Liability of Companies for Outsourced Workers under California Law

Some businesses in California use other companies to provide their workers. The company that provides the workers is sometimes referred to as a “Labor Contractor.” Unfortunately, Labor Contractors may, for a number of reasons, stop paying their workers. The question then is whether the workers can sue the business that used the Labor Contractor for their unpaid wages.

In 2014, California enacted a statute to address this situation: Labor Code section 2810.3.  (more…)

California’s Equal Pay Act — An Introduction

This post provides basic information about California’s Equal Pay Act, which is found in Labor Code sections 1197.5 and 432. The Equal Pay Act (or “EPA”) prohibits employers from paying employees less than employees of the opposite sex for equal work. As January 1, 2017, it also prohibits an employer from paying its employees less than employees of another race, or of another ethnicity, for substantially similar work.

Basic Provisions of California’s EPA

In 2015, California’s Fair Pay Act amended and strengthened the Equal Pay Act and underscored California’s commitment to achieving gender pay equity by doing the following, among other things:

• Requiring equal pay for employees who perform “substantially similar work.”
• Eliminating the requirement that any employees being compared work at the “same establishment.”
• Making it more difficult for employers to justify unequal pay.
• Clarifying that it is illegal for an employer to retaliate against employees who seek to enforce the EPA.
• Making it illegal to prohibit employees from discussing or asking about their co-workers’ wages.

These provisions were effective as of January 1, 2016.

Recent Amendments to California’s EPA

Recent years have brought additional protections to California workers.

For example, as of January 1, 2017, California law prohibits an employer from paying its employees less than employees of another race, or of another ethnicity, for substantially similar work. In addition, California law prohibits employers from using prior salaries to justify any sex-, race-, or ethnicity-based pay difference.

Critically, as of January 1, 2018, the Equal Pay Act covers public employers. Additionally, Labor Code section 432.3 prohibits employers from seeking applicants’ salary history information.

Employer Defenses under California’s EPA

Employers can defeat Equal Pay Act claims by proving that a difference in pay is due to:

• Seniority;
• Merit;
• A system that measures production; and/or
• A “bona fide factor other than sex, race, or ethnicity.”

To prevail on this type of defense, an employer must show that it reasonably applied one or more of these factors and that the factor accounts for the entire difference in wages.

Critically, however, employers cannot justify pay differences based on past salaries. Employers are permitted to base compensation on a current employee’s current salary. However, any wage differential resulting from that compensation decision must be justified by one or more of the reasons set forth above.

Deadlines for Filing Claims under California’s EPA

In order to proceed on a claim under California’s EPA, an employee must file their claim within two years of the date of the violation. If the employer has acted willfully, then the employee has up to three years to file. Every paycheck that contains unequal pay serves as a separate violation of the EPA.

If you have questions about whether you are being discriminated against with respect to your pay, please feel free to contact Hunter Pyle Law and make use of our free and confidential intake process. We can be reached at inquire@hunterpylelaw.com or at www.hunterpylelaw.com.

Paid Sick Leave under California Law and PAGA

California’s Healthy Workplaces, Healthy Families Act of 2014 (Healthy Workplaces Act), which is found at Labor Code § 245, requires certain employers to provide their employees with at least three paid sick days per year. Employers that violate this law may be subject to a host of damages, including liquidated damages and civil penalties.

A recent case from the Fourth District Court of Appeal found that employees could bring a claim under California’s Private Attorneys General Act (PAGA) for violations of the Healthy Workplaces Act. (more…)

Meal Breaks for Public Sector and UC Health Care Workers

California law now guarantees meal breaks and rest periods to public sector and UC workers who provide or support direct patient care in a hospital, clinic, or public health setting.

Private sector nurses have been guaranteed meal breaks and rest periods for some time. However, public sector nurses have not enjoyed these basic protections, even though they perform the same job duties. (more…)

Disability Harassment is Illegal under California Law

Under California’s Fair Employment and Housing Act (“FEHA”), it is an unlawful for an employer or any other person to harass an employee due to their physical disability, mental disability, or medical condition.[1] Unlike claims for discrimination, liability for harassment applies to “any person” and thus extends to individuals, including individual supervisory employees.[2]

In order for harassment to be actionable under the FEHA, the conduct must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”[3] Notably, the conduct need only be severe or pervasive.[4] The words “severe” and “pervasive” have no peculiar meanings under the law. The adjective “severe” is defined as “strongly critical and condemnatory” or “inflicting pain or distress.”[5] The verb “pervade” is defined as “to become diffused throughout every part of.”[6]

