Avoid ADA Violations

ADA - The Americans with Disabilites ActIf you own a business, you are required to follow various specifications related to the Americans with Disabilities Act (ADA). Failure to do so could result in fines, accidents, loss of business, and even lawsuits. Taking note of the most common violations and working to eliminate them can save you more than a few headaches.

Frequent ADA Violations

Access is a key issue addressed by ADA guidelines. Failure to provide it is a serious problem:

  • Number of parking spaces: The law requires a certain minimum number of parking spaces, based on the size of the business and parking lot;
  • Condition of designated spaces: When handicapped parking spaces are on a slope, or when the paint is faded and difficult to see, it is a violation;
  • Van access not in compliance: Vans require larger spaces and/or aisles to enable wheelchair bound individuals the room to maneuver;
  • Signage missing: Reserved spots lack a sign designating them for accessibility;
  • Entry Routes inaccessible: Ramps or curbs are lacking or non-existent, or surfaces are not level;
  • Doorways are inaccessible: Automatic doors are not available;
  • Indoor access to the facility: Tables, counters, and other surfaces are not in compliance with ADA guidelines, or aisles within the building are not wide enough for wheelchairs to maneuver;
  • Floor space not cleared: Objects in aisles and otherwise leaving insufficient room to turn around in a wheelchair;
  • Bathrooms not in compliance: Problems related to missing grab bars, inaccessible sinks, towel dispensers, faucets, mirrors, hand sanitizer or soap dispensers, and toilet seat cover dispensers.

Businesses Most Often Found in Violation of the ADA

Any business is responsible to provide access for disabled individuals. Those businesses most frequented by the public experience the greatest numbers of complaints for non-compliance. In California, the data relating to complaints gives us a window into the businesses most often found to have deficits with regard to ADA accommodations:

  • Sales and/or rental businesses: 41% of complaints;
  • Food and drink establishments: 27% of complaints;
  • Service-oriented businesses: 26% of complaints;
  • Lodging establishments: 4% of complaints;

Employee ADA Training

In addition to the physical accommodations in your building, train employees about the proper way to interact with individuals with disabilities. Remember, they are people who are looking for products or services, just like anyone else. Be aware that not every disability is visible, so courteous, individualized service from your employees will benefit everyone.

  • Individuals with slurred speech will require patience and attention;
  • Those with hearing difficulties may need to see your lips moving as you speak;
  • Individuals of short stature may appreciate employees coming around a counter to interact;
  • Someone with respiratory disabilities or chemical sensitivities may have an adverse reaction to spray cleaners, air fresheners, or other toxins in the air;
  • Persons with psychiatric disabilities may have trouble with social cues, stressful situations, or unexpected delays.

[Read more…]

Pregnant Workers That Face Discrimination in California

pregnant workersWorking mothers and pregnant workers face challenges that many employers struggle to understand. This is never truer than when women try to balance pregnancy with the demands of a job. If you have faced discrimination based on pregnancy, you want an experienced attorney to assist you in securing your rights, and compensation when those rights have been violated.

Common Workplace Violations Against Pregnant Workers

The U.S. Equal Employment Opportunity Commission (EEOC) is dedicated to ensuring fair treatment for all workers under the law. That includes employment opportunities for women who are pregnant and who wish to continue working at their jobs, but who require temporary accommodations at their workplaces. Title VII of the Civil Rights act prohibits discrimination on the basis of pregnancy.

Unfortunately, there are still some employers who need a little push when it comes to doing what is right. Since 2011, in fact, the EEOC has filed 44 suits involving discrimination claims for women who were pregnant. The suits have revolved around a number of claims of unlawful activities related to violations that occurred during the workers’ pregnancies:

  • Refusing to hire pregnant workers, or firing workers when employers learned of pregnancy;
  • Failing to promote, or, in some cases, demoting pregnant workers;
  • Curbing employment growth opportunities by compelling pregnant workers to take involuntary leave, restricting work hours or limiting assignments;
  • Refusing accommodations for pregnant workers that would be available to other non-pregnant workers;
  • Participating in retaliation when pregnant workers and/or coworkers complained about discrimination.

Legal Protections Continue After the Pregnancy

Discrimination sometimes persists after the pregnancy, as well, when employers resist providing appropriate leave and/or accommodations for lactating employees.

The law provides protections for workers who wish to take unpaid leave in order to care for and/or bond with a newborn.  Under the Family and Medical Leave Act (FMLA), workers who qualify are entitled to up to 12 weeks of job-protected leave.

Pregnancy Disability Leave (PDL) is another option for pregnant workers who have complications related to pregnancy or childbirth. Under this provision, workers have up to four months of leave, with continued health benefits. Finally, the California Family Rights Act provides up to 12 weeks of unpaid leave for workers to bond with newborns. It is unlawful for your employer to refuse such leave, or to retaliate against you by leveraging promotions or imposing other workplace restraints on you.

