Category Archives: Discrimination

Can Companies Fire Employees for Marijuana Use, Even Though Pot Is Legal in California?

Prior to 2016, it was illegal under state law to use marijuana recreationally — no matter how small the amount. Though things have changed significantly in California, and recreational use of marijuana is now legal under state law, there are still a lot of things employees need to consider when it comes to work place drug testing and job protection.

This article was written to unpack some of the issues surrounding marijuana use as it relates to California employment law. As a firm that primarily represents employees in employment disputes, it’s our job to protect workers. If you feel you’ve been treated unlawfully by an employer, give our office a call so that we can review the basic facts of your case.  Our office regularly handles discriminationharassment and wrongful termination cases.

Marijuana Legalization and California Employment Law

In 2016, Californians voted to approve Proposition 64, which amended sections of the state’s Penal, Business, Health and Tax Revenue codes. It is now legal for adults over the age of 21 to possess marijuana for recreational use. Use of marijuana for medical purposes, with the approval of a doctor, has been legal in California since 1996. 

With California now taking such a seemingly permissive attitude toward marijuana use, one might think that employers are legally required to give a pass to workers who smoke a little pot in their free time. After all, alcohol is legal, no one gets fired for enjoying a beer or two after work, right? Unfortunately, it’s not that simple.

The first thing that must be mentioned is that while recreational marijuana use is legal under California state law, it is still illegal under federal law. Alcohol doesn’t have that hiccup. While drug tests can determine if a person is under the influence of alcohol, booze leaves the system much faster than marijuana, which can remain in a person’s system at detectable levels for a month or longer. 

It’s completely legal for a California employer to fire an employee for recreational drug use.

Branigan Robertson

The second thing that people should know is that it is completely legal for an employer to fire an employee for legal recreational drug use. If the employer finds out that you are a user, they can fire you.

This is similar to when an employer fires someone for posting racist views on social media. It’s completely legal for you to be racist on your own time when you’re at home, but employers are allowed to fire people who have views like that. Why is this the case? Because CA (like many states) has the at-will doctrine. Due to the at-will doctrine, employers are allowed to fire employees for any reason except for reasons specifically deemed unlawful by CA’s legislature and court decisions. 

While there is reason to suspect that some companies have relaxed zero tolerance marijuana policies in the wake of Proposition 64, workers should not to assume their employers will automatically give employees who enjoy marijuana a pass.

Drug Testing and an Employee’s Right to Privacy

First and foremost, companies are allowed to drug test their employees. This is a practice that courts have upheld for years. However, in California, courts also acknowledge employee privacy. There are also anti-discrimination laws designed to protect employees.  

When and why a company decides to require employee to submit to a drug test can greatly affect whether a company runs afoul of the law.

At the core of the issue is how much privacy an employee is entitled to weighed against a company’s need to know the status of an employee’s drug use.

For instance, companies are generally allowed to drug test applicants prior to a job being offered. This is because an applicant’s right to privacy isn’t weighed as heavily as a long-term employee whose track record is well known to the company.

While random drug testing of existing employees can be a sticky issue for employers, there are certain industries where workers can expect to submit to random drug tests. Such industries include the airline or transportation industry. 

In other industries, customer service for instance, an employer would generally need a good reason to ask an employee to submit to a random drug test.

That said, state and federal law prohibits companies, with few exceptions, from singling out groups of people based on protected characteristics. This is important when it comes to how drug tests are administered to employees in the work force. Keep reading to learn more about workplace discrimination.

When Drug Testing Targets Certain Groups

California’s Fair Employment and Housing Act (FEHA) protects certain classes of people against workplace discrimination. Such protections prohibit discrimination based on gender, sexuality, race, national origin, pregnancy status or military status. 

As such, an employer can’t require random drug tests of only certain groups of employees while not applying the same standards to other groups of employees.  Furthermore, an employer who requires a worker to submit to a drug test because of membership in a protected class is engaged in unlawful behavior.

For instance, if a manager decided to test only the military veterans in the company because he read an article once stating that some veterans struggle with drug abuse, then that manager could potentially land the company on the hook for damages—particularly if an employee is terminated because of the discriminatory action.

If you believe you were required to take a random drug test because you are a member of a protected class, contact our office to schedule a consultation.

