Are Arbitration Agreements Enforceable?

ArbitrationWhen you were hired by your current employer, were you required to sign an arbitration agreement? The agreement stated you would use an arbitrator to deal with any workplace-related legal claims, rather than going through the courts. At the time, it seemed a minor issue—just another piece of paper you signed in order to get the job you wanted. Now, you may find yourself regretting that signature. Perhaps a group of employees has asked you to join in a class action lawsuit against your employer, fighting for employee rights. You believe in the cause—but there is the matter of that pesky arbitration agreement you signed. What now? An experienced employment lawyer can help you to understand both your rights and your responsibilities in this situation.

The Arbitration Process

Pursuing a remedy to workplace issues through an arbitration process has benefits, to be sure.  For instance, the proceedings are often much speedier. Disputes among parties can be raised over the phone with an arbitrator, instead of through the motions required in the court system. Besides saving time, arbitration can save everyone a lot of money. Employees, in particular, save money because employers are required to pay all arbitration fees in California. Arbitration is also a more private venue than the court, and no public records will be filed.

Federal Ruling

The 9th Circuit court recently issued an opinion striking down mandatory class waivers (Morris v. Ernst & Young). In this case, the plaintiff had signed an arbitration agreement spelling out that “covered disputes pertaining to different employees will be heard in separate proceedings.”  Nonetheless, the plaintiff claimed that he and others had been wrongfully labeled as exempt from overtime pay, and filed a class and collective action against his accounting firm, Ernst & Young.  The court found that agreements that take the rights of the worker to obtain federal relief from a work-related claim are untenable, and ruled for the plaintiff.

Arbitration Agreement Uncertainty in California Law

On the other hand, the California Supreme Court has upheld arbitration agreements that include class action waivers (Iskanian  v. CLS Transportation Los Angeles, LLC.).

This leaves us with some ambiguity regarding the enforceability of arbitration agreements that include class action waivers. The federal court clearly states that employees do have a right to band together to pursue work-related claims. The state court differs. So, is an arbitration agreement enforceable in the state of California?

In general, a well-drafted agreement that is implemented fairly and appropriately should be enforceable. What makes an agreement unenforceable? The courts have found certain factors to be non-starters such as:

  • Agreements that require employees to waive statutory damages;
  • Agreements that require employees to waive statutory remedies;
  • Agreements that do not allow the employee to recover attorney’s fees if successful;
  • Agreements that contain class action waivers, precluding employees’ rights to band together to ensure their rights are preserved and protected.

[Read more…]

Teacher Tenure and Job Security

teacher tenureTeacher tenure is one of the most controversial issues in education today. Teacher tenure proponents claim that tenure provides educators a needed safety net. That more expensive teachers with time in the system will not be terminated in favor of cheaper, less experienced teachers. Nor will experienced teachers feel pressured to keep their opinions to themselves, fearing political or personal vendettas.

On the other hand, opponents of teacher tenure argue that ineffective teachers get locked into classroom positions that do not benefit students and schools. Regardless of where you stand on the issue, the California Supreme Court has upheld current tenure laws, refusing to hear Vergara vs. California appeal, a case that challenged teacher tenure. That being said, under what circumstances can teachers be fired? If you are a California educator who is facing dismissal, but feel it is unjustified, an experienced employment attorney may be helpful.

What is Teacher Tenure?

Tenure is essentially an unspoken, and literally unnamed in the law, policy giving professors and teachers a permanent contract. Educators prefer the term permanent status. But what does permanent mean? Well, permanent means permanent—assuming no severe misconduct or evidence of incompetence occurs, the job is guaranteed.  But that caveat is an important one:  Teachers may still be fired for just cause, meaning that if there is a clear reason, termination proceedings may be undertaken.

While opponents to the tenure system cite red tape and bureaucratic nightmares as impediments to ousting poorly performing teachers, the law really just requires due process. If administrators can prove that a teacher is not performing the job at acceptable levels, the tenure system requires that evidence of the shortcomings is well documented and that an impartial study of the facts of each individual case occurs.

What is Due Process With Regards to Teacher Tenure?

