California Supreme Court Rules that Whistleblower Protections Apply to Employees Who Disclose Illegal Conduct Already Known to an Employer

In 1984, the Legislature enacted California Labor Code section 1102.5 in order to protect whistleblowers from retaliation against their employers.  The law was amended in 2003 and again in 2013, to add protections afforded to employees.  In 2013, specifically, the Legislature amended section 1102.5(b), so that an employee’s disclosure “to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or non-compliance” was deemed protected activity.  On May 22, 2023, the California Supreme Court addressed whether reporting a violation that is already known to an employer or agency constitutes a protected disclosure under Labor Code section 1102.5(b) in People ex. Rel. Lilia Garcia-Brower v. Kolla’s, Inc., S269456. (more…)

An Employer’s Duty to Provide a Reasonable Accommodation

Under the Fair Employment and Housing Act (FEHA), an employee must generally provide an employer notice of the need for a reasonable accommodation for his or her disability.  Achal v. Gate Gourmet, Inc., N.D. Cal. 2015, 114 F.Supp.3d 781.  There is no one set way to request an accommodation, but an employer is not required to provide a reasonable accommodation until it is aware of the employee or applicant’s disability and physical limitations. (more…)

An Employer’s Duty to Provide a Reasonable Accommodation

Under the California Fair Employment and Housing Act (FEHA), an employer must make a reasonable accommodation for the known disability of an employee.  Cal. Gov. Code §12940(m); Department of Fair Employment and Housing v. Lucent Technologies, Inc. (9th Cir. 2011) 642 F.3d 728, 743. Failure to reasonably accommodate a disabled employee or applicant is a violation of the FEHA in and of itself.  Brown v. Los Angeles Unified School District (2021) 60 Cal. App. 5th 1092, 1107;  Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 745. (more…)

The EEOC’s Guidelines on an Employer’s Duty to Provide Reasonable Accommodation

Under Title I of the Americans with Disabilities Act (“ADA”), individuals with disabilities are entitled to changes in the work environment, also known as “reasonable accommodations,” that allow them to enjoy the same opportunities in the workplace as individuals without disabilities.  The Equal Employment Opportunity Commission (“EEOC”) has issued enforcement guidance on reasonable accommodations under the ADA in order to address the rights and responsibilities of employers and individuals with disabilities regarding reasonable accommodations.  Highlights from the guide are set forth below. 

Employers are under a statutory duty to provide a reasonable accommodation in order to remove barriers that could prevent individuals with disabilities from performing jobs they might otherwise be able to do. These barriers might be physical or procedural.  However, an employer does not have to provide personal use items that an employee needs both on and off the job as a reasonable accommodation.  Examples of this include wheelchairs and hearing aids.   

Employers must provide accommodations whether employees with disabilities work part-time, or are considered probationary.  

There are three types of reasonable accommodations under the ADA: 

1. Modifications to the job application process that allow qualified applicants with disabilities to be considered for a position; 
2. Adjustments to the workplace or environment that allows an individual with a disability to perform the essential functions of a position; and 
3. Modifications that permit an employee to enjoy the same benefits and privileges of employment as individuals without disabilities.  

Examples of accommodations could include making facilities accessible; restructuring jobs; modifying schedules, work equipment or policies; or reassigning an employee to a vacant position. The important consideration is that the accommodation enables the individual with a disability to perform the essential functions of a job.  

An employer is excused from providing a reasonable accommodation only if it can demonstrate that such a change would cause “undue hardship.”  Undue hardship is generally characterized by excessive expense or significant difficulty or disruption to the employer.  This must be evaluated on a case-by-case basis.   

When asking for a reasonable accommodation, an employee must inform his or her employer about the need for an adjustment or change to the workplace and state that it is due to a medical condition. Simply requesting a new chair because it is “not comfortable” would not constitute a request for a reasonable accommodation; instead, the employee would need to link the need for a new chair to a medical condition, such as chronic back pain.  These requests can either be oral or written. 

Another individual, such as a family member or healthcare practitioner, can also request an accommodation on behalf of an employee with a disability.   

