Hunter Pyle Law Successfully Opposes Motion to Compel Arbitration

In a hard-fought victory, Hunter Pyle Law recently prevailed on opposing an employer’s Motion to Compel Arbitration. Hunter Pyle Law filed a wage and hour class action and representative action pursuant to the Private Attorneys General Act (“PAGA”) on behalf of our client. The complaint seeks relief for nurses who worked throughout the state of California and alleges that the employer committed various wage and hour violations dating back to 2017.

The case was pending for over a year when the employer attempted to compel the case to arbitration based on an arbitration clause in the employee’s offer letter. The Court agreed with Hunter Pyle Law that the arbitration agreement was unconscionable, and therefore, unenforceable. If the employer’s Motion to Compel Arbitration was successful, it would have extinguished our client’s class action and PAGA allegations.

Hunter Pyle Law vigorously opposed the employer’s Motion to Compel Arbitration, thereby preserving our client’s class and representative action in court.

If you have faced workplace violations, you can count on the attorneys at Hunter Pyle Law to be your zealous advocates.

What is a “Disability” under California Law

Under California law, a “disability” is broadly construed. In the employment law context, an individual qualifies as having a “disability” under California law if the individual:

1. Has a physical disability, mental disability, special education disability, or medical condition that limits one of the major life activities of the individual; and

2. Has a record or history of the disability or condition that is “known to the employer.”

Once a court finds that an individual has a qualifying disability under the first prong, it will then consider whether that disability “limits” one of their “major life activities.” This is a significant difference from the Americans with Disabilities Act under federal law, which requires a disability to “substantially limit” a major life activity.

Under California’s “limits” standard, the disability must make a major life activity “difficult” for the employee. California law identifies various “major life activities,” including physical, mental, and social activities, as well as working.

As to the second prong, having a record or history of the disability or condition “includes previously having, or being misclassified as having, a record or history of a mental or physical disability or special education health impairment of which the employer or other covered entity is aware.” However, generally speaking, all that is required for notice is that that the plaintiff show that the individual who took the adverse action knew about the plaintiff’s disability. See Soria v. Univision Radio L. A., Inc., 5 Cal.App.5th 570, 592 (2016) (citing Avila v. Continental Airlines, Inc., 165 Cal.App.4th 1237, 1247 (2008)). For example, an employer can know about a disability if the employee tells the employer, if the employer observes the condition, or is told about it by a third party. On the other hand, simply calling in to work sick without more is not sufficient to prove an employer’s knowledge of a disability. See Avila v. Continental Airlines, Inc., 165 Cal.App.4th 1237, 1249 (2008).

California law also protects individuals from discrimination due to perceived or potential disabilities. This includes when an individual is erroneously or mistakenly believed to have a physical or mental condition that limits a major life activity. A “perceived potential disability” means the condition has no present disabling effect but may, at some point, become a mental or physical disability or special education disability. Perceived or potential disabilities are discussed in more detail here. In some circumstances, California law also protects individuals who are associated with a person who has or is perceived to have a disability. Associational disability claims are discussed in more detail here.

California Law Protects Employees with Potential or Perceived Disabilities

While California law protects employees who are disabled, it also protects workers whose employers perceive them to have a physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling. See Cal. Gov’t Code § 12926.1(b). In other words, California law protects workers from adverse employment actions because their employer “erroneously or mistakenly believed” them to have or have had a disability. See Cal. Gov’t Code § 12926.1(d).

For example, in one case, Moore v. Regents of Univ. of Cal,. 248 Cal.App.4th 216 (2016), an employee had a heart condition and wore a “LifeVest” to work that served as an external defibrillator. While she assured her employer that she would be able to carry out her job duties, in response, her employer stated that she was a “liability to the department.” Thereafter, her employer terminated her employment. The Court found that the employer’s “liability to the department” statement could be viewed as evidence of discriminatory animus of a perceived disability.

Moreover, in another case, Soria v. Univision Radio L. A., Inc., 5 Cal.App.5th 570 (2016), an employee had a tumor that was ultimately determined to be malignant. It was undisputed that the tumor did not interfere with her ability to perform her job duties. However, she was eventually terminated. The Court found that the employee still qualified as disabled because when she was terminated, her tumor had the potential to be or become malignant or could continue to grow to limit a major life activity. The Court reasoned: “The Legislature intended to protect employees from adverse employment action by employers concerned about what may happen in the future.”