As to whether the alleged conduct is sufficiently severe or pervasive, a jury should consider the totality of circumstances.[7] The relevant jury instruction identifies the following factors that may be considered, among others: “(a) The nature of the conduct; (b) How often, and over what period of time, the conduct occurred; (c) The circumstances under which the conduct occurred; (d) Whether the conduct was physically threatening or humiliating; and (e) The extent to which the conduct unreasonably interfered with an employee’s work performance.”[8]

In Caldera v. Department of Corrections and Rehabilitation, the court affirmed a jury verdict in favor of the plaintiff on a claim for disability harassment.[9] The plaintiff alleged that he was mocked for his stutter multiple times in front of others.[10] To make matters worse, the harasser’s conduct had been broadcast over the prison’s radio system, and heard by about 50 employees.[11] Other incidents of harassment had occurred in front of the plaintiff’s co-workers.[12] Additionally, the plaintiff’s psychologist had testified that the harassment had caused the plaintiff to experience psychological disorders.[13] This evidence was more than enough to support the jury’s determination that the harassing conduct had been both severe and pervasive, although either would have been sufficient.[14]

[1] Cal. Gov’t Code § 12940(j)(1).

[2] Janken v. GM Hughes Electronics, 46 Cal.App.4th 55, 65 (1996).

[3] Nazir v. United Airlines, Inc., 178 Cal.App.4th 243, 263-264 (2009).

[4] Ramirez v. Wong,188 Cal.App.4th 1480, 1488 (2010).

[5] Webster’s Collegiate Dictionary (11th ed. 2007) p. 1140, col. 2.

[6] Id. at p. 925, col. 2.

[7] Fisher v. San Pedro Peninsula Hosp., 214 Cal.App.3d 590, 609-610 (1989).

[8] CACI No. 2524.

[9] Caldera v. Dep’t of Corr. & Rehab., 25 Cal.App.5th 31, 38–43 (2018).

[10] Id. at 34.

[11] Id. at 35.

[12] See id. at 34-36.

[13] Id. at 35.

[14] Id. at 39.

Disability Discrimination at Work is Illegal under California Law

California’s Fair Employment and Housing Act (“FEHA”) makes it unlawful to refuse to hire, discharge, or discriminate against a person because of their physical or mental disability or medical condition.[1] Courts have interpreted the term “to discriminate” as used in that context to mean “to treat differently.”[2] An employer “has treated an employee differently ‘because of’ a disability when the disability is a substantial motivating reason for the employer’s decision to subject the employee to an adverse employment action.”[3] (more…)

Your Rights at Work under California Disability Law

California’s Fair Employment and Housing Act (“the FEHA”) and related regulations promulgated by the Fair Employment and Housing Council provide important protections to employees and applicants with disabilities.[1] These protections extend to persons who are disabled or considered to be disabled, as well as to those who are associated with people who are disabled.[2] (more…)

Retaliation against Employees for Requesting Disability Accommodations: Your Rights under California Law

Section 12940(h) of California’s Fair Employment and Housing Act (FEHA) provides that it is illegal for an employer to retaliate against an employee who has opposed any practices that violated the FEHA. Section 12940(m)(2), enacted in 2015, further provides that it is illegal for an employer to retaliate or otherwise discriminate against a person for requesting accommodation for a disability.[1] That protection applies regardless of whether the request for accommodation was granted or not.

Pursuant to these sections, employers violate California law if they retaliate against an employee who requests an accommodation. That is true both in cases where the employer grants the accommodation and in cases where the accommodation is denied. If the employee has a reasonable belief that the way in which her request for accommodation was handled was unlawful, and complains about it, and is retaliated against for doing so, that is also a violation of the FEHA.

The interplay between these sections was explored in Martinez v. Costco Wholesale Corporation (S.D. Cal. 2020) 481 F.Supp.3d 1076. There, the plaintiff had requested accommodations involving her work-related travel to Mexico. The employer denied her requests, which she opposed. The employer then allegedly retaliated against her for requesting the accommodations and for complaining when her requests were denied. The court concluded that the plaintiff had sufficiently alleged that she had engaged in a protected activity under the FEHA and denied the defendant’s motion for summary adjudication on the plaintiff’s claim for retaliation.

In Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, the court considered the related question of whether notifying an employer of a medical condition, without more, constituted a protected activity under the FEHA. There, the plaintiff had notified the University of California, her employer, that she had a heart condition. The court found that merely providing such notice was not protected activity under the retaliation provisions of the FEHA because it did not involve engaging in opposition to any practices forbidden under the FEHA. Nor did it involve the filing of a complaint, testifying, or assisting in any proceeding under the FEHA.

