Tis the season: Giving thanks for new employment protections

Tis the season: Giving thanks for new employment protections

By Lisa Mak

In the spirit of the holidays, here’s a round-up of five legal developments that California workers and their advocates can be thankful for this year.

Fair Pay Act

In October 2015, Governor Brown signed the California Fair Pay Act to give our state the strongest equal pay protections in the nation.  In 2014, a woman working full-time in California still earned an average of only 84 cents to every dollar a man earned – a wage gap that has remained unchanged for nearly a decade. The new law mandates equal pay for “substantially similar work,” instead of the old outdated language requiring equal pay only for “equal work on jobs” at the “same establishment.” Thus, male and female employees are now entitled to equal pay if they perform comparable work, even if they have different job titles or work in different offices at a company. The new law also requires that any legitimate, non-gender based factors that employers rely on to explain gender wage differences must be “applied reasonably” and “account for the entire wage differential.” The Fair Pay Act also prohibits retaliation against workers who seek to enforce the Act or who inquire about the wages of other employees. This new law empowers women to challenge unfair pay practices and gives advocates new tools to combat the gender wage gap that has persisted in this state for far too long.

Protecting Reasonable Accommodation Requests

AB 987 was passed in July 2015 to explicitly affirm that workers who request reasonable accommodation based on religion or disability are protected from retaliation under the Fair Employment and Housing Act (FEHA). The legislation was passed in response to a misguided California appellate court’s decision in Rope v. Auto-Chlor System of Washington, Inc. In that case, the employee was fired after requesting a work accommodation so that he could donate his kidney to his ailing sister. The court held that accommodation requests did not constitute a protected activity sufficient to support a FEHA retaliation claim. This decision threatened to overturn years of legal interpretation that protected workers’ rights to request accommodations. With the passage of AB 987, we can now be sure that workers have legal protection if they request an accommodation from their employer due to disability or religion.

Increased Wage Theft Protections

To help combat pervasive wage theft in this state, SB 588 was passed to authorize the California Labor Commissioner to file a lien or levy on an employer’s property to assist employees in collecting judgments for unpaid wages. According to a 2013 report by the National Employment Law Project and the UCLA Labor Center, only 17% of workers who prevailed in their wage claim at the Labor Commissioner’s office were able to receive any payment between 2008 and 2011. Workers who did receive payment were able to collect only 15% of what was owed. The new law also provides that any employer or any person acting on behalf of an employer who “violates, or causes to be violated,” regulations regarding minimum wages or hours and days of work, may be on the hook for wage theft. Workers and their advocates now have significantly stronger tools to go after employers who try to evade liability by shifting responsibility to other companies or by refusing to pay their judgments.

Scrutiny Of Misclassification In Shared Economy Companies

In June 2015, the California Labor Commissioner ruled that a driver for Uber was an employee, not an independent contractor, and ordered the company to pay her back for work-related expenses. In August, the California Employment Development Department determined that a former Uber driver was an employee and was entitled to receive unemployment benefits. Then in September, a federal judge in San Francisco ruled that Uber drivers could proceed as a class action in a lawsuit over whether the drivers should be classified as employees or independent contractors. The class action alleges that Uber failed to pass on tips left for drivers. Although the classification issue for Uber drivers and other similar workers is not yet settled in California, it reflects the willingness of the state’s legal authorities to scrutinize misclassification issues and enforce labor rights in the evolving world of shared economy businesses.

Cost-Shifting To Employees Only If FEHA Lawsuit Frivolous

Previously, employees who lost on their Fair Employment and Housing Act claims could be required to pay the employer’s legal costs. Since these costs could be substantial, workers could be discouraged from trying to vindicate their workplace civil rights out of fear of having to pay if they lost their lawsuit. However, now after the California Supreme Court’s decision in May 2015 in Williams v. Chino Valley Independent Fire District, an employee who loses his or her FEHA claims in a lawsuit will not have to pay the employer’s legal costs on those claims unless the employer shows the claims were frivolous. This new standard can help reduce some of the financial risk for employees seeking to enforce their rights.

These developments reflect our state’s continuing trend of protecting working people, low-wage workers in particular, from exploitation and unfair treatment. Although there’s always more advocacy to be done, we have these positive steps to celebrate for this year.

