspension of medical licenses of a licensed providers performing or assisting in abortions in California, compliant with California law.

“The state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives.”

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