Firefighters Need Legal Protection

firefightersRecent events in Mendocino, Lake, Napa and Sonoma County have highlighted the perils that firefighters face in the line of duty every single day. These heroes put their lives in danger in an attempt to salvage homes and businesses, not to mention crops, livestock, and of course, human life. For the most part, their bravery is rewarded with public adoration and appreciation. Sometimes, firefighters are placed in unpleasant situations that are legally untenable. In such circumstances, they have no choice but to seek local legal counsel.

Recent Firefighters Cases in the News

  • When firefighter Todd Milan spilled the beans on an OSHA violation that occurred, putting him in a particularly dangerous situation, he felt the response from his department was outright retaliation. A jury thought the same thing, awarding him over $2.3 million for emotional distress, past and future wages, and legal fees.
  • Santa Rosa firefighters filed suit in District Court in the spring of 2017, alleging an improper calculation of overtime pay. According to the suit, they wish to be reimbursed for the past three years of work, in addition to attorney’s fees. Why three years of back pay? That is the time frame allowed by the Fair Labor Standards Act.
  • A 27-year veteran firefighter in Los Angeles won a lawsuit in which he was awarded damages of over $1 million for racial discrimination, harassment, and retaliation. According to the suit, Jabari Jumaane’s captain falsified performance evaluations with the sanctioning of his battalion chief. Jumanne was disciplined, and even suspended for the poor evaluations. After over two weeks of deliberation, the jury found in favor of Jumaane.
  • Merely hours after learning of needed neck surgery, Chula Vista City fired their fire chief, James Garcia. He filed suit claiming discrimination based on a disability. The jury agreed, awarding him over $1 million.

Do Not be Deterred by the Fireman’s Rule

In addition to injustices, firefighters may wish to file civil suits base on injuries that occur during the workday. Because Workers’ Compensation laws seem adequate to cover injuries, the California Fireman’s Rule disallows firefighters from filing civil suits based on workplace injuries. However, there are specific exceptions to this rule:

  • When the injury was intentionally caused;
  • When unintentional actions occur that lead to injury, and the person causing the injury knew or should have known a public safety officer was involved;
  • When statutes, regulations, or ordinances created to protect public safety officers are ignored or violated.

[Read more…]

Employers: Prevent a Sexual Harassment Case

sexual harassment complaintAs an employer, are you liable if one of your employees is accused of sexual harassment? Although every case is different, there are things you can do to provide an affirmative defense in the event a lawsuit comes your way. Beyond that, having an experienced employment law attorney on your side is a must.

Sexual Harassment Prevention Training

The first thing every employer needs to do is ensure that adequate and appropriate training is provided. In California, state law AB1825 mandates that employers with 50 or more employees provide training for supervisors. That training must occur every two years.

Who Must Experience Sexual Harassment Prevention Training?

Although everyone can benefit from training, supervisors must be trained. That means anyone who has the authority to reward or discipline other employees or deal with grievances, even if the official job title is not supervisor.

What Must Sexual Harassment Training Embody?

The training itself may be delivered on-line, if linked to a trainer who is available to answer employee questions within two days. Another option is to have information delivered by an instructor in a classroom, or in a large format like a seminar, if the trainer follows the regulations laid out by law and uses best instructional practices. There are specific requirements as to who may be a trainer:

  • Attorneys who practice employment law, or;
  • Professors with a post graduate degree or teaching credential with experience in employment law, or;
  • Human resource personnel with at least two years experience designing materials or delivering trainings, dealing with such complaints in a workplace, investigating such complaints, or advising employers or employees in such matters,

The training must encompass information about state and federal laws prohibiting sexual harassment, in addition to remedies for victims of such activity.  There must also be practical case studies of sexual harassment, discrimination, and employee retaliation, and information about how to prevent each.

In the Event of a Sexual Harassment Lawsuit

What if an employee brings a sexual harassment lawsuit? Having complied with the training requirements does not necessarily abdicate the employer of responsibility, but it is a first, minimum step. Other steps employers should take:

  • Have a printed policy defining sexual harassment and company policy as to consequences for such behavior. Discuss it with new employees, and review it on occasion with all employees.
  • Provide training to workers, as well as supervisors.
  • Establish a clear grievance procedure and methods of dealing with complaints. Then keep the information confidential.
  • Investigate all complaints quickly and effectively, and document everything related to the complaints.
  • Protect the victim from the moment the complaint is filed, and correct the issue expeditiously.  Then ensure that no form of retaliation ensues.

