Author Archives: BraniganRobertson

September 9, 2015 · 11:59 am

Employers Cannot Retaliate Against Employees For Reporting Violations of Law

Unfortunately, retaliation at work is still a widespread occurrence throughout California. Many employers do not know the law, so it is no surprise when an employee refuses to participate in an illegal activity or reports a violation of law, the employer retaliates against the employee for being “insubordinate.” So what is retaliation?

Retaliation is when an employer takes adverse action against an employee for reporting or opposing an illegal practice in the workplace. Adverse action by the employer can occur in the form of a demotion, a cut in pay, a decrease in hours or a termination. There are many things that are illegal or violation under California law such as a nurse reporting patient abuse by other nurses, an accountant refusing to cook the books, or a worker reporting wage and hour violations by his or her employer.

Michael Marlo v. United Parcel Service, Inc.

Michael Marlo v. UPS is a great case example of retaliation in the workplace. Plaintiff worked for UPS for over twenty years. At some point in during his time working for UPS, he filed a class action lawsuit alleging wage and hour violations. The class action failed though and he ended up pursuing an individual wage and hour claim. In the same year he filed his individual claim, plaintiff would encourage his co-workers to file their own wage and hour claims against UPS. Over fifty UPS workers filed individual wage and hour claims. In the same year, plaintiff was terminated.

Plaintiff argued that UPS retaliated against him for reporting wage and hour violations in the workplace. Further, plaintiff argued that the reasons stated by UPS for his termination was just a pretext to get rid of him as UPS viewed his lawsuits and discussions with co-workers as a distraction in the workplace. Defendant argued that plaintiff was fired due an incident that occurred with a customer in the same year he filed his individual lawsuit. Defendant further argued that plaintiff broke numerous policies, and that is why he was fired.

Companies Will Be Held Accountable For Unlawful Conduct

The jury in Michael Marlo v. UPS sided with the plaintiff and awarded the plaintiff with over $18 million dollars in damages. The jury was not convinced that the real reason plaintiff was fired was due to an incident with a customer. This case is a classic retaliation case (but the damages ended up being extremely high). Plaintiff opposeed violations of law, and even filed multiple lawsuits while he was still working there. In the same year as one of his lawsuits, the company fired him after twenty-two years of great service. The facts on their face pretty much scream retaliation.

If you have worked for an employer for many years and recently reported or opposed illegal activity, and now your employer is retaliating against you, call a whistleblower lawyer for a free consultation. You can also visit our retaliation page here.

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September 8, 2015 · 4:41 pm

Case Verdict – Disability Discrimination Lawsuit

Under California law employers cannot discriminate against an employee based on a disability. Under FEHA (The California Fair Employment and Housing Act), it is unlawful for an employer to discriminate against an employee on the basis a physical or mental disability which also includes medical conditions. This is typically called disability discrimination. Thus, it would be unlawful for an employer to terminate an employee because of a physical or mental disability. Here is a detailed whiteboard video on this area of law.

What is a physical or mental disability?

But what is a physical and mental disability? A physical disability is a disability, disease, condition, or disfigurement that limits the person from taking part in major life activities. Similarly, a mental disability is disorder, mental illness, or learning disability that limits the person from taking part in major life activities. Examples of a physical and mental disabilities include, but are not limited to, heart disease, depression, bipolar disorder, diabetes, injuries to the ligament, and post-traumatic stress disorder. If you have a disability and you feel that your employer is discriminating against you due to your disability, call a disability discrimination attorney for a free consultation.

Vasquez v. Los Angeles County of Metropolitan Transportation Authority

Vasquez is a fairly recent case that provides a good example of what an employer should not do when it comes to an employee having a disability. Plaintiff was a bus driver for the LA County Metro, the defendant. Sadly, the plaintiff had many different kinds of disabilities, such as diabetes, a hip condition, and gout. Due to all of these disabilities, plaintiff would miss work occasionally. After almost four years of employment with the defendant, plaintiff was fired for poor attendance even though most of his absences were due to plaintiff’s various disabilities.

