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…)

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.

Minimum Wage, Public Employees, and the University of California

The University of California (referred to in this post as “the Regents”) employs more than two hundred thousand people. Determining which laws apply to the Regents can be challenging. Gomez v. Regents (2021) 63 Cal.App.5th 386 provides some guidance with respect to California’s wage and hour laws.

In Gomez, the plaintiff challenged the Regents’ policy and practice of rounding time punches (usually down) and automatically deducting 30 minutes for meal periods regardless of whether the employees actually took them. The issue before the court was whether the Regents were subject to California’s minimum wage laws. The superior court held that they were not, and dismissed the case. The court of appeal affirmed.

The court of appeal began its analysis by noting that California’s minimum wage requirements apply to employees of the State and its political subdivisions, including cities, counties, and special districts. However, the court concluded that the Regents is not a political subdivision. Rather, it is a public trust. See People v. Lofchie (2014) 229 Cal.App.4th 240, 254.

The Gomez court then distinguished the Regents from other types of political subdivisions in California. For example, in Marquez v. City of Long Beach (2019) 32 Cal.App.5th 552, the Second District Court of Appeal had concluded that minimum wage laws applied to California Charter cities, because:

[L]legislation setting a statewide minimum wage, generally applicable to both private and public employees, addresses the state’s interest in protecting the health and welfare of workers by ensuring they can afford the necessities of life for themselves and their families.

However, the Gomez court noted that the Regents are not a charter city, and that there were no allegations that the Regents had set hourly wages below the state minimum wage. Accordingly, it concluded that Marquez did not apply.

The Gomez court also addressed Sheppard v. North Orange County Regional Occupational Program (2010) 191 Cal.App.4th 289. In that case, the court of appeal concluded that minimum wage laws applied to a regional occupational program established by a public school district. Unlike the Regents, such entities are political subdivisions because they were established under Education Code section 52301.

Finally, the Gomez court concluded that the Private Attorneys General Act (“PAGA”) did not apply, because the Regents could not be considered to be violators under that statute. See Labor Code § 2699(c).

Accordingly, California’s minimum wage laws do not apply to employees of the Regents. However, all is not lost. The Fair Labor Standards Act, or FLSA, applies to public employees.  FLSA is a federal law dating back over half a century which establishes certain minimum requirements for employees’ hours of work, wages, premium overtime and payroll records. To be clear, the federal minimum wage is much lower than California’s. Furthermore, unlike California law, the FLSA does not require employers to provide meal or rest breaks.  Nor does it require that employers pay overtime if employees work more than eight hours in a day.  (California law does.  See Labor Code § 510.)

The attorneys at Hunter Pyle Law represent both public and private employees in individual and class actions throughout California.  If you have a question about your situation at work, please feel free to contact us for a confidential initial intake.  We can be reached at (510) 444-4400 or inquire@hunterpylelaw.com.

Opposing Voter Suppression — The Battle for Georgia

I am writing this from the airport in Atlanta, where I have spent the past five days doing my best to help make sure that the Georgia Senate runoff elections were fair and that all votes were counted. The experience was both inspiring and chilling, so I am going to jot down some thoughts before the press of business and family in the “real world” re-consumes me.

First off, a disclosure: I believe very strongly that the voting process should be as easy as possible. In college (before the internet ruled our lives), I volunteered for a small organization that was trying to get the local city council to adopt a measure that would study, and, hopefully, implement a process by which voters could cast their ballots by telephone. That’s right: pick up the phone, enter your id, cast your vote, and, presto! You are done. No line, no worrying about signatures, no hassle. Despite our best efforts, and many long hours spent gathering signatures in the frigid Colorado winter, the effort failed. (Its leader, a fellow nicknamed “Evan from Heaven,” then went back to busking on the local pedestrian mall.) (more…)

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.

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.

Meal Breaks and Rest Breaks: Guidance from the Second DCA

Cacho v. Eurostar, Inc. (2019) 43 Cal.App.5th 885, provides some guidance regarding when courts will and will not certify class actions claiming failure to provide meal breaks and/or failure to authorize and permit rest breaks under California law.

(more…)