After a request for an accommodation is made, an employer is then entitled to ask questions and explore solutions.  Under the ADA, the employer can ask about the nature of the disability and functional limitations in order to survey and identify an effective accommodation.  While not required to, the employer has the option of requiring documentation that its employee has an ADA disability, and that the disability necessitates an accommodation.  However, the scope of an employer’s inquiries is limited to this, and cannot, for example, require providing complete medical records.  An employer can also ask a worker requesting an accommodation to sign a limited release allowing the employer to submit a list of specific questions to a medical provider. 

The employee can obtain the requested information from his or her health professional of choice.  However, if that healthcare provider is unable to substantiate the existence of an ADA disability and to verify the need for an accommodation, the employer should first state that the information is insufficient and allow the employee to obtain a compliant note. If this fails, the employer can thereafter ask the employee to submit to a medical examination conducted by the employer’s health professional, but the examination is limited to establishing the existence of the disability and the functional limitations that would require reasonable accommodations. The employer would also have to pay any exam it orders from a provider it designates.  

Employers are prohibited from requesting any documentation if the employee’s disability and need for an accommodation is obvious or 2) the individual has provided sufficient information to demonstrate that he or she has an ADA disability and requires a reasonable accommodation.  

Some employers do not require medical notes.  In this situation, the employee should be able to describe what situations or problems are creating barriers.  Discussing and exploring potential reasonable accommodations is referred to as “engaging in the interactive process.”  During this process, the employer has the prerogative of choosing the accommodation, as long as it is effective.   

Once an employee requests an accommodation, the employer must respond expeditiously.  Ignoring a request, and unnecessarily delaying a response may result in a violation of the ADA.  If the employee needs a reasonable accommodation to perform an essential function and the employee refuses an effective accommodation, he or she may not be qualified to stay in the job.  

Disabled Prison Guard Wins his Third Appeal Against the California Department of Corrections and Rehabilitation

Courts can award attorneys’ fees to the prevailing plaintiff in a discrimination or harassment claim brought under the Fair Employment and Housing Act (FEHA).  These attorney fee awards are designed to incentivize and reward a plaintiff’s counsel for litigating a civil rights case that is generally taken on a contingency fee basis and therefore has inherent risks.  Trial courts first calculate the lodestar amount, which is the product of the hours spent and the prevailing hourly rate of attorneys in the community conducting similar non-contingent litigation.  Then courts can increase this amount by adding a multiplier or increasing the lodestar amount by looking at various factors, such as the risk of non-payment, the public interest in advancing civil rights cases, the complexity of the issues involved, and the skill of the attorneys.  (more…)

Expanded Rights for Employees during the COVID-19 Pandemic

The U.S. Department of Labor posted a temporary rule on April 1, 2020 that provides most employees impacted by the coronavirus with some much-needed benefits under the Families First Coronavirus Response Act (FFCRA).  These benefits include public emergency health leave under Title I of the Family and Medical Leave Act (FMLA) and emergency paid sick leave to help out families dealing the effects of COVID-19.

Under FFCRA, employees who work for employers with less than 500 employees will be qualified for paid sick leave if an employee is unable to work or telecommute for one of the following reasons:

• The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
• The employee has been advised by a healthcare provider to self-quarantine related to COVID-19;
• The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis;
• The employee is caring for an individual subject to an order described in (1) or self-quarantine described in (2);
• The employee is caring for a child whose school or place of care (such as a daycare) is closed or whose childcare provider is unavailable for reasons related to COVID-19; and
• The employee is experiencing any substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

The FFCRA provides that employees are be entitled to up to 80 hours of paid sick leave at the employee’s regular rate of pay or minimum wage.  Paid sick leave benefits under the FFCRA cannot exceed $511 per day or $5,110 total.  If employers already have sick leave in place, they must provide the FFCRA sick leave in addition to the existing leave.

In addition to paid sick leave, an employee may also get an additional ten weeks of leave to care for an individual who has been quarantined, or to look after a child whose school or daycare is closed or unavailable due to reasons related to COVID-19.  Employees would receive two-thirds of the employee’s regular rate of pay while on this extended leave or up to $200 per day or $10,000 total.

