SOME GENERAL QUESTIONS AND ANSWERS:
What Kind of Cases Do You Typically Handle?
Answer: We handle most issues that arise regarding an employee’s relationship with their current and/or former employer, with the exception of worker’s compensation claims. Examples of the types of cases we handle include, but are not limited to discrimination, harassment, wrongful termination, compensation disputes, review and/or negotiation of severance agreements, leave of absence rights, contract disputes, and various other issues that could arise from an employment situation.
Do You Handle Cases on a Contingency?
Answer: We evaluate each potential client’s problem on a case-by-case analysis to determine the resources that would be needed to handle the matter, and only then do we make a determination as to how our office can proceed with the matter. We have taken many cases on a straight contingency, mixed contingency, and/or hourly basis.
Do You Give a Free Consultation?
Answer: The analysis of your employment case to determine whether or not we are the right firm to assist you is free.
You Asked for a Chronology, But What is That?
Our initial telephone conversations are short, but most potential client’s situations are complex. Therefore, we would like you to tell us about your problem with your employer in a manner that allows us to give it the attention it deserves to be fully understood before we make the determination as to whether or not we are the right firm to assist you. This is why we asked you for a “chronology”.
A chronology is a summary of your issues in a timeline format. The chronology should begin with your date of hire and your job position. It should then explain all important events that occurred during your employment that led to you calling us.
Write out a Sample Chronology, such as:
4-2000: I was hired as an Customer Service Clerk. I had to do data entry, filing, and general clerical duties. I had no negative performance reviews and was promoted twice.
2007-2009: I began having significant pain in my wrist, and went to see the doctor. My doctor diagnosed me with carpal tunnel syndrome. I was off of work for three months, and then my doctor allowed me to return but restricted the amount of time I could spend typing on the computer without a break.
1-3-2010: I returned to work and turned in my doctor’s restrictions to my immediate supervisor. I was allowed to do my regular job for six months without issue. In fact, in March I was given a job performance evaluation that said I was doing at least satisfactory in my job. During this period of time, I was able to mix up my job duties in manner that followed my restrictions. For example, I would type for one hour, then do filing, etc.
7-1-2010: I got a new supervisor, Jane Doe. She told me that she wanted me to do all of my reports in the morning, and save the filing for the afternoon. I told her that doing all of the filing at one time would violate my doctor’s restrictions. She did not care, and said that she wanted it done that way so that she could have all of the information she needed in the morning.
7-15-2010: I attempted to do the typing in the morning, but immediately started having problems with my wrists. I saw my doctor who prescribed a wrist brace and told me that I could not type more than one hour without a 15 minute break. I returned to work and gave Ms. Doe a copy of my doctor’s new restrictions.
8-1-2010: Ms. Doe told me that my job required that I finish my typing in the morning, and that they had no jobs that would follow my doctor’s restrictions. I was then terminated.
Don’t stop here, continue and make sure you exhaust all facts, just the facts.
Question: My workplace hired someone younger than me (or, for example, hired someone who is male, or Caucasian, or not disabled, etc.) to replace me. Can I sue for discrimination?
Answer: It depends. The above information alone would not make a very strong case of discrimination. To be successful in a discrimination lawsuit, you need to show that the person who decided to terminate you was motivated by your category (e.g., age, race, gender, disability, etc.). For example, if your boss wanted only young people to work with him, and that was the reason he terminated you, then he was being discriminatory. There are many ways of showing discrimination, and potential claims are always evaluated on a case-by-case basis. Types of evidence we would look at include whether or not your employer had a legitimate basis for your termination (e.g., you violated a company policy), whether the decision-maker had made hostile statements against older workers in the past, whether he kept other older workers employed and treated them well, and/or other similar types of information. If you think you have been discriminated against, you should contact us so that we can review your facts fully.
Question: If I need assistance in the workplace due to a disability, what do I need to do to make sure my employer gives me that assistance?
Answer: If you have a disability as defined by California’s Fair Employment and Housing Act (generally, a physical or mental impairment that limits a major life activity), and feel that you are able to work with an accommodation, both you and your employer are required to engage in a good faith “interactive process” to determine what reasonable accommodations are needed that will allow you to work. An interactive process is defined as an on-going communication between you and your employer to determine a reasonable accommodation. Your employer must know that you have a disability, and you should make a specific request for the accommodation you and/or your doctor believe you need. Then, your employer must work with you to identify reasonable solutions that would allow you to perform the job.
Question: How much time can I take off if I am pregnant?
Answer: Generally, it depends on many factors that have to evaluated on a case-by-case basis. But, the factors would include whether you are disabled by the pregnancy (e.g., incapable of doing at least one essential job task without risk to yourself, your unborn child, or others). If you are disabled, you can take up to 16 weeks of job-protected leave, which can be used intermittently, and/or you must be accommodated in the workplace. Most women who have a normal pregnancy and/or delivery will be disabled for a period of time, typically six weeks. Further, if you meet the requirements of the California Family Rights Act (e.g., one year of service, etc.), then generally you can take an additional 12 weeks of protected leave if you have all of your leave time available.