Due process was developed in order to protect students and schools from anything that interferes with students’ rights to a quality education. Due process exists to ensure that decisions relating to schools / teacher terminations are based on educational goals, not personal or prejudicial reasons. Every year, tenured teachers are dismissed when clear evidence makes termination defensible.

Teacher Termination Procedure

State law requires that teacher firing decisions be based upon behavior, performance, and overall fitness for the job. The process is necessarily lengthy and detailed:

  • Specific examples of concerns must be documented;
  • Teachers must be given written notice of the concerns and have 90 days to correct any problems;
  • If issues are not resolved, written dismissal charges must be approved by the school board;
  • Teachers may then request a hearing to be held within 30 days;
  • The school board must serve the employee with an accusation as per the Administrative Procedure Act (APA);
  • Teachers may then request a second hearing with the State Office of Administrative Hearing within 60 days;
  • A three-person commission consisting of one administrative judge and one appointee from the district and one from the teacher hears the case;
  • Teachers may further appeal to the state Court of Appeals.

[Read more…]

Can You be Asked to Reimburse Your Employer for Training Costs?

training costsDo I have to reimburse training costs to my employer? Additional training for employees benefits everyone, right? Employees become more adept at their jobs, performing with greater skill and confidence. Employers enjoy a business that operates like a well-oiled machine, with employees’ performance at the highest levels possible.  But what if, after engaging in a costly training program, an employee jumps ship? Particularly when that employee decides to work for a competitor, employers might resent the dollars that they dumped into training. Can an employer require reimbursement for those instructional costs?  If you are facing this situation, you may wish to engage the services of an experienced employment lawyer.

California Precedent for Training Costs Reimbursement

A recent court case pitted the city of Los Angeles and the LAPD against officers who had completed training in the LAPD police academy, but who left LAPD within a short time after hire.

In an attempt to curb the attrition rate of police officers, the city enacted a policy that required any officer who had been through academy training but who voluntarily transferred to another agency after working for less than five years with the LAPD to reimburse some training costs. The required reimbursement was prorated, and was based partly on a signed agreement indicating a five-year commitment to LAPD. In that contract, new employees agreed to reimburse the direct and indirect costs associated with employment if those employees joined another agency within one year after voluntarily terminating employment with LAPD. This contract was commonly referred to as the acknowledgment.

The details of the case involve Anthony Alvo, who, according to the city, was required to reimburse the city $34,000 after leaving the LAPD. Alvo and another former LAPD officer, Daniel Fernandez, filed a cross-complaint. Fernandez had been threatened with legal action after leaving the LAPD. The two men sought to have all related suits litigated in one coordinated proceeding, and the Chair of the Judicial Council agreed.

The case ultimately involved 43 former LAPD officers. Three of these officers had previously been found guilty of breach of acknowledgment and a judgment had been entered against them.

Labor Code section 2802 formed the basis of the appeal. It states, in part, that employers must indemnify employees for any expenditure incurred that was necessary to complete required duties. The appellants argued that since the academy is required of all new officers, it is a necessary expenditure, making the acknowledgment void.

In contrast, the city contended that because the training is required in order to receive Peace Officer Standards and Training (POST) certification, Labor Code 2802 was not applicable.  To wit, Labor Code does not specifically require employers to pay for costs associated with licensing requirements.

Complicating matters, LAPD required 420 hours of required department training in addition to the 644 hours of POST training.  Because the city required recruits to attend its own academy for all of the training, the court found in favor of the defendants. [Read more…]

Workplace Protection

workplace protectionLast January, a number of bills, signed into law by Governor Jerry Brown in 2016 become effective. Many of those bills involve workplace protection, and compliance is required of California’s employers. If you are unclear about workplace protection compliance mandates with these or any employment laws, you may wish to enlist the help of an experienced employment law attorney.