If you believe your employer is taking an adverse employment action against you because of a potential or perceived disability please feel free to call the experienced workers’ rights attorneys at Hunter Pyle Law, and to make use of our free and confidential initial intake process.  We can be reached at (510) 444-4400, or at inquire@hunterpylelaw.com.

California Law Protects Workers Who Are Associated With a Disabled Person

California law prohibits an employer from taking an adverse action against an employee based on the employee’s association with a disabled person. See Cal. Gov’t Code § 12926(o). This is referred to as an “associational disability” claim.

To prove an associational disability claim, an employee must prove that: (1) the “disability” from which they suffer is their association with a disabled person; (2) they were otherwise qualified to do the job without reasonable accommodation; and (3) their association with a disabled person was a substantial motivating factor for the employer’s adverse employment action.

Courts recognize at least three types of disability-based associational discrimination. These are sometimes referred to as (1) “expense”; (2) “disability by association”; and (3) “distraction.” Some examples are as follows:

• “Expense”: a spouse has a disability that is costly to the employer because the spouse is covered by the company’s health plan;
• “Disability by association”: the employee’s homosexual companion is infected with HIV and the employer fears that the employee may also have become infected, through sexual contact with the companion;
• “Disability by association”: one of the employee’s blood relatives has a disabling ailment that has a genetic component and the employee is likely to develop the disability as well (maybe the relative is an identical twin);
• “Distraction”: the employee is somewhat inattentive at work because his spouse or child has a disability that requires his attention, yet not so inattentive that to perform to his employer’s satisfaction he would need an accommodation, perhaps by being allowed to work shorter hours.”

In one case, Castro–Ramirez v. Dependable Highway Express, Inc., 2 Cal.App.5th 1028, 1044 (2007), an employee administered daily dialysis for his son. The employee’s new supervisor suddenly changed his work schedule so that he could not be home at night to administer the dialysis. When the employee refused to work the night shift, his employer terminated him. The court found that these facts could establish an illegal termination if the employee’s association with his disabled son was a substantial motivating factor for terminating him.

In another case, Rope v. Auto–Chlor System of Washington, Inc., 220 Cal.App.4th 635, 656–657 (2013), an employee requested a leave of absence from work to donate his kidney to his sister. The employee asked his employer to approve an extended leave of absence and pay him pursuant to a newly enacted law. His employer then terminated him two days before that law went into effect. The Court found these circumstances to be a “reasonable inference” that his sister’s disability was a substantial factor motivating the employer’s decision to terminate the employee.

Associational disability claims are not limited to the examples above and courts review these claims on a fact-specific basis.

If you believe your employer has taken an adverse employment action against you because of your association with someone who has a disability please feel free to call the attorneys at Hunter Pyle Law, and to make use of our free and confidential initial intake process.  We can be reached at (510) 444-4400, or at inquire@hunterpylelaw.com.

California Resident Managers’ Workplace Rights

Live-in resident managers face a unique challenge: their bosses are often also their landlords.

California law requires an individual to live on the premises if a building has sixteen (16) or more units. Cal. Code Regs. tit. 25, § 42. These individuals are often referred to as resident managers. Resident managers carry out various job duties, including but not limited to, collecting rent, assisting tenants, facilitating repairs, and attending to emergencies in the building.

This makes resident managers especially vulnerable to workplace violations such as wage theft and retaliation. In most instances, when resident managers are fired, their landlord can evict them immediately.

This is because housing protections that apply to tenants do not usually apply to resident managers, who are often considered to be “licensees”.

Employers therefore often use the threat of losing one’s housing to keep resident managers from complaining about mistreatment at work. However, the law protects resident managers from this sort of retaliation.

Resident managers should be aware of the rights they have to be (1) paid correctly; and (2) protected from retaliation if they complain that they are not.

Resident Managers Should Keep Track Of All Hours Worked.

In the case of resident managers who are required to reside on the employment premises, “hours worked” means “that time spent carrying out assigned duties shall be counted as hours worked”.

Wage Order 5 § (2)(k). For resident managers, “hours worked” does not include on-call time, but only “time spent carrying out assigned duties” for resident managers. Isner v. Falkerberg, 160 Cal. App. 4th 1393, 1399 (2008).

