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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What Should You Do When Your Boss Sends Inappropriate Text Messages?

With great advances in digital technology, come great opportunities for nasty surprises. These days, a swipe of a finger is all that’s necessary to open an unsolicited inappropriate message on our phones and other digital devices. Such texts or direct messages can range from the mildly offensive to the outright vulgar.  And when the inappropriate message comes from a coworker, or worse yet, a boss, it can affect one’s work life in significant ways.

This article briefly details some of California’s laws regarding sexual harassment as well as some of the steps a worker might take to protect themselves if they are the recipient of harassing texts.  As always, if you believe your employer has broken the law, contact our office so that we can evaluate your case and help you decide if you should pursue legal action.

The Basics of California’s Sexual Harassment Law

We’ve written extensively on CA’s sexual harassment law. We’ve also made several YouTube videos on it. If you want to learn the basics, I recommend that you check out our sexual harassment page.

For the purposes of this article, lets look at a simple explanation provided by the Government Code. Section 12923 states that inappropriate workplace behavior rises to the level of harassment when the conduct:

“Sufficiently intrudes upon the victim’s ability to perform the job as usual, or otherwise interfere(s) with and undermine(s) the victim’s personal sense of well-being.”

CA Government Code § 12923

An employee who receives unwanted and inappropriate text messages from a boss or coworker clearly will intrude upon the victims ability to perform the job. He or she might justifiably experience difficulty concentrating on tasks, or might not feel free to move about the office without intimidation.

Boss or Co-Worker Sends Inappropriate Text Messages | Employment Law

Employers Have a Legal Responsibility to Prevent Harassment

The Government Code provides a strongly worded mandate for employers when it comes to their responsibility to protect employees. It states that it is unlawful for an employer

“to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”

CA Government Code §12940(k)

There are different situations and ways in which harassment can occur —these differences can result in different levels of liability for the company depending on who’s sending the inappropriate material, and what is done by the company to stop it.

Texts from a Coworker vs. Texts from a Boss

Inappropriate texts come in any number of forms. They can include:

  • Vulgar jokes or sexually explicit images
  • Photos of the senders’ (or another person’s) genitals
  • Requests for pictures of the recipient’s private parts
  • Requests for sexual favors in return for career advancement (quid pro quo)
  • Unwanted flirting or teasing
  • Sexually threatening messages

As mentioned earlier, a company has a legal obligation to deal with any employee who might be sending inappropriate texts. If you receive a text or direct message from a coworker that makes you uncomfortable or is sexually explicit, report the issue to your HR director. If you report the issue, and the company fails to deal with the offending worker and stop the harassment, the company could be liable for damages.

But what about when the boss sends inappropriate messages? 

Such a situation represents unique challenges because of the power the boss holds in the workplace. Naturally, a victim of such harassment might be hesitant to report the behavior due to fears of retaliation.

When a boss harasses an employee with lurid or inappropriate texts, this behavior exposes the company to liability much quicker than a lower level employee. 

Understandably, a worker who finds herself or himself in such a position should talk to an attorney to discuss the best way to proceed.

Steps You Can Take to Protect Yourself

Make sure to save any inappropriate text or direct messages sent by the harasser – Don’t delete anything—even the texts you might have sent in response. Our office has fielded countless calls from potential clients who likely have been harassed, but who have failed to preserve the evidence of their harassment. This often makes it far more difficult to proceed with their claim.

Furthermore, some clients will attempt to conceal or delete text messages they have sent in response to their harassers. This is always a bad move, and can cause problems down the road once the case has started. Always be up front with your attorney.

Screenshot any inappropriate images sent to your phone or computer – This is important because it preserves dates and times. A solid timeline can be valuable when your attorney is deposing or cross examining a witness. 

Report the Issue to HR – Whether you’re dealing with a boss or a coworker, it’s important that you report the issue to your HR director (assuming your employer has an HR department) so that the company is aware of the issue and investigates.