Workplace Protection – New Laws that Impact You

  • SB 1732: Toilet facilities in businesses, government agencies, or places of public accommodation that are single-user facilities must be designated as all-gender facilities as of March 2017.
  • AB 1887: Travel prohibitions have been established forbidding state agencies from requiring employees to travel to states with laws that do not have protections against discrimination based on gender identity, sexual orientation, or gender expression. This means that state dollars may not be used for travel to states who repealed these types of laws.
  • SB 1234: Eligible employers, based on the number of eligible employees, who do not currently offer retirement plans must now participate in a payroll deposit savings arrangement allowing employees to join in the California Secure Choice Retirement Savings Program.
  • AB 2337: Employers are required to inform employees of their rights when experiencing domestic violence, stalking, or sexual assault. Forms created by the Labor Commissioner’s office must be posted by July 1 of this year.
  • ABX2-7: This law expands smoking restrictions in hotel lobbies, taverns and bars, banquet rooms, employee break rooms, and warehouses. Tobacco is no longer allowed in these areas, even in owner-operated businesses.
  • SB 1167: The Division of Occupational Safety and Health is required to propose a heat illness and injury prevention standard related to indoor employment locations by January of 2019.
  • SB 1241: Employers are prohibited from requiring employees who reside and work primarily in California from having claims adjudicated outside of California.
  • SB 1007: Employees who are involved in arbitration hearings are entitled to have a certified shorthand reporter available to transcribe proceedings, hearings, or dispositions.
  • SB 3: For employers with more than 25 employees, minimum wage increased from $10.00 to $10.50 per hour in January 2017. That increase will apply to employers with fewer employees in 2018. Further incremental increases have been established up to the year 2023.
  • SB 1015: The Domestic Worker Bill of Rights, originally scheduled to expire this year, has been extended indefinitely, providing wage and hour protections to domestic workers.
  • SB 1063: Workers of all races and ethnicities must be paid the same amount for work that is essentially the same.

Penalties for Workplace Compliance Employment Law Violations [Read more…]

Wrongful Termination in California

Wrongful TerminationWrongful termination? If you work as an at-will employee, with no union protections or contracts, you can be fired any time, for any reason, right? Wrong! California courts and laws require any terminations to be based on legitimate business reasons. Beyond that, there are several termination procedures that must be followed by law. If you believe your termination was not based on a lawful business rationale, you may wish to discuss it with a knowledgeable employment lawyer.

Legitimate Termination

No termination may violate state or federal regulations, such as those related to anti-discrimination. Beyond that, the firing or layoff must clearly be in the best interests of the company, and employers would do well to consider a number of factors:

  • What written policies regarding dispute resolution, arbitration, discipline, or “just cause” are on the books?
  • What process of progressive discipline was employed, if any? If no process was followed, is there a legitimate reason?
  • Was any contract violated, whether written or verbal? An implied contract deserves consideration just as much as a written one does.
  • Is the employee who is being terminated a long-term employee (five years or more?)
  • Is there previous evidence of job security, such as promotions or commendations?
  • Is the terminated employee pregnant?
  • Has the terminated employee filed a claim with worker’s compensation?
  • Has the employee been involved in “whistleblower” types of complaints?
  • Does documentation exist substantiating misconduct or other reasons supporting a decision to terminate?

Additional Employer Responsibilities Related to Termination

Once the decision to terminate has been made, employers have certain responsibilities toward the terminated individual:

  • Final wages must be paid immediately. This includes unused vacation pay that may have been accrued, any commissions or reimbursements due, and profit sharing or bonus monies.
  • A number of forms must be provided to terminated employees, including Notice to Employee as to Change in Relationship; For Your Benefit, California’s Program for the Unemployed; Health Insurance Premium Notice (HIPP); and any relevant COBRA and Cal-COBRA publications.
  • Discussions regarding the circumstances of termination must be kept confidential. Only those within the company who need to know the details should be privy to them. Information provided during reference checks must also be limited in scope.

Common Wrongful Termination Issues

Terminations that result in lawsuits tend to share one of a handful of particular themes that the courts generally do not take lightly:

  • Discrimination on age, race, sexual origin, gender, religion or other protected area;
  • Employee failure to pass a drug test;
  • Whistleblower retaliation;
  • Engagement in protected activities.