What About Employees Prescribed Medical Marijuana?

What about employees who are prescribed marijuana due to a disability?  Disability is a protected class, right?

Ironically, a 2008 California Supreme Court case found that employers can terminate employees that use medical marijuana, even if the marijuana has been prescribed by a doctor. The court reasoned that because the federal government, specifically the Americans with Disabilities Act, excludes protection for “any employee or applicant who is engag[ed] in the illegal use of drugs.” 

The state high court further argued that federal law has rejected the proposition that “marijuana has acceptable uses for medical treatment…” As a result, discrimination based on the use of medical marijuana “cannot be considered sufficiently substantial and fundamental to support a common law tort claim for wrongful discharge.”

When considering this, it’s important to keep in mind that employment law is complex, and there are many aspects to consider in a disability or wrongful termination case. The only way to know if you have a case, is to contact an employment lawyer.

If You Have Concerns, Contact a Lawyer

It’s important to note that attitudes toward medical and recreational marijuana continue to evolve. The best way to determine if you have been treated unlawfully by your employer is to contact a lawyer to review the facts of your case.

Though there are situations where employees can rightfully be subject to random drug tests and terminated for marijuana use, a good attorney can examine the facts of a case and determine if a company has acted unlawfully. An employee who is wrongfully terminated can potentially collect lost wages, back pay, pain and suffering damages, and in rare cases, punitive damages. 

If you feel you were unfairly targeted at work and required to take a drug test because you are a member of a protected class, contact the office of Branigan Robertson to schedule a consultation. Mr. Robertson won’t charge to review the basic facts of your case. If it turns out you have a case worth pursuing, our office often handles cases on a contingency basis. This means you don’t pay out of pocket fees.

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Can Immigrants in California Sue for Discrimination or Wrongful Termination? What are the Risks?

The topic of immigration in America continues to spark passionate, and often vitriolic debate. But regardless of the different voices clamoring to be heard, the simple truth is that America was built by immigrants, and immigrants — whether documented or undocumented — contribute positively to the fabric of California. 

There are laws in place at both the federal and state level that protect both documented and undocumented immigrants from employment abuse. This means that immigrant workers are protected from unlawful discriminationharassmentwrongful termination and other workplace violations.Continue reading to learn a little more about immigration and employment law.

If you are an immigrant who is working in this country, lawfully or unlawfully, you have rights. If you feel you’ve been treated unfairly by an employer, contact our office to discuss your case. 

Immigrant Employment Rights – What Does the Law Say?

While employment law is complex, and there are many things to consider when pursuing action against an employer. Generally speaking, immigrants are covered by the same workplace protections that US citizens enjoy. The California Labor Code says:

All protections, rights and remedies available under state law…are available to all individuals regardless of immigration status who have applied for employment, or who have been employed, in this state.

Labor Code §1171.5(a)

Subsection (b) further states:

For purposes of enforcing state labor, employment, civil rights, consumer protection, and housing laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status unless the person seeking to make this inquiry has shown by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law.

Labor Code §1171.5(b)

Beyond that, your former employer is prohibited from reporting or threatening to report your immigration status in retaliation for filing a lawsuit. CA Labor Code § 244(b)

California’s Fair Employment and Housing Act (FEHA), which protects all workers within the state, makes it unlawful for employers to discriminate against workers for any number of reasons including color, race, ancestry, and, most importantly for purposes of this article, national origin.

What Kinds of Protections Does the Law Provide Immigrants?

Thanks to laws like those mentioned in the previous section, immigrants are afforded many of the same rights as non-immigrant employees.  These protections cover:

  • Equal employment opportunities – non-discrimination
  • Disability rights
  • Harassment prevention
  • Freedom from other forms of discrimination
  • Rest and meal breaks
  • Overtime, PTO, minimum wage, and other wage & hour standards

If you’re an immigrant, whether in the country on a work visa or undocumented, and you believe you’ve experienced harassment, discrimination, or some other workplace violation, consider contacting an experienced employment lawyer to discuss the facts of your case.

But Wont My Employer Retaliate?

It is unlawful under California and federal law for an employer to retaliate against an employee because that employee reported a violation of workplace law, or refused to do something they thought was illegal. An employer who retaliates in this way, even against an immigrant employee, can potentially be liable for damages.