Although resident managers generally bear the burden of proving the hours they work, the burden shifts when the employer has failed to keep accurate records.  Under California law, where the employer has failed to keep statutorily mandated time records, the burden then shifts to the employee for a best faith estimate of the hours they worked. Hernandez v. Mendoza, 199 Cal. App. 3d 721, 727 (1988).

Resident managers should keep track of all time they spend working, even if their employer does not require them to complete time records.

Employers Must Pay Resident Managers For All Hours Worked.

A resident manager must be paid at least the minimum wage for all hours worked. See Lab. Code  § 1197; Wage Order 5 § 4. Resident managers may not enter into an agreement to work for less than the minimum wage.  Lab. Code § 1194(a).

Unique Wage And Hour Laws Apply To Live-In Resident Managers In California.

There are two common ways employers pay resident managers: (1) using the value of the resident manager’s rent to pay their wages (also called a “rent credit”); or (2) offering the resident manager reduced rent. In each case, the employer must always provide the resident manager a paystub.

However, employers often do not follow the law to pay resident managers correctly.

When an Employer Can Use the Value of Rent to Pay a Resident Manager’s Wages (Also Known as a “Rent Credit” or “Lodging Credit”).

An employer may only use the value of rent to pay a resident manager’s wages if:

• The resident manager does not pay any rent; and
• There is a voluntary written agreement between the employer and the resident manager regarding the rent credit; and
• The living accommodations are available to the employee for full-time occupancy, must be adequate, decent, and sanitary according to usual and customary standards and the resident manager shall not be required to share a bed; and
• The rent credit used to pay a resident manager’s earned wages is not more than the following (which changes every year):

Wage Order 5 § 10(C).

For example, a resident manager who works 40 regular hours in a week in San Francisco is entitled to be paid at least the minimum wage (currently $15.59 per hour) for the work performed. Therefore, in this example, the resident manager must be paid a total of $623.60 for that week (40 hours x $15.59).

However, if the resident manager is provided with a room that is occupied alone, the employer may only credit a maximum of $61.13 in rental value to the resident manager’s wages. Therefore, the employer must still pay the resident manager $562.47 in wages for their work ($623.60 – $61.13).

Legal Requirements in Order to Charge a Resident Manager Rent

Employers may charge a resident manager rent if:

• There is a voluntary written agreement between the employer and the resident manager regarding the amount of rent; and
• The rent does not exceed 2/3 of the fair market rental value of the apartment; and
• The employer does not use any value of rent to pay a resident manager’s wages.

See Lab. Code § 1182.8.

For example, if an employer charges a resident manager 2/3 of the fair market rental value, then the employer must pay the resident manager all of their wages, in full, in a separate paycheck. That means the employer cannot apply any “rent credit” to pay the resident manager’s wages, as discussed above.

• Moreover, in the event there is no written agreement, and as a condition of employment, the resident manager must live at the place of employment or occupy quarters owned or under the control of the employer, then the employer may not charge a resident manager rent in excess of the values listed in the lodging table above.

See Wage Order 5 § 10(E).

Employers May Not Retaliate Against Resident Managers Who Speak Out About Their Legal Rights

The law protects resident managers from retaliation if they complain that they are owed wages or about other workplace violations. See Lab. Code §§ 98.6, 1102.5(b). Employers are liable for penalties of $10,000 per employee per violation, and other damages, for retaliatory conduct.

If you have been subject to wage theft or retaliation in the workplace, please feel free to call the experienced workers rights attorneys at Hunter Pyle Law, and to make use of our free and confidential initial intake process.  We can be reached at (510) 444-4400, or at inquire@hunterpylelaw.com.

Proving Discrimination and Harassment Cases in California

In a victory for workers’ rights, the California Legislature enacted California Government Code section 12923 as a statement of legislative findings and purpose regarding harassment and discrimination claims brought under the Fair Employment and Housing Act (“FEHA”). The legislation was enacted to “provide all Californians with an equal opportunity to succeed in the workplace.” The Legislature noted section 12923 “should be applied accordingly by the courts.” The legislation went into effect on January 1, 2019. Accordingly, courts have cited section 12923 in analyzing employees’ discrimination and harassment cases throughout the past year.

