Author Archives: BraniganRobertson

November 28, 2013 · 5:32 am

Pregnant and Working? You Should Know California’s Main Pregnancy Disability Law

Laws You Should Know – Government Code § 12945  – This is CA’s main pregnancy disability leave statute. We have an entire webpage dedicated to pregnancy disability leave that is far more detailed that this.

According to § 12945:

  1. It is unlawful for an employer to refuse to allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take a leave for a reasonable period of time not to exceed four months and thereafter return to work. Reasonable period of time means that period during which the female employee is disabled on account of pregnancy, childbirth, or a related medical condition. An employer may require an employee who plans to take a leave pursuant to this subdivision to give the employer reasonable notice of the date the leave shall commence and the estimated duration of the leave.

  2. It is unlawful for an employer to refuse to maintain and pay for coverage for an eligible female employee who takes pregnancy disability leave under a group health plan for the duration of the leave, not to exceed four months over the course of a 12-month period, at the level and under the conditions that coverage would have been provided if the employee had continued in employment continuously for the duration of the leave. The employer may recover from the employee the premium that the employer paid under this subdivision for maintaining coverage for the employee if certain conditions occur.

  3. It is unlawful for an employer to refuse to provide reasonable accommodation for an employee for a condition related to pregnancy, childbirth, or a related medical condition, if she so requests, with the advice of her health care provider.

  4. It is unlawful for an employer who has a policy, practice, or collective bargaining agreement requiring or authorizing the transfer of temporarily disabled employees to less strenuous or hazardous positions for the duration of the disability to refuse to transfer a pregnant female employee who so requests.

  5. It is unlawful for an employer to refuse to temporarily transfer a pregnant female employee to a less strenuous or hazardous position for the duration of her pregnancy if she so requests, with the advice of her physician, where that transfer can be reasonably accommodated. However, no employer shall be required by this section to create additional employment that the employer would not otherwise have created, nor shall the employer be required to discharge any employee, transfer any employee with more seniority, or promote any employee who is not qualified to perform the job.

  6. It is unlawful for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under the above provisions.

Branigan Robertson is a California employment lawyer who focuses his practice on pregnancy discrimination, retaliation, and wrongful termination. Call for a free consultation.

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Filed under FEHA, Pregnancy

November 17, 2013 · 12:00 pm

Employer May be Liable for Death Caused by Drunk Employee After Holiday Party

Attorney Case Law Update: Purton v. Marriott Int’l, Inc. – This case is about company holiday parties getting out of hand. Are employers liable for accidents caused by their employees who become intoxicated during holiday parties? Branigan Robertson is a California employee lawyer who focuses his practice on hostile work environment, unlawful retaliation, and wrongful termination.

Can Employers be Liable for Drunk Employees?

Marriott hosted an annual holiday party for its employees and management. In an effort to control over zealous employees, only beer and wine was served and each attendee was limited to two drink tickets.  However, Michael Landri wasn’t one to simply sip beer and wine. He decided that a little pre-party drinking would be fun, so he drank a beer and a shot before going to the party. He also brought a flask to the party filled with whiskey.

Mr. Landri did not work the day of the party, but was employed by Marriott as a bartender. While at the party he refilled his flask and proceeded to get intoxicated. After the party, Mr. Landri drove home. He did not drink any more after leaving the party. But after arriving home safely, Mr. Landri decided to get back on the road and drive a co-worker home.

Sadly, Mr. Landri drove over 100 miles per hour and rear-ended Dr. Jared Purton’s vehicle, killing him. Mr. Landri had a blood alcohol level of 0.16.

What did the Court Hold for the Employer?

Mr. Purton’s family sued Marriott for wrongful death. The trial court granted summary judgment for Marriott, effectively throwing out his case. I’m assuming that the trial court tossed the case because Mr. Landri arrived home safely the first time, and then decided to make a second trip. But the court of appeal reversed the trial court, and held that “a trier of fact could conclude the party and drinking of alcoholic beverages benefited Marriott by improving employee morale and furthering employer-employee relations… [and] that Landri was acting within the scope of his employment while ingesting alcoholic beverages at the party.”

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November 3, 2013 · 11:59 pm

Administrative Regulations Count as Fundamental Public Policy for Wrongful Termination Claims

Attorney Case Law Update: Green v. Ralee Engineering Company – Branigan Robertson is a California employment lawyer who focuses his practice on wrongful termination cases. Call for a free consultation with an attorney.

Facts of the Case

While this is not new case, it is an important one. Richard Green worked for Ralee Engineering Company, a company that manufactured airplane parts major aircraft manufacturers such as Boeing and Northrop. Mr. Green was a quality control inspector.

