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.
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…)
Can California Workers Recover Waiting Time Penalties, Wage Statement Penalties, or Attorneys’ Fees for Meal and Rest Period Violations?
A recent decision from the Court of Appeal for the Second Appellate District in the case of Naranjo v. Spectrum Security Services, Inc. (September 26, 2019) Case No. B256232 addresses several unresolved questions pertaining to meal and rest periods in California.
First, the Court upheld the trial court’s ruling that Spectrum had not met the requirements for an on-duty meal period because, during part of the class period, it did not have a written agreement in which the employees were advised that the agreement could be revoked. In reaching this conclusion the Court rejected Spectrum’s argument that it had substantially complied with the on-duty meal period requirements. (more…)
Employees Beware: Arbitration Agreements Can Sometimes be Applied Retroactively
Increasingly, employers are asking employees to sign arbitration agreements. If the arbitration agreement is valid and enforceable, the employee generally waives the right to sue the employer in court and have the case tried before a jury of his or her peers. Employers typically favor arbitration for a variety of reasons, including privacy, control over arbitrator selection, limited rights to appeal, and the ability to have employees waive the right to bring class action lawsuits.
What happens if an employee has claims against an employer, files a lawsuit and then signs an arbitration agreement? Can that employee still be compelled to arbitrate his or her claims? The Court of Appeal for the Fourth Appellate District recently addressed this issue in Franco v. Greystone Ridge Condominium, et al. The Court of Appeal held that an arbitration agreement that is signed after the employee initiates his lawsuit does not preclude compelling those claims to arbitration. (Franco v. Greystone Ridge Condominium, et al., No. G056559, filed Aug. 14, 2019, certified for publication on Aug. 27, 2019). (more…)
Ninth Circuit Considers Whether Morbid Obesity is a Disability Under the Americans with Disabilities Act
Plaintiff Jose Valtierra, a facility maintenance technician, sued his employer Medtronic, Inc. alleging that he was terminated on account of his disability, morbid obesity, in violation of the Americans with Disabilities Act (ADA). Mr. Valtierra worked for Medtronic, Inc. for about ten years. By the last year of his employment, he had gained 70 pounds, taken time off due to joint pain, and struggled to walk. Mr. Valtierra’s supervisor, noticing that the employee was struggling to walk, allegedly became concerned about whether Mr. Valtierra was able to complete his work assignments. When the supervisor checked the computer system, he discovered that Mr. Valtierra had falsified work records, so Medtronic, Inc. terminated him.
The district court looked at whether Mr. Valtierra suffered from a disability for purposes of the ADA and whether Medtronic’s termination was unlawful. (more…)
Intolerable Working Conditions Support a Nurse’s Constructive Termination Claim
A 54-year old Filipino woman, Shirley Galvan, worked for Dameron Hospital Association (Dameron) as a nurse for approximately twenty-five years. In 2011, Doreen Alvarez became Ms. Galvan’s supervisor and allegedly began harassing Ms. Galvan and other Filipino employees. Ms. Alvarez commented that the Filipino employees could not speak English, had thick accents, made too much money, were too old, and had been at Dameron too long. Ms. Alvarez threatened to “clean house” and repeatedly humiliated the Filipino employees by making derogatory statements about their accents, level of education, and work performance. Ms. Galvan went out on stress leave due to the anxiety she was experiencing as a result of this harassment. She was constructively terminated in 2014.
Ms. Galvan brought suit against Dameron and Ms. Alvarez, alleging that she had been discriminated against and harassed on the basis of her age and national origin, and constructively terminated in violation of the California Fair Employment and Housing Act. (more…)