Category Archives: Disability

What are the Legal Implications of Quitting Your Job?

What are the legal implications of quitting your job? Can you collect unemployment? Severance? What if you have a case and you quit (vs letting them fire you), will you still be able to take action? I answer all of those questions in this video.

My office gets a lot of calls from people who quit and still want to take action. This video details the critical things that lawyers look at in this situation.

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Filed under Age, Defamation, Disability, Discrimination, Employment Contract, FEHA, Harassment, Health Care, Layoffs, Leave of Absence, Pregnancy, Privacy, Race, Religion, Retaliation, Settlements, Severance, Wage & Hour, Whistleblower, Wrongful Termination

How to Complain to Human Resources the Right Way

As with all things in life, making a complaint at work is a risk. If you complain to human resources the wrong way, you might get fired (it happens far more often than people think). That is why I took the time to make a video about the correct way to complain to HR.

This video will explain the five things you need to know before you complain about your issue at work. It also covers how HR will react to your complaint and what you should expect if they conduct an “investigation.”

If you found this to be helpful, please leave a comment below.

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Filed under Abuse, Age, Defamation, Disability, Discrimination, Employment Contract, FEHA, Harassment, Health Care, Layoffs, Leave of Absence, Pregnancy, Privacy, Race, Religion, Retaliation, Settlements, Severance, Verdicts, Wage & Hour, Whistleblower, Wrongful Termination

What does being an “at-will employee” actually mean? Can I get fired for “any reason”?

This is a very common question. At-will employment does not mean that the company can fire you for any reason they want. That is incorrect. In this video, employment attorney Branigan Robertson explains the at-will doctrine and how it actually works.

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Filed under Abuse, Age, Defamation, Disability, Discrimination, Employment Contract, FEHA, Harassment, Health Care, Layoffs, Leave of Absence, Pregnancy, Privacy, Race, Religion, Retaliation, Settlements, Severance, Verdicts, Wage & Hour, Whistleblower, Wrongful Termination

Is Your Businesses’ Website ADA Compliant?

What is a “drive by lawsuit.” This phrase refers to lawsuits filed by attorneys on behalf of disabled persons, in which the attorney or disabled person, sues a business for non-compliance under the Americans with Disabilities Act (ADA). Often, those who file these lawsuits don’t frequent the establishment that they are suing.

These lawsuits are filed because the building doesn’t have a wheelchair ramp, or maybe its disabled parking space isn’t to exact specifications. Whatever the reason, this type of lawsuit can result in expensive fines, and require costly building retrofitting.

But while these types of lawsuits have gained plenty of attention, news organizations are now waking up to a new type of disability lawsuit that’s occurring with increasing frequency. These lawsuits involve ADA accessibility issues relating to a company’s website. And if businesses don’t pay attention to these new lawsuits, they could find themselves caught up in expensive litigation, and hit with expensive fines.

Making things more difficult for business owners, the Federal Government has yet to release a long-anticipated list of guidelines for how business owners can make their websites ADA compliant, leaving companies scrambling to figure out the best way forward.

This article was written to briefly discuss the topic of ADA compliance as it relates to websites, as well as some of the guidelines that are available to help businesses become compliant. As always, if you have concerns that your company’s websites aren’t compliant, or you are facing legal action, seek the advice of a good lawyer.

ADA Website Lawsuits | Branigan Robertson

ADA Challenges in the Era of the Website

According to a February 2018 article published by the website, there are as many as three ADA lawsuits being filed daily relating to accessibility issues on company websites. In some of these cases, multiple businesses are being sued by the same plaintiffs.

In March, CBS Money Watch published an article explaining that corporate giants Nike, Burger King, Hershey, Lord & Taylor and Pandora were all being sued due to online accessibility issues. The article noted that back in 2010, the US Department of Justice, under the guidance of then President Barack Obama, announced it would soon release website accessibility guidelines so that companies could comply with ADA rules.