Accommodations for Lactation

California labor codes require employers to provide accommodations for lactating mothers including:

  • Reasonable break times;
  • A private location other than a bathroom.

[Read more…]

New California Law Will Change Pay Stub Requirements

Pay StubOn July 22, 2016, Governor Jerry Brown signed a bill that will change pay stub requirements, allowing California employers to include less information on some of your employee wage statements. Assembly Bill No. 2535 amends Section 226 of the California Labor Code, which lays out what information must be listed on your pay stub, and which employees must receive them. The bill creates an additional exemption, regarding which employees must be provided with a list of how many hours they worked – meaning that fewer workers will be entitled to receive such a list.

Under existing law, all employees must be provided with a pay stub either at the time they are paid, or semimonthly. The wage statement must include certain types of information, including:

  • Gross wages earned
  • Net wages earned
  • The number of piece-rate units earned
  • Deductions
  • The dates of the pay period in question
  • The employee’s name, and the last four digits of the employee’s social security number or employee identification number, and
  • The employer’s name and address.

An employer is also required to list the hours that the employee in question worked during the pay period, unless the employee is a) a salaried employee, and b) is exempt from overtime.

What Pay Stub Requirements the New Law Changes

Under AB 2535, which takes effect on January 1, 2017, another group of employees will added to the hours exemption. Employers will not be required to list an employee’s total hours worked if the employee is exempt from the payment of minimum wage and the employee is exempt from overtime.

Some examples of employees who may fit this exemption are:

  • Outside salespersons
  • Employees working in an executive, administrative or professional capacity
  • Workers who are in their employers’ immediate families (such as someone who works for their spouse, their parent, or their child)
  • Computer software workers who are salaried employees in accordance with Section 515.5 of the California Labor Code (which makes certain software professionals exempt from overtime if they meet certain requirements)
  • People participating in (or working as staff members for) certain live-in rehabilitation programs focused on preventing substance abuse, and
  • Employees working in participation with certain national service programs.

Complying With Pay Stub Requirements

There are penalties for failing to comply with Section 226. An employer can face a fine of $50 for the first pay period in which it fails to provide an employee with the proper information – and $100 per employee per pay period for each violation in subsequent pay periods, up to $4,000. An employee who takes action against an employer regarding a Section 226 violation may be awarded costs and attorney’s fees. If an employer fails to allow an employee to inspect or copy records, the employer may be liable for a $750 penalty to the Labor Commissioner. [Read more…]

Am I An Independent Contractor Or Employee?

independent contractorA common complaint among workers in today’s economy is the eagerness of many employers to label them as an independent contractor. The Department of Labor has now issued a memorandum criticizing the overuse of the term “independent contractor” and clarifying what constitutes an employee under the Fair Labor Standards Act (FLSA).

Economic Realities of Independent Contractor vs. Employee

Courts apply an “economic realities” test to determine if a worker is an employee or an independent contractor. In most circumstances, the test asks the following questions:

  • To what extent is the worker’s output integral to the employer’s business?
  • Does the worker have an opportunity to make or lose money based on his or her managerial skill?
  • What are the relative investments of the employer and the worker? (If the worker has made an investment, this would indicate that he or she is an independent contractor.)
  • Does the work require special skills or initiative? (The Department of Labor cites electricians, carpenters, and construction workers as examples of the types of workers that typically operate as independent contractors.)
  • How permanent is the relationship between the employer and the worker? (If the work is permanent, that would suggest that the worker is an employee.)
  • How much control does the employer exercise (or retain)?

The Department of Labor’s memo emphasizes that the test should be viewed from the lens of the FLSA’s “suffer or permit” standard. This refers to a clause in the FLSA which states, “’Employ’ includes to suffer or permit to work.”

According to the memo, the “suffer or permit” standard means that a worker is an employee if he or she is dependent on the employer. The standard exists in order to broaden the FLSA’s applicability, by expanding the definition of an employer/employee relationship. The memo states that the economic realities test is not determinative, and that the most important factor in determining whether a worker is an employee is whether he or she is economically dependent on the employer.

Other clarifications offered in the memo include:

Even if an employer and worker have an agreement stating that the worker is an independent contractor, this agreement will have no bearing on whether the worker is actually considered an independent contractor or an employee.

Whether a worker receives a 1099-MISC from the IRS (which is intended for independent contractors) is not considered evidence that the worker is actually an independent contractor.