Employees who have suffered workplace harassment and discrimination should be aware of section 12923’s impact in five different ways:

• Section 12923 substantially modified the severe or pervasive standard for harassment claims to require a reasonable person to find “that the harassment so altered working conditions as to make it more difficult to do the job.” Gov. Code § 12923(a).

Prior to this modification, employees were required to prove that the harassing conduct unreasonable interfered with their work performance. Now employees do not need to prove that their productivity declined to establish that the harassing conduct was severe or pervasive.

In response to section 12923, the Judicial Council of California Civil Jury Instructions (“CACI”) revised its jury instructions to define what conduct is considered “severe and pervasive” to establish a harassment claim. The revision added: “[Name of plaintiff] does not have to prove that [his/her] productivity has declined. It is sufficient to prove that a reasonable person who was subjected to the harassing conduct would find that the conduct so altered working conditions as to make it more difficult to do the job.” See CACI No. 2524.

Accordingly, employees can prevail by showing that the harassing conduct altered their working conditions so as to make it more difficult to do the job. See Hyams v. CVS Health Corporation, No. 18-cv-06271-PJH 2019 WL 6827292, at *5 (N.D. Cal., Dec. 12, 2019) (granting defendant’s motion for summary judgment because the plaintiff did “not declare or otherwise present any evidence that the statements “altered working conditions as to make it more difficult to do the job.”).

• Section 12923 clarified that a “single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment.” Cal. Gov. Code § 12923(b).

Prior to this modification, courts consistently held that harassment is not pervasive if it is occasional, isolated, sporadic or trivial. However, in response to section 12923, CACI revised its jury instructions in defining what conduct is considered “severe and pervasive” to establish a harassment claim. The 2019 revision added: “[A single incident can be sufficiently severe or pervasive to constitute harassment.]” See CACI No. 2524.

Since 2019, courts have applied section 12923(b) accordingly in denying pre-trial dispositive motions. See Milner v. TBWA Worldwide, Inc., No. CV 19-08174 DSF (AFMx), 2019 WL 5617757, at *4 (C.D. Cal., Oct. 30, 2019) (“Under California law, even one instance of harassment can be sufficient” to establish a FEHA age-based harassment claim); seealso Doe v. Wells Fargo Bank, N.A., No. CV 19-5586-GW-PLAx, 2019 WL 3942963, at *6 (C.D. Cal. Aug. 19, 2019) (citing Cal. Gov. Code § 12923(b) in explaining “what Defendants fail to recognize is that even one instance of harassment can be sufficient” for a viable FEHA harassment claim against an individual defendant.).

• Section 12923 directs courts to consider the totality of the circumstances in determining a hostile work environment and specifically rejects the “stray remarks” doctrine. Cal. Gov. Code § 12923(c).

The Legislature explained, “a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.” See Concialdi v. Jacobs Engineering Group, No. CV 17-1068 FMO (GJSx), 2019 WL 3084282, at *10  (C.D. Cal. Apr. 29, 2019) (denying Defendant’s motion for summary judgment for age-based discrimination even if Plaintiff’s cause of action was based on stray remarks not made in the direct context of the decisional process.”).

• Section 12923 makes it clear that the same legal standard should apply to all sexual harassment cases regardless of the type of workplace. Cal. Gov. Code § 12923(d).

The Legislature elaborated: “It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past.” Id.

• Section 12923 explained that: “Harassment cases are rarely appropriate on summary judgment” and agreed that “hostile working environment cases involve issues ‘not determinable on paper.’” Cal. Gov. Code § 12923(e).

This provision is especially important because employers often file dispositive motions in harassment cases. See Loi Ngo v. United Airlines, Inc., No. 19-cv-04277-JCS, 2019 WL 6050832, at *6 (N.D. Cal. Nov. 15, 2019) (citing section 12923(e) in granting plaintiff’s motion for remand finding plaintiff did not fraudulently join an individual defendant.).

Employees should keep these powerful provisions in mind when pursuing discrimination and harassment claims under FEHA.

If you have been subject to harassment or discrimination in the workplace, please feel free to call the experienced workers rights attorneys at Hunter Pyle Law, and to make use of our free and confidential initial intake process.  We can be reached at (510) 444-4400, or at inquire@hunterpylelaw.com.