However, by 2016, near the completion of Obama’s second term, the updates still hadn’t arrived. Since President Donald Trump has taken over, there is no indication that these guidelines will be forth coming any time soon. And as attorney Minh Vu explained to CBS, figuring out how to become compliant can be a challenge for many companies.

“You cannot wave a magic wand to make your website accessible,” Vu said. “There aren’t a lot of people who know how to do it correctly.”

What the ADA says About Websites

The Americans with Disability Act states the Following:

“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (leases to) or operates a place of public accommodation.”

It’s important to note that Federal Courts in the First, Second and Seventh Circuits have found that the ADA applies to Websites.

Los Angeles Superior Court Judge Fines Business Over Noncompliant Website

In May of 2018, a Los Angeles Superior Court judge ruled in favor of a plaintiff who sued a restaurant called the Whisper Lounge because of ADA accessibility issues on its website. In that case, the plaintiff alleged she was unable to read a menu on the restaurant’s website due to her vision impairment, adding that a link to a PDF version of the menu led to an error message.  She further alleged that a graphic image of the menu was unreadable, and the website contained graphics that were not labeled with descriptive tags.

The court ordered the restaurant to pay the defendant statutory damages totaling $4,000, and comply with requirements of WCAG 2.0 AA, which is a series of guidelines developed by a working group of the Web Accessibility Initiative.

Web Accessibility Initiative

The Web Accessibility Initiative is an effort of the World Wide Web Consortium (W3C), which seeks to improve the accessibility of the internet for persons with disabilities. It is comprised of various stakeholders, including special interest and disability groups, as well as accessibility research organizations. Initiative workgroups and task forces research and develop guidelines in order to improve internet accessibility. They also develop support materials to help folks understand Web accessibility.

The fruits of these workgroup’s efforts include the guidelines for making websites more accessible to disabled people, the implementation of which could potentially limit a company’s exposure to ADA lawsuits.

While the defendant in the case mentioned in the previous section argued that the WCAG guidelines aren’t legally binding, the court noted that the complaint did not seek to hold the defendant liable for violating their provisions. Rather, the plaintiff referenced the guidelines and sought to compel defendant to “take the steps necessary to make readily accessible and usable by visually-impaired individuals.”

For more information on the Web Accessibility Initiative as well as WCAG guidelines, visit the group’s website.

What this Means for Companies Who Operate Websites

If you operate a website as part of your business, now might be a good time to consider your site’s accessibility issues. Guidelines included in WCAG 2.0 include a range of suggestions for making content more easily accessible to disabled persons. For instance, audio-only content can be enhanced by presenting the audio information along with a text document edited to match the dialogue.

Other guidelines discuss:

  • The speed with which content is presented.
  • How a user might adjust the speed with which content is presented
  • Whether rapidly flashing content can cause seizures
  • How the headings or labels on each page describe the intended topic or purpose

These are just a tiny sampling of the types of issues businesses might have to consider in order to limit their liability.

If You’re Unsure About Website Compliance Issues, Consult an Attorney

If you’re a business owner who’s unsure of how to make your website ADA compliant, this can be a confusing time. The federal government has been slow to develop guidelines for businesses to follow, leaving the information gap to be filled by other groups. Meanwhile, the onslaught of lawsuits continues.

If you have questions, a good attorney can help you understand the existing law, and develop best practices so that you can comply with the law. If you face legal challenges that threaten your business, a good lawyer will be vital to helping you navigate the legal system’s many challenges.

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Filed under Disability

What if an Employer Treats an Employee as Disabled When the Employee isn’t Disabled?

Most people know that an employer can’t fire a disabled person in California if the worker can perform the essential functions of the job. But can a company fire an employee it believes to be disabled, but isn’t actually disabled? In other words, may your boss fire you if he believes you’re disabled, even when you’re not? No, they can’t. This is called “perceived disability” and hopefully the following article will shed some light on this sparsely used term.