Employers with less than 500 employees are generally covered by FFCRA.  Small businesses with fewer than 50 employees may be exempt from providing its employees with leave if a school or daycare is closed if the leave would jeopardize the viability of the business.  These small businesses would have to apply for an exemption with the Department of Labor.

Employees of the federal government are entitled to FMLA leave, and are thus not covered by FFCRA.  However, such employees are covered by the paid sick leave provision.

Part-time employees are eligible for a paid two week leave for the number of hours they worked on average in a two week period.

Employers are required to post a notice about employees’ rights under the FFCRA.

The temporary rule is in effect from April 2, 2020 until December 31, 2020.  Paid sick leave provided under FFCRA does not carry over from one year to the next.  Employees are also not entitled to reimbursement for unused leave upon separation from employment.

If you feel that you have issues related to taking leave in the workplace, please feel free to call Hunter Pyle Law for a free consultation at (510)-444-4400 or inquire@hunterpylelaw.com.  The attorneys and staff at Hunter Pyle Law are continuing to work remotely and take employee-related inquires by phone and email.

Court of Appeal Rules in Favor of Gay CHP Veteran Suing for Sexual Orientation Discrimination

An openly gay California Highway Patrol (CHP) officer, Jay Brome, brought suit against his employer after enduring twenty years of harassment and discrimination.  The trial court dismissed his claims on the grounds that they were not filed within the statute of limitations.  The California Court of Appeal for the First District reversed the trial court’s ruling in a unanimous opinion, holding that equitable tolling could extend Mr. Brome’s statute of limitations.  (Brome v. California Highway Patrol, A154612, filed January 28, 2020.) (more…)

Employer Not Liable for an Accident Caused by its Employee

Kim Rushton, an employee of the City of Los Angeles (City of LA), struck and killed a pedestrian, Ralph Bingener, while commuting to work.  Mr. Rushton, a 68-year old man with neurological conditions, worked as a chemist in a water quality lab checking water for semi-volatile organic compounds.  He did not use his car for his employment.  All of Mr. Rushton’s work was performed at the lab and he rarely left the plant for work-related travel.  (more…)

Disabled Psychologist’s Claims for Discrimination, Harassment and Retaliation against Department of Corrections Fail Despite Providing Doctor’s Notes

As an employee, there may be times when you need an accommodation in the workplace due to a disability.  Sometimes, your employer may ask for a doctor’s note in the course of engaging in the interactive process.  How specific do the doctor’s notes need to be?  A recently published case provides some insight into this question.

Plaintiff John Doe began working at Ironwood State Prison as a psychologist in 2012.  In 2013, he requested to work in a quiet place that allowed him to focus and concentrate.  (more…)

San Francisco State University Professor Prevails on Retaliation Claim

San Francisco State University (SFSU) hired Rashmi Gupta in 2006 as a tenure track assistant professor in the School of Social Work.  Generally, tenure track professors work for a six year term.  After that, SFSU decides whether or not to promote a tenure track professor to the position of associate professor and award lifetime tenure.

Dr. Gupta initially faced some hurdles when she began teaching at SFSU.  Her student evaluations were lower than average; however, Dr. Gupta was praised for her efforts in research, scholarship and publication.  By 2009, Dr. Gupta had overcome her initial challenges and was receiving positive reviews from students and peer evaluators.

In 2009, Dr. Gupta and several other women of color in the School of Social Work lodged a complaint with the provost to express their concerns about the abuse of power, bullying, micromanagement and a hostile work environment at SFSU.  At a follow up meeting, the women expressed concern about the Director of the School of Social Work, and more generally, about discrimination against people of color on campus.

Less than two months after Dr. Gupta lodged her complaints, she received a negative performance review.  Many of the criticisms in the review were inaccurate.  Dr. Gupta then emailed a colleague complaining that SFSU was hostile toward women of color, and named two individuals for creating the hostile work environment, Don Taylor and Rita Takahashi.  At a meeting in March 2010, Dr. Taylor told Dr. Gupta that he knew about the emails, and threatened “to get even with [her].” (more…)