[Read more…]

Workplace Drug Testing

drug testingDrug testing has become a routine part of the job in many industries these days. In the past 30 years, in fact, drug testing has risen by nearly 300%. But is such testing accurate? With over 22 million tests being administered in this country every year, even a 5% false positive rate could result in over one million people’s lives being impacted in a negative way. Furthermore, are workers’ rights to privacy in the workplace being protected? If you feel your rights have been violated due to drug testing, an employment attorney may be able to help.

Drug Testing And False Positives

Recent studies indicate that 5-10% of drug tests produce false-positive results. Poppy seeds—even just a teaspoon—can produce a positive test for opioids, even three days after consumption. Prescription antidepressants and cold medicines can indicate amphetamines or benzodiazepine, and HIV medications can indicate that marijuana is in the bloodstream. Even ibuprofen has been connected with positive results for marijuana.

Drug Testing is Intrusive

Testers worry about potential tampering with test samples. That sometimes leads them to observe the employee, or to remove the sample provider’s outer attire and collect the urine sample in a room in which the water has been turned off.  For many, this experience is degrading and invasive.

Once the sample hits the lab, testing may reveal much more than the presence of illegal substances. Some legal drugs may be in the sample, and human error may make the distinction between legal and illegal substances difficult. False positives are a real possibility. Additionally, pregnancy or the genetic predisposition to diseases may also be detected. Sound impossible?  Unfortunately, there are documented cases in which this has occurred.

Systematic Errors with Drug Testing

While no one would argue that a safe workplace is not in in the best interests of employers and employees alike, many employers simply do not have sound practices in place when it comes to drug testing.

  • Random Testing: If the selection process for employees chosen for testing is not truly random, it may be discriminatory. In California, random testing is only allowed under narrow circumstances.
  • Legal Compliance: The law allows for testing of employees under reasonable suspicion of drug use only if objective facts are in evidence. Barring a good reason, singling out someone for testing is not lawful. Employers need to be aware of specific laws carved out by various municipalities or by other authorities in particular industries.
  • Uneven Implementation: One study indicates that just over 20% of respondents conducted drug testing on workers after employment. If policies are not administered uniformly, employees may have reason to suspect discrimination.
  • Medical Marijuana: While marijuana has been approved for medicinal purposes in California, it is still considered a schedule one drug at the federal level. Employers may have a zero-tolerance policy for marijuana, even though it is legal in the state.

[Read more…]

Balancing Family Care and Your Job

Family CareWorried about your job and balancing family care? Can you be fired for calling in sick at the last minute because your child is ill? Let’s say you were just on your way out the door when your little one experienced a disturbing flu symptom.  You can’t drop your child off at daycare under those circumstances, so you have no choice but to stay home to tend to him or her yourself. Your employer is understandably not thrilled; but can you actually lose your job?

Caring for Sick Family Members

Many Americans have dual roles of both breadwinner and caregiver. Sometimes juggling these responsibilities gets tricky.

  • 69% of caregivers report having to rearrange their work schedules at times;
  • Female caregivers are almost three times more likely than their male counterparts to take less demanding jobs in order to provide care;
  • 34% of caregivers wind up leaving a job due to inflexible work schedules.
SB 579

Under California law, employers who employ at least 25 employees and who provide any sick leave to employees must allow employees to use at least one-half of their time to care for sick family members, including children, parents, spouses and domestic partners, as well as the in-laws of the same. Even grandparents and grandchildren qualify for care under SB 579.  Employees cannot be threatened with demotions, suspensions, or firing based on the use of this leave.

Beyond this protected sick leave, the law may provide limits on an employers’ ability to require doctors’ notes for absences. Such a requirement may appear to be discriminatory or a form of retaliation against employees who use Protected Sick Leave.

Furthermore, the use of Protected Sick Leave should not be counted against employees in performance evaluations or when making determinations as to excessive absenteeism.

Additional Family Care Protections

SB 579 expands protections for employees who wish to take time off for child-related activities for children in grades k-12 or who are being cared for with a licensed care provider. This means employees may take time off of work to find and enroll a child in school or licensed day-care.  Moreover, if a parent is called due to a child’s behavior or discipline issues, time off must be allowed.

Who Qualifies as a Family Care Parent?

Parents are defined as biological parents, legal guardians, foster parents, stepparents, grandparents, and in loco parentis (one who is standing in and acting in the parenting role). [Read more…]

Employers: Will Your Liability Insurance Cover Discrimination Lawsuits?

