Archive for the ‘ Employment Law ’ Category

Compassion For Employees Who Have Mental Health Conditions

Posted on: October 19, 2018 by in Employment Law
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depressed employee

According to the U.S. Equal Employment Opportunity Commission (EEOC), you are protected against discrimination and harassment at work if you suffer from any of the mental health conditions listed here:

1. depression
2. anxiety
3. adult ADHD (attention deficit hyperactivity disorder)
4. post-traumatic stress disorder (PTSD)
5. any other mental health condition that may affect your ability to work

Precisely what are the obligations of employers to employees who are dealing with one of these mental health conditions? Can a San Francisco employment lawyer help? And if you are the employee, what is your recourse if you are targeted for discrimination or harassment because of your mental health condition?

CAN AN EMPLOYER FIRE YOU BECAUSE OF A MENTAL HEALTH CONDITION?

Mental health problems are a growing health concern, and not only in the United States. The World Health Organization estimates that two mental health conditions – anxiety and depression – will cost the global economy $925 billion a year over the next fourteen years.

The Americans With Disabilities Act of 1990 (ADA) is the federal law that prohibits an employer from discriminating against a job candidate or employee on the basis of a disability, whether that disability is mental or physical.

It is against the law in California for any employer to discriminate against you because of a mental health condition. You may not be terminated, rejected for a job or for a promotion, harassed, or forced to take leave against your will.

WHAT ARE THE RULES FOR HIRING AND RETAINING EMPLOYEES?

A California employer does not have to employ or retain anyone who cannot perform the job – whether or not that person struggles with a mental health condition. And employers do not have to hire anyone who poses a significant risk of substantial harm to others or to himself or herself.

But before an employer can fire you or reject you for employment, the employer must have factual evidence that you cannot perform the job or that you pose a risk to safety. You can’t be fired on the basis of an employer’s stereotypes or “hunches” about your mental health condition.

If your mental health condition could affect your job performance, you have the right to ask your employer for a reasonable accommodation to help you do the job.

WHAT ARE REASONABLE ACCOMMODATIONS?

The ADA compels employers to provide reasonable accommodations, provided that the accommodations do not impose undue hardships on the employers.

What is a “reasonable” accommodation? In most cases, all that’s needed is a minor change that doesn’t “unduly” cost or burden the employer. For someone struggling with a mental health condition, reasonable accommodations at work are usually small changes that might include:

1. adjusting schedules
2. modifying existing equipment or obtaining new equipment
3. revising policies, tests, or training materials

WHAT IF YOU CAN’T WORK, EVEN WITH AN ACCOMMODATION?

If your mental health condition prevents you from performing the essential functions of your job – even with a reasonable accommodation – and you have no paid leave available, you may still be entitled to unpaid leave in most employment circumstances in California.

The Family and Medical Leave Act of 1993 (FMLA) is a federal law that requires employers with fifty or more employees to provide twelve weeks of job-protected, unpaid leave (in a twelve-month period) for qualified employees to deal with a “serious health condition.”

The Department of Labor defines a “serious” condition as a health condition requiring hospitalization or “continuing treatment” and more than three days absence from work.

WHAT IS CALIFORNIA’S HEALTHY WORKPLACE HEALTHY FAMILY ACT?

Employees in this state may also be covered by the Healthy Workplace Healthy Family Act of 2014, which requires California employers to offer an hour of paid sick leave for every thirty hours worked.

With only narrow exceptions, the Healthy Workplace Healthy Family Act covers almost every California employer. Employees become eligible to begin using their sick leave hours after ninety days.

IF YOU ARE DISCRIMINATED AGAINST AT WORK, WHAT CAN YOU DO?

Employment discrimination or harassment based on a mental health condition is illegal under both state and federal law. For most people experiencing discrimination or harassment at work, the first step is to follow your employer’s own reporting procedures – provided there are any.

If you have to take legal action, it’s helpful to show that you made every reasonable effort to deal with the discrimination or harassment situation before you resorted to legal action.

If a California employer discriminated against you, harassed you, or terminated you because of your mental health condition, and if you have followed your employer’s own reporting procedures, but no action has been taken – where can you turn?

HOW CAN AN EMPLOYMENT RIGHTS LAWYER HELP YOU?

At that point, you will need to meet with an experienced San Francisco employment rights attorney. The attorney will review the details of your claim and determine if you qualify to take legal action.

If you have suffered illegal employer discrimination or harassment because of your mental health condition, your attorney will negotiate with the employer for reinstatement, back wages, and additional damages.

Out-of-court settlements are the way that most employment discrimination cases are resolved. Settling out-of-court saves all of the parties involved a significant amount of time, money, and inconvenience.

However, if the employer denies that illegal discrimination or harassment took place, or if the employer fails to negotiate in good faith, your attorney may recommend taking the case to court and asking a jury to award you the damages – and to give you the justice – you deserve.

HOW CAN EMPLOYERS HELP?

Employers in California should encourage their employees who are suffering with mental health issues to get help. In fact, many California employers now sponsor a “Mental Wellness” program to help employees reduce stress and anxiety by encouraging exercise and healthy lifestyles.

Employment discrimination or the workplace harassment of anyone dealing with a mental or physical condition or disability is simply unacceptable in California, and if you are a victim of employment discrimination or workplace harassment in this state, the law is on your side.

Get the legal help you need – and contact an experienced San Francisco employment rights attorney at once – if you are targeted for discrimination or harassment by any employer in this state. You have the right to fair treatment, and you have the right to an attorney’s help.

Fired For A Disability – Is It Wrongful Termination Or Discrimination?

Posted on: September 16, 2018 by in Employment Law
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If you are disabled, and if you are terminated from your job in California, under what circumstances is such a termination wrongful? When is terminating someone with a disability an act of illegal discrimination? Can a San Francisco employment rights attorney help?

Keep reading, especially if you are an employer or if you or someone in your family struggles with a disability. This will be a brief discussion of the employment rights of disabled workers in California. You are about to learn:

1. what constitutes a wrongful termination
2. how a disabled person can know if he or she has been wrongfully terminated
3. what your legal recourse is after a wrongful termination

WHAT IS THE AMERICANS WITH DISABILITIES ACT?

The Americans with Disabilities Act of 1990 (“the ADA”) makes disabled persons a legally protected class under federal law. When a private employer has fifteen or more employees, the ADA applies.

The California Fair Employment and Housing Act offers comparable legal protections at the state level to disabled employees working at businesses with only five or more employees.

Under both state and federal law, if someone can do the job, an employer may not legally terminate, fail to promote, fail to hire, or discriminate in any way against that person on the basis of his or her physical or mental disability.

Additionally, the Americans with Disabilities Act obliges employers to make “reasonable” accommodations for disabled employees.

WHO IS PROTECTED UNDER THE ADA?

To seek legal protection under the Americans with Disabilities Act, someone’s disabling condition must be defined by the ADA itself as a legal disability.