[Read more…]

Retaliation for Reporting Workplace Violations

RetaliationRetaliation in the workplace. California workers are entitled to certain  protected rights. When they are violated, workers may report those violations to the Division of Labor Standards Enforcement (DLSE) to seek reparations. Unfortunately, sometimes employers do not appreciate this reporting, and seek retribution against reporting employees. When that happens, aggressive legal representation can make the difference to the success of your case.

Keep in Mind

Anyone can file a complaint, regardless of immigration status, language, or identification. All workers are protected under California law, and the Labor Commissioner’s office has no interest in your immigration status; nor will they report on immigration issues to other agencies.

Protected Activities

There are specific activities that are protected under California law. Those include:

  • Refusing to work when conditions are not safe, or making complaints about those conditions to bosses, labor unions, or government agencies;
  • Filing a wage claim against employers who do not pay earned wages;
  • Assisting in an investigation or testifying on behalf of co-workers’ claims;
  • Refusing to sign agreements promising not to file claims or divulge information regarding safety conditions in the workplace;
  • Using sick leave to deal with family or domestic partner illnesses;
  • Requesting time and private space to pump breast milk;
  • Taking time off to deal with domestic violence or sexual assault issues relating to yourself of your children.

Possible Examples of Employer Retaliation

Employers may express their displeasure with you for reporting your concerns in a number of unlawful retaliatory manners:

  • Termination;
  • Suspension;
  • Transfer or demotion;
  • Pay or hour deductions;
  • Threats or disciplinary action.

California’s Whistleblower Laws and Retaliation

A whistleblower is defined as a person who reports a reasonable belief that an employer is in violation of state or federal laws or regulations, or who believes that unsafe work practices or working conditions put employees at risk.  California Labor Code Section 1102.5 protects whistleblowers from retaliations and requires employers to reinstate any wage or benefit reductions that may have occurred due to retaliation.

Evidence that Engaging in Protected Activity Resulted in Retaliation

Demonstrating a causal connection between your activity and the employer’s unlawful retribution will be important in exonerating you. That connection may be shown in a number of ways:

  • By looking at the time frame in which protected activity and disciplinary action occurred;
  • By examining written and verbal communications made by your employer;
  • By comparing the treatment of employees who engaged in protected activity with the treatment of employees who did not engage in such activity.

[Read more…]

COBRA Insurance for California Workers

COBRA InsuranceWhat is COBRA insurance? Let’s say you have enjoyed employer-provided health care benefits for some time, but suddenly find yourself without a job, and therefore without health insurance. What do you do now? An experienced employment attorney can help you to understand the filing requirements and options associated with continuing coverage utilizing state or federal resources.

California Continuation of Benefits Replacement Act

Federal provisions for health insurance coverage provide options for employees who previously worked for a company with 20 or more employees and lost coverage due to a qualifying event.  Federal law left a gap in coverage for employees of smaller companies. Thus, in 1997, California legislators expanded federal Consolidated Omnibus Budget Reconciliation Act (COBRA) coverage for California workers. The legislation requires health maintenance organizations (HMOs) and insurance carriers to provide COBRA-type benefits to employees of smaller companies that employ two to 19 workers. Employees who were enrolled in a healthcare plan within one day prior to a qualifying event are entitled to these benefits.

COBRA Insurance Qualifying Events

Several occurrences may result in a loss of health care coverage with corresponding COBRA insurance coverage options. Those include:

  • Retirement;
  • Entitlement to Medicare;
  • Divorce/remarriage;
  • Termination for a reason other than “gross misconduct;”
  • Reduction in a covered employees’ hours at the employer’s behest;
  • Death of a covered employee.

Additionally, a dependent child whose covered parent dies is entitled to coverage until age 26 as outlined by the Affordable Care Act.

Defining  COBRA Insurance Coverage

Insurance benefits, deductibles and limits must be identical to “similarly situated active plan participants” according to COBRA requirements. If or when plans change for active participants, COBRA insurance recipients’ plans will experience like changes.

Qualified beneficiaries are entitled to the same notices as active employees and are allowed to make modifications during the same open enrollment windows that active employees have.  Additionally, beneficiaries may expect to know then coverage begins and end, and when they are ineligible for coverage. Pre-existing conditions will not impact your ability to receive coverage.  Additionally, you are eligible to receive access to the same dental and vision coverage plans as working employees under COBRA (though not necessarily under Cal-COBRA).

