Workplace Flexibility Benefits Everyone in the Era of Social Distancing  

workplace flexibilityA new world of workplace flexibility? Not quite gone are the days of a strict 8-5 work day, but many businesses are seeing the benefits of adapting to the times, and that means retooling expectations for employees in a number of ways. Accommodations can benefit both the employee and the employer, and in some situations, may be essential under state and federal law. In any situation, employers have a responsibility to provide a safe work environment for employees. With real concerns about COVID-19 plaguing Americans, it is important for every company to rethink the way they do business. The failure to do so could result in serious consequences, one of which is an employee lawsuit.


The Americans With Disabilities Act


The Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for employees with a qualifying physical or mental impairment that limits their life activities in some way. That being said, the disabled individual must be able to perform what are considered to be essential functions of the job, or those that are basic to the job itself. The ADA regulations apply to any employer with 15 or more workers. The types of accommodations vary, but one that is consistently called out as reasonable is allowing an employee to adjust the work schedule. The truth is, employers often benefit from such accommodations every bit as much as workers do because they get high-quality work from well-qualified employees.


Examples of Workplace Flexibility


The fact is,flexible work expectation often benefit all parties, regardless of disability.  Particularly as the nation struggles to respond to a pandemic, a number of flexible workplace arrangements may make sense: 

  • Telecommuting: Some positions may lend themselves to telecommuting, allowing employees to work and conference via computer. Potential benefits include the obvious reduction in travel and installation of workplace flexibility accommodations for those with disabilities. Other employees may also enjoy less commuting, less exposure to potentially contagious individuals, and more flexibility generally.
  • Alternate Scheduling: In order to reduce traffic in the workplace, it may be possible to alternate shifts, keeping fewer employees in an area at a time. In the era of social distancing, this may be a key strategy to put more space between workers. It may also benefit employees who prefer alternate shifts in order to accommodate child care or who are dealing with other issues.

Discrete Measures Designed to Protect


For service-oriented industries, social distancing gets a little more complicated. Some tips that might be utilized include: 

  • No-visitor policies;
  • Staggering shift work;
  • Pooling workplace tasks to reduce congestion;
  • Adaptations to workplace design;
  • Streamlining procedures.

[Read more…]

Suing Your Employer

suing your employerSuing your employer? If you have had your fill of the treatment you are getting at work, perhaps you have considered a lawsuit. If so, gear up: It is going to be a battle, and you need to prepare for what is ahead. After all, chances are your employer is not going to roll over and admit to wrongdoing. Here is how to prepare:

Evaluate Your Circumstances Before Suing Your Employer

You and an attorney experienced in employment law need to sit down to look over your claim:  Do you have a valid complaint? Has your employer violated protected rights under state or federal law? Are you dealing with harassment, wrongful termination, or discrimination? These and other issues may be worth pursuing in court. What legal theory will you proceed under?  Developing a strong rationale is central to success. Additionally, it is important to know whether or not you are within the statute of limitations. If the time to file suit has expired, you are most likely out of luck.

Consider the Evidence Supporting Your Case Before Suing Your Employer

What kind of documentation do you have to prove that your employer has acted outside the law?  Assemble any records, photographs, recordings, and other pieces of evidence that support your claim. Make a list of potential witnesses to the violations, as well. They may be asked to testify in order to verify your complaint.

Consider Your Emotional and Physical Stamina

There is nothing easy about a lawsuit, in all frankness. Before proceeding, you need to feel sure that you want to go forward. It will take time and energy. It may wear on your psyche, and may strain relationships. Sometimes suits are quickly settled, but they often take months or even years to resolve.

Think About Backlash

Is there a possibility of a countersuit? It is not uncommon for those under attack to seek revenge in the form of a defamation suit, for example. Beyond that, it is entirely possible that a lawsuit will cause discomfort or outright resentment among some colleagues. You must plan for the possibility of feeling ostracized, or worse.