A person is disabled under the ADA’s definition of disability if he or she has a mental or physical condition that substantially restricts basic activities like seeing, speaking, hearing, breathing, walking, and performing basic manual tasks.

To be a victim of employment discrimination, a disabled person must be capable of doing the job either with or without reasonable accommodations.

The Americans with Disabilities Act provides legal protection from discrimination in hiring, training, promotions, pay, benefits, and termination. Employers may not fire or retaliate in any way if a disabled person asserts his or her ADA rights.

Finally, the Americans with Disabilities Act ensures that disabled workers have a right to ask for a reasonable accommodation in the hiring process and throughout the course of their employment.

HOW ARE “REASONABLE” ACCOMMODATIONS DEFINED?

Employers are required by law to make reasonable accommodations for disabled employees. Reasonable accommodations may include:

1. making the existing job site and work area more accessible
2. modifying work schedules
3. acquiring new equipment or modifying the existing equipment
4. revising tests, policies, and/or training materials

A “reasonable accommodation” is one that does not unduly cost the company. Other examples might include installing a ramp, providing printed materials in Braille, or changing company policies to allow a service animal into the work area.

WHAT CONSTITUTES ILLEGAL DISCRIMINATION UNDER THE ADA?

Illegal discrimination under the Americans with Disabilities Act includes an employer’s:

1. failure or refusal to accommodate special needs
2. failure or refusal to hire a capable employee due to a disability
3. termination of an employee due to a disability

If you are disabled and you are fired from your job, how can you know if you have in fact been wrongfully or illegally terminated?

WHAT IS “AT WILL” EMPLOYMENT?

Most employment in the state of California – unless you work under an employment contract – is “at will” employment, which means that workers are hired and fired entirely at an employer’s discretion – with one key exception.

Although anyone may be terminated by an employer for any legal reason or in fact for no reason at all, you can’t be terminated for an illegal reason – like discrimination – or in violation of an employment contract.

If you believe that you have been wrongfully and illegally terminated because you are disabled, you will need to discuss your circumstances, rights, and options with an employment rights attorney.

HOW CAN AN EMPLOYMENT RIGHTS ATTORNEY HELP YOU?

In California, if you were terminated illegally because of discrimination, in some cases you can be reinstated, and you may also be awarded financial damages.

If you don’t find other employment quickly, you may face genuine financial hardship. Depending on the details of your case, an employment rights lawyer might:

1. help you file a discrimination claim with the California Department of Fair Employment and Housing (DFEH) or with the federal Equal Employment Opportunity Commission

2. negotiate directly with the employer for an out-of-court settlement

3. file a discrimination lawsuit against the employer as a last resort and take the case to a jury

WHEN CAN YOU FILE AN EMPLOYMENT DISCRIMINATION LAWSUIT?

However, in wrongful termination cases involving disability discrimination, filing a lawsuit is the last option – not the first. Neither federal nor state courts will consider employment discrimination cases until and unless all of the possible “administrative” resolutions have failed.

Still, from the very beginning of the process, a disabled person who has been wrongfully terminated will need the insights, guidance, and sound legal advice that an experienced San Francisco employment rights attorney will provide.

WHEN SHOULD YOU CONTACT AN EMPLOYMENT RIGHTS ATTORNEY?

If you have been wrongfully terminated by your employer because you struggle with a disability, you’ll need that sound legal advice as quickly as possible.

Filing a discrimination claim is a complicated process with plenty of paperwork – that must be comprehensive and accurate – and with filing deadlines that cannot be missed.

California imposes no limit or “cap” on the damages that employers must pay disabled discrimination victims, but damages are limited in federal discrimination cases.

Because California provides extensive legal protections to employees beyond the provisions of federal law, in most cases, a disability discrimination claim should be filed in a state court. Your attorney will scrutinize the particulars of your own case and recommend the best way forward.

WILL YOU BE ABLE TO WIN JUSTICE?

If you have been the target of wrongful termination because of disability discrimination, be assured that the state of California has no tolerance for employment discrimination of any kind.

The law is on your side, but you must be advised and represented by an experienced employment rights lawyer. The right attorney can make all of the difference. The sooner you put an attorney on your case, the more likely it is that you will prevail.

Depending on the details of your case, you may legally be entitled to back wages, additional compensation, and reinstatement. You will absolutely be entitled to justice. That is your right.

What Is My Right To Pay During A Suspension?

Posted on: August 17, 2018 by in Employment Law
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If you are legally employed by a California employer, you have extensive employment rights guaranteed under both federal and state laws. Do the employment laws allow an employer in this state to suspend you from your job without pay?

Precisely what are your employment rights when it comes to suspensions and the other “disciplinary” measures that California employers may take? Can a San Francisco employer retaliation attorney help?

WHAT IS THE DEFINITION OF A WORKPLACE SUSPENSION?

First, let’s precisely define what a “suspension” from work is. Suspensions are a period of time when an employer requires an employee to be away from the job for a specific reason that is usually related to a disciplinary matter.

Suspensions take several forms. Some suspensions are paid, and some are not. Some are for a precise length of time, but other suspensions are indefinite.

Many employers have policies that impose some type of discipline – such as a suspension – on an employee who has not adhered to a particular rule or rules. A suspension is basically the grown-up equivalent of making you sit in the corner – and sometimes, without being paid.

BUT WHAT ABOUT YOU? CAN YOU BE SUSPENDED WITHOUT PAY?

Like so many legal questions, the answer to “Can you be suspended from your job without pay?” is “It depends.” And the first thing it depends on is whether or not you an “exempt” or a “non-exempt” employee is California.

The law in California spells out which employees in this state are exempted from wage and hour laws – that is, employees for whom the basic wage and hour laws, and the rules regarding suspensions and pay – don’t apply:

1. anyone who earns over fifty percent of their pay through commissions
2. anyone who earns over one-hundred-fifty percent of the minimum wage
3. executive, professional, and administrative employees
4. most computer software professionals
5. teachers who are working at private schools
6. registered nurses
7. local and government employees
8. surgeons and other physicians
9. employees of the University of California

Except for the employees who are in these categories, almost all other employees in California are considered non-exempt employees.

CAN A NON-EXEMPT EMPLOYEE BE SUSPENDED WITHOUT PAY?

Here’s the rule regarding suspensions and non-exempt employees: An employer in California has the legal right to suspend a non-exempt employee without pay for a disciplinary reason or pending an investigation of an employee’s alleged misconduct.

Some employers may opt to continue to pay a nonexempt employee during a pending investigative suspension, and some employers may even provide back pay if an investigation finds no wrongdoing by the employee, but employers are not legally obliged to provide such pay.

California employers may or may not allow nonexempt employees who are suspended without pay to use their vacation days in lieu of going entirely unpaid for the length of the suspension, but employers in our state are not legally required to make this option available, either.

However, exempt employees who are salaried may be suspended without pay only for an employer’s complete seven-day workweek. For exempt employees in this state, no salary deductions are allowed for one-day or partial workweek suspensions.

WHAT ARE THE RULES REGARDING UNPAID SUSPENSIONS?