In 1990, Mr. Green noticed that his company was shipping some airplane parts even though they failed the inspections his QA team performed. On several occasions over the next two years, Plaintiff objected to Ralee’s practice to management and the company president. He was ignored. What is important to note is that Mr. Green did not report his company to outside governmental authorities or to the Federal Aviation Administration (FAA). Two years after he started making complaints, Mr. Green was “laid off.”

Legal Position – Was this a Valid Wrongful Termination Case?

The big question for the case was whether FAA “administrative regulations” pertaining to the manufacture of airplane parts could be a source of fundamental public policy that would limit an employer’s right to fire an at-will employee. Congress gave the FAA the obligation to promote safe flight of civil aircraft in air commerce by prescribing minimum standards required in the interest of safety for the design, material, construction, quality of work, and performance of aircraft. The FAA, in turn, established a intricate regulatory scheme in order to ensure that aircraft design meets safety standards and aircraft manufacture conforms to the design.

These regulations require manufacturers (such as Boeing) to establish quality control inspection programs for components they produce and ensure their subcontractors do the same. Protecting airline passengers, therefore, is the relevant fundamental public policy at issue. The significant safety regulations that the FAA promulgated to implement the act, which require prime manufacturers to establish detailed inspection systems for components they produce and to ensure that their subcontractors or suppliers do the same, are implicated in this case.

Court Holding

In the end, the California Supreme Court held that Mr. Green was allowed to move forward with his wrongful termination claim. “Allowing defendant to discharge plaintiff with impunity after he sought to halt or eliminate its alleged inspection practices would only undermine the important and fundamental public policy favoring safe air travel.” Mark this down as a victory for employees throughout California.

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October 19, 2013 · 11:36 am

Religious Discrimination Settlement

On September 27, 2013, the EEOC  settled a case against Maita Chevrolet Geo on behalf of Plaintiff (EEOC v. Maita Chevrolet Geo). It was a religious discrimination case. Plaintiff contended that the employee and his pastor told Maita that the employee could not work Friday evenings and Saturdays during the daytime because of his religion. In response, Plaintiff contended that Maita repeatedly scheduled the employee for those time periods in retaliation. Plaintiff also argued that Maita refused to allow the employee to work on Sundays if he missed a Saturday workday.

Plaintiff also argued that Defendant harassed him because of his beliefs and retaliated against him for taking a leave of absence to observe the Sabbath. Then Maita fired the employee because of his religion.

Defendant had some pretty decent arguments. It argued that Plaintiff made conflicting accommodation requests and Plaintiff repeatedly showed up to work on the Sabbath when not scheduled to do so. It also argued that Plaintiff was fired because he stopped showing up to work, not because of his religion.

Regardless, the parties agreed to a settlement of $158,000. The settlement was observed by Judge Morrison England in USDC Eastern District.

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Filed under Religion, Verdicts

· 11:22 am

Employers Cannot Terminate Victims of Serious Crimes Who Take Time Off to Attend Court Proceedings

Laws You Should Know – Labor Code § 230.5  – Branigan Robertson is a California employment lawyer. Call for a free consultation. Governor Brown signed into law SB 288 this year. The bill adds Section 230.5 to the California Labor Code. The new law makes it illegal for employers to fire employees who are victims of violent crimes who take time off to attend court proceedings. Here is an abridged version of the statute:

Labor Code 230.5

(a) (1) An employer shall not discharge or in any manner discriminate or retaliate against an employee who is a victim of an offense listed in paragraph (2) for taking time off from work, upon the victim’s request, to appear in court to be heard at any proceeding, including any delinquency proceeding, involving a postarrest release decision, plea, sentencing, postconviction release decision, or any proceeding in which a right of the victim is at issue.

(2) The offenses include all of the following:
(A) Vehicular manslaughter while intoxicated
(B) Felony child abuse likely to produce great bodily harm or a death, as defined in Section 273a of the Penal Code.
(C) Assault resulting in the death of a child under eight years of age, as defined in Section 273ab of the Penal Code.
(D) Felony domestic violence, as defined in Section 273.5 of the Penal Code.
(E) Felony physical abuse of an elder or dependent adult, as defined in subdivision (b) of Section 368 of the Penal Code.
(F) Felony stalking, as defined in Section 646.9 of the Penal Code.
(G) Solicitation for murder, as defined in subdivision (b) of Section 653f of the Penal Code.
(H) A serious felony, as defined in subdivision (c) of Section 1192.7 of the Penal Code.
(I) Hit-and-run causing death or injury, as defined in Section 20001 of the Vehicle Code.
(J) Felony driving under the influence causing injury, as defined in Section 23153 of the Vehicle Code.
(K) Sexual assault as set forth in Section 261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269, 273.4, 285, 286, 288, 288.5, 288a, 289, or 311.4 of the Penal Code.