Consider the Outcome of Suing Your Employer

Are you suing as a matter of principle? Do you want to teach someone a lesson? Would you like an apology? Is public shaming a desired outcome? Are you interested in improving things for the next person who works for that employer? Is it financial gains you are interested in? You may be entitled to satisfaction on all counts. Be sure you know exactly what you would like to have happen at the conclusion of the suit. It can clarify your attorney’s approach, and determine whether or not settlement discussions are worth pursuing. [Read more…]

Avoiding a Legal Crisis

legal crisisLawsuits are every business owner’s worst nightmare of a legal crisis. Contemplating the hours and dollars that become lost to legal challenges can set a CEO’s head spinning. The truth of the matter is that many lawsuits and the associated headaches can be avoided with some smart moves early on.  For those lawsuits that simply cannot be sidestepped, there are ways to protect personal finances if you just make some informed choices from the get-go.

Avoid a Legal Crisis by Choosing the Right Business Setup

Bankruptcy is a real possibility for anyone who sets up a business as an individual or a partnership. Avoid this disaster by incorporating and/or creating a limited liability company (LLC). This simple step protects your personal assets from claims made against the company and other debt.

Respect Your Employees

When you treat people as valued members of the work community, you are less likely to create the feelings of resentment that often precede the filing of a lawsuit. While nothing can ensure protection from being sued, dealing respectfully with others, even in the face of necessary discipline or bad news, can only increase the chance that you are admired and respected in return.

Discrimination Will Lead to a Legal Crisis

Make sure the message is strong and clear from the top down: Discrimination will not be tolerated. That applies to race, culture, gender, sexual orientation, religion, and any other category you can name. Managers who hate piercings need to keep their opinions to themselves; chauvinists must set a cordial tone at work. As the business owner, you set the culture of the workplace. Let it be known that every member of the team is to be treated fairly at all times.

Put Policies in Writing

If everyone knows the expectations in the workplace, you are much more likely to get compliance. Beyond that, your written policy backs you up in the event discipline is required.

Comply with Accessibility Laws

The most common lawsuits filed against California businesses deal with ADA compliance issues. The Americans With Disabilities Act was written to protect individuals and to provide equal access and opportunity. If you have questions about whether or not there are accessibility problems, have an evaluation of the property done and get a written legal opinion as to the acceptability of the premises to ADA regulations.

Document Employee Discipline and/or Termination

When an employee feels wrongfully terminated, the best way to save yourself from an ensuing legal crisis /retaliation is to have a well-documented paper trail proving that you proceeded through the termination process with due diligence.

Think Twice about Advertising Strategies

Be aware that if you make claims about other companies, and those statements have an adverse impact on their profits, you could be sued. Before you say something you might regret, have an experienced business attorney review the content of your message. [Read more…]

I Want to Sue my Business Partner for Breach of Contract

Contract BreachBreach of contract options. Let’s say you and some acquaintances are shooting the breeze about your ideas for a new business venture. One thing leads to another, and before you know it, you all agree that doing business together and sharing in the profits and losses is a great idea. This seems like a great opportunity for each of you to contribute your talents to a new enterprise. You come up with the basic tenets of the arrangement, and before you know it, you are all in business together. Everything is coming up roses, until you suspect that one person is in breach of contract. What are your options now? In a situation this complex, an experienced employment attorney could help.


Oftentimes a good mediator or arbitrator can walk you and your partner(s) through any disputes you may have. Hopefully you have a written agreement, which will make it easier to hold everyone’s feet to the fire. Even if you do not, be aware that litigation will tend to enflame an adversarial relationship, which will make working together difficult if all partners wind up staying connected to the business.


When you wrote up your initial agreement, if you included an expulsion clause, you may now be able to expel the offending partner for breach. Otherwise, expulsion is not possible, unless you dissolve the partnership altogether.