For exempt employees, unpaid suspensions must be made in good faith and for major workplace violations. The federal Fair Labor Standards Act allows unpaid suspensions for on-the-job drug or alcohol use, sexual harassment, and other violations of state or federal employment laws.

However, any suspension of an exempt employee in California regarding the quantity or quality of that employee’s work is improper and may trigger legal problems for an employer.

California employers may suspend exempt employees only in full-day increments, and they must already have a written policy in place that specifically allows for such disciplinary suspensions.

It is also inappropriate for an employer in this state to discipline an employee for something vague like “having a negative attitude.” A workplace suspension must be tied to a specific incident of workplace misconduct.

WHAT IS THE BEST STRATEGY IF AN EMPLOYER INVESTIGATES YOU?

An accused employee must try not to react emotionally, especially if an accusation is fabricated or exaggerated. Employees in this situation must avoid sending angry emails, making angry phone calls, or provoking any kind of face-to-face confrontation.

Instead, if you believe that you have been illegally or unjustly suspended at work, or if you are being illegally or unjustly paid, take your concerns – immediately – to an employment rights attorney.

Whether or not an accusation against you is true, and whether or not a workplace investigation is, in your estimate, conducted fairly, here’s the best strategy for dealing with an investigation:

1. Cooperate fully with the workplace investigation.
2. Answer all questions frankly and honestly.
3. Resist the impulse to express anger or to “talk trash” about a manager or colleague.

HOW DOES THE LAW PROTECT EMPLOYEES IN CALIFORNIA?

If you have grounds to bring legal action against an employer regarding a suspension from your job, your employment rights attorney will explain your legal rights and options and will recommend the best way to move forward.

You cannot be suspended from your job or denied pay for a reason that is illegal, such as discrimination or retaliation.

The Civil Rights Act of 1964 prevents employers with fifteen or more employees from discriminating on the basis of gender, race, religion, or national origin.

If your employer has only five to fourteen employees, California protects you from workplace discrimination through the Fair Employment and Housing Act of 1959.

IF YOUR EMPLOYMENT RIGHTS ARE VIOLATED, WHERE CAN YOU TURN?

If you’re targeted for workplace discrimination – wrongly suspended, improperly paid, or wrongly terminated – discuss your situation and rights at once with a qualified employment discrimination attorney.

There’s not much in life that’s more important than your employment. It’s what lets you provide for your family and meet your obligations and responsibilities.

If your job or the pay you receive is threatened in any way, or if you are a victim of illegal discrimination, harassment, or retaliation, do not be disheartened or intimidated.

In California, if your employment rights have been violated by your employer, the law is on your side.

If you are dealing with discrimination, retaliation, harassment, or a pay-related issue that needs to be resolved, get the legal advice and representation you need – and do it at once. That is your right.

Violence In The Workplace (And Your Rights If You Are A Victim)

Posted on: July 19, 2018 by in Employment Law
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It is difficult to determine how extensive workplace violence is in California and across the United States, but we read about it far too frequently. In a typical news story about workplace violence, a disgruntled ex-employee returns to the job site and goes on a shooting spree.

It’s frightening. Do employers have any obligation, responsibility, or liability for workplace violence? If you’re injured in one of these incidents, how can you be compensated? Are there steps that employers can take to reduce workplace violence – or eliminate it entirely? What can an employment law firm do?

You’re about to learn those answers and more.

A recent shooting at YouTube’s San Bruno campus ended with the shooter injuring three and killing herself. In March, a man killed his ex-wife at her workplace in a shopping mall in Thousand Oaks.

WHAT DO THE STATISTICS TELL US ABOUT WORKPLACE VIOLENCE?

In the state of California, workplace violence is a genuine and growing public concern.

The most recent statistics tell us that more than 2 million people in the U.S. are victims of a workplace violence incident each year. Shootings are what make the headlines, although assaults and other incidents of violence are far more frequent and potentially just as dangerous.

Can employers be held liable for injuries sustained by their employees in incidents of workplace violence? The best answer is, “It depends.”

No federal laws or regulations require employers to have any plan for preventing or responding to workplace violence.

WHAT DOES FEDERAL AND STATE LAW REQUIRE?

However, both federal and state laws compel employers to ensure a reasonably safe work environment that is free of known hazards and known dangerous conditions.

As a general rule, if you are injured by violence in the workplace in California, you will qualify for workers’ compensation benefits – just as if you had suffered any other type of workplace injury.

Workers’ compensation in California will usually cover your medical expenses after a work-related injury, and it partially replaces your lost wages while you are recuperating.

IS WORKERS’ COMPENSATION AN INJURED EMPLOYEE’S ONLY OPTION?

However, if you are injured in an incident of workplace violence, don’t simply presume that the employer is fully shielded from liability. There are a number of possible exceptions that might allow you to take legal action directly against the employer.

If workplace violence happens and you are injured, discuss your rights and options at once with an experienced San Francisco employment rights attorney.

Workplace violence cases can be quite complicated legally, but those complications may provide the injured with additional sources of compensation.

For example, the details of a workplace violence incident must be compared against the exceptions to the shield against liability that workers’ compensation provides to employers.

WHEN CAN EMPLOYERS BE SUED FOR NEGLIGENCE?

You cannot file an injury lawsuit against an employer if you’re injured in the “course and scope” of your job duties, even if the employer was in fact negligent and was responsible for your personal injury or injuries.

However, California lawmakers have established several exceptions to the shield against liability that workers’ compensation provides to employers.

For example, particular types of intentional employer misconduct may expose an employer to liability beyond workers’ compensation if it is intentional conduct which is not a normal risk of employment or is contrary to an employee’s reasonable expectation of physical safety.

This may include egregiously inappropriate behaviors like striking an employee or ordering an employee to work in an area that has been declared – or that is obviously – unsafe.

WHAT ABOUT AN EMPLOYER’S HIRING PRACTICES?

An employer has a duty of “reasonable care” to protect employees, as far as reasonably possible, from potentially dangerous individuals.

Let’s say that your employer is negligent regarding background checks and hires someone with a history of violence and criminal convictions. If that person commits workplace violence that injures you, the employer could be held accountable for negligent hiring or negligent retention.

What’s imperative is speaking with an attorney at once if you have been injured by workplace violence. You’re reading a general overview of workplace violence, but every case is unique and will require the insights and advice of an employment or personal injury lawyer.

WHO COMMITS WORKPLACE VIOLENCE?

The fact is that most workplace violence is not committed by employees or ex-employees but by non-employees like robbers and stalkers. If you work for a business where you meet the public, you are at risk for this kind of violence.

In California, if you are injured at your place of work by a non-employee, speak at once with a skilled employment rights attorney.

While you have the right to sue someone who injures you, the fact is that robbers and stalkers usually have little in the way of resources, and whatever resources they have will probably be used for their criminal defense.

A personal injury or employment rights attorney can help you determine what legal steps you should take in these cases.

HOW ARE EMPLOYERS RESPONDING TO WORKPLACE VIOLENCE?