To be clear, however, while such notification may not constitute protected activity for the purposes of a retaliation claim, it may trigger a duty on the part of the employer to engage in an interactive process in order to determine whether there are reasonable accommodations available that could assist the employee. See Govt. Code § 12940(n). The duty to engage in that process will be explored further in other posts on this blog.

Finally, in Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, the court addressed the question of whether a plaintiff’s support for the rights of the disabled community, as well as his opposition to the elimination of a program that benefitted that community, were protected activities under the FEHA. The court found that the actions that the plaintiff opposed were not violations of the FEHA, which was fatal to his claim: “That [plaintiff] opposed what he viewed as unwise or even improper actions by the Department is not enough to make his opposition a protected activity.”   5 Cal.App.5th at 382.

If you have questions about reasonable accommodations or retaliation in the workplace, please feel free to contact the attorneys at Hunter Pyle Law. We can be reached at (510) 444-4400 or at inquire@hunterpylelaw.com.

[1] Prior to that amendment, courts had held that the FEHA did not prohibit retaliation against employees for requesting accommodations. See Rope v. Auto–Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 652–653 (Under FEHA and related regulations, “a mere request—or even repeated requests—for an accommodation, without more,” was not protected activity.)

Disability Harassment in California — Your Rights at Work

California’s Fair Employment and Housing Act (FEHA) prohibits employers[1] from harassing employees, applicants, unpaid interns, and volunteers because of their “physical disability, mental disability, medical condition, [or] genetic information,” among other things. Gov. Code, § 12940(j)(1). It separately provides that employers are liable when they fail to take all reasonable steps necessary to prevent harassment from occurring. Gov. Code, § 12940(k).

Employers are strictly liable for disability harassment committed by their agents or supervisors.[2] State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1034. Employers may be liable for harassment committed by employees who are not agents or supervisors if the employer, or its agents or supervisors, knows or should have known about the conduct and failed to take “immediate and appropriate corrective action.” Gov. Code, § 12940(j)(1). Employers are also responsible for the acts of nonemployees who engage in disability harassment when the employers, or its agents or supervisors, know or should have known of the conduct and failed to take immediate and appropriate corrective action. Ibid.

Employees who commit disability harassment are personally liable for that harassment. Gov. Code, § 12940(j)(3). Liability on the part of the harasser lies regardless of whether the employer knew or should have known about the conduct. Ibid.

In order to prevail on a claim for disability harassment, a plaintiff must show that the conduct was “severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees” because of their disability. Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588. However, the McDonnell Douglas burden-shifting framework does not apply to such claims because “there is no possible justification for harassment in the workplace.” Phan v. CSK Auto, Inc. (N.D. Cal., Aug. 27, 2012, No. 11-CV-02327 YGR, 2012 WL 3727305, at *10, fn. 11. Therefore, an employer cannot offer a legitimate nondiscriminatory reason for it.

The parameters of a disability harassment claim were explored in Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908. The plaintiff in that case was a severely obese woman who had worked at the Berkeley Tennis Club for more than 15 years.[3] After she was terminated, she brought suit, including claims for disability harassment based upon comments that had been made about her weight. These comments included the following:

1. After the plaintiff indicated that it might be a problem to get a properly sized uniform for her because she shopped in specialty stores, the club’s general manager responded by laughing and mockingly saying, “Oh yeah, that’s right.”
2. In November 2012, the club’s general manager asked the plaintiff whether she had thought about having weight-loss surgery.
3. The plaintiff heard the general manager tell the kitchen staff on one occasion not to give her extra food because she did not need it.

In addition, the plaintiff alleged that the defendant had ordered shirts that were too small for her and then disciplined her for resisting the uniform policy. She further alleged that she was paid less than other employees and denied extra hours and other positions within the company.

The trial court granted summary adjudication of the plaintiffs’ claim for disability harassment, among other claims. On appeal, the First District Court of Appeal reversed, finding that there was a triable issue of material fact as to the cause of action for disability harassment. The court noted that the comments mentioned above were not sufficiently severe nor sufficiently pervasive enough to support a FEHA harassment claim. However, viewed in context with other actions taken by the club, and while it was a “close call,” there was sufficient evidence to reverse the grant of summary adjudication. 18 Cal.App.5th at 940–941.