In the event you do have that expulsion clause, and you choose to exercise it, be sure your actions are in response to a serious breach of your contract; otherwise you may be the target of a lawsuit yourself.

In either case, a knowledgeable employment attorney can advise you of the pitfalls and legal requirements you will encounter.

Suing for Breach of Contract

If you can not or are not willing to expel the offending partner, you may still have a legal option to sue if financial harm has come about due to your partner’s actions. There are several situations that might justify this course of action:

  • A partner walked away from the business with not justifiable reason, breaking an agreement for participation for a specific time-period;
  • A partner misappropriated assets;
  • A partner caused the business to lose inventory or clients.

Breach of Contract Statute of Limitations

You also need to be aware of time restraints when it comes to suing a business partner.  If you have only a verbal agreement, the statute of limitations for filing suit is two years from the date of the alleged breach. When a written contract exists, the statute is four years from the breach. [Read more…]

Employer’s Social Media Policy

Social Media PolicyWhat is your employer’s social media policy? Can employees be punished for criticizing their employers on social media? James Kennedy wrote some complaints on Twitter about Chipotle restaurants. One of these tweets criticized Chipotle for charging extra for guacamole. Another complained that the prices of Chipotle’s meals were excessive, considering the salaries of its crew members.

These kinds of tweets might not please Chipotle’s marketing department, but one would not expect there to be much fuss about them. There was a complicating factor, however – Kennedy himself was a Chipotle crew member. And Chipotle had a Social Media Policy Code of Conduct, which prohibited employees from posting “disparaging” statements on social media platforms such as Twitter.

Chipotle insisted that Kennedy delete some of his tweets. When Kennedy circulated a petition among employees in protest of the company’s break policies (Kennedy alleged that the company was not following its own regulations), his manager directed him to stop. When Kennedy refused to stop circulating the petition, he was discharged.

Kennedy alleged that he was fired in violation of the National Labor Relations Act (NLRA). On August 18, 2016, the National Labor Relations Board (NLRB) ruled that he was wrongfully terminated. The NLRB’s opinion states that many of Chipotle’s policies are unlawful, including its Social Media Code of Conduct.

The Chipotle Social Media Policy Ruling

The Board’s social media policy ruling ordered Chipotle to do all of the following:

  • Offer Kennedy his job back, or a substantially equivalent job (if his former job no longer existed).
  • Pay Kennedy for his lost salary and benefits.
  • Remove any references to Kennedy’s discharge in its files.
  • Allow its workers to circulate petitions regarding employment conditions.
  • Stop enforcing its Social Media Policy Code of Conduct, which prohibits employees from posting “incomplete, confidential or inaccurate information and making disparaging, false, or misleading statements.”
  • Stop enforcing its “Solicitation Policy,” which prohibits employees from soliciting even when they are off the clock, if they are in working areas, and the solicitation could be seen or heard by customers.
  • Stop enforcing its “Chipotle’s Confidential Information” rule, which limits how employees may use the name of the restaurant.
  • Stop enforcing its “Ethical Communications” rule, which directs employees to “avoid exaggeration, guesswork, and derogatory characterizations of people and their motives.”
  • Stop prohibiting its employees from discussing politics, and from using the restaurant’s name for political purposes.
  • Post notices in specified locations in Chipotle facilities which inform employees that the NLRB found that their employer violated federal labor law. The notices also inform employees of their labor rights, and explain that Chipotle will no longer maintain certain policies (such as the Social Media Code of Conduct, the Solicitation Policy, the Chipotle’s Confidential Information rule, and the Ethical Communications rule).

[Read more…]

Can Vicarious Liability Extend to Employee After Hour Activity?

Liability, Vicarious LiabilityCan Vicarious Liability extend to what your employees do after hours? Employers do not generally concern themselves with what their employees do after they punch out at the end of the day. But a recent $1.5 million jury verdict may cause California employers to pay close attention to what their employees do if they choose to remain on the premises after the ends of their shifts – particularly if they run establishments that serve alcohol.