Business Liability InsuranceAs a business owner, will you be covered by your general liability insurance policy if an employee sues for discrimination? It seems at first glance that you ought to be covered if there are no exclusions specified in the policy, so many employers are surprised to find that insurers may deny coverage.  If you find yourself in this situation, an experienced employment law attorney may be able to help.h0Hey

Reasons for Liability Insurance Claim Denials

Liability insurance claims may be denied for any number of reasons, but three very particular issues may come into play with a discrimination case: The lack of coverage for economic issues, requirements associated with mental health claims, and the purposeful nature of discriminatory acts.

Let’s say an employee purports to have been passed over for a promotion due to race, age, or other protected status. He seeks compensation for multiple economic losses, including past and future earnings and benefits. Additionally, he is claiming psychological injury, as the entire incident caused a serious blow to his confidence and mental health. Your general liability policy does not cover those things: it covers three key areas:

  • Property damage;
  • Bodily injury;
  • Personal/advertising injury.

Now, while some might think the mental health piece of the claim to be covered under the bodily injury portion of the policy, in practice those types of problems are covered only if associated with a physical injury.

Coverage may not kick in for another reason: The injury to your employee was not due to an accidental occurrence. General liability policies do not cover intentional actions.

Umbrella Policies and Employment Practices Liability Insurance Coverage

In some instances, discrimination claims may be with protected with umbrella coverage under Personal And Advertising Injury Liability. In other cases, Employment Practices Liability Coverage (EPL) may be necessary. This type of coverage kicks in when a lawsuit is filed, not when an alleged incident occurs. Of note, while such policies typically cover situations involving discrimination, they often do exclude intentional acts of wrongdoing. In discrimination cases, the claim is typically surrounding intentional behaviors. In other words, if the jury finds that an employer purposefully discriminated against an employee, the policy may not cover damages.  Even so, court costs may still be covered up until a finding of intent is delivered. Having those costs covered often makes holding a policy of this kind worthwhile.

Liability Insurance – Other Considerations

As an employer, there are other factors to be aware of when purchasing liability insurance of this kind:

  • Lawsuit Decisions: Who chooses the attorney? If the insurer has someone in mind but you have your own ideas as to counsel, who gets to make the final decision? It is not something you want to haggle over in the face of a lawsuit.
  • Settlement issues: The insurance company may not see eye-to-eye with you when it comes to settlement decisions. You need to know just how much control you will have over final pronouncements when discussions like this are underway before they occur

[Read more…]

Intellectual Property: Who Owns Your Ideas?

intellectual propertyIntellectual property ownership. Let’s say a corporation hires you as an employee or an independent contractor. After completing a number of projects, you decide it is time to move on, and figure you would like to take your ideas with you. After all, none of the new programs, flow charts, and materials you created would exist without you. Your employer, however, believes that the intellectual property belongs to them, as it was created while in their employ. Who is right? An experienced employment attorney may be necessary to unravel those legal answers.

Intellectual Property – Things to Consider

While both you and your employer claim ownership of the intellectual property, your employer will have a stronger claim on these materials if you signed a contract agreeing to as much prior to starting work. These documents, referred to as an assignment of inventions or ownership of discoveries, generally assign the company ownership of all intellectual property created in the course of employment. If such an agreement does not exist, you have a greater claim to your ideas. Your case could be even stronger if you called out specific areas of ownership interest in an employment addendum prior to employment or preceding work on a specific assignment.

Written Contracts

Again, if there is no written agreement outlining specific ownership provisions, you may have a strong case for ownership. If there is a written contract, consider the following:

  • Does it assign rights or ownership of intellectual property, copyrights, or trademarks?
  • Was it executed prior to employment or later? If later, were you offered additional compensation or consideration in exchange for giving up ownership?
  • Were you, as a prospective employee or independent contractor, allowed to specify any intellectual property you owned prior to this contract?
  • Was there a regular communication as to what intellectual property you owned and what you did not?
  • Does it specify consequences for infringing on company ownership of intellectual property?

Intellectual Property and Rules for Independent Contractors

Independent contractors often experience this conflict when it comes to intellectual property, even though it may be assumed they can keep what they create. They generally own their work, except in specific situations, such as:

  • A cooperative project;
  • Audiovisual work;
  • A translation;
  • A supplement to an existing piece;
  • A compilation of works;
  • An atlas;
  • Any test;
  • An answer key to a test.

