Orange County Employment Lawyer Blog

Equal Employment Opportunity Commission Finds Bellflower, California Pharmacist Was Wrongfully Terminated

Wed, 18 Jan 2012 13:05:04 -0800

The Equal Employment Opportunity Commission (EEOC) announced the simultaneous filing and $70,000 settlement of a disability discrimination lawsuit brought against Gemmel Pharmacies Inc., doing business as B&B Pharmacy, on behalf of a pharmacist who was denied a reasonable accommodation and fired due to his disability.

According to the Equal Employment Opportunity Commission, the pharmacist was hired at B&B Pharmacy in Bellflower, California in January 2007. The pharmacist was known to have severe diabetes, including renal failure. In August 2007, the pharmacist learned that a donor kidney had become available for him, requiring an immediate kidney transplant. He quickly advised B&B management of the impending surgery and his need for two to three months of unpaid leave of absence to recover. Instead, according to the EEOC, B&B Pharmacy fired and replaced the pharmacist instead of giving him reasonable accommodations. This is an example of a wrongful termination.

Most California employees are "at-will" employees. This means they may be terminated by their employers with or without cause, with or without prior notice. By the same token, "at will" employees may resign from their employment with or without cause, with or without prior notice. There are a few exceptions to "at will" employment, including the following: (1) Where the employee has an employment contract for a specified period of time; (2) Where the employer, by its own conduct, has essentially nullified an employee's "at will" employment status by making certain statements, promises, or representations; and (3) Where the employee engaged in certain legally-protected conduct.

Examples of Legally-protected Conduct:
•An employee may not be lawfully terminated for legitimately reporting sexual harassment (See also "Retaliation");•An employee may not be lawfully terminated for participating in an investigation into allegations of unlawful discrimination or harassment;
•An employee may not be lawfully terminated for filing a worker's compensation claim;
•An employee may not be lawfully terminated for "blowing the whistle" on certain unlawful conduct (See also "Whistle-blowing");•An employee may not be terminated for complaining internally about not receiving overtime pay, proper rest breaks or lunches, or proper wages;
•An employee may not be terminated for filing a complaint with a governmental or administrative agency, such as the Labor Board or DFEH

"California Labor Board Finds UPS Liable For Disability Discrimination"

Wed, 09 Nov 2011 13:54:06 -0800

News Break-This week The California Department of Fair Employment and Housing announced that United Parcel Service (UPS) must pay more than $96,000 in damages after the company fired employee Eva Linda Mason because of her disability. The Fair Employment and Housing Commission found that UPS had unlawfully terminated Ms. Mason even though she could perform the essential functions of her job. As an experienced Orange County Employment Law Firm, it is important to understand the difference between a disabled employee "with restrictions" and an employee who is "permanently disabled".

There are a small number of situations where an employer can justify terminating an employee due to a permanent disability. One such example is if the disability substantially inhibits one's ability to perform their job and there is no reasonable accommodation that can be made under such circumstances. An employer can validly terminate an employee without it being a wrongful termination.

UPS hired Ms. Mason in 1997 primarily as an Operations Management Specialist to handle customer calls and complaints on shipments. Although she occasionally located packages in a warehouse, handling packages was not part of her job. After Ms. Mason had knee surgery and took a leave of absence to recover in 2007, she continued to carry out the essential customer service functions of her job. Nonetheless, UPS perceived Ms. Mason as disabled because she had some restrictions, such as limited standing, walking, bending, and kneeling. UPS had a 12-month cap on the length of time employees with disabilities could be reasonably accommodated from their regular duties. UPS applied this cap to Ms. Mason and fired her in August 2008.

The Department of Fair Employment and housing said that "Using a 12-month cap to fire disabled employees is unlawful under the Fair Employment and Housing Act (FEHA)," and employees with disabilities must be allowed to work if they can perform their essential job duties with or without accommodation."

The Commission ordered UPS to pay $96,170 in damages, including $10,000 in administrative fines to the State. UPS must also post a notice about its liability and develop a policy and train management on disability discrimination.

Part III: How to Successfully Litigate Your Sexual Harassment Claim in California Courts; what is conduct committed without consent?

Tue, 21 Jun 2011 13:04:27 -0800

In Part I and Part II of "How to Successfully Litigate Your Sexual Harassment Claim in California Courts," we discussed all the mitigating factors that play a role in successfully litigating your sexual harassment claim and/or retaliation claim. The amount of calls we receive from prospective clients at Our Orange County Law Firm regarding Sexual Harassment is concerning. In deciding whether or not it is a case that our firm will take, we examine among other things, the mitigating factors involved in their claim.