Lisa Mak

About Lisa Mak

Lisa Mak is an associate attorney in the Consumer & Employee Rights Group at Minami Tamaki LLP in San Francisco. She is passionate about representing employees and consumers on an individual and class basis to protect their rights. Her practice includes cases involving employment discrimination, harassment, retaliation, wrongful termination, labor violations, and severance negotiations. Ms. Mak is the Co-Chair of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, and an active volunteer at the Asian Law Caucus Workers’ Rights Clinic. Ms. Mak is a graduate of UC Hastings School of Law and UC San Diego. She is fluent in Cantonese and conversant in French.

Love shouldn’t hurt or get you fired

Love shouldn’t hurt or get you fired

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By Lisa Mak

Today is the last day of Domestic Violence Awareness Month, so let’s take a moment to reflect on the prevalence of domestic violence in our country.  The press has no shortage of coverage on the issue when celebrities are involved, such as the recent leak of a video showing NFL player Ray Rice punching his then-fiancée in an elevator.  However, the press largely ignores the real-world challenges faced by domestic violence victims.  One challenge is maintaining employment while trying to get out of an abusive relationship.  In most states, a domestic violence victim can still be fired due to the abuser’s conduct, based on an employer’s misguided safety or productivity concerns.

This is one of the shocking things I learned during my two years as a volunteer counselor on a domestic violence hotline.  During that time, I counseled many victims who had different reasons for hesitating to leave the abusive relationship.  Some victims were still in love with their abuser, or were too afraid of the violent aftermath if they tried to leave.  Some cited a lack of a support network, as their partner had isolated them from family and friends.  Still others were financially dependent on their abuser, who prevented them from working or had sabotaged every job they ever had.

In 2013, Carie Charlesworth, a teacher in San Diego, brought national attention to the economic vulnerability of domestic violence victims when she was fired after her abusive ex-husband invaded her workplace and placed the school on lockdown.  Even though Charlesworth had a restraining order against her ex and had called the police, the school still fired her for safety concerns – essentially punishing her and her 4 children for her partner’s crime by taking away her livelihood.

As a result, Charlesworth became a strong proponent of SB 400, a new law protecting domestic violence victims from job termination.  Enacted in 2013 and effective this year, SB 400 changed Labor Code sections 230 and 230.1 to prohibit an employer from firing or discriminating against an employee based on his or her known status as a victim of domestic violence, sexual assault, or stalking.  The law also requires employers to provide reasonable safety accommodations for victims at the workplace, such as changing a phone number or relocating an employee’s desk.

With this new law, California joined 6 other states – Connecticut, Hawaii, Illinois, New York, Oregon, and Rhode Island – to specifically protect DV victims from employment discrimination.  But that means that in 43 other states, there is still no protection or recourse for victims who are fired because of their status.  That is appalling, considering that on average, approximately 20 people per minute in the U.S. are victims of physical violence by an intimate partner.  About 1 in 4 women will experience some form of domestic violence in her lifetime.

For many victims, maintaining stable employment is critical for escaping the abusive relationship and for supporting themselves after leaving their partner.  A 2012 study reported that 74 percent of women nationwide stayed with an abusive partner for a longer time due to economic reasons.  In California, studies have shown that nearly 40 percent of DV survivors were fired or feared termination due to domestic violence.  Laws like SB 400 protect victims who are often in a very vulnerable financial position.  We need such laws in every state.

Some states do allow victims to take time off work for DV-related issues, such as obtaining a restraining order or testifying in court.  But those laws are woefully inadequate.  What good is it when an employee has a restraining order in hand but no job to go back to?  How will she support herself while trying to be financially independent from her abuser?

Even without such laws, companies would be well-served by implementing policies to protect such vulnerable employees.  Intimate partner violence is not just a “family” problem – it’s also a business issue.  Employees who suffer from domestic violence or workplace harassment by their partner understandably may miss more work and be less productive.  If the abuser visits the workplace, this could also be extremely disruptive to a company’s operations.  Yet surprisingly, a 2006 study found that over 70 percent of U.S. workplaces did not have a formal program or policy addressing workplace violence.  Even in those private sector workplaces that did have such programs, less than half addressed DV issues.

Firing victims of domestic violence does more than take away the financial security that can allow victims to leave their abuser.  It also perpetuates the stigma of abuse and discourages other victims from reporting their experiences.  It re-victimizes them and takes away the last shred of self-worth they may have.

It takes an incredible amount of courage for DV victims to exit their abusive relationships.  Let’s not make it harder by putting their employment at risk too.

