California Labor Law News
California Labor Law—Hostile Work Environment
In fact, California is one of the least-tolerant states regarding discrimination and hostile work environment, as evidenced by countless successful California labor lawsuits. Robin (not her real name) is hopeful that she will receive some compensation from her discrimination and hostile work environment claim: she has been discriminated against by her former employer, who has clearly violated the California labor code.
"I recently got a job in a furniture store, but right from the beginning, my employer constantly criticized me in front of the customers," says Robin, who is Italian. "She asked me why my skin color was as 'dark' as hers. 'Did I mind growing up with darker skin color,' and many other questions regarding my personal life and background. Because of her constant badgering, I faltered at my ability to learn; I was always afraid of making a mistake. She would belittle me in front of others with derogatory questions like, 'Can't you see, get your glasses,' or 'Why can't you remember anything,' which only seemed evident that she was insinuating I was old (I am 57 years of age, which she constantly reminded me of).
"It got to the point where I became physically ill and unable to focus. Finally I walked out, but she even ran after me and up to my car as I was pulling away. Now I do not have a job. And I have a severe case of shingles from stress. What can I do? I need to work, yet have not worked at this company long enough to claim unemployment."
A hostile work environment can impact an employee's ability to perform his or her work effectively, which has clearly happened to Robin. For instance, the atmosphere at work can be made hostile by racial slurs or inappropriate joking. Robin has filed a claim with the California Department of Fair Employment and Housing, and her next step is to file a complaint with the EEOC and serve notice on her employer??"the person against whom the complaint was made. She is hopeful that a labor law attorney will help her, and soon.
Title VII of the statute states that an employee who believes he or she has been unlawfully discriminated against must bring an action against the employer within 180 or 300 days of the date the claimed unlawful employment practice occurred.
Carwash Owners Sued by State for Violating California Labor Law
California Attorney General Jerry Brown filed the lawsuit against the Sikder family, claiming that they denied workers at the carwashes minimum wage and overtime pay, did not pay wages owed to those who quit or were fired, failed to provide rest and meal breaks, and falsified time sheets, according to the Los Angeles Times.
The lawsuit is seeking $6.6 million in lost wages and civil penalties from the defendants, who also run the popular Koi restaurant in Hollywood.
"While Koi served up yellowtail tartare and Kobe beef carpaccio to Hollywood celebrities, the restaurant's owners routinely denied wages, breaks and overtime pay to workers at their unlicensed carwashes," Brown said in a statement.
In one instance cited by prosecutors of the alleged misconduct, the owners of the carwashes failed to pay a nearly $15,000 court judgment to two of its employees that had been handed down more than three years ago.
Brown is the Democratic nominee in the California governor's race, which will be decided in November.
California Labor Law Requires That Employees Are Reimbursed for Mileage and More
Jannise says that refusing to pay her expenses is just one tactic her employers are using so that she will eventually quit and they won't have to pay unemployment benefits. She has also been dealing with harassment, including being accused of lying and cheating??"another violation of the California labor code??"for well over a year. "I can sell ice cubes to Eskimos but there isn't enough money to keep me here," she says.
A hostile work environment has taken its toll on her. "I meet their demands and gather documentation to prove I am not lying, but I still have to get my work done," says Jannise, who is on the verge of crying. "Now I work 60??"70 hours a week, including all the time it takes to defend myself. I can hardly think straight; I'm sick to my stomach and can't even eat or sleep properly.
"My bosses have been misappropriating my commissions by listing them under general sales and other names," adds Jannise. "Accounts that I brought in weren't even listed in my name. I eventually got that issue cleared up, but later found out that I am not alone and sales reps in the Northern California offices are getting ripped off. Not only are we not getting our credits due, it looks like we aren't doing anything, which has created an atmosphere of harassment and retaliation. I know that my bosses are trying to prove that I am lying on my reports, which I am not.
"I am paid a base salary and commission. This past year, after they got their hands out of my pockets, I went to 93 percent quota while the other reps in my office are about 10??"20 percent (110 percent gets you the President's Club). I brought the company new business from San Jose to San Diego. I am good but it doesn't matter??"I have a target on my back.
"I have worked here for three-and-a-half years and never has my expense report been sent back or denied, and my mileage was always covered. I turned in my mileage expense report and a dinner expense in September and they denied it: I drove to Palm Springs for new business but they said they didn't want business there (which was an about-face) and then they put me under investigation. They said I was lying.
"I believe they are using these tactics so I will eventually quit, because they have no grounds to fire me. Even though California is an "at will employment" state, I could apply for unemployment if they fired me but they don't want to pay for that."