Many California employers have recognized the necessity of addressing workplace violence and have established policies that require employee training in workplace violence response, conducting mock training exercises, and adopting an emergency action plan.

An emergency response plan should clearly and directly tell workers how to react to an incident of workplace violence. Unfortunately, some California employers still have no plan in place, or their plan is outdated and needs to address a wider variety of threats.

There is no way to know when workplace violence is going to happen. Especially if employees meet the public, they should be trained to be vigilant, alert, and prepared.

Employers may need to consult with security experts to create an emergency action plan. There’s no reason to think that workplace violence is going to decrease or go away anytime soon.

Some employers may need to consult with an employment rights lawyer to understand what steps are necessary.

IF YOU ARE INJURED ON THE JOB, HOW CAN AN ATTORNEY HELP?

If you are injured by violence at your own place of work, discuss your options with a qualified personal injury or employment attorney. Your attorney will help you determine who is legally accountable for your injuries and what legal steps you should take.

Work is a basic part of life. It’s the way we care for ourselves and the people we love. If you are injured by violence in the workplace, let an attorney help you fight for the justice you deserve. That is your right.

What Is Intentional Infliction Of Emotional Distress?

Posted on: June 19, 2018 by in Employment Law
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When can you hire a harassment attorney to sue an employer in California? What legal line does an employer have to cross?

In most cases, you cannot sue an employer if you are injured at your workplace or in the “course and scope” of your employment, even if the employer was negligent and responsible for your injury. (Usually, your remedy in such a case is workers’ compensation benefits.)

However, employers in California may be sued for discrimination, harassment, creating a hostile work environment, retaliation against whistleblowers, and the intentional infliction of emotional distress or “IIED.”

WHAT IS IIED AND WHAT SHOULD YOU KNOW ABOUT IT?

Precisely what is IIED? Have you experienced IIED at work, or have you been targeted for IIED by an employer?

The most important thing to know about IIED is this: If you have been the target of the intentional infliction of emotional distress by your employer, you do not have to put up with it, and you can take steps to stop it – starting today.

HOW DOES CALIFORNIA LAW DEFINE IIED?

The law in California defines the intentional infliction of emotional distress as conduct by an employer that is outrageous, and that is either intentional or committed with a reckless disregard for the probability that an employee would experience severe emotional distress.

The specific behaviors may vary, but your rights have been violated if an employer’s conduct toward you can be characterized as:

1. egregiously inappropriate and out of line – and would be under any circumstances

2. behavior designed to cause – or indifferent to the possibility of causing – severe emotional distress or trauma

3. the actual reason you have suffered severe emotional distress

What the law does not do is protect an employee from being harshly criticized, insulted, offended, or having his or her “feelings hurt.”

WHAT SOME EXAMPLES OF IIED?

An IIED claim is a claim of persistent, outrageous conduct that results in the most severe kind of emotional distress.

Being terminated, for example, is almost always hurtful and embarrassing for anyone, but unless your termination is retaliatory or based on discrimination, you probably have no legal recourse.

But if you are routinely humiliated in front of co-workers, targeted for vulgar insults, disciplined or demoted for no apparent reason, threatened, or subjected to racial or sexual slurs, those actions may constitute the intentional infliction of emotional distress.

And that is against the law.

In Oakland, San Francisco, San Jose, or anywhere in the state of California, if you believe that you have been a target for the intentional infliction of emotional distress, discuss your rights at once with an employment rights attorney.

WHAT DOES IT TAKE TO PREVAIL WITH AN IIED CLAIM?

Any legal claim requires evidence. If you file a lawsuit against an employer for IIED, here is what you will have to prove:

1. Your employer’s conduct was outrageous and egregious. It must be conduct that the average reasonable person would consider extreme. Bad manners and rude language, for example, may be annoying but do not constitute IIED.

2. The employer either meant to cause the employee to suffer emotionally, or the employer was indifferent to the likelihood of causing the employee’s suffering and distress.

3. You in fact suffered enduring, substantial, and/or overwhelming emotional distress that no one should have to endure. The duration and intensity of your distress will be taken into consideration if you file an injury claim against the employer for IIED.

WHAT FEDERAL LAWS ADDRESS IIED?

Currently, federal law is silent regarding IIED, although in some states, its victims may find relief under the federal laws prohibiting hostile work environments and employer retaliation against whistleblowers.

Here in California, the law specifically protects employees from the intentional infliction of emotional distress when that emotional distress is “severe” – so persistent and/or overwhelming that a reasonable person would not be expected to endure it.

HOW DOES CALIFORNIA LAW DEFINE “OUTRAGEOUS” CONDUCT?

Under the law in California, an employer’s conduct may be considered outrageous depending on the answers to these questions:

1. Did the employer abuse the power to influence the employee’s interests?
2. Did the employer know that the employee was vulnerable to severe emotional distress?
3. Did the employer know that the conduct was likely to cause severe emotional distress?

IF YOU BECOME A TARGET FOR IIED, WHAT SHOULD YOU DO?

If you are considering a lawsuit against a California employer based on IIED, do everything you can to keep a record of anything that might be evidence – such as emails, voice mails, or written memos.

If you choose to file a lawsuit, your documents, notes, and recordings may become evidence. Make copies and keep them stored securely.

To win damages from an employer in an IIED case, it is not necessary for an employee to prove that any physical injury was suffered. The infliction of “severe” emotional distress is sufficient for an IIED lawsuit to prevail.

WHAT ARE IIED VICTIMS ENTITLED TO IN CALIFORNIA?

In fact, IIED victims may receive damages for any medical bills, prescriptions, counseling or therapy, or lost wages that arise as the result of the intentional infliction of emotional distress.

California IIED victims may also – in cases that involve intentional wrongdoing or reckless indifference – receive punitive damages aimed at deterring such behavior in the future.

If you are dealing with severe emotional distress because of an employer’s outrageous, reckless, or intentional infliction of emotional distress, a skilled employment rights attorney can fight for compensation – and for justice – on your behalf.

Working people in our state enjoy comprehensive legal protection against sexual harassment, hostile work environments, wage and hour violations, discrimination, and employer retaliation.

WHAT’S IMPORTANT TO REMEMBER IF YOU ARE AN IIED TARGET?

The intentional infliction of emotional distress is not tolerated in California. If you have experienced the intentional infliction of severe emotional distress at your workplace, it’s important to remember that the law is on your side.

In fact, you may be able to win justice without the time and aggravation of a jury trial. The overwhelming majority of lawsuits against California employers are settled out-of-court when the attorneys for both sides meet and negotiate a settlement.

If your California employer is violating your employment rights in any way, get the legal help you need – and start getting the treatment and respect you deserve. Having an attorney’s advice and help is your absolute legal right, and that help is only a phone call away.

Employee Marginalization – Is It Illegal In California?

Posted on: May 14, 2018 by in Employment Law
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Marginalized employees are people who have been marginalized in the workplace. What is marginalization? Does a marginalized employee have legal recourse? Are you a marginalized employee – perhaps without even fully realizing it? How can an employment law firm in San Francisco help?