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Filed under Retaliation, Wrongful Termination

October 12, 2013 · 10:59 pm

Employers Invading Employee Privacy by Viewing Personal Text Messages

This article examines what privacy rights employees have in the workplace. Specifically, it concerns cell phones and text messages. Can your employer view your text messages? What about personal messages on your personal cell phone? What about personal text messages on a company phone? Can your employer view those? What about work text messages on your personal phone?

There are a lot of horror stories of employers invading the privacy of employees by accessing their cell phones and viewing their text messages. Can they do this? What does California law say about this? The relevant law at play here is Penal Code § 632.7.

Branigan Robertson is a California employment lawyer who focuses his practice on sexual harassment, privacy issues, and wrongful termination.

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Personal Cell Phone vs. Company Cell Phone

First, there must be a distinction between a company issued cell phone and a private cell phone. Can an employer view your text messages on your personal cell phone? The answer is no. The answer can be found in the CA Penal Code section on Invasion of Privacy:

632.7. (a) Every person who, without the consent of all parties to a communication, intercepts or receives and intentionally records, or assists in the interception or reception and intentional recordation of, a communication transmitted between two cellular radio telephones, a cellular radio telephone and a landline telephone, two cordless telephones, a cordless telephone and a landline telephone, or a cordless telephone and a cellular radio telephone, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

…   (3) “Communication” includes, but is not limited to, communications transmitted by voice, data, or image, including facsimile.

This statute obviously prohibits a company from viewing private text messages on a private phone. A complementary statute (Penal Code 637.2) gives employees a private right of action against an employer who fires them for personal text messages on a personal cell phone.

What about work related text messages on your personal cell phone?

Same answer. Your employer would not have a right, absent a subpoena, to access your work text messages on your personal cell phone. But that is not an absolute answer. There are several exceptions:

  • If you are involved in a lawsuit and you are served with proper discovery, your employer would likely get access.
  • If you steal company intellectual property, the employer could probably serve you with a subpoena in relation to a lawsuit.
  • If you were texting with another person, and that person shows the text messages to your employer, you would be out of luck.

Do Employees Have Privacy Rights on Company Phones?

What about a personal text message on a company cell phone? Unfortunately, the United States Supreme Court held that a company may view personal text messages on a company phone. It made this landmark decision in City of Ontario v. Quon in 2010. 

Even though Sgt. Jeff Quon of Ontario, Calif., had some expectation of privacy in his messages, the court said, the police department’s review — which turned up sexually explicit messages to his wife and his mistress — was justified. Even though the department told him and his co-workers that they should not expect privacy when using their pagers, they were also told that personal use would be tolerated to a certain degree.

Therefore, if you want to keep information private, you should not be sending personal text messages on a company phone!

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October 7, 2013 · 9:44 pm

The WARN Act and Mass Layoff Class Actions in California

What is the law regarding mass layoffs? The federal Worker Adjustment and Retraining Notification Act (WARN Act) requires most employers planning a plant closing or a mass layoff to provide affected employees and certain state and local government officials at least 60 days’ written notice. California has an equivalent law that can be found in the Labor Code § 1401(a). If this law is not followed employment lawyers and attorneys may file a class action to recoup lost wages for the employees.

The purpose of these laws is threefold:

  • To assure the most rapid possible readjustment and retraining of displaced workers and to ease the personal and financial difficulties for workers who must make these transitions.
  • To provide workers and their families some transition time to adjust to the prospective loss of employment, to seek and obtain alternative jobs and, if necessary, to enter skill training or retraining that will allow these workers to successfully compete in the job market.
  • to provide a wage worker’s equivalent of business interruption insurance (that) protects a worker from being told on payday that the plant is closing that afternoon and his stream of income is shut off.

Aggrieved employees or their “representative” may also sue on behalf of other persons similarly situated. WARN claims are “particularly amenable to class litigation.” Finnan v. L.F. Rothschild & Co., Inc. (SD NY 1989) 726 F.Supp. 460, 465.

The California statute applies to any person or business entity that owns and operates a covered establishment, which is any industrial or commercial facility that employs at least 75 persons. Labor Code § 1400(a),(b).

An employer who fails to give the requisite notice before ordering a mass layoff, relocation or termination is liable to each affected employee for:

  • Back pay at the average regular rate of compensation received by the employee during the last three years of his or her employment, or the employee’s final rate of pay, whichever is higher.
  • The value of the cost of any benefits to which the employee would have been entitled had his or her employment continued. This includes any medical expenses incurred by the employee that would have been covered under an employee benefit plan.

The court may award reasonable attorney fees as part of costs to any plaintiff who prevails in such an action. Labor Code. § 1404. An employer who fails to give the requisite notice is also subject to a civil penalty (payable to the state) of not more than $500 for each day of the violation (no matter how many employees are involved).

 

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