Jannise is correct??"according to the California Labor Code §2802, California employers are required to reimburse their employees for expenses, including mileage expenses, incurred in the course of employment. This requirement also applies to commissioned sales reps. Commonly reimbursed business-related expenses incurred by sales persons include:
- training and seminar costs
- mileage
- cell phone expenses
- telephone charges
- postage and other office supply expenses
- advertising costs
- subscriptions
- business lunches
- costs associated with transaction errors; and
- costs to settle disputes with customers
If an employer fails to reimburse the employee, the employer may be held responsible for the employee's out-of-pocket costs plus interest from the date the employee incurred the expense as well as the employee's legal fees and costs to collect the un-reimbursed expenses. As for as the other allegations, Jannise may not have to deal with a hostile work environment for much longer??"she is currently looking for another job, and an attorney.
Pregnancy Penalty Violates California Labor Law
"When I told my boss that I was pregnant a few years ago, he began making comments that his wife was more experienced in HR and could do a better job than me," says Darlene (not her real name). "He said, 'Take as long as you want on your maternity leave because we don't need you back.' When I did take mat leave, he tried to take my position away and offer me part time work without benefits. When I objected, he said okay, I could have my job back. But when I returned, they took away all of my duties except payroll."
Darlene knew her rights, so she was able to get her job back after four months on maternity leave. By threatening not to reinstate Darlene after she returned, then offering part-time without benefits, and finally taking her duties away, at least three California labor laws were potentially violated as per the California labor code:
(d) Employee Status"After he knowingly took away my duties, my boss would have meetings with my co-workers and me, basically to humiliate me," says Darlene. "He would ask questions in front of everyone, like, 'What do you do all day at work?' and 'What do you work on for eight hours?' In other words, he was looking for a way to terminate me without cause."
The employee shall retain employee status during the period of the pregnancy disability leave. The leave shall not constitute a break in service for purposes of longevity and/or seniority under any collective bargaining agreement or under any employee benefit plan. Benefits must be resumed upon the employee's reinstatement in the same manner and at the same levels as provided when the leave began, without any new qualification period, physical exam, et cetera or other qualifying provisions.
Unfortunately, Darlene's boss succeeded in ousting her, but only temporarily, because Darlene has filed a lawsuit against him and the company. "Because of the stress I had to take a leave of absence, but they terminated me within a few days," she says.
Adding insult to injury, Darlene says she just received a letter from the company. "Now they want to sue me for phone charges on a company cell phone they gave me, which I gave back when I was fired. Do they have the right to do this to me?"
That's another question Darlene's attorney can answer. As it stands now, she is potentially entitled to the following remedies that are available for violation of the pregnancy disability leave law:
- Back pay
- Reinstatement or front pay
- Injunctive relief
- Reasonable attorney fees and court costs
- Compensatory damages for pain and suffering
- Punitive damages
More from the California Labor Code as it pertains to Darlene:
§7291.5 Responsibilities of Employers
Discrimination by employers because of pregnancy constitutes discrimination because of sex under Government Code sections 12926…
(a) Employer Obligations
Except as excused by a permissible defense, it is unlawful for any employer, because of pregnancy of an employee or applicant, to:
(6) discriminate against the applicant or employee in terms, conditions or privileges of employment, except for non-Title VII employers, as set forth at section 7291.11, subdivision (a)(1)(A), below;
- Harass the applicant or employee because of pregnancy
- An employee who exercises her right to take a pregnancy disability 13 leave is guaranteed a right to return to the same position, or, if excused by section 7291.9, subdivisions (c)(1)(A) or (c)(1)(B), to a comparable position, and shall provide the guarantee in writing upon request of the employee. It is an unlawful employment practice for any employer, after granting a requested pregnancy disability leave or transfer, to refuse to honor its guarantee of reinstatement unless the refusal is justified by the defenses below in subdivisions (c)(1) and (c)(2). If the employee takes intermittent leave or a reduced work schedule, only one written guarantee of reinstatement is required.
Disease Discrimination Exists in the Workplace
In May 2008 Thomas injured his knee while on duty with the LAPD. He claimed that his sergeant, rather than extend an expression of sympathy, held the injury against him and required him to undertake activities that worsened his injury. Thomas alleged to have suffered other forms of discrimination in the workplace as well, including racial discrimination.
The plaintiff won a judgment nearing $706,000.
In an unrelated case, the US Equal Employment Opportunity Commission (EEOC) launched a complaint against DynMcDermott, a privately-held corporation that provides maintenance and operations services for the Strategic Petroleum Reserve managed by the US Department of Energy on behalf of Philip Swafford.