Examples of conduct committed without consent that may give rise to a viable Sexual Harassment claim, include but are limited to, the following:

1. whether or not the conduct was specifically stated, meaning that it is an element of every offense whether the conduct was committed without consent of the employee

2. Examples of instances where their consent is lacking;
A. Forcible compulsion
B. Incapacity to consent

Forcible compulsion means to compel by:
A. Physical force ; or
B. A threat, expressed or implied, that places an employee in fear of their immediate well being or losing their future employment.

The following is a hypothetical story that mimics real life events:

Courtney goes to work on a beautiful sunny Tuesday morning. She arrives at the office at 8 a.m. Upon arriving at her office she runs into Andrew, her immediate supervisor. Her supervisor asks if they can have a meeting in his office at 10 a.m. Without hesitation she responds "yes". He has weekly meetings with her to discuss the work flow and the status of projects, so she isn't expecting anything different from this meeting. She steps into Andrew's office about 2 minutes before the meeting is scheduled too begin. He closes his office door. He gives her a hug and whispers in her ear, "thank you for taking the time to meet with me." She pushed him away from her, as she no longer felt comfortable at all. He responds to her in an aggravated tone, "don't you ever push me away when I hug you."

Part II: How to Successfully litigate your Sexual Harassment Claim in California Courts; what is retaliation ?

Wed, 18 May 2011 08:46:20 -0800

In our previous blog, "How to Successfully litigate your Sexual Harassment Claim In California Court" we discussed a few factors that play a role in litigating your sexual harassment claim and/or your retaliation claim. It is unfortunate that retaliation is far more common than we can imagine. Our Orange County Law Firm receives an abundance of calls wherein people feel they were retaliated against by being wrongfully terminated for reporting to their employer an incident or incidents of sexual harassment.

Examples of conduct that may give rise to a Viable Retaliation claim include, but are not limited to, the following:
•reporting sexual harassment or other legally-recognized harassment or discrimination.
• filing a complaint with (or who otherwise discloses information to) a government or law enforcement agency (Example: Filing a complaint with the Labor Board or disclosing information to the Labor Board during the investigation of another employee's complaint).
•complaining internally about not receiving overtime pay, proper rest breaks or lunches, wages or generally any other wage and hour related matter.
• intendending to file a worker's compensation claim.

The above examples illustrate a few types of conduct which may give rise to claims for retaliation. Please note that these examples are not all-inclusive. There are other circumstances which may protect you from retaliation.

When an employee files a claim for retaliation generally gives rise to the following damages:

• compensatory damages
• emotional distress damages
• punitive damages
• In some cases, reimbursement of attorney fees and costs.

In sum, retaliation can be hard to prove if you do not have the proper legal representation. Every county and every courthouse handles cases differently. It is very imperative to have an experienced attorney who is familiar with employment law in California so that you may achieve the best outcome possible.

How To Successfully Litigate Your Sexual Harassment Claim in California Courts

Thu, 05 May 2011 08:48:57 -0800

As you may already know from reading previous posts, In the state of California, it is unlawful to harass a person (an applicant or employee) because of that person's sex. It is unfortunate that when it comes to sexual harassment women and minorities are subjected to workplace harassment and discrimination.

Recently in the news two women (a current staffer and a former staffer) filed a lawsuit against a city parking authority claiming sexual harassment. Both plaintiffs claimed in their separate lawsuits that they were sexually harassed and suffered retaliation in connection with a lawsuit filed by another former employee. One of the plaintiffs alleged that the director of enforcement touched her breasts and buttocks, attempted to assault her in her home, and even suggested that the baby she gave birth to should have been his. Her suit contends that she was harassed by watching the defendant harass others. The case was settled for $300,000.

In order to have success in litigating a sexual harassment or retaliation case, one must establish that the conduct was committed without consent and the conduct was pervasive and offensive. Other contributing factors concern whether the offender was a co-worker or supervisor and whether the employer had reasonable notice of the conduct. Retaliation occurs when an employer, with notice of the offensive, fails to take action to prevent the conduct or responds unlawfully by terminating or disciplining the aggrieved party.

