When Unpaid Interns are Eligible to Collect Unpaid Wages

With so many unemployed entry level professionals and students, many are turning to unpaid internships to give them the experience and contacts they need to launch their career.

However, not all employers will qualify to allow interns to work without pay. The Department of Labor has 6 criteria for determining whether an individual may be eligible to participate in an internship at a for-profit company, without pay.

1. First the internship must include similar training as would be given in an educational environment.

This does not necessarily mean that the employer must provide formal training in a classroom setting, but the intern should enjoy a good deal of training during the program. Ideally, time would be split between work and training.

2. The experience of the internship must primarily benefit the intern, rather than the employer.

This is probably the most difficult part of the test for private employers to pass. The surge in the number of unpaid interns is not a benevolent phenomenon. The fact that the economy is so tough means that some employers to try to take advantage of the oversaturated job market in order to cut their own costs. A true internship should provide interns with transferable skills, rather than having them engage in less meaningful work such as filing documents or fetching coffee and mail.

3. The intern may not take over the duties of a regular employee and must work under close supervision of the staff.

An employer simply cannot lay off employees just because they know that they would be able to get unpaid interns to do the same work at no cost.

4. The employer may not receive an immediate advantage from the intern’s activities.

This means that the employer’s operations should probably be impeded from time to time due to the engagement with the intern. For example, by having to provide the intern with reviews or formal training and mentoring.

5. The internship is not contingent on a job offer at the end of the term, in other words a job is not necessarily available at the end of the term.

Although the intern should be able to receive employment at the end of the internship, the DOL wants to avoid allowing employers to require their employees to work for a short time without pay in order to get a job.

6. Finally, both the intern and employer have to both understand that the intern is not eligible to receive wages for the internship.

This is usually not the biggest issue, with so many individuals looking to distinguish themselves n anyway they can from their colleagues, many interns are more than happy to forgo pay. The problem is when the employer takes advantage of the intern’s inability to get a job by making them perform work that directly benefits the employer without pay.

If your employer has failed to pay you contact the experienced California employment attorneys of the Law Offices of Michael S. Cunningham, LLP. Call (858) 376-7390 to schedule a free case evaluation.

When Obesity Discrimination is Illegal Disability Discrimination

In some cities, including San Francisco and Santa Cruz, city officials and government contractors cannot discriminate against employees and job applicants based on their weight. However, under California law weight and obesity discrimination is generally not illegal without additional physiological complications. Nevertheless, in some situations an individual struggling with obesity can file a lawsuit under federal law when an employer or potential employer makes a decision against them based on their weight.

California and federal law protects individuals with disabilities or perceived disabilities from discrimination, but federal law is broader. The Americans with Disabilities Act (ADA) is federal anti-discrimination law that defines disability as a condition that substantially limits one or several major life activities. In some cases Obesity might be a disability under ADA. The department responsible for implementing ADA, the Equal Employment Opportunities Commission (EEOC) won a settlement against an employer in 2012 after a federal court agreed that obesity impairs major life activities including walking, digesting, and bending. See EEOC v. Resources for Human Dev., Inc., 827 F. Supp. 2d 688, 694 (E.D. La. 2011).

California law by comparison is generally stricter than federal law. Under California employment discrimination law an employee must also show that if a major life activity is impaired, that the impairment is due to a physiological condition. This means that obesity must result from a physiological disorder to be considered a disability under California law; it must not merely be a condition resulting from an individual’s voluntary action or inaction.

As a result California courts have been much more reluctant to allow obesity to be claimed as a disability than Federal courts. For example, in the case of Cassista v. Community Foods, Inc, 5 Cal. 4th 1050 (1993) a woman struggling with obesity applied to work at a grocery store. The store rejected her application and told her that they were concerned she would not be able to perform the necessary functions of the job because she was obese. The woman sued the store under California disability law, but the Supreme Court of California held that the woman failed to show that she had an underlying physiological disorder that caused her obesity or that the store believed she had an underlying disorder.