Plaintiff argued that the defendant wrongfully terminated him because of his many disabilities. Defendant argued that the absences were legitimate and that he was fired in violation of the attendance policy. The jury sided with the plaintiff. The jury awarded the plaintiff a total verdict of almost $2 million dollars.

Contact a Disability Discrimination Attorney for a Free Consultation

At the end of the day, Vasquez shows that the California courts are holding employers who break the law accountable for their actions. If you think your employer has terminated you because of a disability, whether it be physical or mental, then please call our office for a free consultation with a disability discrimination lawyer. If you know a little about this area of law, you’ve probably heard about reasonable accommodations. Read more about those here.

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August 31, 2015 · 10:31 am

Racial Harassment in the Workplace

It is unlawful for an employer to harass another employee based on that employee’s race. An employee can show that he or she is being harassed for race if the employee is a member of a protected class (in this case the protected class is race), employee experienced unwelcome harassment at work due to his or her race, and the harassment severely interfered with his or her employment as it created a abusive working environment.

Racial harassment is very similar to sexual harassment, except the protected category is race rather than sex.

What is Racial Harassment?

Racial harassment occurs when there is racial or ethnic slurs, the distribution of racially offensive writings, and even treating a person differently and poorly because of that person’s race, and the harassment must be routine and repeated. But each case is different. Racial comments may be harassment in one case, but not in another case. You need to speak with an employment lawyer to find out if what you went through constitutes legal harassment.

The below video is all about hostile work environments (which includes race harassment). It provides a fantastic overview of CA’s law.

What Is the Employer’s Responsibility?

If the employee complains to the employer about racial discrimination or harassment, the employer has a duty to prevent further occurrences and remedy the harassment. If the employer fails to prevent it from happening again, then the employer may become legally liable for any damages that result. An employer is usually automatically liable if a supervisor is the one doing the harassing.

Race Harassment Example Case: Duffy v. City of Los Angeles

Here is an interesting case to come out the state court docket this year. Plaintiff was a Caucasian/white male who worked as a gardener for the City, the defendant. He was employed with the defendant for nineteen years. For the last several years of his employment, Plaintiff was experiencing racial harassment in the workplace for being white by his co-workers. On one occasion, one of his Hispanic co-workers told him that he hates white people and would never offer Plaintiff assistance in the workplace.

The harassment increased after Plaintiff was injured on the job. The defendant denied all of this and basically argued that it never happened. The jury unanimously found in favor of the Plaintiff for disability and racial harassment among other things and awarded the Plaintiff a gross verdict of over $3,000,000.

Duffy v. City of LA just goes to show that the laws protect everyone regardless of their race. At the end of the day, if you are being discriminated and harassed in the workplace, and you think it is because of your race or national origin, contact an employee rights attorney for a free consultation.

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Filed under Disability, Harassment, Race

August 27, 2015 · 12:36 pm

The Law Regarding Payment for On-Call Hours

There are a lot of California employees out there who are required to be on-call or work on-call hours. What is an on-call employee? An on-call employee is a one who either stays on the employer’s premises during off hours and can called to work for an immediate reason or emergency, or one who does not stay on the employer’s premises, but will still be called in to on work during their off hours by the employer during their off hours for an immediate reason or emergency. Generally, employers are required to compensate employees while they are on-call. If you are required to remain on-call during off hours, and you may not be getting compensated, you should contact an overtime lawyer.

Mediola v. CPS Security Solutions, Inc., (2015) 60 Cal.4th 833

The defendant, CPS Security Solutions, Inc., was a security company that hired security guards to remain on-call at construction sites and provide security. While on-call, the security guard resided in a trailer on the construction site. When the security guard was not on-call, he or she would be patrolling the construction site. CPS paid the guards hourly while they were on duty patrolling the construction site, however the defendant did not pay guards while they were on-call unless there was an emergency that required the security guard to act, or if the security guard was still on-duty and was unable to be relieved. The security guards filed a class action alleging minimum wage and overtime violations for defendant’s failure to compensate them for the on-call hours.