Contact a lawyer – Sometimes, the only way to get justice when dealing with bad actors is to hire an employment attorney to help you stand up for your rights. Our office performs free consultations for harassed employees.

Has a Boss or Coworker Sent You Inappropriate Text Messages? Contact Our Office

Our office has handled a wide variety of sexual harassment cases as well as other employee rights issues (discrimination, whistleblowerovertime, etc.). If you feel you’ve experienced harassment either from a coworker, or someone in a position of authority over you, contact our office to schedule an appointment.

Our firm often handles these types of cases on a contingency basis, which means the client doesn’t pay any out of pocket expenses. Contact the firm of Branigan Robertson to find out how we can help.

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Should I Go on Stress Leave From Work?

We all want purpose, meaning and joy in our careers. Sadly, for many California workers, this an elusive dream. Sometimes, survival and a better life for the worker’s family is the best that can be hoped for.

But human beings are complex. When their emotional needs are neglected as they struggle to make a living, stress, anxiety and depression can occur. In some cases, people are genetically predisposed to such mental health issues, which can be exacerbated by a toxic work environment.

When mental health problems flare up at work, the employee’s performance can suffer, and they suddenly find themselves under the microscope of indifferent managers, coworkers and clients. When this happens, things tend to get worse.

We regularly get calls from frustrated workers asking whether or not they should go on stress leave. It’s a complicated question that even an attorney can’t answer with a simple yes or no. Fears persist about whether an employee can be fired for taking time off and whether their original position will be waiting for them when they return. Some wonder if stress or depression is reason enough to ask for an extended leave.

This article was written to discuss some of the laws surrounding mental health and disability leave as well as the questions an employee should consider before taking leave. If you feel your employer is treating you unlawfully, or has retaliated while you were out on protected leave, contact our office to schedule a consultation.

Legal Protections for Workers with Disabilities

Most workers know that California law protects employees with mental disabilities. CA Government Code §12940 states that it is:

“It is an unlawful employment practice… (a) for an employer, because of the… mental disability… of any person… to bar or to discharge the person from employment or from a training program leading to employment, or to bar or to discriminate against the person in compensation or in terms, condition or privileges of employment.”

FEHA § 12940(a)

Simply put, a person who is considered mentally disabled is protected from discrimination or termination (there are exceptions – more on that later). The question that many of our callers have is whether or not stress, anxiety or depression qualifies as a disability. Keep reading.

Does Stress Qualify as a Disability Under California Employment Law?

It’s important to note that state law defines the term mental disability in broad strokes. Mental disabilities can include intellectual disabilities in addition to emotional and mental illness. The common denominator in determining if a disability exists is whether or not the illness “limits a major life activity.” In other words, does it make the achievement of the major life activity difficult?

You should first note that stress created by the boss may not qualify as a disability. A CA court recently held that an employee’s inability to work for a particular supervisor, because of anxiety and stress related to the supervisor’s standard oversight of job performance, is not a disability. However, stress stemming from other conditions may constitute a disability if the underlying cause makes the achievement of a major life activity difficult.

A person with anxiety or depression might have difficulty concentrating on basic tasks, trouble sleeping through the night, or trouble getting up in the morning. This may cause extreme stress in someone’s life. Any of these symptoms, alone or together, have the potential to limit major life activities, including those necessary to maintain a job.

If you’re dealing with unexplained emotional symptoms that are making it difficult to complete tasks at work and do your job effectively, you should see a doctor immediately for an assessment of your symptoms and to determine a course of treatment. It’s important to remember that many employers will require the employee to provide a doctors’ note if he or she intends to take leave.

You should also note that under FEHA’s definition of mental disability, stress caused by sexual disorders, kleptomania, pyromania, compulsive gambling, or psychoactive substance use disorders stemming from the unlawful use of drugs or controlled substances, are specifically excluded. That means they are not protected. 