Documented Immigrants

Workers who are in the country on a work visa can be subject to retaliation. An employer who is upset at an immigrant worker for complaining about wage, safety, or meal break violations might threaten to cancel that worker’s visa and have them deported.  

Understandably the fear of losing one’s visa is often enough to keep an immigrant from speaking up for his or her rights (or the rights of others). If you are here on a work visa and your employer has retaliated against you unlawfully, contact our office to discuss the facts of your case.

Undocumented Immigrants

An undocumented worker has perhaps the most to fear when it comes to employer retaliation. According to the Economy Policy Institute, instances of immigration related retaliation appears to be on the rise. Workers in California filed 94 immigration related retaliation claims in 2017. This represented a sharp increase from 2016 in which there were only 20 claims. In 2015, there were only seven such claims. 

An undocumented immigrant might understandably be hesitant to contact an employment attorney for fear of retaliation by their employer. However, it’s important to remember that even undocumented immigrants have rights in the workplace and an after learning the facts of your case, a good attorney will be able to discuss the potential risks of pursuing legal action against your employer.

If your employer is threatening to contact ICE or another law enforcement agency because you reported a workplace violation of law, don’t hesitate to contact our office. Calls placed to our office are kept in the strictest of confidence.

Immigrant Employees Can Sue Their Employers

In addition to those laws, according to CA Labor Code § 1019, Immigrants can sue their employer for any unfair immigration related practice including:

  • Requesting more or different documents that are required by federal immigration laws,
  • Using the federal E-Verify system to check the employment authorization of a person at a time or in a manner not required under federal law,
  • Refusing to accept such documents when they reasonably appear on their face to be genuine,
  • Filing or threatening to file a false police report or a false report or complaint with any State or federal agency like the Immigration and Customs Enforcement Agency (“ICE”), or
  • Contacting or threatening to contact immigration authorities.

What Can Immigrants Recover in an Employment Lawsuit?

Each case is different, and it’s impossible to answer this question with a specific dollar amount. That said, immigrant employees are entitled to recover the same damages as workers born or naturalized in the US. This includes the following:

Back Pay: Say an immigrant worker was paid less than the minimum wage for the time he or she was employed with the company.  The minimum wage in California is currently $12 hourly. Suppose a worker was only paid $9 hourly over a period of three years. If he or she successfully presses a claim, that worker could be eligible for back pay. If that employee regularly worked overtime, the final figure will increase.

Lost Wages: An employee who is found to have been wrongfully terminated might be entitled to lost wages. This is the money he or she would have earned had the termination not happened. Imagine an immigrant employee was making $45,000 annually, was wrongfully terminated as the result of retaliation, and unable to find work for three years. An immigrant who successfully pursues a case could be entitled to the normal salary over a period of three years. This would come out to $135,000.

Punitive Damages: These are the damages that often come in million-dollar amounts. They are designed to punish companies that act with malice, oppression or fraud. While proving these elements is difficult, it’s not unusual for a company that abuses immigrant labor to engage in behavior worthy of punitive damages.

Contact an Attorney to Discuss Your Case

Any settlement, no matter how big, is little comfort to a worker who faces deportation. That’s why it’s important to discuss with an attorney the risks and rewards an immigrant faces when deciding to sue an employer.

If you are an immigrant who believes you have been mistreated by an employer, contact our office to discuss your case. Rest assured, your information will be kept confidential. You have little to lose by talking to our firm.

If you have questions or concerns, contact Branigan Robertson’s office. Find out how we can help.

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Filed under Abuse, Discrimination, Retaliation, Wrongful Termination

New Video! The Ultimate Guide to Discrimination Law

I am pleased to release another whiteboard video! This video is all about discrimination law. It details the legal definition of discrimination, the statute of limitations, how much cases are worth, what to do if you are still employed, quit, or have been fired, and much more.

If you want to learn more about unlawful workplace discrimination in California, visit our main discrimination page here.

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Filed under Discrimination, FEHA, Uncategorized

New Video! How to Prove Discrimination at Work

I am pleased to release our latest whiteboard video! This video is all about how to prove to HR or management that you are a victim of discrimination. It also details how discrimination lawyers prove discrimination.