Furthermore, and in addition to prohibiting disability-based harassment, the FEHA also prohibits harassment based upon associating with individuals with a disability. See Govt. Code section 12926(o).[4] That was the conclusion in the unreported decision of O’brien v. California Department of Corrections and Rehabilitation (Cal. Ct. App., May 10, 2021) 2021 A.D. Cases 172611. In O’brien, the court considered the type of association necessary to support such a claim and declined to limit it to situations in which the plaintiff had a personal relationship with the disabled individual.

The attorneys at Hunter Pyle Law have handled a wide variety of disability-related cases. If you think your employer may have violated your rights, please feel free to contact us at (510) 444-4400, or at inquire@hunterpylelaw.com.

[1] Government Code section 12940(j)(4)(A) provides that for purposes of section 12940(j) only, “employer” means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. However, the term “employer” does not include a religious association or corporation not organized for private profit, except as provided in Government Code section 12926.2.

[2] State Dept. of Health Services further held that the avoidable consequences doctrine applies to damage claims under the FEHA. 31 Cal.4th at 1034. Under that doctrine plaintiffs are unable to recover damages that the plaintiff could have avoided with reasonable effort and without undue risk, expense, or humiliation. Ibid.

[3] The opinion notes that the plaintiff’s weight interfered with several daily life functions, including bathing, walking, and using transportation. Furthermore, she was unable stand for more than an hour, could not walk more than a mile at a time, and often experienced significant shortness of breath from engaging in basic activities. Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 919.

[4] Government Code section 12926(o) provides in relevant part as follows: “’[P]hysical disability, mental disability’…includes a perception that the person is associated with a person who has, or is perceived to have, any of those characteristics.”

Meal Break Violations in California: The First 5 Hours Rule and the Importance of Time Keeping Records

This post explores two questions that arise with respect to meal break laws in California: What is the “first five hours” rule, and what role do an employer’s time keeping records play in meal break lawsuits. As explained below, the California Supreme Court has resolved these questions in a way that protects workers and ensures that they get the meal breaks that they are entitled to under law.

The First Five Hours Rule

The first five hours rule is pretty simple. Under normal circumstances, if an employee works more than five hours in a workday, an employer must provide a 30 minute, uninterrupted meal break. In the seminal case of Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1042 (Brinker), the California Supreme Court clarified that this meal period must occur within the first five hours of work.

That holding in Brinker is grounded in California Labor Code section 512(b), which provides as follows:

Notwithstanding subdivision (a), the Industrial Welfare Commission may adopt a working condition order permitting a meal period to commence after six hours of work if the commission determines that the order is consistent with the health and welfare of the affected employees.

The language in section 512(b) thus indicates that section 512(a) was intended to mandate that the first meal period ordinarily occur during the first five hours of work. Otherwise, there would be no reason for section 512(b). As the Court concluded, “Accordingly, first meal periods must start after no more than five hours.” Id.

The Role of Employer Time Keeping in Meal Break Cases

In the more recent case of Donohue v. AMN Services, LLC (2021) 11 Cal.5th 58, the California Supreme Court considered the important question of what role employers’ time keeping records play in meal period litigation. There, the Court adopted “in full” the concurring opinion of Justice Kathryn Werdegar in Brinker, holding that employers have an obligation “both to relieve their employees for at least one meal period for shifts over five hours” and, critically,  to record having done so.

Justice Werdegar’s concurrence is consistent with a long history of requiring employers to keep certain records regarding their employees and to face certain consequences if they fail to do so. Both the United States Supreme Court and California courts have adopted this approach. See, for example,  Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 686–688; Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1536, fn. 11;and Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 961 (“[W]here the employer has failed to keep records required by statute, the consequences for such failure should fall on the employer, not the employee.”).

In Donohue, the California Supreme Court took this analysis one step further. There, the Court explained that if an employer’s time keeping records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided. 11 Cal.5th 58.

What This Means for You

If you are working shifts that are longer than five hours, then you are entitled to a 30 minute uninterrupted meal break. That meal break must come within the first five hours of your shift. Otherwise, your employer is breaking the law and you are entitled to compensation at the rate of one hour of your regular rate of pay for each workday where the violation occurs.

Furthermore, if your timekeeping records show either no meal breaks or short meal breaks within your first five hours of work, then that will serve to create a rebuttable presumption that you did not receive a meal break as required by law. In other words, it will be very difficult for your employer to show that you were offered a meal break but decided to waive it.

The attorneys at Hunter Pyle Law have handled meal break claims throughout California, from San Diego to Los Angeles to Oakland and San Francisco to Sacramento. If you have questions about your meal breaks at work, feel free to contact us at inquire@hunterpylelaw.com or at (510) 444-4400.