Stress Leave from Work | Branigan Robertson Employment Lawyer

What Options are Available to Stressed Out Employees?

California Family Rights Act

California Government Code §12945.2(a), also known as the California Family Rights Act, requires employers to allow employees with a serious health condition to take up to 12 work weeks off in any 12-month period as long as the employee has worked 1,250 hours for the employer within the previous 12 months. The law states that when family or medical leave is granted, the company must make a “guarantee of employment in the same or a comparable position upon the termination of the leave.”

 A serious health condition can apply to a mental condition requiring continuing treatment or ongoing supervision by a health care provider.

While the CFRA is a good option for many employees dealing with significant stress, anxiety and depression, employers are not required to pay employees while they are out of work (though employees may be eligible to collect unused vacation hours, or sick pay). Additionally, many employees need more than 12 weeks to fully recover or adjust to life with their mental health issue. Sometimes temporary disability insurance is an option that workers dealing with mental health issues must explore.

Temporary Disability

California’s State Disability Insurance Fund allows eligible employees to collect up to 52 weeks’ worth of paid benefits which are provided based on the employee’s salary. There are many requirements an employee must meet in order to be eligible to collect from the program. These include:

  • Having a physician document your medical condition and certifying your disability.
  • A loss of wages due to your health issue.
  • You must have been paid $300 in wages subject to State Disability contributions during the 12-month base period.

Limits to Disability Protection

While California law does provide powerful protections to those with disabilities, there are limits to these protections. Government Code§12940(a)(1) allows an employer to terminate an employee suffering from a mental disability if the employee is unable to perform the essential duties of the job even with reasonable accommodations.

An employer can also fire a mentally disabled worker if he or she cannot perform the duties in a manner that would not endanger the employee’s health and safety or the health and safety of others even with reasonable accommodations.

As with many areas of the law, this section can be open to some interpretation. For this reason, if you were fired while dealing with a mental health issue or on disability leave, you should contact an employment lawyer to discuss your case.

Before You File for a Leave of Absence

If you’re on the fence about filing for leave, it might help to ask yourself the reason for doing it. Are you simply experiencing the normal stress of dealing with a difficult boss? Or are you struggling to hold your emotional life together hour by hour?

It goes without saying that if you’re dealing with emotional issues that are interfering with your basic life activities, you should do whatever you can to get better. This often starts with following the directions provided by a doctor or mental health specialist.

Contact an Employment Lawyer

As you no doubt already know, the areas of law dealing with mental health and employment can be complex and nuanced. Sometimes it requires help from a qualified attorney to help a worker stand up for their rights. Moreover, if you are dealing with a mental health issue, you should contact a mental health professional and take the steps necessary to get well.

If you feel that your employer has treated you unfairly while you struggle to deal with stress, anxiety or depression, or has unlawfully discriminated against you, contact the office of Branigan Robertson to schedule a consultation.

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You Should Have a Lawyer Review Your Severance Package. Here’s Why….

How do you know if your severance package is fair or not? Did they offer you enough money? Are you getting ripped off? What does all that legal mumbo-jumbo in the agreement actually mean? This article and video will answer most of your severance questions and explain your options.

Severance deals in California come in all shapes and sizes, and most people find the contract terms to be very confusing. The only way to properly determine if you’re getting a good deal is to have an employment lawyer do three things:

  1. Review the actual contract,
  2. Carefully examine the facts and circumstances surrounding your termination and employment, and
  3. Explain which of the four options (more on those below) is best for your situation.

Unfortunately, lots of people call me after they’ve signed a severance agreement for a few thousand dollars, only to discover that they had a case worth hundreds of thousands of dollars. Don’t be one of these people. Before you sign, have an employment lawyer like me do a severance review.

This article and video will go into extraordinary detail on severance agreements, negotiation, and lawsuits. I highly recommend that you watch the below video and read this article in full before you decide to sign a severance agreement.

If you’re in California and you already know you need a lawyer to review your severance package, contact us here.