Wage and Hour Claims
Question: I was hired as a manager, but I am frequently not acting as a manager, so am I owed overtime wages?
Answer: Probably. There are different requirements for overtime pay depending upon the type of job classification that you have. For example, nurses, truck drivers, outside salesmen, etc., may have rules specific to their job that mean that they are not entitled to overtime in the same manner as general workers. But, generally speaking, in California individuals are entitled to overtime unless they are “exempt”. Many individuals are “exempt” because, for example, they are “managers”. But, an employer must prove that the actual job duties that the “manager” performs the majority of the workday (over 50%) qualify that individual to be “exempt” from its duty to pay overtime. Therefore, even if you are called a manager, if you are required to do the work of a lower-level, non-exempt, employee, then you would probably be entitled to overtime pay.
More Wage and Hour Claims
Question: Am I entitled to a lunch period or rest break?
Answer: Generally speaking, everyone is entitled to a meal and rest period if they are working over 5 hours a day. There is a penalty if your employer fails to allow for these breaks. California Labor Code section 226.7 states, “(b) If an employer fails to provide an employee a meal period or rest period…, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.”
Question: Can I sue a former employer for failing to pay me overtime wages?
Answer: Yes, there is a three-year statute of limitations to bring a claim for unpaid overtime, so claims within this period can be brought against a former and/or current employer.
At – Will
Question: Can I be fired even though I did an outstanding job for my employer and never engaged in any misconduct whatsoever?
Answer: Generally speaking, yes, although there are exceptions. In California, employees are “presumed” to be “at-will”, meaning that you can leave your employment at any time and/or your employer can fire you at any time. But, there are exceptions to this rule. Obviously, if you are working under a contract (written or oral) and/or a collective bargaining agreement, you may not be “at-will”. Further, even though you may be employed “at-will”, you cannot be terminated in violation of a public policy. For example, your employer can not fire you due to race, religion, national origin, disability, gender, sexual orientation, etc., nor can you be fired because you engaged in an activity that public policy supports (e.g., whistleblowing against criminal activity in your workplace). If you feel you have been terminated “wrongfully”, you should seek legal advice to see if your personal situation violates a public policy, because even if you are “at-will”, you could have a claim for wrongful termination.
Question: My coworker is very “touchy-feely” and it bothers me. Isn’t this sexual harassment?
Answer: It depends. The law basically defines sexual harassment as unwanted sexual advances, or visual, verbal, or physical conduct of a sexual nature. So, for example, if the person is touching your hair, do you think they are doing it for sexual reasons? Does the person touch the hair of both men and women? Are there other events that make you feel it is sexual in nature such as leering, slurs or jokes that you find offensive? Not every situation is “sexual harassment”, but if you are bothered by what you believe to be sexual harassment in the workplace, you should make a complaint about the conduct to management and/or human resources, and if it does not stop then contact us to see if you have any recourse based on the specific facts of your situation. You are protected by law from retaliation from making a complaint that you reasonably believed to be of sexual harassment, even if technically the actions do not meet the definition of sexual harassment.
Family Medical Leave
Question: I can’t be terminated while out sick, right?
Answer: It really depends on the specific facts of your case. If you are not disabled as defined by the Fair Employment and Housing Act or ADA, nor do you have a “serious health condition” as defined by the California Family Rights Act, your employer might be able to legally terminate you. But, if your health meets the definition of “serious health condition” and you meet other various requirements (e.g., you have worked over one year), then you are protected from termination. Further, if you have a chronic “disability” as defined by the aforementioned laws, and you are missing work because of that disability, it might be possible that your employer cannot terminate you if they have not made attempts (i.e., accommodations) that would have allowed you to work. Since, the issue is so fact specific, you should contact us if you were terminated while out sick so that we can analyze whether or not any laws were violated in our opinion.
SOME SPECIFIC QUESTIONS AND ANSWERS:
Q: What must I prove in an employment discrimination case to win?
A: In order to prevail, you should show that:
You’re a member of a protected class, such as age, gender, minority or disability.
You were qualified to perform the job.
You were discharged by your employer.
You were replaced by someone outside the protected class.
The employer’s reason for discharging you was false and merely a cover for the real reason of discrimination.
Q: What’s a “protected characteristic?”
A: A characteristic is protected if you can’t be legally fired, laid off or not hired based on that characteristic. Protected characteristics include:
Age – 40 and older
Sexual orientation in some states
Q: What kind of work accommodation must an employer make for an employee with a disability?
A: Both California Law and The Americans with Disabilities Act (ADA) require that an employer make a reasonable accommodation for an employee who’s considered a “qualified individual with a disability.” The employee must be qualified and able to perform the job for which he’s applying. If not, the employer doesn’t need to provide reasonable accommodations.
Neither California Law nor the ADA require an employer to create new jobs or displace existing employees from their positions. These laws don’t require a violation of other employees’ rights under a collective-bargaining agreement or other non-discriminatory policy in order to accommodate a disabled individual. If an employee isn’t qualified and able to perform satisfactorily in a position, he won’t prevail in proving a duty to accommodate.