Los Angeles School Bus Company To Pay $150,000 To Settle A Los Angeles California Sexual Harassment Lawsuit

Tue, 08 Feb 2011 09:28:18 -0800

It is an unfortunate fact that more and more female employees are subjects of sexual harassment at their place of employment. Recently, our Orange County Law Firm has consulted with several employees who have been the subject of workplace harassment and discrimination. Recently, a school bus company agreed to pay $150,000 to settle allegations that a male supervisor at its Los Angeles, California facility sexually harassed at least four women, including bus drivers and a human resources assistant, as reported by the Beverly Hills Courier.

According to the U.S.Equal Employment Opportunity Commission, four female employees of First Student were sexually harassed, retaliated against or forced to quit. First Student builds itself as North America's leading school bus transportation services company. According to an EEOC lawsuit alleging civil rights violations, the supervisor made constant explicit remarks about the employees' body parts and the sexual acts he wanted to perform on them.

The harassment turned physical when the supervisor exposed himself, grabbed the breasts of a bus driver and rubbed his private parts against her body, according to the EEOC. The harasser cut another bus driver's hours upon refusal of his advances and promised extra hours to female employees who might submit, according to the EEOC, which reported that three of the victims felt forced to resign as a result of the ongoing harassment.

According to the EEOC, aside from the monetary relief, the parties entered into a consent decree, valid through 2012, which requires First Student to hire an outside employment consultant to revamp the company's policies, complaint procedures, investigations and training of its employees on sex discrimination, harassment and retaliation.

Los Angeles Superior Court Jury Awards Female Sargent $211,000 From A Sexual Harassment Lawsuit

Mon, 07 Feb 2011 15:41:06 -0800

On a previous blog we stated that when it comes to sexual harassment women and minorities are unfortunately subjected to workplace harassment and discrimination far too often. Our Orange County Law Firm constantly receives calls from prospective clients regarding this issue. However, it is unfortunate that many sexual harassment cases go unreported because the employee is afraid of retaliation or wrongful termination

Recently, the Beverly Hills Courier reported that a female Sargent was awarded $211,000 by a Los Angeles Superior Court Jury. The jury determined that she endured about three years of sexual harassment by her one-time mentor. The plaintiff's lawyer argued that the harassment against his client ranged from asking her out on dates to uninvited physical contact, including two forced kisses. The defense attorneys said criminal and internal investigations conducted into her complaints exonerated her one-time mentor.

Her mentor was in charge of her orientation and began tormenting her according to her lawyers, who said she initially tried handling the problem without telling her superiors. She eventually complained and was transferred to the another department and given a position tantamount to a receptionist and normally held by interns in the training unit, her lawyers said. White is currently in another inferior position in which she proofreads documents and cannot earn overtime, her lawyers said.

If your or anyone you know is the subject of sexual harassment, discrimination and retaliation contact our Orange County Law Firm for a free consultation.

Hewlett Packard's Board Forced It's Former CEO To Resign Amid Allegations Of Sexual Harassment

Wed, 02 Feb 2011 13:55:59 -0800

Our Orange County Law Firm receives a number of calls involving illegal workplace harassment. In the state of California, it is unlawful to harass a person (an applicant or employee) because of that person's sex. Harassment can include sexual harassment or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person's sex. For example, it is illegal to harass a woman by making offensive comments about women in general.

Both the victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. Unfortunately when it comes to sexual harassment women and minorities are unfortunately subjected to workplace harassment and discrimination far too often.

Recently, Hewlett-Packard's board forced its former CEO to resign amid allegations of sexual harassment and expense-account abuses. The case stems from allegations by an independent contractor that the CEO sexually harassed her and falsified expense reports to cover up a relationship, the Los Angeles Times reported.

In the wake of the company's handling of the sexual harassment complaint, four members of the Hewlett-Packard Company are going to step down. Among the incoming board members is Meg Whitman, the former CEO of Ebay and losing candidate in last fall's Californias governor's race.

The Times also reports that court documents filed by HP show the company is planning its own independent probe into Hurd's departure, stemming from a shareholder suit over Hurd's severance package. The ouster of the board members is largely the result of the perception of rash decision making -- The CEO was forced to resign despite HP's determination that he did not violate the company's sexual harassment policy.

If you need to speak to an attorney about an issue with discrimination, sexual harassment, unpaid wages contact our Orange County Law Firm for a confidential consultation to discuss your rights as an employee.

Does Your Santa Ana Employer Need To Provide You With A Meal Break?

Mon, 24 Jan 2011 13:25:31 -0800

Our Orange County Law Firm has been speaking to many employees regarding this issue. In California, an employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than thirty minutes. However, if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual written consent of both the employer and employee. A second meal period of not less than thirty minutes is required if an employee works more than ten hours per day, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual written consent of the employer and employee only if the first meal period was not waived.