The case in question involves an employee of the restaurant chain On the Border. Vincent Quintanilla worked at the On the Border located in Mission Valley, San Diego. On the evening of December 8, 2012, some of his fellow employees held a birthday celebration for him. After he finished his shift, he had drinks with his coworkers at the restaurant for several hours, and then drove away.

Later that night, Quintanilla’s vehicle collided with a skateboarder named Kai-Yen Cheng. Cheng suffered a broken leg, as well as other injuries. After the incident, Quintanilla fled the scene. Authorities later determined that Quintanilla was responsible. He was arrested, and eventually pleaded guilty to felony hit-and-run driving.

Cheng sued On the Border for his injuries, arguing that Quintanilla was acting within the scope of his employment when the accident took place. The attorneys representing On the Border argued that Quintanilla was a customer at the time, and that the restaurant would therefore not be liable for his actions. The jury sided with Cheng, and awarded him $1.5 million.

“Respondeat Superior” and Vicarious Liability in California

The concept of an employer being held responsible for the tortious actions of its employees when they are acting within the scope of their employment is called “respondeat superior.” California’s policy on respondeat superior is laid out in the case of Kephart v. Genuity, in which a family sued an internet services company after a “road rage” incident caused by one of its employees.

The employee forced the Kephart family’s vehicle off the road before heading to an airport for a business trip. Genuity argued that the employee was far removed from his employment at the time of the accident, and so the company should not be held responsible for its employee’s actions. A jury agreed and found that Genuity was not liable.

In upholding the jury’s decision, a California Superior Court ruled that employers may be considered vicariously liable for the tortious actions of their employees, if the actions result or arise from pursuing their employers’ interests. The Court also states that the relevant issue was whether the employee was acting within the course and scope of his employment. (The opinion holds that the jury was reasonable in determining that the employee’s misconduct did not occur within the course and scope of his employment with Genuity.)

In the case involving On the Border, the plaintiff’s attorneys argued that Quintanilla became intoxicated in the course and scope of his employment because his employer regularly allowed its employees to consume alcohol on its premises and received a monetary benefit for doing so. If the case is not overturned on appeal, it could have serious consequences for California businesses. [Read more…]

California “Gig Economy” Bill Introduced

Gig EconomyA “Gig Economy” is an environment in which temporary positions are common and organizations contract with independent workers for short-term engagements. Legislation proposed by California Assembly Member Loretta Gonzalez (D – San Diego) would make it easier for some workers currently classified as independent contractors to be regarded as employees. The bill, known as the California 1099 Self-Organizing Act, would create a rebuttable presumption that a worker is an employee if the worker performs services that require a license under the Contractors’ State License Law (or if the worker performs the services for someone who is required to obtain such a license.)

If the bill is passed, the burden of proof will be shifted, so that workers participating in the “gig economy” (that is, who work through hosting platforms such as Uber or Lyft) will be regarded as employees unless their employers are able to prove that the workers are actually independent contractors. It does not, however, grant the workers official employee status, or lay out any rights that the workers must receive.

How the Gig Economy Burden Can Be Overcome

The bill specifies how an employer would go about demonstrating that a worker is an independent contractor. To overcome the presumption that a worker is an employee, the employer would have to show that the following factors have all been met:

  • That the worker has the right to control the performance of the contract, and discretion as to how the contract is performed, and that the primary factor being bargained for is the result of the work (rather than the means by which the work is done),
  • That the worker is “customarily engaged in an independently established business,” and
  • That the worker is genuinely an independent contractor, and that the employer is not just trying to avoid giving the worker employee status.

If you are wondering how an employer could meet the third requirement, and show that the worker is genuinely an independent contractor, the proposed bill includes a list of factors that could be seen as evidence of independent contractor status. This list includes the following factors:

  • Whether the worker has control over when and where the work is performed
  • Whether the worker holds a license pursuant to California’s Business and Professions Code
  • Whether the worker has a substantial investment in the business other than personal services
  • Whether the worker is held out as being in business for himself or herself.