The economic realities test is qualitative, rather than quantitative, meaning that not all of the factors need to be present in order for the worker to be considered an employee. [Read more…]

The NLRB Changes Joint Employment Standards

joint employment, joint employment standardsThe National Labor Relations Board (NLRB) has issued a ruling that adopts a new definition of joint employment. The case revolved around a California labor dispute – but the more expansive definition of joint employment laid out in the decision is expected to have a significant effect on labor cases around the country.

The labor dispute case involved Browning-Ferris Industries of California (BFI), which operates a recycling facility in Milpitas, and Leadpoint Business Services, which provides BFI with employees. A union, Sanitary Truck Drivers and Helpers Local 350, sought to represent the sorters, screen cleaners, and housekeepers who work at the facility. The Union argued that BFI and Leadpoint were joint employers of the employees in question.

A regional director of the NLRB issued a decision stating that Leadpoint was the sole employer of these employees. The ruling used the NLRB’s previous definition of joint employment, which focused on whether the employers exercised the right to control workers in a direct, immediate way (rather than a limited and routine way).

The NLRB’s Reversal on Joint Employment Standards

The NLRB overturned the Regional Director’s decision and found that BFI and Leadpoint are joint employers. The NLRB concluded that it is relevant whether a putative employer has the authority to control the terms and conditions of employment, even if the employer does not actually use that authority. The NLRB’s ruling clarifies that the correct test for whether joint employment exists is “whether one statutory employer possesses sufficient control over the work of the employees to qualify as a joint employer with another employer.”

Under the ruling, entities are considered joint employers if:

  • They are both employers within the meaning of the common law, and
  • They share or codetermine those matters governing the essential terms and conditions of employment.

The factors that the NLRB examined in order to determine the answers to these questions included hiring, firing, discipline, supervision, direction of work, hours, and wages. After considering these factors, the Board concluded that BFI shared and co-determined the terms and conditions of employment, and thus, was a joint employer along with Leadpoint.

Why the Joint Employment Standards Change?

The ruling states that the new standard was previously used by the NLRB and courts for years, and that it is based on the common-law definition of an employment relationship. According to the opinion, the common-law test for an employment is based on the right to control and not on whether that control is exercised.

The ruling argues that the previous standard was significantly narrower than the common-law standard. It also states that, under the old standard, employees could be deprived of their right to bargain effectively simply because there were two employing firms involved in their work arrangements instead of one. [Read more…]

Will Mandatory Arbitration Agreements Become a Thing of the Past in California?

binding arbitration, arbitrationIn a previous blog post, we discussed a decision by the Ninth Circuit regarding mandatory arbitration agreements for employees. A major change to this area of law may be on the way in the state of California, if Assembly Bill 425 is signed into law. This bill would altogether prohibit employers from requiring their employees to sign arbitration agreements as a condition of their employment.

AB 425 was passed by the California Assembly and Senate in August 2015. If it is signed into law by Governor Jerry Brown, it will take effect on January 1, 2016. The bill would become Section 925 of the California Labor Code.

What Does the Bill Require?

AB 465, if enacted, will prohibit any employer from requiring an employee, as a condition of employment, to agree to the waiver of “any legal right, penalty, forum, or procedure for any employment law violations.” It also prohibits employers from threatening, retaliating against, or discriminating against employees for refusing to sign such waivers. In addition, it stipulates that if a waiver of this type will be unenforceable if it is required from an employee (or a potential employee) as a condition of employment or continued employment.

You may be wondering how, under those regulations, an employee’s agreement to arbitrate would be legally valid. The statute stipulates that any waiver of employment rights (such as an agreement to arbitrate) must be “knowing and voluntary and in writing, and expressly not made as a condition of employment.” If the employer seeks to enforce the waiver, then the employer would have the burden of proof to show that the waiver was knowing and voluntary.

There are several other important aspects of AB 465:

  • If the bill is enacted, it will apply only to waivers that were signed on or after January 1, 2016 – so you do not have to worry that this legislation will render any current contracts invalid.
  • It authorizes reasonable attorney’s fees to the prevailing claimant.
  • It exempts organizations that are considered self-regulatory under the Securities Exchange Act of 1934, and it does not apply to regulations adopted under that Act pertaining to any requirement of a self-regulatory organization that a person arbitrate disputes between an employer and an employee.
  • It does not apply to employees who were individually represented by legal counsel when negotiating the terms of an agreement to “waive any right, penalty, remedy, forum or procedure for a violation of this code.”

Binding Arbitration and Preparing for the Future

If AB 465 is passed into law, it will have major ramifications for employers who require their employees to sign arbitration agreements. If you are an employer in California, and you would like your employees to commit to arbitration, it may be in your best interests to begin thinking now about how you will revise your policies if the bill is enacted. [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.