If the employer requires the employee to remain at the work site or facility during the meal period, the meal period must be paid. Additionally, if you sit at your desk or otherwise continue to work while you eat your lunch, that is not a "duty-free" meal period and you should receive your pay for that period.

If your employer discriminates or retaliates against you or wrongfully terminates you because you ask about not getting a meal period, object to what you believe to be an illegal practice, or because you file a claim or threaten to file a claim with the Labor Commissioner, please contact our firm to discuss your options.

Does Your California Employer Require You To Work "Off The Clock, Without Paying You Overtime?"

Fri, 21 Jan 2011 09:22:13 -0800

In California it is illegal for an employee to work for an employer off the clock without being duly compensated. My Orange County Law Firm has received many inquiries regarding this issue. In California, the general overtime provisions are that a non-exempt employee shall not be employed more than eight hours in any workday or more than 40 hours in any workweek unless he or she receives one and one-half times his or her regular rate of pay for all hours worked over eight hours in any workday and over 40 hours in the workweek. Eight hours of labor constitutes a day's work, and employment beyond eight hours in any workday or more than six days in any workweek is permissible provided the employee is compensated for the overtime hours worked.

Overtime is calculated at one and one-half times the employee's regular rate of pay for all hours worked in excess of eight hours up to and including 12 hours in any workday, and for the first eight hours worked on the seventh consecutive day of work in a workweek; and double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.

There are, however, a number of "exemptions" from the Overtime law. An "exemption" means that the overtime law does not apply to a particular classification of employees. There are also a number of exceptions to the general overtime law stated above. An "exception" means that "overtime" is paid to a certain classification of employees on a basis that differs from that stated above.

Recently, a case was filed by a former employee of a major foreclosure law firm. She alleged that she and others were forced to work "off the clock" to keep up with a flood of cases over the past three years. The employee alleged that employees were regularly allowed five hours per week of overtime, but were also routinely required to work additional hours without pay.

If your employer requires you to perform any tasks before clocking in or after clocking out, you may have a claim for unpaid wages or unpaid overtime. If that is the case, please contact our firm to discuss your rights and options.

Groundbreaking Lawsuit: The Cheesecake Factory Hit With Sexual Harassment Lawsuit

Fri, 24 Dec 2010 08:21:02 -0800

Employees being fired after reporting sexual harassment seems to continue to grow unfettered everyday. My Orange County Law Firm has been receiving numerous calls regarding this issue. Most recently, a former employee of the Cheesecake Factory filed a lawsuit accusing the company of subjecting him to a barrage of sexual harassment from other male line chefs and punishing him when he complained.

The former employee's attorney has filed a federal lawsuit against the company seeking compensation for "mental anguish (and) loss of dignity. He says line chefs continually grabbed each others' buttocks and genitalia and simulated sexual intercourse in front of him. He contends he was mocked, punished and ultimately wrongfully terminated in September 2008 after he expressed his discomfort and complained.

According to the lawsuit filed by the employee's attorney, the Equal Employment Opportunity Commission issued a letter stating the evidence showed the employee "was subjected to severe sexual harassment and that the sexually hostile environment was pervasive."

According to the lawsuit, someone put a sanitary pad on a serving of meatloaf that the employee was about to prepare for a customer, and when he showed it to the person in charge of quality assurance, that person smirked.

In November 2009, the Cheesecake Factory settled a different sexual harassment lawsuit for $345,000. In that case, six male employees said they were subject to sexual harassment.

Have You Been Wrongfully Terminated By Your Irvine Employer?

Wed, 22 Dec 2010 13:56:36 -0800

My Orange County Law Firm receives calls daily regarding this issue. California's Labor Code specifies that an employment relationship with no specified duration is presumed to be employment "at-will." This means, at least in theory, that an employer or employee may terminate the employment relationship at any time, with or without cause. There at exceptions to the at-will rule created by the statue, the courts or public policy.

Federal and state laws and regulations protect employee's rights. For example, an employer can be liable for damages if they terminate an employee because of race, color, religion, sex, national origin. Additional information can be found by visiting the website for the Equal Employment Opportunity Commission.

In proving wrongful termination, a plaintiff must prove either that the termination violated the Fair Employment And Housing Act (FEHA), a statue, or a "common law" (non-statutory) cause of action such as wrongful termination in violation of public policy.