If you want to learn more about unlawful workplace discrimination in California, visit our main discrimination page here.

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New Video! How Much Money are Discrimination Lawsuits Worth?

I am pleased to release our latest whiteboard video! This video is all about how much money discrimination lawsuits in California settle for. It focuses entirely on the monetary value of unlawful discrimination. It details how much cases are worth and why.

If you want to learn more about unlawful workplace discrimination in California, visit our main discrimination page here.

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Filed under Discrimination, FEHA, Settlements, Severance, Verdicts

Can Employers Enforce a Dress Code Policy that Targets Someone’s Hair?

When it comes to employment law, California tends to lead the nation in terms of the protection it provides employees.  The state’s Fair Employment and Housing Act goes beyond federal law to provide broader protections for workers against discrimination, harassment and other work place injustices. 

The state distinguished itself once again in July 2019 when Governor Gavin Newsom signed into law Senate Bill 188, the first of its kind in the nation. The law takes aim at more subtle discriminatory practices and policies that unfairly target employees based on the style or texture of their hair. 

Sadly, for years employers have been allowed to enforce dress code policies that unfairly target and penalize persons of color, often black employees, for their natural hairstyles. With the passage of Senate Bill 188, employees and their attorneys have one more tool in the legal arsenal with which to fight back against unfair workplace practices.Continue reading this article to learn more about SB 188, as well as workplace discrimination in general. If you feel you have been the victim of discrimination, contact our office to schedule a consultation.

California Employment Law on Hair Discrimination

What CA Law Says About Hair Discrimination

Senate Bill 188, also known as the Crown Act (Create a Respectful and Open Workplace for Natural Hair), amended both the education and government code. The Act states in part:

“Workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks, have a disparate impact on Black individuals as the policies are more likely to deter Black applicants and burden or punish Black employees than any other group.”

Senate Bill § 188 – The Crown Act

The act further acknowledges that the federal courts have long accepted that Title VII of the Civil Rights Act prohibits discrimination against persons with afros, but adds that “afros are not the only natural presentation of Black hair. Black hair can also be naturally presented in braids, twists, and locks.”Accordingly, California state law was amended to broaden the definition of race to include hair texture and protected hairstyles.

Here Are a Few Examples

While the following incident did not occur in California, and is not strictly work related, it still highlights the type of discrimination persons of color have been known to experience based on hairstyle.

In December 2018, a black high school wrestler from New Jersey was singled out by a white referee and made to cut his dreadlocks before being allowed to compete in a match. Video shows the young man agreeing to cut his hair in the gymnasium before going on to win the match by takedown.

This incident is extreme, but it demonstrates how hair policies can be used to unfairly target people of color.

In 2010, the Equal Employment Opportunity Commission (EEOC) sued Alabama- based Catastrophe Management Solutions for its treatment of a recent hire, a black woman named Chastity Jones. At the time of her interview, her hair, which was blond, was dreaded in curls known as “curllocks.” She was offered a position as a customer service representative.

At a meeting held later that day, staff noticed her dread locks and told her that company policy required her to cut her hair. She declined, and the manager rescinded the job offer.The EEOC sued the company on Chastity’s behalf.

The regional attorney for the Birmingham office stated that the litigation wasn’t about fighting company policies that require employees to maintain neat, professional hair, but rather

“it focuses on the racial bias that may occur when specific hair constructs and styles are singled out for different treatment because they do not conform to normative standards for other races.”

California’s Fair Employment and Housing Act Prohibits Racial Discrimination

California’s Fair Employment and Housing Act is contained in the Government Code. Section 12940 states that with few exceptions, it is unlawful for an employer to discriminate against an employee or job applicant based on racereligious creed,  national origin, ancestry, gender, or sexual orientation (in addition to a number of other traits). A worker who believes they have been treated differently because of legally protected characteristics should contact an attorney in order to have their case reviewed.

Have You Been the Target of Discrimination? Contact our Office

If you believe your employer is trying to enforce a policy that unfairly targets you because of the natural presentation of your hair, contact our office to schedule a consultation.