Employees have the responsibility to notify employers when a qualifying event occurs according to employer notice procedures.

If You Choose COBRA Insurance

If, after a qualifying event, you elect to obtain COBRA insurance coverage, your have 60 days from the time you receive notice to enroll. If you do not get a notice about your coverage opportunities, it is important to speak with your former employer or health plan administrator quickly, as these deadlines are pretty hard and fast.

After enrolling, your first premium must be paid within 45 days. You are able to keep your COBRA plan for at least 18 months, and can switch over to Cal-COBRA for another 18 months after that. For employees from smaller companies, Cal-COBRA plans allow you to stay enrolled for up to 36 months. Premium payments will be your responsibility. [Read more…]

Paid Sick Leave, Breaks and Employer Responsibility

Paid Sick LeaveEmployees of all stripes have certain rights with regard to breaks and paid sick leave. When employers fail to provide the required breaks and/or leave, a knowledgeable employment attorney can help ensure you enjoy the benefits required by law.

Breaks During the Work Day

California labor law requires employers to provide an employee a meal period or rest period. A 2012 California Supreme Court ruling provided specificity to that law, ruling that employers are required to “…relieve employees of all duty, relinquish control over their activities, and permit them a reasonable opportunity to take an uninterrupted 30-minute break.”

The case involved Brinker Restaurant Corporation, Brinker International, Inc, and Brinker International Payroll Company, L.P. The claim was that Brinker either failed to provide breaks, or required employees to take “early lunching” followed by six to eight hours of shift work with no breaks. It resulted in Brinker paying out a $10 million settlement to employees who claimed to have suffered between 1999 and 2001.

While the court did require a work-free break be provided, it did not require employers to ensure that no work occurred during the break. In other words, if employees chose to work during a break it was not the employer’s responsibility to clamp down on that work.

Breaks must, however, allow for employees to leave the premises. Otherwise, the law does not consider it a legitimate break. The law provides for one hour’s pay at an employee’s regular wage for every missed off-duty break.

On the other hand, a voluntary agreement may be signed for on-duty meal breaks, provided the breaks are paid and the type of the work being done fits with criteria set out by the law. An employee may revoke this agreement at any time.

Mandatory Paid Sick Leave

In 2014, lawmakers in California determined that many California workers had inadequate paid sick leave. Hence, legislation was enacted to provide workers with paid time off to deal with the health care needs of themselves and their families. The rationale was that when workers had paid time off when ill, they would recover more quickly and would be less likely to spread illness to fellow workers and/or the public.

As of 2014, California employers are required to provide one hour of paid sick leave for every 30 hours worked, with no less than 24 hours of sick leave per year. Sick days may be used after 90 days of employment. The responsibility for enforcement of this law lies with the California labor Commissioner, who must investigate potential violations and impose fines on behalf of employers whose rights have been violated. [Read more…]

National Origin Discrimination

national origin discriminationNational origin discrimination in the workplace. Angry rhetoric and fear surrounding immigration are all over the current news headlines. What impact does it have on individuals from foreign countries, particularly those countries called out as dangerous? With all the debate on immigration, many individuals who have legal status in California are worried that they are bound to face national origin discrimination in the workplace. If you believe your national origin has impacted employer’s decisions toward you, you may need an experienced employment attorney.

Legal protections exist for individuals from every country. Title VII of the Civil Rights Act of 1964 was designed to protect both applicants and employees from employment discrimination, whether they or their ancestors hail from France or Somalia, Australia or Sudan.

What Does National Origin Discrimination Look Like?

This type of discrimination, which is based on a person’s heritage, or cultural, physical or linguistic attributes associated with a particular national origin, can display itself in many ways:

  • Refusing to recruit or hire workers based on surname, traditional attire, or nationality;
  • Requiring workers to stay behind the scenes, or out of the public eye due to appearance or national origin;
  • Segregating workers of one background from those of another;
  • Harassing or teasing workers about their food, attire, habits, etc.;
  • Disciplining workers more frequently or severely based on nationality;
  • Failing to provide equal wages and benefits, or failing to promote due to national origin;
  • Transferring, or refusing to transfer, based on national origin;
  • Terminating or laying off employees based on national origin.