Watch this Detailed Video on Severance Value, Fairness, Negotiation, and Strategy

You Have Four Ways to Respond When Presented with a Severance Agreement

As I explain in the video, when you’re terminated and then presented with a severance offer, you have four options how to respond:

  1. You can ignore the offer, find a new job, and move on with your life.
  2. You can accept the severance package as it was offered, sign it, and collect your money.
  3. You can try to negotiate for more money or better contractual terms.
  4. You can reject the severance offer and file a lawsuit against the company (assuming you have a good case).

How do you choose which one is best for you? Just like any difficult decision in life, you need to weigh the options against something. If you don’t have anything to compare these choices against, you can’t possibly make an educated decision. Keep reading to learn how to compare these options.

To Pick The Right Option, You Need to Answer These Two Questions

You need to figure out what you are giving up if you sign the severance agreement. While there are a lot of important terms and conditions in the severance agreement (more on those below), I’m going to focus on the main one here.

When you sign the severance agreement, you give up your right to sue the company for employment violations. Therefore, before you sign, you should have an answer to these two questions:

  1. Did the company violate the law when they terminated you or during your employment?
  2. If the company did violate the law, how much money could you recover by taking legal action?

The only way to get an honest idea of the answer to these two questions is to have an actual lawyer examine the facts surrounding your termination and review the terms of your severance agreement. Once you have an idea of how much money is at stake and the strength of your legal claims, you can compare it to the severance offer and make an educated decision.

You Must Also Examine the Risks Associated With Each Option

While this might seem obvious in theory, reality is far more complicated. It is almost impossible for a non-lawyer to come up with educated answers to the below questions. Regardless, here are questions that should be circling around in your head:

  • How much money is my case worth?
  • How strong (or weak) are my legal claims?
  • Will they pull the current offer off the table if I try to negotiate?
  • Will I make a mistake during negotiations and torpedo my case?
  • Do I actually understand what is in the contract?
  • What are the chances they will respond to my counter offer with something fair?
  • How much stress is this going to put on me and my family?
  • Will this hurt my chances to get a good reference?
  • If I make a mistake in my negotiation, will I get sued for extortion?
  • If I sign this agreement, am I inadvertently putting myself in legal jeopardy?

Unfortunately, most individuals tend to underestimate the risks they face. Since every case is drastically different, and employment law is so vast and complicated, the only way to get a genuine picture of the risks that you face is to have a professional analyze and explain them to you.

How Much Should You Get in Your Severance Package? The answer is “it depends.”

What Terms are Contained in Your Severance Agreement?

While most severance agreements contain these basic building blocks, every single one is different. So read your contract carefully! If you do not understand parts of your agreement, I strongly recommend that you have it reviewed by a lawyer. But for purposes of this article, here are some of the major terms:

  1. You lose the right to sue for most violations of law (a.k.a. the release of claims). This includes suing for wrongful termination, discrimination, hostile work environment, unpaid overtime, retaliation, and many other things.
  2. You agree not to say anything bad about your former employer (a.k.a. the non-disparagement clause). This provision is especially dangerous if it contains a liquidated damages clause (this is a monetary penalty that you incur for each violation of the provision).
  3. You cannot tell anyone about how much money the company paid you in severance (a.k.a. the confidentiality clause).
  4. You lose the right to sue for violations of law that you don’t even know about yet. This isn’t 100%, however, as you cannot legally waive some claims (like a workers compensation claim).
  5. You usually re-affirm and agree not to discuss the employers trade secrets, secret business practices, and customer lists. This can cause serious problems down the road if you plan to continue working in the same industry or for a competitor.
  6. You usually agree to “cooperate” with the employer down the road if they need assistance with things that arose out of your employment. This usually means you agree to assist the employer if they get sued by someone else. Yikes!
  7. You usually also have to agree that, by accepting the money, the contract does not amount to an admission of wrongdoing by the employer.