Amendments to California’s Sick Leave Law Are Passed

Amendments-to-California's-sick-leave-law-are-passedOn July 13, Governor Jerry Brown signed into law amendments to California’s sick leave law; the Healthy Workplaces, Healthy Families Act of 2014. The law (also known as Assembly Bill 1522) greatly increased the number of workers in California who are eligible for paid sick leave. The amendments make substantial changes to the law – many of which are favorable to California employers.

The amendments (which are contained in Assembly Bill No. 304) include the following changes to the Healthy Workplaces, Healthy Families Act:

  • They add an important stipulation to a provision in the original law. The provision stated that employees who work in California for 30 or more days within a year of beginning their employment are entitled to paid sick days (at a rate of at least one hour for every 30 hours worked). The new amendments require that an employee do that work for the same employer in order to qualify for the accrued sick leave.
  • They allow an employer to provide for employee sick leave accrual on a basis other than one hour for each 30 hours worked – provided that the accrual is on a regular basis, and the employee will have 24 hours of accrued sick leave available by the 120th calendar day of employment.
  • They allow an employer to limit an employee’s use of paid sick days to 24 hours or three days in each year of employment, or a calendar year, or a 12-month period.
  • They require employers to calculate paid sick leave based on an employee’s regular pay rate, or by the total wages divided by the total hours worked in a 90-day period, or the wages for other forms of paid leave.
  • They state that if an employee is rehired within one year of the end of their employment, then the employer is not required to reinstate the employee’s accrued paid time off, if the employee was paid off for their time when their employment ended.
  • They make a clarification regarding the original law’s rule that an employer is required under the original law to keep records for three years documenting an employee’s hours worked and paid sick days accrued. The amendments clarify that the employer is not obligated to inquire into (or record) the purposes for which an employee uses sick leave or paid time off.
  • They allow some employers who provided paid sick leave or paid time off to employers prior to January 1, 2015 to keep their old policies, so long as they make available an amount of leave applicable to employees that may be used for the same purposes and under the same conditions as specified in this section.

Can This Affect Your Business?

If you have concerns about what these amendments mean for your company’s policies, or you are considering making a change to your policies based on the passage of the amendments, it is highly advisable that you speak to an attorney. The employment and labor law attorneys at Beck Law P.C. in Santa Rosa are available for consultation. You can call or email their office today.

California’s New Child Labor Regulations

child labor regulationsCalifornia’s new child labor regulations. As of January 1, 2015, California has new protections for victims of child labor law violations. Assembly Bill 2288, also known as the Child Labor Protection Act of 2014, has become Section 1311.5 of the California Labor Code.

The legislation reads as follows:

  • “The statute of limitations for claims arising under this code shall be tolled until an individual allegedly aggrieved by an unlawful practice attains the age of majority. This subdivision is declaratory of existing law.”

(“Tolling” a statute of limitations simply means suspending it. So, for example, let’s say an employer in California violates a child labor law, thus giving a 16-year-old employee a cause of action, and the statute of limitations for the particular offense is 3 years. The employee would be able to file a claim until he or she turns 21. This is because, with regard to the statute of limitations, the clock would not start ticking until the employee turns 18.)

  • “In addition to the other remedies available, an individual who is discharged, threatened with discharge, demoted, suspended, retaliated against, subjected to an adverse action, or in any other manner discriminated against in the terms or conditions of his or her employment because the individual filed a claim or civil action alleging a violation of this code that arose while the individual was a minor, whether the claim or civil action was filed before or after the individual reached the age of majority, shall be entitled to treble damages.”

(Treble damages are, effectively, triple damages. Laws such as this one allow for victims of certain violations to receive three times their “actual” damages. So if an employee files a claim alleging that his or her employer violated a child labor law, at a time when the employee was a minor – and the employer subjects the employee to retaliation for filing the claim – then the employee will be entitled to three times the damages that he or she would otherwise receive.)

  • “A class ‘A’ violation, as defined in subdivision (a) of Section 1288, that involves a minor 12 years of age or younger shall be subject to a civil penalty in an amount not less than $25,000 and not exceeding $50,000 for each violation.”

(A class “A” violation is when an employer violates California’s child labor laws in such a way as to present an imminent danger to minor employees, or a substantial probability that death or serious physical harm would result therefrom. Under Section 1288, a class “A” violation carries with it a civil penalty of $5,000 to $10,000 for each and every violation. Under the new legislation, that amount is increased to $25,000 to $50,000 if the employee involved is 12 or under.)

Seeking Legal Counsel Regarding Child Labor Regulations Issues

If you are believe that you were subjected to violations of child labor laws as an employee – or if you are an employer, and you have been accused of violating a child labor law – you may benefit from the advice of a qualified attorney. You can schedule a consultation with the employment and labor law attorneys at Beck Law P.C. in Santa Rosa by calling or emailing their office 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 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.