Before introducing the legislation, Gonzalez stated in an editorial in the Sacramento Bee that the legislation is intended to give workers in the gig economy the right to collectively bargain, and the right to form associations. The editorial includes an estimate that 2 million Californians are part of the gig economy. [Read more…]

An Important Entertainment Law Ruling: Do Interns Have to be Paid?

do interns have to be paidDo interns have to be paid? A recent federal ruling provides some interesting insight into the issue of where the line is drawn between unpaid interns and paid employees. The case, Giatti v. Fox Searchlight Pictures, involved several unpaid interns in the film industry who sued for lost wages under the Fair Labor Standards Act (FLSA). In considering their case, the United States Court of Appeals for the Second Circuit adopted a “primary beneficiary” test, intended to determine whether workers should be considered employees.

The primary beneficiary test, as laid out in the decision, focuses on what an intern receives in exchange for his or her work. The test consists of the following “non-exhaustive” considerations, including the extent to which:

  • The intern and the employer clearly understand that there is no expectation of compensation. (If there is the promise of compensation, whether it be express or implied, this would suggest that the intern is an employee.)
  • The internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  • The internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  • The internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  • The internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  • The intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  • The intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

The court added that none of the factors are dispositive, and that they do not all need to point in the same direction in order to provide an indication as to whether an intern should be considered an employee.

The Department of Labor’s Test

The court rejected the test proposed by the interns, which was developed by the U.S. Department of Labor. This test provides that there is not an employment relationship if the following six factors all apply:

  • The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  • The internship experience is for the benefit of the intern;
  • The intern does not displace regular employees, but works under close supervision of existing staff;
  • The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  • The intern is not necessarily entitled to a job at the conclusion of the internship; and
  • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The Department of Labor filed an amicus curiae brief supporting the use of this test, but the court nonetheless chose not to apply it. The court held that this test was “too rigid for our precedent to withstand.”

The FLSA and Your Workplace

The experienced Beck Law P.C., employment and labor law attorneys  in Santa Rosa can provide you with advice about any questions you may have in Sonoma County, Mendocino County and Lake County California about the Fair Labor Standards Act. You can call or email our office today to schedule a consultation.

Mental Health Related Disabilities and the Americans with Disabilities Act

mental health related disabilitiesMental health related disabilities. There are employers who will gladly provide accommodations for an employee who uses crutches or a wheelchair – but are unwilling to consider the needs of an employee with a mental illness. However, the Americans with Disabilities Act (ADA) applies to mental conditions as well as physical ones.

In fact, mental health-related disabilities are mentioned in the first line of the ADA. It states, “The Congress finds that physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical and mental disabilities have been precluded from doing so because of discrimination.”

What Mental Illnesses are Considered Disabilities Under the ADA?

There is no definitive list of which conditions (mental or otherwise) are covered by the ADA. The ADA defines a disability as “a) a physical or mental impairment that substantially limits one or more of the major life activities of (an) individual, b) a record of such an impairment, or c) being regarded as having such an impairment.” There are a variety of mental health conditions that meet those requirements.

The Equal Employment Opportunity Commission (EEOC) has provided examples of mental conditions that can be considered mental impairments under the ADA. These include:

  • Major depression;
  • Bipolar disorder;
  • Anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder);
  • Schizophrenia; and
  • Personality disorders.

To qualify as a disability under the ADA, the mental impairment must substantially limit a major life activity. And just as there is no definitive list of disabilities, there is also no definitive list of major life activities. However, the EEOC’s Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities states that all of following activities are considered major life activities:

  • Learning;
  • Thinking;
  • Concentrating;
  • Interacting with others;
  • Caring for oneself;
  • Speaking;
  • Performing manual tasks;
  • Working; and
  • Sleeping.