Determining Whether Ideas Were Developed During the Course of Employment

If there is no written contract regarding intellectual property, determining ownership becomes a bit trickier. The courts generally then consider whether your ideas were developed during the course of the employment relationship. That is, were they a direct result of your work, beyond simply occurring during the time frame in which you were employed? Making that determination requires the court to examine the reasons for employment, including any directives or job descriptions. Is the material in question a direct result of your employment goal? If so, it may belong to the employer. Even if the work was completed at home, on your personal computer, it may still belong to your employer if it can be directly connected to your work responsibilities. [Read more…]

Criminal History? Can’t find Employment?

criminal history searchDo you have a criminal history? An ex-felon perhaps? You’re trying to get a job and finding nothing but brick walls in your path? You are not alone. Between 1.5 and 1.7 million former offender were unemployed according to 2010 statistics, and all indications tell us that things have not improved much since then. If you are trying to get your life back on track but are carrying your criminal history around with you, is finding a decent job simply out of reach?

Why Employers Screen for Criminal History

Employers surveyed report a number of reasons for screening job applicants for criminal convictions:

  • In a effort to avoid workplace fraud and theft;
  • Due to concerns about workplace violence;
  • Fear of liability due to negligence in hiring practices;
  • Compliance with state and federal laws.

Criminal History, Race, and National Origin Disparities

While federal law prohibits discrimination based on race, religion, national origin, and other factors, criminal history is not a protected status. That said, the Equal Employment Opportunity Commission recognizes the potential for disparate treatment when employers refuse to hire felons:

  • Disparate treatment liability is a potential problem if employers view an applicant’s criminal history differently depending on the national origin or race of the applicant;
  • Factually, excluding workers based on a criminal history does have a disparate impact on certain races.

Indicators of Illegal Criminal History Discrimination

Proving discrimination requires the documentation of specific behaviors. If an employer refuses to hire, for example, someone with a criminal record who is a member of a racial minority group, but hires an equivalent applicant who is white, that may be one indicator that discrimination is at work. In fact, if it can be demonstrated that an employer utilizes a practice, such as screening for criminal history, and it has a disparate impact on race or another protected category, the practice itself may be unlawful. Other problems include:

  • Biases or stereotypical comments related to race;
  • Inconsistent hiring practices with regard to racial minorities;
  • Indiscriminate application of the screening process;
  • Statistical analysis that reveals discriminatory practices with regard to hiring, promoting, etc.

EEOC Recommended Procedures

To avoid liability, the EEOC provides guidelines to employers who choose to screen for criminal history:

  • Conduct an individual assessment of each applicant;
  • Tailor screenings narrowly to correspond with job requirements;
  • In general, avoid making inquires about criminal history;
  • When such inquiries are made, make sure applicants would only be excluded based on job-related factors;
  • Keep information about criminal histories confidential.

Government Incentives to Hire Former Offenders

The Federal Bonding Program (FBP) and the Work Opportunity Tax Credit (WOTC) are a couple of incentives available to support employers who hire former offenders. Credits of 25-40 percent of wages earned in the first year are available to employers.

Additionally, California laws are working to protect those with convictions that have been set aside or are sealed (Cal. Lab. Code § 432.7(a)). Additionally, this legislation puts the burden on employers to show that their screening policy is necessary to the job at hand and takes into account several factors:

  • Nature and severity of the crime;
  • Time passed since the arrest;
  • Nature of the job responsibilities.

[Read more…]

When can Trade Secrets be Disclosed?

Trade SecretsDo you know the inner-workings and trade secrets of your company, and suspect the company is operating in violation of the law? Are you reluctant to share company secrets for fear of facing federal, private, or civil action for trade-secret misappropriation? You are in a difficult spot: A good employment attorney may be able to help.

The Defend Trade Secrets Act

The DTSA protects trade secrets associated with products and services used in foreign or interstate commerce.  It affords U. S. businesses both protections and legal remedies for the misappropriation of proprietary information. This relatively new federal law provides a uniform way to view the definition of trade secrets, statutes of limitations, and intellectual property.

What is a Trade Secret?

The DTSA intentionally defined trade secrets rather broadly:

“all forms and types of financial, business, scientific, technical, economic, or engineering methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically graphically, photographically, or in writing if

  1.     The owner thereof has taken reasonable measures to keep such information secret; and
  2.     The information derives independent economic value, actual or potential, from not being generally know to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.”

What is “Misappropriation?”

The DTSA is quite specific as to what constitutes a misappropriation:

  • The attainment of information by improper means;
  • Obtaining information from someone who had the duty to protect it;
  • Knowingly acquiring a trade secret that was discovered by accident.

SnapChat Trade Secrets Lawsuit

One former employee is suing SnapChat, claiming that the company pressured him to reveal proprietary information about his former employer, Facebook. The employee, Anthony Pompliano, was terminated three weeks into his employment allegedly because he was incompetent. Pompliano claims he was lured to the company under false pretenses and was asked to share secrets about Facebook operations. Had he done so, he may have been subject to federal penalties.

