Orange County Employment Lawyer Blog

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

Continue reading "Equal Employment Opportunity Commission Finds Bellflower, California Pharmacist Was Wrongfully Terminated" »

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.

Continue reading ""California Labor Board Finds UPS Liable For Disability Discrimination"" »

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.

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.

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.

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.

Almost all California employees are "at will" employees, meaning they can be terminated for any reason, so long as it is not an unlawful reason. So, if most employees are at will employees, what separates a termination from a wrongful termination?

California employees can essentially be terminated for any reason, so long as the reason is not an unlawful reason. Here are some of the more common unlawful reasons that would make a termination a wrongful termination:

1. An employee may not be terminated for lawfully reporting sexual harassment to a supervisor or to Human Resources;
2. Similar to above, an employee cannot be terminated for participating in an investigation of someone else's claims of sexual harassment or unlawful discrimination;
3. For exposing certain unlawful wrongdoings by the company or by a higher ranking employee of the company, commonly known as whistle-blowing;
4. For submitting a worker's compensation claim from injuries suffered at work;
5. For complaining to management or Human Resources about not receiving proper wages, overtime compensation, lunch breaks or rest breaks;
6. For filing a complaint with a governmental or administrative agency such as the DFEH or the Labor Board; and
7. Lastly, an employee is not at will if that employee has an employment contract designating a specific period of time.

In one of the largest single employee verdicts in United States history, the Superior Court of California, County of Orange, entered judgment of approximately $8.4 million in favor of Joovy, LLC, against Baby Trend, Inc., and its founder Denny Tsai. The judgment in favor of Robert Gardner, founder and CEO of Joovy, for claims of wrongful termination, failure to reimburse, breach of contract, and fraud was in the amount of $6,909,991 jointly against Baby Trend and Denny Tsai, and for an additional $1,495,917 against just Baby Trend.

"Wrongful termination" is one of the most mis-used and mis-understood terms in California employment law. Many clients who have called my Orange County Law Firm have been terminated from employment feel they have been wrongfully terminated. However, what these people typically fail to realize is that California is an "at will" state. "At will" means that you can be terminated with or without cause, with or without any prior notice. Similarly, the employee may also resign from their employment with or without cause or without giving any prior notice. Simply put, you can be terminated for any reason, so long as it is not an unlawful reason (race, gender, or legally protected conduct, etc.).

Some forms of "legally protected conduct" include reporting sexual harassment, reporting or complaining about not receiving overtime, meal breaks, or proper wages. If you are terminated for reporting or complaining about any of these legally protected issues, you then have a claim for wrongful termination in violation of public policy.

Case information for Gardner vs. Baby Trend, Case No. 05CC11681

A recent Orange County case on appeal in the Fourth District (Scotch v. Art Institute of California-Orange County, Inc.) affirmed summary judgment (a motion to have the entire case dismissed before trial) for the Defendant was proper because the Plaintiff did not identify a reasonable accommodation that was available at the time the interactive process (meeting between the employer and the employee) occurred.

FEHA protects individuals with "disabilities." "Physical disability" has been defined to include cosmetic disfigurement and physiological and anatomical conditions that affect one or more of the body systems, such as the musculoskeletal and neurological systems, and that limit an individual's ability to participate in a major life activity. Employers may not bar or discharge from employment an employee based upon his/her's disability, or otherwise discriminate against the person in compensation or in terms, conditions or privileges of employment.

REASONABLE ACCOMMODATION / INTERACTIVE PROCESS

The law imposes an affirmative obligation on both parties to engage in the "interactive process" to determine whether reasonable accommodations are possible. A lot of litigation concerns whether an employer engaged in good faith discussions with the employee concerning the availability of reasonable accommodations, including alternative positions. Failure to engage in the good faith "interactive process" by either an employer or employee can be determinative on the validity of certain disability discrimination claims. The accommodation process is a dynamic one with many considerations to be evaluated. The FEHA requires employers to make reasonable accommodation for the known disabilities (mental or physical) of employees to enable them to perform a position's essential functions, unless doing so would produce undue hardship on the employer's operations or would create a danger or threat of safety to the disabled employee or others. Some possible reasonable accommodations that may be considered include, but are not limited to:

• Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities;
• Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities; or
• Providing a finite leave of absence for a disabled employee to recuperate or care for his or her disability.

However, as Scotch v. Art Institute of California-Orange County, Inc., demonstrates, claims by an employee against an employer for failing to engage in the interactive process must identify a reasonable accommodation that was available at the time the interactive process should have occurred. The court recognized that during the interactive process itself, an employee may not have the same access to information about possible accommodations as the employer. However, the court states that through litigation, particularly discovery, the employee must be able to identify a reasonable accommodation that would have been available during the interactive process.

RELATED RESOURCES

California Employment Lawyers Assocation (CELA)
Department of Fair Employment and Housing (DFEH)