On-Call Hours Are Generally Compensable

The case eventually worked its way to the California Supreme Court. To determine whether on-call hours should be compensated, the California courts apply the following test. On-call hours are compensable if the employee spends the time primarily for the benefit of the employer and its business. The factors to determine if the employee is spending his or her time primarily for the benefit of the employer and its business include, but are not limited to the parties’ agreement, degree to which the employee is free to engage in personal activities, whether there was an on-premises living requirement, and whether there was heavy restrictions on the employee’s movements. Considering the security guards were required to live on the construction site while they were on-call, not allowed to leave the premises while on call, and were not engaging in personal activities if required to remain at the construction site, the Supreme Court held that the security guards’ should be compensated by the defendant for working on-call hours.

If You Are An On-Call Employee And You Are Not Being Compensated, Call a Wage and Hour Lawyer

At the end of the day, Mediola v. CPS Security Solutions, Inc. reassures California employees that the state courts are still on the side of the little guy. If you are required to be on-call as a condition of employment, and you feel your employer is not compensated you fairly or properly, then call a wage and hour lawyer immediately to evaluate your situation.

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August 20, 2015 · 11:01 am

California Law Update: Governor Jerry Brown Signs Off on New Sick Leave Law – Assembly Bill 304

On July 13, 2015, Governor Jerry Brown signed Assembly Bill 304, an amendment to current sick leave law, thereby amending the Healthy Workplaces, Healthy Families Act (also known as “HWHFA”). Assembly Bill 304 basically states that any California employee who, on or after July 1, 2015, works for 30 or more days within a year from the start of employment is entitled to paid sick days for various reasons. And further, these paid sick days are to be accrued at a rate of no less than one hour for every thirty hours works.

Why did the California Legislature implement this new law?

The goal of HWHFA is to provide enhanced job protection for low wage employees across California as a little less than half of the workforce currently does not receive paid time off for illness.

So to whom does Assembly Bill 304 apply?

This applies to all employers, whether private or public, of any size. This also applies, not only to full time employees, but part time, seasonal, and exempt employees. In addition, Assembly Bill 304 applies to employees who take a paid sick leave to care for a family member.

This Law Will Protect California Employees from Retaliation

If an employer takes adverse action against an employee or terminates an employee for exercising his or her right under this new law, then the employee may have a viable claim against his or her employer. This is because it is unlawful for an employer to retaliate or discriminate against an employee who advocates for, or requests or uses paid sick days.

This is Good News for California Employees

At the end of the day, this is great news for California workers. Not only does the assembly bill provide a new benefit to employees, but also provides job security for employees as well. If your employer is retaliating or discriminating against you, then you should call an employment attorney immediately. You will feel incredibly blessed to have an experienced advisor on your side.

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August 10, 2015 · 2:08 pm

Complaining to HR About Sexual Harassment

Unfortunately, sexual harassment at workplace is still a frequent and reoccurring event in California. We are still surprised at some of the inappropriate and ridiculous conduct by employers and their employees when our law firm gets calls from potential clients. Considering that hostile work environments are still very common, people want to know how best to complain to Human Resources (HR) at work. How should you complain to minimize the possibility of retaliation?

Quick Legal Overview

Usually, sex harassment is a type of hostile work environment. Under California law, it is unlawful for employers to sexually harass employees in the workplace. Under the Fair Employment and Housing Act (“FEHA”), sexual harassment is defined as harassment because of sex. More specifically, sexual harassment is unwanted sexual advances, or visual, physical, or verbal conduct of a sexual nature. Our main sexual harassment page throughly examines this area of law. If you want all the nitty gritty, visit that page.