Here in the state of California, when you are hired as a legal employee, you have extensive employment rights that are protected under both state and federal laws.

WHICH LAWS PROTECT EMPLOYEES IN CALIFORNIA?

But in some cases, the law may not provide quite enough employee protection. You’re about to learn why.

At the federal level, the Civil Rights Act of 1964 prohibits employers with fifteen or more employees from discriminating on the basis of an employee’s race, religion, gender, or national origin.

And if you work for an employer with five to fourteen employees, you are similarly protected under the California Fair Employment and Housing Act of 1959.

WHO IS MARGINALIZED? WHAT IS EMPLOYEE MARGINALIZATION?

However, most “marginalizations” do not fall neatly into a specific legal category like racial discrimination or sexual harassment.

Marginalized employees are people who have been marginalized in the workplace. In many cases, they are not even sure if their employers have violated the law. All they’re sure of is that their employers have treated them with disdain or disrespect.

Precisely what is employee marginalization?

Ritch K. Eich, writing in IndustryWeek magazine, says that marginalization happens when good employees are not encouraged to advance, are not mentored or counseled, are taken for granted, or are overlooked because other employees receive preferential treatment.

WHAT CAN CONSTITUTE MARGINALIZATION?

Marginalization happens in many ways. Here are just a few of many possible examples of how an employer can “marginalize” an employee:

1. by physically isolating an employee from co-workers
2. by denying promotions or recognition for achievement
3. by bullying, intimidating, and treating employees without basic human dignity

Is employee marginalization on the rise? Probably. IndustryWeek recently published an article titled “Bringing Marginalized Employees Back into the Fold.” The article offers employers six recommendations for keeping their employees from becoming marginalized.

IS EMPLOYEE MARGINALIZATION ALWAYS AGAINST THE LAW?

Not every example of marginalization is against the law. Employers have a great deal of freedom to run their businesses as they please, so an employee who is – or who feels – marginalized may not always have legal recourse.

Sometimes employee marginalization is simply a consequence of poor management.

Quiet employees might be perceived by inexperienced managers as employees who lack motivation, so they may not be recognized or encouraged to advance in the company.

WHEN DOES EMPLOYEE MARGINALIZATION VIOLATE THE LAW?

It may be poor management, and it’s clearly unfair, but a mere lack of encouragement or recognition is not enough to justify or trigger a legal action against an employer. Poor management alone is not against the law.

Older employees can feel “invisible” next younger workers who may be perceived as more dynamic and energetic.

Instead of being respected for their seniority and accomplishments, older workers often suspect that they are being marginalized – and pushed out – in favor of younger workers who can be paid less.

You can’t sue an employer simply because of the employer’s attitude. If there is a direct act of age discrimination, for instance, it’s illegal, but you can’t take a legal action based only on attitudes and feelings.

While there is usually nothing you can do about “mild” marginalization, your own case may be different.

IS THERE ANY LEGAL RECOURSE FOR MARGINALIZED WORKERS?

A legal action is more likely to prevail against an employer who actively and consciously marginalizes an employee than against an employer who has more-or-less simply and unintentionally overlooked or failed to recognize an employee.

But keep reading, because the employment laws do offer some measure of protection against some types of employee marginalization.

Because every situation will be different, you will need an employment lawyer’s advice and insights to determine which employer actions are legal – and which are not.

HOW CAN AN EMPLOYMENT ATTORNEY HELP YOU?

Here in California, if you believe that an employer may have marginalized you in a way that violates federal or state employment laws, you need to speak at once – yes, it’s imperative – with an experienced San Francisco employment rights attorney.

The law will be concerned with the reasons why an employee is being marginalized. If someone is being marginalized for a reason related to that person’s race, religion, gender, orientation, or disability, that person’s employer is clearly violating the law against employment discrimination.

Is an employer tolerating or committing harassment, using disrespectful or inappropriate language, or bullying and intimidating you? The law prohibits employers from maintaining a hostile work environment.

California is an at-will employment state. An employer is free to terminate any worker for any reason that is legal, but if an employee is disciplined or terminated for a reason that is not legal, that employee needs to speak with an employment lawyer immediately.

WHAT ABOUT THE MARGINALIZATION OF WHISTLEBLOWERS?

Whistleblowers receive some extra protection under the law. A “whistleblower” is an employee who reports violations of law at the workplace or by the employer. Employers may not retaliate against whistleblowers.

Unsurprisingly, the typical employer response to whistleblowers is to isolate and marginalize them. If an employer uses marginalization to retaliate against a whistleblower, that employer is breaking the law.

If you believe that your employer is marginalizing you, discuss the details with an experienced San Francisco employment rights attorney. A good employment lawyer can review your concerns and determine if you have grounds for pursuing legal action against the employer.

WHAT CAN MARGINALIZED EMPLOYEES BE ENTITLED TO?

If you pursue file a marginalization lawsuit against your employer and your lawsuit prevails, you may be entitled to lost wages, back pay, pain and suffering damages, and in some cases, additional punitive damages intended to keep the employer from violating the law in the future.

Employment attorneys usually work on a contingency basis, so if you pursue a legal action, you won’t owe the attorney any legal fees until you receive a settlement or verdict.

Most employment lawyers also offer a free first consultation and case review, so it will cost you nothing to learn more about your rights and where you stand legally.

Everyone deserves to be treated with basic human dignity. No one deserves disdain or disrespect from an employer.

If respect and dignity are missing at your place of work, do not let anyone intimidate or bully you. Talk to an employment attorney promptly. That is your absolute legal right.

FAQs About Unpaid Overtime Wages In California

Posted on: April 14, 2018 by in Employment Law
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The state of California now has a confusing patchwork of wage and overtime laws.

Understanding your employment rights under these laws is imperative for anyone whose employer isn’t properly paying wages and overtime.

Is your employer paying you everything that you’ve earned? Can an Oakland employment lawyer help?

WHAT PROTECTS WORKERS’ RIGHTS IN CALIFORNIA?

The federal Fair Labor Standards Act (FLSA) of 1938 protects every worker’s wage, hour, and overtime rights. Employees in California enjoy a number of additional legal protections under state law.

But despite federal and state laws, some employers in California still try to cheat their employees out of overtime pay. When employees can prove that they’ve been cheated, the courts in California will hold the employers accountable.

If you believe that you are not being paid properly by your employer in this state, discuss your case and your rights at once with an experienced San Francisco employment rights attorney.

Here are the most frequently-asked questions about overtime and the law in California – and the answers to those questions:

Q: WHAT ARE CALIFORNIA’S MINIMUM WAGE AND OVERTIME RULES?

A: The state-level hourly minimum wage increased to $11 on January 1, 2018 for employers with 26 or more employees. For employers with 25 or fewer employees, the state-level hourly minimum wage rose to $10.50.

California’s state-level hourly minimum wage will keep rising until 2022, when it becomes $15 an hour for the employers with 26 or more employees. Beginning in 2023, the state-level hourly minimum wage that all California employers must pay will be $15 an hour.