Obviously, there is more to the agreement and each agreement is different. But most of the agreements that I’ve reviewed have these terms.

Why is Your Employer Pressuring You to Take the Severance Deal?

Simple, they want to avoid a lawsuit. In today’s litigious world, employers offer money to “problematic” employees at termination in an effort to buy their way out of a lawsuit.

Employers are not required to offer severance. It is not a legal right. Just because your company offered severance to one employee, doesn’t mean they have to offer it to you.

But therein lies the rub. Why is the employer offering money to you? Why didn’t they just fire you? Here are some common reasons:

  • They are worried that you have good legal grounds to sue them, and they are hoping you’ll take the quick cash and move on.
  • They have a company policy that they offer severance to everyone, and you’re just the latest person to get laid off.
  • The employer specifically thinks you are a problematic employee, and they want you to go away. The severance payment is a just a carrot to get rid of you.
  • You may have witnessed something unlawful at work and they want to buy your silence.

We often hear stories about employers terminating a worker, and pressuring them to sign the severance deal right there in the termination room. Don’t do it!

We recommend that you say to them, “Thank you, but I’m going to take this home and read it fully before I sign it. If there is anything I don’t understand, can I email you questions?” Then, once you get home, contact a lawyer for a severance review.

Conclusion

If you’re a California employee and you have decided to have a lawyer look at your severance agreement, I hope you’ll consider hiring my office. You can contact us here.

If you have decided to negotiate on your own for more money (we don’t usually advise this), we have an entire webpage on this. Please watch the video on this page carefully before you decide to take this route.

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I’ve Been Terminated, Does My Employer Have to Give Me My Paid Time Off?

Yes. AbsolutelyCompared to some of the questions employment lawyers deal with this one has a relatively simple answer. That’s not to say, there aren’t nuances (show me a legal answer without nuance, and I’ll buy you a steak dinner). But even the nuances of this question are relatively easy for non-lawyers to grasp.

The simple answer is yes. If your employer has agreed to give you paid time off for vacation, then the unused hours you have at the time you are terminated or quit are legally treated as wages, and must be turned over to you at the time of your separation from the company (typically within 72 hours). 

Keep reading to learn a little about the specific details surrounding this question. If you believe your employer has denied you your rightful wages, or has violated California labor law in some significant way, give our office a callto schedule a consultation. 

What California Law Says About Paid Time Off

First, the bad news. California employers are not required to offer PTO to their employees. It’s a perk some companies choose to offer their workers. However, if your company does offer it, then there is a law in place that guarantees an employer can’t deny the PTO you’ve accrued at the time you quit, are terminated or are laid off. California Labor Code §227.3states the following:

“Unless otherwise provided by a collective-bargaining agreement, whenever a contract of employment or employer policy provides for paid vacations and an employee is terminated without having taken off his vested vacation time, all vested vacation shall be paid to him as wages at his final rate in accordance with such contract of employment or employer policy respecting eligibility or time served…”

Labor Code §227.3

Simply put, if the employer offers paid time off, and you’ve accrued paid time off at the time of termination, you are owed that money just as you would be other wages. 

In a perfect world, employers who part ways with their workers would always do the honorable thing and ensure that they pay everything their former employees are owed. But as anyone who visits this site knows, many employers are far from perfect. Companies often use different tactics when attempting to avoid paying their employees their accrued paid time off. 

Ways That Companies Try to Get Around Paying What They Owe

1 – Not including PTO in the final check– This is the blunt approach. But regardless of whether a worker is fired with cause, laid off, or quits, an employer is required under California law to issue the final check within 72 hours. Some employers might be of the incorrect assumption that they don’t have to include PTO in the final tally. In worst case scenarios employers know they owe this money, but hope they can exploit the employee’s ignorance to save a few bucks.