California Disability Law

The state of California has its own legislation that requires accommodations for employees with mental disabilities. The Fair Employment and Housing Act (FEHA) states that a mental disability includes, but is not limited to, all of the following:

  • Having any mental or psychological disorder or condition, such as an intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity.
  • Any other mental or psychological disorder or condition not described in paragraph 1 that requires special education or related services.
  • Having a record or history of a mental or psychological disorder or condition described in paragraph 1 or 2 that is known to their employer.
  • Being regarded or treated by the employer as having, or having had any mental condition that makes achievement of a major life activity difficult.
  • Being regarded or treated by the employer as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph 1 or 2.

Note that unlike the ADA, FEHA does not require that the condition “substantially” limit a major life activity. It only requires that the condition limit a major life activity.

Mental Health Disability Legal Questions

If you believe that your employer has discriminated against you on the basis of a mental disability – or if you are an employer, and a claim has been filed against you– it is important that you seek the advice of an attorney. You can call or email the employment and labor law attorneys at Beck Law P.C. in Santa Rosa, who have many years of experience in workplace discrimination cases.

Department of Labor Policies on Same-Sex Spouses and the FMLA

same-sex spousesSanta Rosa labor and employment law attorney blog. Department of Labor policies on same-sex spouses and the FMLA. On February 25, 2015, the U.S. Department of Labor issued a final rule regarding the recognition of legally married same-sex couples under the Family Medical Leave Act (FMLA). It allows an eligible employee who has been legally married to a same-sex partner to use FMLA leave to care for their spouse – regardless of whether they live or work in a state that recognizes same-sex marriages. If you run a business that operates in any states that do not currently recognize same-sex marriages, it is important that you take note of this change in policy.

The final rule, which went into effect on March 27, 2015, is based on the Supreme Court’s decision in United States vs. Windsor. The Windsor ruling held that it was a violation of the Fifth Amendment to restrict the federal definition of marriage to include only heterosexual couples.

Prior to the Windsor ruling, employees who were covered by the FMLA were only able to take leave to care for their spouses if their marriage was recognized by the state in which they resided. As a result of the Final Rule, the current policy of the Department of Labor is based on the laws of the state in which the marriage was performed.

For example, let’s say a man was legally married to another man in California in 2014, and then he and his husband moved to Texas, where they both currently live and work. Under the old policy, if the man’s husband became ill, the man would be unable to take FMLA leave to care for him, because Texas does not currently recognize same-sex marriages. Under the new policy, the man would be eligible to take leave under the FMLA, because the laws of California (where same-sex marriages are currently recognized) would determine his eligibility, rather than the laws of Texas.

FMLA and the Rights of Same-Sex Spouses

The FMLA allows eligible employees to take 12 workweeks worth of leave during a 12-month period under the following circumstances:

  • The birth of a child, and caring for a child within one year of the child’s birth;
  • The placement of a child with the employee via adoption or foster care, and caring for a child within one year of the child’s placement;
  • Caring for a spouse, child, or parent with a serious health condition;
  • The employee having a serious health condition; or
  • Any qualifying exigency arising from an employee’s spouse, child or parent being a covered military member on active duty.

The FMLA also allows 26 workweeks worth of leave in a 12-month period if an employee’s spouse, parent or child is a servicemember with a serious injury or illness.

As a result of this final rule, eligible employees who are legally married to same-sex spouses will be allowed to take FMLA leave for any of the reasons above, regardless of which state they live in. These employees are also entitled to take FMLA leave to care for their spouses’ children.

Another result of the rule is that an employee will be able to take FMLA leave to care for a same-sex spouse of their parent.

Questions About Same-Sex Spouses and Employee Leave

If you have any questions about your company’s policies on same-sex spouses and family leave, you should seek the advice of an attorney. The Beck Law P.C. Santa Rosa labor and employment law attorneys can address your concerns. You can call or email us today.


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 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.