Trade Secrets Sharing – Remedies

A number of remedies are available in the event of trade secret sharing:

  • Civil seizure;
  • Injunctions to prevent potential misappropriations;
  • Royalty payments, exemplary damages, and other damages.

[Read more…]

Is Missing Work to Care for A Grandparent Covered by the Family Medical Leave Act?

Family Medical Leave ActCan you use medical leave to take care of your grandmother? Imagine your grandmother has had hip replacement surgery, and is going to require extensive care for the next several weeks. You approach your boss for some time off and are denied. But what about the Family Medical Leave Act (FMLA), you challenge. Does it not provide time off to care for family members? If you find yourself in a confrontation with your employer over the provisions of FMLA, an employment law attorney may be able to assist.

Family Medical Leave Act (FMLA) Provisions

FMLA provides that eligible employees are allowed to take up to 12 weeks of unpaid, job-protected time off with continued group health insurance coverage in certain circumstances.  The part of the law relevant to this situation is pretty explicit: An employee may take the time off of work to care for a spouse, child or parent with a serious health issue. Grandparents are not mentioned. It looks pretty cut-and-dried. Or is it?

Family Medical Leave Act and Parental Relationships

In fact, the FMLA does have some wiggle room when it comes to defining family relationships.   The law actually provides consideration to those who are able to demonstrate a factual, or in loco parentis relationship. This refers to anyone who has essentially served in a parenting role toward the employee. Now, the law does not specify exactly how that parenting role presents, but some factors might include:

  • Providing food, shelter, and clothing;
  • Addressing medical needs and having health insurance;
  • Providing transportation to and from school.

If an employee can establish that his of her grandparent raised him or her, or, at a minimum, met the above criteria, he or she may have a case for in loco parentis status. If, indeed, the grandparent discharged obligations as in a parent-child relationship when the employee was a minor child, FMLA may cover time off of work now for the employee to care for his or her grandparent.

Of note, the in loco parentis interpretation goes even further. The individual who took on the parenting role does not even have to have a legal or biological relationship to the employee.  Simply showing that that person provided financial support and performed duties typically associated with a parent is generally enough.

Employer Rights

Employers are entitled to documentation of any claims of in loco parentis relationships, of course, just as they may seek documentation showing the need for FMLA in other allowed circumstances. That documentation, however, can simply be the employee’s assertion of the relationship with minimal details. [Read more…]

Employee or Independent Contractor?

contractorLet’s say an employer hires you and suggests that you accept independent contractor status rather than being labeled as a regular company employee. To sell the idea, the simple tax form and reduced monthly deductions you would be required to pay are put on the table. What should you do?

Who Determines Independent Contractor Status?

To be clear, employers are not allowed to make this determination willy-nilly, even though there are noteworthy benefits to employers who engage independent contractors. Hiring an individual as an employee has significantly different requirements for employers than hiring that same individual as an independent contractor. The benefits are so tempting, in fact, that employers could face significant penalties when they erroneously classify an employee as an independent contractor. Several government agencies oversee classification controversies, including the Division of Labor Standards Enforcement (DLSE), and the Employment Development Department (EDD).

Employer Benefits of Hiring Independent Contractors

Tax forms and withholding amounts differ, as well as employer tax burdens. Sometimes employers might prefer to have independent contractors in order to avoid payroll taxes, overtime and minimum wage requirements, rest and meal breaks, worker’s compensations insurance, social security, disability insurance, and reimbursements for business expenses.

Are You an Employee or an Independent Contractor?

Because the law does not specifically call out a definition of an independent contractor, court interpretations and agency precedents must be relied upon to make individual determinations.  The Division of Labor Standards Enforcement (DLSE) starts with the presumption that an individual is an employee, and then applies several tests to determine whether or not independent contractor status is appropriate.

The primary consideration is whether or not the employer has the right to control how tasks are accomplished. For instance, an employee performing janitorial tasks may be required to use particular cleaning products, whereas an independent contractor who performs those same janitorial services is simply held to completing the task by whatever means he or she feels appropriate.

Several other factors are considered, including:

  • Whether or not the individual performing the services does so separate from the employer;
  • Whether or not the individual supplies the space, tools, and materials required for the job;
  • Whether or not specialized skills are required for the task;
  • Whether payment is dependent on time or job completion.

Three factors that indicate an employer/employee relationship, regardless of other factors, include:

  • The primary control of the operation lies squarely with the employer;
  • The duties of the worker are key to the success of the business;
  • Detailed supervision of the work is inessential due to the nature of the work.

[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.