As outlined in a 8/26/10 release by the States New Service, Swafford had applied to DynMcDermott for a position he had previously held with the company. He interviewed and was recommended for the position by both his former supervisor and the manager in charge of hiring for the position. However, the facility's director, who had ultimate authority, stated on at least two occasions that Swafford should not be hired because of his age (56 years) and??"incredibly??"because his wife was suffering from cancer. The director assumed that Mrs. Swafford's condition would interfere with her husband's capacity to perform his job duties.
The EEOC alleged that DynMcDermott's unwillingness to hire Swafford because of his age and his wife's condition violated both the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act. DynMcDermott ultimately hired a 35-year-old applicant with no prior experience with the company.
In a separate EEOC complaint, the commission alleged that Jeff Rose was unjustly terminated from his job at ENGlobal Engineering Inc. because the company regarded him as disabled. The complaint holds that Rose had worked for the company for two weeks when, without prior warning and unbeknownst to him, he began developing symptoms of multiple sclerosis (MS). Rose quite properly reported the matter to his superiors and kept his managers informed.
However, as the manager learned more about Rose's condition and realized that he faced a potential MS diagnosis, the manager searched for a replacement and urged Rose to take medical leave despite the fact that he could continue working. After taking medical leave at his manager's insistence, Rose presented the company with a doctor's note stating that he had clearance to return to work. Although his position was available, ENGlobal human resources manager falsely told Rose that it was not. Further, although the human resources manager then told Rose that the company would try to find him another position within the company, it took no such action.
Three weeks later, the company hired another individual for Rose's job. It is the EEOC's position, stated States News Service, that ENGlobal's management violated the ADA by incorrectly and impermissibly viewing Rose as substantially limited in his ability to perform the work of any job within the company.
Such violations are unsavory acts of discrimination against individuals who suffer injury or disease through no fault of their own. So long as disease does not impact an individual's ability to perform his or her job, it is unlawful to deny such individuals the opportunity to work.
CA Labor Law: Fired While on Disability
Even though California is an "at will" state, disability discrimination applies to "at-will" employees like Robert. Employers may terminate workers on the basis of any type of behavior they deem unacceptable, although laws and court interpretations of these laws have protected some types of behavior when the employer's retaliatory action is deemed: 1) a violation of public policy; 2) a violation of an implied contract between the employer and the employee; or 3) an act of bad faith. An act of bad faith is the recognition of an employer's duty to treat employees fairly.
"My HR representative told me that I had to go into the office and fill out a leave of absence… I asked him to mail the form. Instead, I got a termination notice in the mail". Is it illegal for a company to fire Robert for applying for disability benefits after his doctor said he couldn't work for a month?
"My benefits were cut off because my disability manager, who represents my employer, claims my doctor wasn't sending the current diagnostics that they wanted," says Robert. "But my doctor said they mailed and faxed and emailed them - and I have proof.
"Last October my doctor said my blood pressure was sky-high and my heart was beating so fast I had to take time off, at least a month. I even wound up in the hospital for 10 days - I thought I was going to have a heart attack. (Luckily my benefits covered the hospital bills, well over $20,000.) I was supposed to return to work in November but my blood pressure was still up and down so my doctor said I shouldn't return to work until August 2011.
"My employer terminated me in July. My HR representative told me that I had to go into the office and fill out a leave of absence.
"'I can't come into the office because I am disabled,' I told him over the phone.
"'If you want to mess up your job, that's up to you,' he said.
"I asked him to mail the form. Instead, I got a termination notice in the mail. Apparently the boss at HQ said they had to fire me because I left on my own accord and I 'abandoned my job.' I have that in writing. I told my doctor that my benefits were terminated two months before I was fired; she said that I should get a lawyer ASAP.
"Finally I got a letter from my insurance company stating that I could qualify for COBRA but I need to respond right away because my insurance through Pitney Bowes, which covered short-term disability, was going to end soon. But through my payroll deductions I had paid into insurance for long-term disability (LTD) for the past seven years.
"I believe I was wrongfully terminated because my employer didn't want to pay my LTD - and I believe that is a violation of the California labor code. I have the employer manual that says I should be covered and it shows how much I have paid into the policy. This is so frustrating. I am currently collecting state disability, which is only $640 every two weeks."
Many employees are shocked to discover the lengths their employers will go to in order to justify termination. In Robert's case, he was also denied a rightful disability claim. An experienced attorney can assist California employees like Robert in seeking some form of remedy for California labor law violations, including compensation, job restoration, applying for benefits and appealing on their behalf if their long-term disability claim is denied.