The Legal Foundation of “Perceived Disability” in California

CA law is very clear that terminating an employee because of a disability, when the employe can perform the essential functions of the job, is unlawful. Lawyers call this disability discrimination. But the law also addresses the odd scenario when someone doesn’t have a disability, but the employer thinks they do. A quick look at the CA Code of regulations makes it clear:

California Code of Regulations § 7293.6. (5) A “Perceived Disability” means being “Regarded as,” “Perceived as” or “Treated as” Having a Disability. Perceived disability includes: (A) Being regarded or treated by the employer or other entity covered by this subchapter as having, or having had, any mental or physical condition or adverse genetic information that makes achievement of a major life activity difficult; or (B) Being subjected to an action prohibited by this subchapter, including nonselection, demotion, termination, involuntary transfer or reassignment, or denial of any other term, condition, or privilege of employment, based on an actual or perceived physical or mental disease, disorder, or condition, or cosmetic disfigurement, anatomical loss, adverse genetic information or special education disability, or its symptom, such as taking medication, whether or not the perceived condition limits, or is perceived to limit, a major life activity.

Example of Perceived Disability

One example of perceived disability would be if an employee, Jimmy, worked for ACME Company and after ten years of service he receives a misdiagnosis of Parkinson’s disease, a progressive, degenerative disease of the nervous system. Jimmy tells his boss. Obviously, Jimmy is still able to perform all the essential functions of his job, but immediately after telling his employer, his direct supervisor writes Jimmy up for being “crazy” and “weird.” Furthermore, Jimmy is required to report to his direct supervisor after every doctor’s visit. A month or two later his boss terminates him for “not fitting in.” This is illegal.

Usually the discrimination is not this obvious. But if you’ve been fired because your employer believed you were disabled, but you were not disabled, you may have a claim for disability discrimination under CA’s Fair Employment & Housing laws. Contact our office for a free consultation.

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Filed under Disability, Discrimination

Reasonable Accommodation – California Employment Law

Employers have an affirmative duty to reasonably accommodate disabled employees. Our firm gets quite a bit of calls from potential clients who have a disability, yet their employers fail to accommodate them so they can perform their job duties. While not all disabilities are protected under the law, generally, employers are required to reasonably accommodate an employee’s known disabilities so that the employee can perform the essential functions of the job.

How Can an Employer Reasonably Accommodate a Disabled Employee?

How to reasonably accommodate an employee depends on the employee’s disability and what he or she can perform given his or her limitations. Therefore, there is no one specific way to accommodate an employee. Rather, there are many different ways an employer can reasonably accommodate an employee.

FEHA provides a list of just some of the ways in which an employee can be reasonable accommodated. This list includes some of the following.

  • An employer can make the work facilities readily accessible to the disabled employee. An employer can do this by modifying furniture or equipment for use by the disabled employee, or reserving a parking place for the disabled employee so he can park closer to work.
  • The employer can also modify the disabled employee’s work schedule. For example, if an employee is treated for cancer in the afternoons, then the employer can change the employee’s work schedule so he comes in earlier to work and leaves earlier for his cancer treatments so he gets a full day of work and completes his daily tasks.
  • An employer can even reasonably accommodate a disabled employee by having the employee work from home.

This listed examples is not exhaustive, there are many more ways an employer can reasonably accommodate a disabled employee.

What About Assistive Animals?

Here is something very interesting related to reasonable accommodation. Under California law, an employer must allow for assistive animals in the workplace as a form of reasonable accommodation. Assistive animals include guide, support, or service dogs. This includes animals that provide emotional support to a disabled employee suffering from post-traumatic stress disorders and even depression.

Contact An Employer Lawyer if You Have Reasonably Accommodation Questions

Unfortunately, a lot of times employers can be lazy and do not want to work with the disabled employee. But there are often multiple ways an employer can reasonably accommodate a disabled employee. If you are a disabled employee and your employer is failing to provide reasonable accommodation, or has fired you because they do not want to provide a reasonable accommodation, then call an reasonable accommodation & disability employment lawyer for a free consultation.

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Filed under Disability, FEHA