Wrongful termination cases are fact driven and therefore each case must be carefully and separately analyzed. It is therefore important that the employee keep copies of the Employee Handbook or other written policies and procedures, any letters or phone logs evidencing communications with the employer or its management, and performance evaluations so that the reviewing attorney can better assist the client in evaluating the potential case. If you feel you have been wrongfully terminated please contact Duvel & Duvel, PLC., for a free consultation.

Is My California Employer Required To Give Me Severance Pay?

Wed, 08 Dec 2010 10:56:14 -0800

Lately, our Orange County Law Firm has been receiving calls regarding this issue. Employee reductions and terminations have been an unfortunate result of the current economic downturn. In California, there is no requirement in the Fair Labor Standards Act to provide Severance Pay. However, "Severance Pay" is often granted to employees upon termination of their employment. A Severance Agreement is a contract, or legal agreement between an employer and an employee that specifies the terms of an employment termination, such as a layoff. Often times this agreement is called a "Separation" or "termination" agreement or "Separation Agreement General Release and Covenant Not to Sue." The consideration offered for the waiver of the right to sue cannot simply be a pension benefit or payment for earned "vacation pay" or sick leave to which the employee is already entitled but, rather, must be something of value in addition to any of the employee's existing entitlements.

To minimize the risk of potential litigation, many employers offer departing employees money or benefits in exchange for a release (or "waiver") of liability for all claims connected with the employment relationship, including discrimination claims under the civil rights laws enforced by the Equal Employment Opportunity Commission (EEOC) -- the Age Discrimination in Employment Act (ADEA), Title VII, the Americans with Disabilities Act (ADA), and the Equal Pay Act (EPA). While it is common for senior-level executives to negotiate severance provisions when initially hired, other employees typically are offered severance agreements and asked to sign a waiver at the time of termination.
An example of consideration would be a lump sum payment of a percentage of the employee's annual salary or periodic payments of the employee's salary for a specified period of time after termination. The employee's signature and retention of the consideration generally indicates acceptance of the terms of the agreement. If an employer decides to offer the employee a severance package, quite often the employer will have the employee sign a release, that's an agreement not to sue the employer in exchange for receiving certain benefits. The employer must give the employee a certain period of time to review the release, allow them to revoke the agreement for a limited time after they sign, and advise them in writing to consult with an attorney. If you have been presented with a written severance agreement or release of claims and you would like to discuss your rights and obligations under it please contact us.

Can My California Employer Deduct Credit Card Processing Fees From My Tips?

Mon, 06 Dec 2010 10:21:08 -0800

Lately, my Orange County Law Firm has been receiving calls questioning this issue. The answer is No. Your employer may not pass any costs associated with doing business on to you. You are entitled to receive the full amount of any tip left by patrons paying with credit cards without any deductions for such processing fees. Your employer is also required to keep accurate records of any such transactions. Failing to do so, could place the burden on the employer to prove that your estimates of the tips due are not accurate. Note: credit card tips must be calculated and paid to you by the next regular business day.

In California, as a matter of law tips cannot be used as an offset against your employer's obligation to pay your hourly wage rate. Your hourly wage rate must always be at least the minimum wage for the state of California. Any agreement to the contrary would be considered void and you would be entitled to the difference between the applicable hourly rate and the lesser rate you actually received as a result of such a tip credit.

When Must My California Employer Pay My Final Paycheck?

Fri, 03 Dec 2010 08:32:39 -0800

My Orange County Law Firm receives a voluminous amount of calls regarding this issue. The answer is, It depends. If your employer is letting you go (regardless of the reason), your final paycheck must be given to you immediately (i.e., your last day of work). If you are quitting without giving notice, your final paycheck must be given to you within 72 hours. If you are quitting with at least 72 hours advance notice, your final paycheck must be given to you on your last day of work. If your employer claims you owe him/her money, he cannot refuse to pay your final wages and he/she cannot deduct the amount he/she claims you owe from your paycheck this is an unlawful deduction from pay. Your employer must go through the legal process for collecting money as he/she would with a non-employee. If your paycheck is late, you may collect Labor code penalties from your employer which amounts to one day's pay for each day your paycheck is late up to 30 days.

Your final paycheck should include generally, all wages owed through your last day of work. This includes all hourly wages or salary, a pro-rata share of any accrued and unused vacation pay or paid time-off, and any other leave which can be used unconditionally by the employee. This would also include tips. Your employer cannot compel you to sign away your legal rights in a release or waiver in exchange for earned wages.