National Origin Discrimination – Overlapping Issues

Multiple issues frequently intersect when discrimination based on national origin occurs. For instances, prejudice toward someone of Somali descent may be predicated on issues surrounding religion. Perhaps discrimination associated with Asian ancestry may be connected to racial sentiments. Gender, religion, race, color, and national origin may all be involved in a single discrimination complaint.

Inappropriate Job Screening

Practices that create a disparate impact on particular groups by screening out individuals on the basis of national origin are unlawful. The elimination of obstacles that either inadvertently or purposefully limit applicants based on national origin must be removed. Even when recruiters or temporary job placement agencies are involved, equal access to employment is required.

Conflicting Motives in Employment Decisions

Often employers make decisions based on multiple factors, and contend that a given outcome would have occurred regardless of national origin. While there may be merit to such a claim, it is incumbent upon an employer to make this showing.  If the employer can make a case for the employment decisions, the employer may still be on the hook for declaratory and injunctive relief, as well as attorney’s fees. [Read more…]

Defamatory Job Reference from Former Employer?

Defamatory Job ReferenceIs your former employer going to decimate any chance you have for future employment with a defamatory job reference? Let’s say that you left your previous job under less than favorable circumstances. Obviously, you need to find a new job, and any potential employer is going to want a list of previous work experience, including the last place you worked.

Verifying Work History With Your Former Employer

Your current application is likely going to undergo scrutiny that includes some investigation into previous job performance. Supervisors are legally allowed to share both positive and negative information about a former employee if it is done correctly under the legal doctrine of “qualified privilege.” That means, among other things, that information must be shared in good faith; it must be based on facts, not suspicions, suppositions, or generalizations.

Defamation

A defamatory job reference occurs during background checks when information shared is not necessary for the inquirer to have, especially regarding reasons for resignations or terminations. There are legal doctrines for individuals who provide a reference, and if a former employer goes outside those guidelines, you may have grounds for a defamatory job reference libel suit. A good labor law attorney can help you to determine the validity of your case. Here are some general guidelines:

Relevance: Information shared must be directly related to questions asked and pertinent to the position being applied for. If you were formerly a classroom teacher with horrible classroom management, and are now applying in for a sales position, you ability to control children is not relevant.

Critical to job performance: Minor issues that did not have a serious impact on job performance need not be shared with a potential employer. If applying for an accounting position, and serious calculation errors were a problem in the previous position, by all means, that is information that should be shared. On the other hand, if you had a disheveled desk but produced flawless accounting reports, the desk issue would be unimportant to relay.

Truthfulness: Accurate statements about observable behavior are appropriate; generalizations or personal musings about those behaviors are not. Your former employer may legitimately share a record or excessive tardiness; drawing a conclusion that you are lazy is another matter.

Information shared must be job-related:  Information about your marriage or other non-work issues is inappropriate.

Proper manner of dissemination: Information should always be provided in a proper setting and manner. Chatting at the water cooler in the office where unauthorized ears are lurking would be problematic. Discretion is the bottom line. If it is lacking, the potential for a legal remedy arises.

Defamatory Job Reference? Next Steps

If your reputation is harmed and you are brought into disrepute, you may have been defamed.  The criteria for defamation includes that those statements made about you were either false, or made with malice; the statements were slanderous (made verbally) or libelous (made in written form) to a third party; and the statements damaged your reputation or character. [Read more…]

Disclaimer

The information on this website should not be considered to be legal advice, nor construed to be the formation of any manner of attorney client relationship. Prior to taking any form of legal action, please consult with an attorney experienced in the appropriate area of law germane to your situation. Case results and testimonials presented on www.californialaborandemploymentlaw.net or any of its related websites are germane to the facts present for each individual case and is not a promise of similar outcomes for any other cases. This website is not intended to solicit clients for matters outside of the State of California.