California Labor Law Disallows Discrimination against Filipino Nurses
Racial or ethnic discrimination can occur when an employer refuses to hire a person because that person speaks with an accent, even if she is fully qualified for the job. The union provided evidence - produced affidavits signed under penalty of perjury - showing this is what happened at CPMC. One former nurse manager, Ronald Rivera, worked at CPMC from April 2006 to April 2010 when he resigned on good terms. "One day I spoke with Diana Karner (VP of nursing) on the phone about hiring new RNs," he attested, according to the Los Angeles Asian Journal. "Diana said to me that we probably should not hire any more foreign graduate nurses. She explained that patients complain because 'it is hard to understand them and be understood by them.'"
Another affidavit came from Chris Hanks, who was the Director of Critical Care from 2008 to 2009 and reported directly to Karner. Hanks attested that he was told not to hire any Filipino nurses and said that Karner told him, "The Filipinos are always related, or know each other, and that's not good. You're not to hire them."
The union provided evidence that showed in 2007 the Filipino RNs at St. Luke's were 66 percent of the nursing population. Today they have dropped to just 10 percent.
Dr. Warren Browner, California Pacific Medical Center's chief executive, said that Sutter doesn't keep track of how many Filipino nurses it employs, but then added, "The percentage of Asian nurses at St. Luke's has actually risen slightly, from 63 percent in 2007 to 66 percent today."
According to the Los Angeles Times on 8/19/10, these discriminatory practices stem from Sutter's plans to cut services at St. Luke's. "Sutter's discriminatory practices against Filipino nurses is as much about denying job opportunities as it is about punishing unionized Filipina nurses at St. Luke's who stood up to Sutter's plans to cut services to our community," said Lillian Galedo of the Oakland-based Filipino Advocates for Justice.
Interestingly, Filipino nurses were honored last July by the Los Angeles City Council. Eric Garcetti, president of the City Council, sponsored a commendation ceremony for the Professional Filipino Nurses Society (PFNS). The society was honored by the Los Angeles City Council for their valuable contribution and service to the Filipino nurses in Los Angeles. The commendation was also signed by Los Angeles mayor Antonio Villaraigosa. PFNS was conceived to promote professional advancement and social awareness in the community.
Unionized California Home Workers Replaced with Non-Union Staff
The Contra Costa Times reports that about 150 members of Service Employees International Union-United Healthcare Workers who are employed at the two senior care facilities staged a five-day strike starting Monday, August 2 and ending that Friday. The Times reported on 8/9/10 that the union had been bargaining since February over the terms of a new contract after the previous contract expired on April 30.
At the time of the strike, the workers were without a contract. It should be noted that a previous strike in 2007 lasted only two days, and that the employees returned to their jobs without incident.
This time, when employees returned to work on August 7, at least 38 workers at Piedmont Gardens were told their services were no longer required. They were granted a place in a "preferential rehire list," but they were out of a job.
It is reported the laid-off unionized workers were replaced with non-union employees. An attorney for the operator of the facilities, American Baptist Homes of the West, suggested the facility was required to replace the workers in the absence of any assurances from the union that the workers would stop striking.
However, a spokesperson for the unionized workers said that facility management was notified in advance of the strike and management assured the union that workers would not be fired.
"We've never had this problem before," said Gloria McNeal, a certified nursing assistant who has worked at Piedmont Gardens for 21 years. "But there was a different administration."
It was also reported that workers who were picketing on August 2 were complaining that the company targeted workers who voiced concerns with regard to management policies. Employees have allegedly been terminated for taking five or more sick days a year.
A spokesperson for the union, Jarad Kings, told local media that American Baptist Homes of the West violated federal labor laws by replacing unionized with workers with non-unionized staff. It remains to be seen whether any provisions of California labor law were violated, and whether or not the union or displaced workers launch legal action to pursue reinstatement. Both sides have expressed optimism that their differences could be resolved.
California Labor Violation—Illegal Drugs an Excuse for Termination
"I found out three weeks ago that I was getting fired - I am friends with the owner's brother," says Kevin, who managed the detail shop at a car lot. " That was Wednesday, my day off. On Thursday I confronted the two supervisors but they knew nothing about it and the owner was at a car auction.
After the supervisors said I wasn't going to be fired, they (obviously) spoke with the owner and Jeff, the shop manager, fired me the next day. He was almost in tears; he was really broken up about this. I called the owner after I was fired. He said we would talk when he got back from the auction but he never came back to work.