Q: MAY LOCAL JURISDICTIONS SET THEIR OWN MINIMUM WAGE LAWS?

A: Yes. Many county and city governments in California have established their own minimum wage rates which exceed the state’s minimum wage requirements.

Every local minimum wage ordinance is unique. It’s a growing trend across California.

The City of Emeryville, for example, currently requires employers with 56 or more employees to pay a minimum wage of $15.20 an hour. That rate will increase to $15.60 in July, and smaller Emeryville employers will have to pay employees $15 an hour also beginning in July.

As you can see, wage and overtime laws are quite complicated in this state. Employees working under an employment contract and certain white-collar workers may be exempted from wage and overtime regulations.

Q: WHAT IS OVERTIME? WHAT ARE OVERTIME WAGES IN CALIFORNIA?

A: Eight hours of labor constitutes a day’s work in California, and work beyond eight hours in any workday or more than six days in any workweek is considered overtime.

One and one-half times an employee’s regular rate of pay must be paid for all hours beyond eight hours in a day and for the first eight hours on the seventh consecutive day of work in a workweek.

Employees must be paid at twice their regular rate pay for all hours worked beyond twelve hours in any workday and for all hours beyond eight hours on the seventh consecutive day in a workweek.

There are also some exceptions that allow overtime to be paid on a different basis in some very specific circumstances.

Q: ARE EMPLOYERS OBLIGATED TO PAY FOR UNAUTHORIZED OVERTIME?

A: The answer is yes. California requires employers to pay for overtime, whether or not it was authorized, at the overtime rate specified by law.

Employers may discipline employees who work overtime without authorization, but the law requires payment for all hours an employee is “suffered or permitted to work, whether or not required to do so.”

Q: ARE BONUSES CONSIDERED “REGULAR” PAY FOR OVERTIME PURPOSES?

A. A nondiscretionary bonus is considered regular pay when it is based upon hours worked, proficiency, or production.

Discretionary bonuses or sums paid as gifts, when those sums are not dependent on hours worked, production, or efficiency, are not included for purposes of determining the regular rate of pay.

Q: WHAT TYPE OF REMUNERATION IS NOT CONSIDERED “REGULAR” PAY?

A: Remuneration that is not added into the calculation of regular pay includes reimbursements for expenses, sums paid as gifts for special occasions, payments made for periods when no work is performed due to vacation, holiday, illness, or the employer’s failure to provide sufficient work.

Q: CAN OVERTIME EVER BE OWED TO SALARIED EMPLOYEES?

A. The answer to that question is, “It depends.” Salaried employees must be compensated for overtime unless they are exempt under federal and state laws.

Some employees may also be specifically exempted from overtime by order of the California Industrial Welfare Commission.

Q: CAN CALIFORNIA EMPLOYERS REQUIRE OVERTIME?

A: Yes, California employers may determine the work schedules and hours of their employees. In most cases, an employer may discipline – and even terminate – an employee who refuses to work overtime.

Q: CAN EMPLOYEES WAIVE THEIR RIGHT TO OVERTIME PAY?

A. Not in California, where the law requires employers to pay employees full overtime compensation – notwithstanding any particular employee’s private agreement or consent to work for a lower rate of pay.

Q: HOW SOON ARE EMPLOYERS REQUIRED TO PAY OVERTIME?

A: Overtime wages must be paid no later than the payday for the next regular payroll period after which the overtime wages were earned, or, for employees who are paid on a weekly, biweekly, or semimonthly basis, not more than seven calendar days following the close of the pay period.

Q: IF YOUR EMPLOYER ISN’T PAYING YOU PROPERLY, WHAT CAN YOU DO?

A: You may file a wage claim with the Division of Labor Standards Enforcement, or you can file a lawsuit to recover lost wages. The smart move is discussing your case with an employment rights attorney, and then adhering to that attorney’s recommendations.

Q: HOW CAN YOU PROTECT YOURSELF IF YOUR EMPLOYER RETALIATES?

A: If an employer retaliates or discriminates against you for filing a wage claim or for speaking to an attorney about your rights, that employer is violating the law. Speak to an employment lawyer who can protect your rights and hold your employer accountable.

Q: HOW CAN AN EMPLOYMENT LAWYER HELP?

A: Shady employers might tell you to work “off the clock.” They might even alter your time sheet or try to pay you straight time for overtime.

If you’re being cheated by an employer in California, or if you’re not sure, let an experienced employment attorney review your case and provide the advice – and if necessary, the representation – you need.

If you work in California, you work hard. The people of California do not tolerate unethical employers, so if you are being cheated and you take legal action, the law will be on your side.

If your employer is violating the law and you aren’t being paid what you’ve earned, you must stand up for your rights. A good employment lawyer can help.

Getting Fired While Sick – Is It Illegal?

Posted on: February 19, 2018 by in Employment Law
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Most employees in California are at-will employees who may be terminated “at-will” for any reason, unless that reason is illegal.

You could even be fired from your job while you are taking sick leave, but you cannot be fired because you took the leave – if you were entitled to it – or because of your illness or disability.

Without an employment contract or a union agreement, employment is at-will in this state. Firing an employee is illegal in California only in a very few specific circumstances. This is something our San Francisco wrongful termination lawyers can help with.

In most cases, for example, an employer may legally fire an at-will employee for too many absences, but if those absences are protected by federal or state law, the firing is illegal.

WHAT FEDERAL LAWS PROTECT EMPLOYEES WHO ARE SICK OR INJURED?

The Family and Medical Leave Act (FMLA) gives employees who are qualified twelve weeks of unpaid leave in a twelve-month period to care for a new child or deal with a “serious health condition.”

A “serious condition,” as defined by the U.S. Department of Labor, is a condition that requires hospitalization or “continuing treatment” that requires more than three days away from work.

Employees who need unpaid FMLA leave must give their employers at least thirty days’ notice when at all possible. The FMLA applies only to employers with at least fifty employees.

Those employers may not discipline, retaliate against, or fire employees who take FMLA leave, and generally speaking, employees are allowed to return to and resume their jobs.

ARE YOU A VICTIM OF WRONGFUL TERMINATION?

If you missed work because of an injury or a serious health condition, and you took sick leave, and your employer terminated you for that reason, you may be a victim of wrongful termination.

If you believe that you have been fired in California for any reason that is illegal, arrange now to discuss your case and your rights with an experienced San Francisco employment rights attorney.

HOW DOES THE “ADA” PROTECT SICK AND INJURED WORKERS?

Your job may also be protected if you take sick days for a condition that is defined as a disability by the Americans with Disabilities Act (ADA).

The ADA bans employment discrimination against employees with physical or mental disabilities – impairments that considerably restrict an important bodily function or life activity.

The ADA does not explicitly require employers to grant leave to disabled employees, but it does mandate “reasonable accommodations” that allow disabled employees to perform their jobs.

Depending on the situation, time off from work might be a “reasonable” accommodation for a disabled employee, provided that it does not impose an “undue” hardship on the employer.