 

Lisa Mak

About Lisa Mak

Lisa Mak is an associate attorney in the Consumer & Employee Rights Group at Minami Tamaki LLP in San Francisco. She is passionate about representing employees and consumers on an individual and class basis to protect their rights. Her practice includes cases involving employment discrimination, harassment, retaliation, wrongful termination, labor violations, and severance negotiations. Ms. Mak is the Co-Chair of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, and an active volunteer at the Asian Law Caucus Workers’ Rights Clinic. Ms. Mak is a graduate of UC Hastings School of Law and UC San Diego. She is fluent in Cantonese and conversant in French.

100% healed policies = 100% discrimination 3

By V. James DeSimone

For an employee who depends on her job, having to take a disability leave for medical treatment is a frightening prospect.  Picture Cynthia, a 29 year old employee of a major restaurant chain, who suffers from severe and intermittent pain in her hips while walking as the result of a condition stemming from childbirth.  Despite her pain, she performs her job as a server and event coordinator in an exemplary and enthusiastic manner.

After eight years on the job, however, the pain becomes so great that she schedules  surgery on both hips.   Unfortunately, she experiences complications, but Cynthia perseveres through subsequent surgeries and a painful rehabilitation, determined to get well enough to return to work and her normal life.

At each step of the way, she keeps her employer updated on her status, confident that she will be able to do her job with minimal restrictions.  Finally, after an extended medical leave of absence from work, she is ready to go back to the job she loves and on which she depends.

But there is a stumbling block.  She is ready to come back to work and suggests a less physically demanding retail position. However, the Human Resources Director informs her, “don’t come back until you are 100% better,” and Cynthia is never going to be “100% healed.”  She will always have limitations that will require some accommodation from her employer in order to perform her job.

However, she is not deterred.  In anticipation of returning to work, Cynthia schedules a meeting with her supervisors to discuss the modifications she will need, but they cancel it. Then, out of the blue, she receives a letter from the company terminating her employment.  The reason:  job abandonment — failure to return from leave.

Cynthia’s experience is not unique. Employee advocates report that termination after a disability leave or a request for accommodation are two of the most frequent reasons why an employee will contact a lawyer.   According to the Equal Employment Opportunity Commission (“EEOC”), one of the “hottest areas of EEOC litigation right now involves the agency’s efforts to root out inflexible leave policies – particularly those that supposedly eliminate an employer’s legal obligation to explore and make reasonable accommodations for employees returning from medical leaves of absence.”

The California Commission on Health and Safety and Worker Compensation has published a “Helping Injured Employees Return to Work,” a handbook of practical guidance for businesses.    It provides as examples of inappropriate policies:

  • Requiring that injured employees be released to full duty without restrictions or be healed 100 percent before returning.
  • Always terminating an employee if he or she is unable to return to full duty after a specific, fixed period.
  • Delaying discussion of job accommodations until the employee’s condition is permanent and stationary.

Almost all courts that have examined these so-called “100% healed” policies have concluded that they are an outright violation of the Americans with Disabilities Act.   When an employee is out on disability leave, companies must communicate with the employee, preferably in person, in what is called the good faith interactive process.  All attempts to reasonably accommodate the employee to allow him or her to perform the essential functions of the job should be made.

The rules for reasonable accommodations protect all of us.  After all, we never know when one of us or a loved one may become sick or injured and require some form of leave or accommodation.  It’s a shame that it sometimes takes a lawsuit to hold companies accountable when they break the rules.  But what’s clear is this — when it comes to “100% healed” policies, employers should take heed that the justice system is going to hold them 100% liable.

V. James DeSimone

About V. James DeSimone

In October of 2015, after 25 years as a partner in Schonbrun DeSimone, Jim opened up his own law firm, V. James DeSimone Law, located in Marina Del Rey. In 2014, Jim was honored with a CLAY award for California Civil Rights Lawyer of the Year. He has been named a Top Employment Lawyer in California by the Daily Journal for 6 of the past 8 years. He is a trial lawyer focusing on civil rights and employment law and has tried numerous cases to verdict achieving seven figure recoveries for his clients. As a civil rights and employment lawyer, his cases range from wage and hour class actions to individual employment discrimination cases, and to representation of families whose family members with a disability have been killed by police officers. You can find out more about his work at www.vjamesdesimonelaw.com.

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