Q. What’s necessary for me to prove that I have a disability under the Americans With Disabilities Act (ADA)?
A: Under the ADA, you must prove that you’re an individual with a disability according to the law. The ADA law defines disability as:
A physical or mental impairment that substantially limits one or more major life activities of the individual
Having a record of such impairment, or
Being regarded as having such an impairment
There are other requirements to proving a case of discrimination under the ADA. Whether you’re a “qualified individual” and a victim of illegal discrimination based on your disability are two examples. However, you won’t win your case if you’re unable to prove you’re disabled according to the ADA’s definitions.
The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) made important changes to the ADA. These amendments went into effect on January 1, 2009. The changes make it easier to prove you’re disabled. The amended law stresses that “disability” has a broad meaning.
Q. How does “bona fide occupational qualification” apply to discrimination?
A: There are defenses to discrimination that can be raised by the employer. One defense or exception is known as a bona fide occupational qualification (BFOQ). A BFOQ exists when a specific characteristic is necessary for the performance of the job. For example, age may be a relevant factor in job performance for police officers, firefighters or stunt workers.
Q. Are temporary employees able to file discrimination claims?
A: Although state laws may vary, some federal courts have dealt with this issue. These courts have decided that your rights under Title VII discrimination laws aren’t eliminated simply because you’re employed through a temporary employment agency.
Whether you’re an employee of the company for purposes of Title VII is a question of federal law. The most important factor is the extent of the employer’s right to control the means and manner of the worker’s performance.
Under the loaned servant doctrine, an employee directed or allowed to perform services for another “special” employer may become its employee while performing those services. In some situations, the employee could actually be considered both an employee of the temporary employment agency and the company the person has been placed with.
Q. I had a bad review, and my employer says I’m going to be fired if I don’t shape up. However, I’m pregnant. Am I protected from being fired by my employer?
A: Your employer may not fire you based on the fact you’re pregnant. However, you can be fired for other reasons. Being pregnant won’t protect you from bad reviews not related to your pregnancy.
Q. Can my employer fire me because of my religious beliefs?
A: Employees are generally protected in the workplace from discrimination because of sincerely held religious beliefs. However, there are exceptions. Courts use a two-step process to evaluate a claim of religious discrimination:
An employee bears the initial burden of demonstrating a “prima facie” case of religious discrimination. He meets this burden if he can show that: (1) He holds a sincere and genuine religious belief that conflicts with an employment requirement. (2) He’s informed his employer of the conflict. (3) He’s discharged for failing to comply with that conflicting employment requirement.
Once the employee establishes his case, the burden then shifts to the employer to show that it couldn’t reasonably accommodate the employee without undue hardship. The reasonableness of an accommodation is determined on a case-by-case basis.
Q. Is it discrimination if the employee next to me has a Bible on her desk?
A: No, this isn’t an example of employment discrimination. However, you have the right to ask your employer to make her stop if she tries to push her beliefs on you.
Q. My employer is making me take vacation time for my religious holiday. Isn’t that discrimination?
A: It isn’t discrimination as long as your employer treats all the employees the same in this situation. It’s discrimination if employees of certain religions don’t have to use vacation time for religious holidays that don’t fall on the company’s scheduled holidays.
Q. My employer is a real jerk and yells at me for no reason. Is that discrimination?
A: It’s only discrimination if he’s singling you out on the basis of a protected characteristic. If he’s yelling at everyone, his conduct isn’t illegal. Your employer must be lawful, but the law doesn’t require that an employer be nice.
Q. What must I prove to win an age discrimination claim?
A: An employee must show that he was discriminated against because of age, namely being over the age of 40. An employee must also show he was qualified to perform the job and was meeting the employer’s legitimate work expectations. Proving only some of these requirements won’t be sufficient to win.
Q. Does my employer commit discrimination if I get laid off while a younger employee is kept?
A: Your employer may have committed discrimination. If you’re 40 or older, you’re protected against age discrimination. This means your employer can’t lay you off and keep someone younger based on age. However, you can be laid off while a younger employee is retained if he has greater skills. It depends on what factors the employer is using to make the decisions. Age can’t be the decisive factor.
Q. What types of damages can I recover for age discrimination?
A: Depending on the facts of the situation, you may be awarded money damages. You may also be reinstated, promoted or placed in a new position.
Punitive damages are sometimes available in employment discrimination cases. These damages, by their very nature, are designed to punish. You would have to prove that your employer acted with “actual malice.” In order to support this finding, you must show that the employer’s conduct rose to the level of outrageous, flagrant or even criminal. It’s a difficult standard to meet, but some employees can meet this standard. Punitive damages will be considered by the court on a case-by-case basis.
The information contained herein is intended to provide accurate, general information regarding legal rights relating to employment in California. However, because laws and legal procedures are subject to frequent change and to different interpretations, AIKINS LAW FIRM cannot and does not guarantee the accuracy of the information on this website. Always consult your own private legal counsel or e-mail us at: firstname.lastname@example.org for legal assistance.