2 – Misclassifying Employees as Independent Contractors– Every week we get phone calls from employees who feel they have been misclassified as independent contractors.  Companies will often misclassify employees in an attempt to skirt overtime and other labor laws. When determining whether a contractor is in fact an employee, judges consider how much control the company exercises over the workers’ schedule. If your employer offered you paid time off, but denied it at the time of termination because you were classified as independent, you might have some evidence to suggest your employer was exercising control over your hours and you are therefore misclassified. If this sounds like your situation, contact an employment attorney to discuss your case.

3- Docking vacation days as punishment– If you accrued vacation time, you’re entitled to that time as if it were wages earned. Employers can’t take away that time due to performance issues. The only exception is if you have taken unexcused absences. These can be counted toward vacation time.

4- Capping Vacation Time– Employers are allowed to put caps on vacation time. In other words, they can state that an employee is only eligible for a maximum of 10 days’ paid vacation. They are also allowed to institute policies stating when you can take vacation time. But regardless of these rules, if you’ve been terminated or quit, you are entitled to collect the time you have accrued.

5- Use it or Lose it Policies– Some employers might claim that a worker has to use the vacation time they’ve accrued within a specific year or they lose the time at the start of the new year. This is not true. If your employer offers PTO, the time you accrued is yours at the time of termination whether it was earned last week or three years ago. This principal was settled in a 1982 State Supreme Court decision in which an employee was denied his vacation pay for the two years prior to his termination. In its decision, the court wrote:

“Case law from this state and others, as well as principles of equity and justice compel the conclusion that a proportionate right to a paid vacation “vests” as the labor is rendered. Once vested, the right is protected from forfeiture by section 227.3.”

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What Can I Do if My Boss Won’t Pay Up?

If you recently quit your job, or were fired, and your employer is trying to deny your rightfully accrued paid time off, you have options. While it might sound surprising to hear this from a legal website, sometimes the option that doesn’t involve a lawyer is the best approach. You might start by informing your employer of the law and reminding them that California employees are entitled to their accrued paid time off.

If you’re owed a small amount of money, you also might try filing a complaint with California’s Division of Labor Standards Enforcement (DLSE).

However, as mentioned in the previous section, an employer who attempts to withhold an employee’s rightful wages, whether out of ignorance or greed, is apt to have committed other violations of employment law. It could be well worth your time and effort to discuss your employment history with an attorney, to determine whether or not there might be a legal case worth pursuing.

But it’s important to remember that employment cases are subject to statutes of limitation. Be sure to talk about your situation with an attorney sooner rather than later. Once the allotted time to file a case runs out, you lose the chance to file your case forever.If you feel your employer has taken advantage of you and violated California’s labor law, contact the office of Branigan Robertson to schedule a consultation.

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The Ultimate Guide to CA Unemployment Benefits | Eligibility & Money Amount – Part 1 of 3

We get a lot of questions about unemployment benefits in California. Unemployment pay gives people vital financial assistance while they look for a new job. But are you eligible? What if you were terminated? What if you quit your job? Do you still get benefits? How much money will California pay people each week?

Since the majority of people who call our office recently lost their job, we thought we’d put together a three part series answering the most common questions we get about unemployment. This is part one, and it details who is allowed to file for unemployment and how much people may get. The Employment Development Department (“EDD”) is the state agency that administers unemployment payments.

But, we need to be clear about one thing. We do not represent people with their unemployment claims, questions, or issues. We are not “unemployment” lawyers. We practice employment law and help people with wrongful termination, whistleblower, and retaliation cases. So please, don’t call us with unemployment questions. But if you believe your termination was unlawful, we’d be happy to provide you with a free consultation.

Who Can Apply for Unemployment in California

Let’s first talk about who can apply for unemployment. Generally, people who apply for unemployment fall into three camps:

  • Recently terminated
  • Recently laid-off
  • Recently quit their job

While unemployment is meant to help people while they look for a new job, not everyone qualifies. Due to fraudsters and bad people, the EDD has developed strict eligibility requirements that you must meet before they will send you a weekly check. Generally, there are seven requirements.