Visual conduct includes making inappropriate and sexual gestures as well as showing sexually suggestive material in the work place such as pornography. Verbal conduct obviously includes sexually charged comments such as comments about a person’s body parts or comments regarding the person involves in sexual acts. Verbal conduct also includes jokes. Finally, physical conduct includes touching the body of another inappropriately. If any of these above things are happening to you in your workplace, whether it is a co-worker or a supervisor, you should contact a sexual harassment lawyer immediately.

Complaining to HR About Sexual Harassment

Often, employees will complain about the sexual harassment to his or her superiors or to HR. However, employers may not respond properly to an employee’s complaint of sexual harassment. The Department of Fair Employment and Housing (“DFEH”) sets forth a comprehensive procedure for HR and employers in the event of a sexual harassment claim by an employee.

  1. Upon an employee’s complaint, the employer should inform the employee of his or her legal rights.
  2. The employer should do a full and complete investigation.
  3. If the employer finds there to be sexual harassment (not surprisingly – they never do), the employer should respond timely by taking action against the sexual harasser, and the employer should take necessary steps to prevent it from happening again.

Unfortunately, HR and employers do not always respond in this fashion. A lot of times, the employee will complain and the employer will not take any steps to protect the employee’s rights or prevent it from happening again. For example, our firm has seen far too many instances where the employee complained and the employer either ignored the complaint, told the employee to handle the matter on their own, or go through the motions of a superficial procedure, yet still allow the sexual harasser to work with, or in close proximity to, the harassed employee.

How Best to Complain to HR About Harassment

In our experience, we find that the most effective complaints to human resources have the following characteristics:

  1. Polite & respectful – do not be hyper-aggressive, threatening, or self-righteous
  2. Helpful – meaning the employee offers practical solutions to assist HR in dealing with the problem
  3. Written – always put your complaint in writing and keep a copy
  4. Specific – dates, details, and witnesses

If you have complained to your employer about a toxic sexual environment, and your employer is failing to take any action to stop such conduct, then you should contact a great employment lawyer immediately.

Sadly, sexual harassment in the workplace is still a common occurrence in California. Most employees are unaware of their rights when it comes to harassment, and a lot of times, employers fail to inform their employees of such rights. Therefore, if you feel like you have been sexually harassed, you should contact a sexual harassment lawyer immediately.

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August 7, 2015 · 2:18 pm

Unpaid Volunteers and Interns Are Accorded Some of the Same Protection as Paid Employees Under FEHA

This year the California Legislature enacted various new employment laws. Most likely, the typical employee is unaware of the new employment laws enacted by the Legislature, thus it may be good to review some of the new 2015 labor laws from time to time. One of the more interesting newly enacted labor laws passed by the Legislature includes expanding anti-discrimination and anti-harassment protections under California Fair Employment and Housing Act (“FEHA”) to unpaid interns and volunteers.

Prior to 2015, unpaid interns and volunteers were not protected from under the FEHA anti-discrimination and anti-harassment laws. Rather, prior to 2015, the only unpaid workers who were protected by FEHA were those unpaid workers that were engaged in a program that would lead to a paid employee position.

Now, the 2015 law expands FEHA to protect unpaid interns and volunteers from discrimination and harassment based on, among other things, race, religion, national origin, disability, gender, or sexual orientation, age, or military and veteran status. Now, any discrimination or harassment based on a protected characteristic against an unpaid intern or volunteer is unlawful if it occurs at any time while the intern or volunteer is working for the employer. For example, it is now unlawful for an employer to sexually harass a volunteer or unpaid intern in the workplace.

At the end of the day, this is a win for Californians who are using a volunteer position or unpaid intern position to obtain a paid position. At a time when securing employment is rather difficult, it is important that those who are working unpaid with the hopes of securing a paid position are also protected from employer misconduct. If you are a volunteer or an unpaid intern, and your employer is discriminating against you or harassing you, then call a California employment lawyer immediately.

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