Our office doesn’t charge to review the facts of your case, and cases are often taken on a contingency basis — this means the client doesn’t pay out of pocket fees. For more information, contact the office of Branigan Robertson to learn how we can help.

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California’s Employment Laws Favor Workers in 2019

The year 2019 is shaping up to be a good year for workers in California. Several laws have gone into effect that benefit workers’ rights. Perhaps spurred on by the frustrations voiced during the MeToo movement, many of these laws strengthen existing laws dealing with sexual harassment and discrimination. Additionally, there is a raise in the minimum wage as well as overtime pay for agricultural workers. 

This article will briefly discuss some of the new changes to California employment law. If you have questions about any of these changes, or you feel you’ve been the target of harassment or some other employment violation, contact our office to schedule a consultation.

New CA Employment Laws 2019 | Branigan Robertson

The Changes, a Brief List

One – Minimum wage increase – This year, the minimum wage in California has been bumped for companies with 25 or more workers from $11 per hour to $12 per hour. Companies with fewer workers will now be required to pay their employees $10.50 per hour.

Two – Criminal History and Employment Applications – A new senate bill clarifies existing law dealing with job applicants who have criminal histories. Under current law, employers are prohibited from basing hiring decisions on a job applicant’s conviction record if that conviction has been sealed, or dismissed. There are exceptions to this law, such as if the applicant would be required to carry a firearm as part of the job.

In some cases, the employer is legally required to inquire about certain criminal histories. The new law limits these inquiries to “particular convictions” as opposed to convictions in general. A particular conviction is defined under the new law as “a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation, or state law that contains requirements, exclusions or both, expressly based on that specific criminal conduct or category of criminal offenses.

The purpose of this law is to prevent companies from being overzealous when required to look into an applicant’s past criminal history.  

Three – Settlement Agreements and Sexual Harassment Disclosure– Lawsuit settlement agreements can no longer include provisions that prevent sexual harassment victims from disclosing factual information regarding their experiences.  This means that if an employee settles a lawsuit with a company after experiencing harassment, he or she will be free to testify about this experience. 

While the harassed person will be free to discuss the factual circumstances of the harassment, the actual settlement amount can still be kept secret by a non-disclosure clause. However, the law allows for settlement provisions that shield the identity of the sexually-harassed victim.

Four – Defamation Protection– It used to be that employees who had experienced sexual harassment and reported it could be exposed to a defamation suit. Thanks to Assembly Bill 2770, allegations of sexual harassment based on credible evidence and without malice are protected from such liability.

Five – Mandatory Sexual Harassment Training– While mandatory sexual harassment training has been in effect for years, it’s only applied to companies with 50 or more employees. The updated law has been broadened to include businesses with as few as five employees. Every two years, employees will be required to go through training. This includes one hour for non-supervisory staff, and two hours for supervisors.

Six – Agricultural Workers to Get Overtime – Prior to the passage of this law, agricultural workers were exempt from California’s overtime rules. Assembly bill 1066 will change this in phases over a period of four years. Among the immediate provisions of the law, workers who toil for more than nine and a half hours in one day (or more than 55 hours a week) must be paid time and a half for their overtime work.

By the year 2022, the law will require that agricultural workers putting in more than 12 hours in a day be paid at least double their normal hourly rate.  Additionally, persons working more than eight hours a day (more than 40 hours a week) must be paid time and a half.

Seven – Females on Boards of Directors – California law now requires that publicly-held companies with executive offices in California have at least one female director on the board.

Eight – Breastfeeding at Work – Employers are now required to make reasonable requirements to provide rooms for breastfeeding that aren’t bathrooms. 

Have Questions? – Ask an Employment Attorney

The changes to the laws discussed on this page only scratch the surface. Each law contains nuance, and most workers dealing with a bad employer require the help of a good lawyer to seek justice.

 If you believe your rights as an employee have been violated, it’s recommended you talk to a lawyer sooner than later. California’s statutes of limitation mean that a person filing a claim against an employer is always fighting the clock.

Having a good lawyer on your side might mean the difference between a check or a fair settlement for your pain and suffering. Whether you’ve dealt with wage theft, discrimination, harassment or some other employment related violation, a good lawyer will be indispensable in helping you get your life back on track. Call the office of Branigan Robertson with your questions and find out how we can help.

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