  1. You must be physically able to work,
  2. You must be available for work,
  3. You must be ready and willing to immediately accept work,
  4. You must be actively looking for work,
  5. You must be totally or partially unemployed,
  6. You must be unemployed through no fault of your own, and
  7. You must have received enough wages during your “base period” to establish a claim.

These eligibility requirements are further explained in the video above. If you want to watch it on YouTube rather than here, here is the link. The page on the EDD regarding eligibility can be found here.

The “base period” issue in #7 is very confusing. Basically, the EDD wants to establish that you’ve earned wages during a 12 month period prior to filing for unemployment. Here is a useful page on the EDD website detailing “base period.

What Does Being Fired “Through No Fault of Your Own” Mean?

This is where a lot of disputes arise. CA Unemployment Insurance Code § 1256 says:

“An individual is disqualified for unemployment compensation benefits if the director finds that he or she…has been discharged for misconduct connected with his or her most recent work.”

CA Unemployment Insurance Code § 1256

But what does “misconduct connected with his or her most recent work” even mean?

For an employee’s act to be considered “misconduct,” the following four elements must be present:

  • The employee owes a material duty to the employer under the contract of employment.
  • There is a substantial breach of that duty.
  • The breach is a wilful or wanton disregard of that duty.
  • The breach disregards the employer’s interests and injures or tends to injure the employer’s interests.

This is still pretty vague. So, instead of going into it with extreme detail, here is a link to a detailed page on the EDD’s website defining misconduct. It covers a lot of scenarios and rulings.

Can You File for Unemployment if You Quit Your Job?

We get this question a lot. Clearly, people who just got fired or laid off can apply for unemployment. But what if you quit your job? Section 1256 also addresses this:

An individual is disqualified for unemployment compensation benefits if the director finds that he or she left his or her most recent work voluntarily without good cause….

CA Unemployment Insurance Code § 1256

Obviously, the definition of “good cause” is where all the fighting is about.

“Good cause” exists for leaving work, when a substantial motivating factor in causing the claimant to leave work, at the time of leaving, whether or not work connected, is real, substantial, and compelling and would cause a reasonable person genuinely desirous of retaining employment to leave work under the same circumstances

EDD Webpage on Good Cause

I’ve emphasized the important parts. Basically, when an objective adjudicator looks at your claim, he or she is going to determine if a reasonable person under the same circumstances would have also quit. If the answer is no, then you don’t get benefits. If the answer is yes, you do.

How Much Money Will Unemployment Pay You Each Week?

The answer is that it depends on how much you earned. The maximum amount (as of 2019) is $1,252.00 a week. The minimum is $50.00. So, how do you get that maximum amount?

Here is a page that explains calculating your payment amount. Here is another online calculator page that lets you put in wage information and get an estimate on your payment amount.

I hope this post has been helpful. Contact us if you have a claim for wrongful termination, harassment, retaliation, or you were a whistleblower.

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Sexual Harassment in Professional Relationships Outside of the Traditional Employment Relationship

As the reckoning of the #MeToo movement continues to make headlines, the public continues to learn about the and strengths and limits of the law. It was recently reported that portions of actress Ashley Judd’s sexual harassment lawsuit against producer Harvey Weinstein had been thrown out. In light of the many women who have accused Weinstein of reprehensible behavior, this wasn’t welcome news.

But though Judd didn’t win on this count, there is still a silver lining for women and men who decide to bring suits against their harassers in the future.

What makes Judd’s case somewhat unique is that she filed her claim, not based on a conventional employment relationship, but on sexual harassment occurring in a “professional relationship” (i.e. the relationship between producer and actress). The harassment allegedly occurred in a hotel room, where a business meeting was scheduled to take place, as opposed to an office. 

This article was written to briefly discuss Judd’s lawsuit against Weinstein as an illustration of harassment law in California, particularly the Unruh Civil Rights Act, which deals with professional relationships. Those who deal with professional relationships outside of a conventional workplace might find particular interest in this post.