WHAT STATE LAW PROTECTS EMPLOYEES WHO ARE SICK OR INJURED?

Under California’s “Healthy Workplace Healthy Family Act” of 2014, California employers provide employees with one hour of paid sick leave for every thirty hours of work.

With several key exceptions, California’s “Healthy Workplace Healthy Family Act” of 2014 applies to almost every California business.

Workers may use these sick days to care for ailing loved ones and for preventative care as well as current medical conditions. Workers may use their sick days after ninety days of employment.

Employers may restrict the use of paid sick leave to 24 hours (or three workdays) for each year of employment, and employers are not required to pay unused leave when employment ends.

TO WHAT EXTENT ARE CALIFORNIA EMPLOYEES LEGALLY PROTECTED?

Although employees in California certainly enjoy more legally-protected employment rights than employees in most other states, that legal protection is not absolute.

For example, a disabled employee may not be fired  or stripped of any employee benefits for being disabled, but in a general lay-off, being disabled (or belonging to any other protected group) is no protection against being laid off.

Additionally, if an employee has not complied with an employer’s policies about leave – such as taking leave without notice – that noncompliance may provide a legal reason for termination.

And while someone cannot be terminated for taking protected medical leave, taking leave is not a protection against being fired for some other reason.

IF YOU ARE WRONGFULLY TERMINATED, WHERE CAN YOU TURN?

We’ve discussed several federal and state laws that can protect employees in California from being fired for taking sick days.

If an employer fired or threatened to fire you or retaliated against you in any way because you were sick and took leave, speak now to an experienced San Francisco employment rights attorney.

An employment rights lawyer can review the details of your wrongful termination claim, explain your employment rights and legal options, and – if it is warranted – help you take legal action.

WHAT ARE YOUR RIGHTS AS A WRONGFUL TERMINATION VICTIM?

As a wrongful termination victim, you may be entitled to return to your job, and you may also be compensated for your lost wages and emotional suffering. You are absolutely entitled to justice.

If you have been fired illegally in California, an employment lawyer will have a number of effective legal strategies for contesting your wrongful termination.

WHAT WILL AN ATTORNEY DO ON YOUR BEHALF?

Usually, attempting to negotiate an out-of-court settlement with the employer is the first step.

Out-of-court settlements are routine, and they save everyone a great deal of money and time. When an employee’s wrongful termination claim is strong, an out-of-court settlement is likely.

However, if a fair and reasonable settlement is not offered, your attorney may recommend taking your case to court. Each case is different, so it is imperative to heed your lawyer’s advice.

If you have been wrongfully terminated, and you can’t immediately find other work, you could quickly be unable to meet your responsibilities – because your employer broke the law.

WHEN DO YOU NEED TO ACT?

That is why you must seek legal help as swiftly as possible if you believe that you’ve been terminated for an illegal reason in California.

In fact, if you are the target of any employment or hiring discrimination in California, you’ll need someone who can fight for justice on your behalf.

The state of California does not tolerate wrongful termination, and if you have been wrongfully terminated in this state, the law is on your side, but you’ll have to take the first step on your own.

IF YOU’VE BEEN WRONGFULLY TERMINATED, WHAT’S THE FIRST STEP?

You have the right to seek justice and the right to an attorney.

With your job, career, and future at stake, you must exercise those rights. If you’ve been wrongfully terminated in California, don’t wait. The time you have to take legal action is limited.

Talk to an employment rights attorney now.

The Rights Of Pregnant Employees In California

Posted on: January 19, 2018 by in Employment Law
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For many women, a pregnancy is a joyful event, but unfortunately, too many employers still see pregnancy as an inconvenience, and women who are pregnant are still sometimes the targets of employment discrimination.

If you are pregnant or become pregnant, what are your rights? Can a San Francisco harassment attorney help?

If you are employed in the state of California, keep reading to learn more about your rights as a pregnant employee.

No one in 2018 should have to deal with pregnancy discrimination.

In every state, when employers treat a job applicant or employee differently because that person is pregnant, it is against the law.

If you are facing pregnancy discrimination at your own workplace in California, it should not be tolerated, and a California employment rights attorney can help.

WHAT ARE THE RIGHTS OF PREGNANT EMPLOYEES?

Legally speaking, in all fifty states, employers must treat pregnant women exactly as they treat other employees or job applicants who cannot perform their jobs for short periods of time.

An employer may not deny employment to a woman because she is pregnant, and an employer cannot terminate an employee’s job or remove any benefits or accrued seniority because the employee is pregnant or takes a maternity leave.

Employment discrimination based on pregnancy is against the law in California and every other state, so if you believe that you are or have been a target of employment discrimination based on pregnancy, you should discuss your legal rights and options immediately with an experienced San Francisco employment rights attorney.

Your attorney can review your situation and recommend your best legal option – which might include an employment discrimination lawsuit.

HOW ARE THE RIGHTS OF PREGNANT EMPLOYEES LEGALLY PROTECTED?

Two federal laws protect pregnant employees in every state. The Pregnancy Discrimination Act of 1978 (PDA) amends the Civil Rights Act of 1964 to “prohibit sex discrimination on the basis of pregnancy.”

The Pregnancy Discrimination Act, however, only provides protection from employment discrimination; it provides no benefits, and it covers only those employers with fifteen or more employees.

A second federal law, the Family and Medical Leave Act of 1993 (FMLA), requires most employers with fifty or more employees to provide up to twelve unpaid weeks of leave after the birth or adoption of a child.

A pregnant employee is eligible for the Family and Medical Leave Act if she has worked for the employer for at least twelve months and for at least 1,250 hours in the preceding twelve months.

While the Pregnancy Discrimination Act applies only to employers with fifteen or more employees, and the Family and Medical Leave Act covers only those employers with fifty or more employees, millions of employees across the United States do not qualify to enjoy these federal legal protections simply because they are employed by smaller employers.

HOW DO STATE LAWS PROTECT EMPLOYEES IN CALIFORNIA?

In California, state law tries to bridge the gap and provide more legal protection to all pregnant workers. Starting in 2018, under the California Paid Family Care Leave Act, employees who take family leave can receive up to 70 percent of their wages for up to six weeks to care for a new child, a newly-adopted child, a foster child, or an ailing family member.

Over 1.5 million employees in California have taken paid leave to care for a child or a sick relative since 2004.

And if a pregnancy or a pregnancy-related medical complication means that an employee cannot work for longer than six weeks, the employee may be eligible for another four months of leave through this state’s Pregnancy Disability Leave Act, which provides family leave to pregnant employees in California who are covered by a health insurance plan, without regard to the size of the company or the employee’s length of employment.

In California, you cannot be fired for taking family leave if you are entitled to it.

California employers may not harass, discriminate, demote, retaliate, or take action of any kind against employees who request and take FMLA leave, Paid Family Care leave, and pregnancy, disability, or military caregiver leaves.

If you are planning any type of leave, give your employer appropriate notice, and complete any paperwork that is required to have the leave approved.