I was confused. I worked here for six years; I put my heart and soul into this place. I had a meeting with the supervisors and the general manager and I told them I was really upset: the owner said I was taking drugs. I have never missed a day's work, only when my mother died. I think he fired me because I asked for a raise a week beforehand. And he just hired a Spanish guy for $9 per hour; I was making $13 and asked for a $1 per hour raise. It had been more than two years since I talked about money and I was due for a raise.
I was the most loyal and dedicated employee at the car lot and there is no reason for this. I do take prescription drugs sometimes but never at work. You can look at my work records. Unfortunately California is an at-will state so he needed some excuse to terminate me. He certainly can't fire me for being late or not doing my job. People who do drugs don't work like me; showing up every day at 7am and never having a complaint.
I did work faster than anyone - you could ask any of my former co-workers, all 15 of them.
I have a family to support and it is not right that I am fired because he wants to save money. Morally this is wrong. I just can't believe he would do this and what makes me even madder is that he couldn't even do it himself.
It all boils down to economics when an employer doesn't want to pay you, but this decision to fire me is going to come back to haunt him financially because it would take two people to do my job. And I don't even know if this new employee is here legally…"
Former Employee says am/pm Store Violated California Labor Laws
According to Janice, am/pm managers should brush up on the California labor code, and not just regarding overtime laws. "I see how hard my fellow employees work and don't get paid for it," she says. "One guy was ill and went to urgent care; he called the manager and said he was too sick to return to work that day. 'You really let me down,' she said.
"One of my co-workers is working 80 hours a week. I've woken him up in his car a few times, telling him it is time to go to work. He just goes into the bathroom and washes up before starting his shift. I had to work at one am/pm store from 5:30 am until 1:30 pm, then drive 10 minutes to another store and work the 2-10 pm shift, without any overtime pay. The franchise owners justified no overtime pay by saying different stores have different payrolls. But am/pm owns both locations - they own a lot of convenience stores/gas stations in many states. And I was told that if one owner or company owns the same workplace, you must be paid overtime." (In this case, the owner is BP America.)
Janice says many am/pm employees work double shifts every day and some of them are even sleeping in their cars. "One of my co-workers is working 80 hours a week," Janice says. "I've woken him up in his car a few times, telling him it is time to go to work. He just goes into the bathroom and washes up before starting his shift. Another older gentleman is so exhausted having to do all these hours. He asked the manager if he can just stay at one store but they said no. He was afraid of losing his job if he didn't do what he was told. By the way, one man is from India and the other man is from Asian descent - I think they are being taken advantage of.
"A few days after working a 17-hour shift, I was suspended. A secret shopper came in that day and tried to buy alcohol underage. I didn't sell her alcohol but I still failed the test because the bathroom was dirty. We were so busy because the pumps outside weren't taking credit cards so everyone was paying at my cash register. I was alone for three hours, with no time to clean the bathroom.
"I was put on a three-day suspension, apparently because I rang in too many voids. I phoned on the fourth day (Monday) and my manager said the weekends didn't 'count,' so I was also suspended Monday and Tuesday - five days. This is like some Mickey Mouse joke: I had done no wrong and things were getting worse by the minute. I was treated like a child. Every day I called to find out when I was scheduled back to work, but 13 days later I was still suspended. I wrote a respectful letter to the supervisor and asked what was going on. The supervisor said, 'I'll get back to you.'
"Next day they fired me. All they said was, 'Sorry, we have to let you go.' That is when I got my final check - after waiting 13 days on suspension.
"This is why I had a lot of voids: I would ring in a sale and the customer would give me their credit card. But we don't accept credit cards, only debit. (You have to pay for gas beforehand, not at the pump.) Oftentimes, the customer would have no other way to pay so I had to void the sale. This happens all day long because there are no signs saying 'we don't accept credit cards.' Sometimes we had a line to the back of the store with people complaining that the pumps don't even accept debit cards outside - they have been broken for a year. Customers would yell at us. We were so swamped we couldn't do our regular duties like cleaning the bathroom.
"I was wrongfully terminated - another labor law violation. My manager even admitted I didn't do any wrong after I was fired. The lady from main office said I had to be fired because I had too many voids on my cash register. What am I supposed to tell a potential employer? The assistant manager advised me to say I was laid off for lack of hours because I didn't do anything wrong.
"Now I'm on unemployment. I have a four-year-old daughter and I'm a single mom. I am such a good worker and this is so disappointing. But an attorney called from LawyersandSettlements and they sent me some paperwork. I want my co-workers to get what they deserve and stop being treated this way. It's not just about me."
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