If you believe you’ve suffered harassment related to a professional relationship, contact our office to discuss your case. 

Judd’s Lawsuit, The Basics

Ashley Judd’s lawsuit against Harvey Weinstein was first reported on in Spring of 2018. The alleged harassment had occurred back in the mid 1990s. She claimed that she had met with Weinstein in a private hotel room in Beverly Hills to discuss potential film roles and to “build her professional profile.” But Weinstein appeared for this meeting in a bathrobe, asked if she would watch him take a shower, and asked for a massage. Judd said she refused his requests and fled the room.

A year after the alleged incident, Judd was being considered for a role in the Peter Jackson helmed Lord of the Rings trilogy, but didn’t get the part. In 2017, Jackson publicly stated that Weinstein had told him not to hire Judd for the Lord of the Rings part because she was a “nightmare to work with.” Jackson further stated “I now suspect we were fed false information.” As a direct result of this information, Jackson said Judd’s name was removed from the casting list.

After Jackson’s public revelation, Judd sued Weinstein alleging defamation and sexual harassment in professional relationships. While the judge considering the case allowed the defamation portion of Judd’s case to proceed, the sexual harassment portion was thrown out. The reason? The section of law Judd and her attorney sued under did not cover professional relationships in the film industry at the time. Though the law was amended in 2018, the court ruled it could not be applied retroactively. Judge Phillip Gutierrez stated however that his ruling didn’t mean Judd wasn’t harassed. He wrote:

“The Court makes clear that it is notdetermining whether Plaintiff was sexually harassed in the colloquial sense of the term. The only question presented by the current motion is whether the harassment that Plaintiff allegedly suffered falls within the scope of the California statute that she has sued under.”

Though Judd’s harassment claim was thrown out, Weinstein faces a charge of rape in a separate case. 

Sexual Harassment from Professionals Under the Unruh Civil Rights Act | Branigan Robertson

What the Law Says About Professional Relationships

The specific code sited in Judd’s case is California Civil Code § 51.9. The Unruh Civil Rights Act was designed to prevent sexual harassment in relationships taking place outside of the conventional workplace environment. The types of relationships covered prior to 2018 did not include producers or directors, however, this has changed. 

The law states that harassers, including producers and directors, can be held liable if the plaintiff can prove a number of elements, including:

“There is a business, service, or professional relationship with the plaintiff and defendant or the defendant holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a third party.”

The specific professionals listed under this section of law include:

  • Physician
  • Psychotherapist
  • Dentist
  • Attorney
  • Social Worker
  • Real Estate Agent
  • Real Estate Appraiser
  • Investor
  • Accountant
  • Banker
  • Trust officer
  • Financial Planner
  • Loan officer
  • Collection Service
  • Building Contractor
  • Escrow Loan Officer
  • Executor
  • Trustee
  • Administrator
  • Landlord
  • Property Manager
  • Teacher
  • Elected Official
  • Lobbyist
  • Director or Producer

The law also includes any relationship that is substantially similar to those listed above.

What Constitutes Harassment Under The Unruh Civil Rights Act? 

Section 51.9 of the civil code lays out specifically what constitutes harassment. The law states:

“The defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe.”

When Should You Contact an Attorney?

When a person experiences harassment in a conventional workplace, it’s often easier to know when to contact an attorney. Often, a person will seek legal help after they’ve been fired, or when the harassed employee has had enough and picks up the phone. However, in cases involving professional relationships where a company isn’t directly involved, there often isn’t an employment agreement in place.  This is why if you have questions, you should ask an attorney.

The office of Branigan Robertson generally takes cases on a contingency basis, which means the client doesn’t pay out of pocket expenses. Rather, the attorney is paid with a portion of the final settlement. Robertson’s office also provides free consultations.

If you have questions about professional relationships or sexual harassment, contact the office of Branigan Robertson, and find out how he can help.

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