WHAT CAN VICTIMS OF PREGNANCY DISCRIMINATION DO?

If you are or were employed in California, and if you were denied leave or discriminated against in any other way because you are or were pregnant, discuss your rights and options with a skilled San Francisco employment rights attorney.

If you are or have been a target of pregnancy discrimination, and if you are considering legal action against your employer, these recommendations may help:

Keep a record of everything that you believe is evidence of discrimination.

Put it in writing and make several copies. Always submit leave requests in writing and try to get written responses.

If you file a discrimination lawsuit, your notes, documents, and copies could become evidence, so store them securely.

Don’t try to act as an attorney, and don’t argue with your employer about the law.

Your questions regarding pregnancy discrimination and family leave can be answered by a California employment rights attorney.

If you take legal action, or if you need to learn more before making that decision, an employment rights lawyer can help.

California’s employment rights and anti-discrimination laws are perhaps the most thoroughgoing in the nation.

In this state, pregnancy is one of a number of “legally protected characteristics” that also include marital status, sex, age, sexual orientation, religion, race, ancestry, national origin, physical disability, and mental disability.

If an employer has violated any of your employment rights in California, you may be entitled to:

– compensatory damages
– reinstatement and back pay
– retroactive benefits and seniority
– attorney fees and court costs

WHY WILL PREGNANCY DISCRIMINATION VICTIMS NEED AN ATTORNEY’S HELP?

If you are or have been a victim of employment discrimination based on pregnancy, a California employment rights lawyer can walk you through the legal steps you’ll need to take.

For instance, before you may bring an employment discrimination claim in this state, your right to sue must first be approved by the California Department of Fair Employment and Housing (DFEH) and/or by the federal Equal Employment Opportunity Commission (EEOC).

California employment discrimination cases are legally complicated, but they provide workers with considerable legal protection.

A pregnancy discrimination case must be managed by an employment attorney from the very beginning.

If you are a victim of employment discrimination, you have the right to seek justice.

Get the experienced legal help you need, and be assured that in California, the law is on your side.

California’s New Ban The Box Regulation

Posted on: July 20, 2017 by in Employment Law
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Let’s say that you are applying for a great job. You are more than qualified, the pay is above what you expected, and it’s close to your home.

However, as you fill out the employment application, it finally pops up – “the box” – and your confidence sinks. It’s the box that asks if you’ve been convicted of a crime.

If you have, and if you are honest and you check the box, you will probably remain unemployed.

Employers who print “the box” on their job applications often miss the chance to hire diligent, exceptionally qualified workers who may have had a bit of legal trouble in the past.

Employers in San Francisco have not used “the box” since the city’s Board of Supervisors approved the “Fair Chance Ordinance” and banned “the box” in 2014, but outside of San Francisco, most private employers in California were still allowed to print the box on employment applications until July 1st of this year, when California’s new “Ban the Box” rule for most employers finally went into effect statewide.

WHAT DOES THE NEW RULE REQUIRE?

California already banned prospective employers from asking about previous detentions or arrests that did not result in criminal convictions, and employers have also been barred from asking about sealed or expunged criminal records.

The new rule applies to all employers in California with five or more California employees, and it bans employers from asking about criminal convictions if either of these situations exists:

The questions have an “adverse impact” on individuals protected by California anti-discrimination laws because they belong to a class that is legally protected on the basis of gender, race, religion, nationality, ethnicity, orientation, pregnancy, disability, or marital status.

The employer cannot prove that the questions are employment-related and pertinent to the needs of the business; or, if the employer can prove that the questions are employment-related, but the prospective employee or job applicant can offer a less discriminatory way to achieve the goals of the business just as effectively.

While the potential victims of hiring discrimination have the legal burden of proving that an employer’s questions create an adverse impact, an adverse impact can often be easily proven by statistics and other evidence that proves such questions lead to considerable disparities among persons in protected classes.

In a legal dispute, an employer may attempt to counter the presumption of adverse impact by showing that a markedly different result can be expected because of the particularities of the job and the work in question.

WHERE CAN A VICTIM OF HIRING DISCRIMINATION TURN?

If you believe that a prospective California employer has asked you questions that California employers may not legally ask – whether or not you completed a job application with or without “the box” – and those questions created an “adverse impact” on you as a job-seeker, discuss your circumstances as quickly as possible with an experienced San Francisco employment rights attorney.

Employees and job-seekers in the state of California enjoy substantial legal rights.

If those rights are violated by a California employer, you may be able to negotiate a settlement or agreement out of court with an attorney’s help, or you may be entitled to pursue a lawsuit, hold the employer accountable for illegal discrimination, and even – in some cases – receive monetary compensation.

A skilled San Francisco employment rights attorney can explain your legal rights and options and how the law applies in your particular case.

In a legal setting, once a job-seeker shows that questions from an employer about criminal convictions will create an adverse impact, the employer must prove that having accurate information about the criminal convictions of employees is a necessity for the business.

Thus, the employer must prove that the policy or practice accounts for the nature and gravity of a criminal conviction and for the time that has passed since the sentence was completed as well as the nature of the job itself.

WHEN DO EMPLOYERS NEED TO KNOW ABOUT CRIMINAL CONVICTIONS?

To be considered legal, an employer’s “need to know” or ask about criminal convictions must be clear and undeniable. It is exceedingly difficult for most California employers to prevail in these cases, but there are some exceptions.

Obviously, a day care center cannot hire someone with a recent child abuse conviction, and a taxicab company cannot hire a driver with recent convictions for driving under the influence of alcohol or drugs.

Employers who hire for child care and assisted living facilities, transportation jobs, financial, accounting, and banking services, and security-related positions may have a legally defensible basis to reject employment applications from persons with related criminal convictions.

But in cases where the relationship of the criminal conviction to the job is less than explicit, employers will have difficulty proving their case – especially if the prospective employee belongs to a legally protected class.

For most employment in California, convictions for crimes like DUI, simple assault, and drug crimes are not “automatic” disqualifiers.

With the implementation of “ban the box” statewide, some California employers should probably reconsider whether a hiring policy that “automatically” disqualifies some job-seekers is still in their best interests.

Under California law, it may be a better approach for some employers to consider every job applicant individually and without any automatic disqualification policy for hiring.

Employers may also need to review and revise their written job classifications and descriptions to ensure that the current language fully complies with the new rules.

If a check box on the employment application asks about criminal convictions, most employers should remove it, and if the employer believes that information about criminal convictions is a necessity, that information should be sought at a later stage in the hiring process.

Hiring discrimination cannot be tolerated, and the law in this state forbids it. Banning “the box” is just one more step toward ending hiring discrimination – in all of its forms – in our state.

If you experience any hiring or employment discrimination in California based on your gender, religion, race, ethnic background, disability, pregnancy, or sexual orientation, speak as soon as you can with an employment attorney to discuss your legal rights and options.

If you are a victim of employment discrimination in California, the law is on your side, and a top San Francisco employment rights attorney can fight for justice on your behalf.