When employers discriminate against job applicants or employees due to a disability the employer may be subject to liability. If you think you have been discriminated against find out how to get the justice you deserve by calling the California disability discrimination lawyers of the Law Offices of Michael S. Cunningham, LLP. Call (858) 376-7390 for a free case evaluation.

When is Reasonable Accommodation Required?

Both the Americans with Disabilities Act and the Fair Employment and Housing Act (FEHA) require employers to make reasonable accommodations for their disabled employees and job applicants. These accommodations can range between accommodations like giving the employee a special tool, providing the employee with extra breaks, or even allowing the employee to take leave or work from home. An employee is not required to specifically ask for “reasonable accommodations” or to even figure out what the accommodation would be. The employer has a duty to engage with the employee in the process of figuring out what a reasonable accommodation would entail, this is called engaging in the interactive process.

Exceptions to Reasonable Accommodation Requirements

However, an employer is not required to provide reasonable accommodations in a few limited circumstances. First an employer is note required hire or employ an individual who will endanger the health and safety of themselves or others because they will be unable to perform the essential duties of the job. The essential functions of a job are the duties that are necessary due to one or more of the following:

  • a) The reason the position exists is to perform the function at issue.
  • b) The amount of employees available to perform that function is limited.
  • c) The function is highly specialized and the individual is hired for his or her ability or expertise in performing the function.

Whether a job duty is an essential one is a fact intensive question and can bring up a significant amount of debate. In determining whether a job function is essential the following factors are relevant: the employer’s judgment, the job description, the amount of time the individual performs the job function, the work experience of past individuals in the job category, the current work experience of individuals in the job category, and the terms of any associated collective bargaining agreement.

Reasonable accommodation is also not required if an employee suffers from alcoholism and they perform alcoholism related misconduct. For example, in the case of Gonzalez v State Personnel Bd. (1995) an employee was absent without leave on several occasions, despite the fact that the employee proved he was an alcoholic, the employee was justifiably terminated. Similarly, an employer is not required to accommodate the use of medical marijuana, even if it is prescribed by a doctor.

Disability discrimination is a major problem, enforcing your rights to be free from discrimination also helps others and prevents employers from engaging in disability discrimiantionin the future. To learn more about how to get monetary recovery for disability discrimination contact the employment lawyers of the Law Offices of Michael S. Cunningham, LLP. Schedule a free consultation today by calling (858) 376-7390.

When Disability Discrimination Rises to Intentional Infliction of Emotional Distress

Having to suffer disability discrimination is obviously hard on anyone. This is why the law allows victims of disability discrimination at work to recover for pain and suffering as well as many other damages. However, sometimes the circumstances of discrimination are so intolerable that a court will allow employees to recover under multiple legal claims, including intentional infliction of emotional distress (IIED).

To prove a case for IIED a person must show that the harasser acted with 1) extreme and outrageous conduct 2) with the intent to cause emotional distress or reckless disregard at the probability of causing emotional distress 3) the person suffers severe or extreme emotional distress and 4) the conduct was the actual and proximate cause of the distress. Outrageous conduct means conduct that is so extreme that it is over the bounds of what is tolerated in our society. Discrimination and harassment can rise to the level of outrageousness, but it must be more than mere insults, annoyances, threats, or other small matters. Generally an employee needs to show a pattern of continuing violations that were also discriminatory.

The California Court of Appeals recently reviewed a case where an employee succeeded in a claim for IIED. In Martinez v. Rite Aid Corp. a former supervisor, Martinez, sued Rite Aid for multiple violations of California anti-discrimination law, including disability, sex, and age discrimination. Martinez suffered from depression, which she took medication to treat. She claimed that she was routinely harassed at work due to her depression, and also sexually harassed.

Martinez won a huge $1.1 million judgment at trial, as well as a $4.8 billion punitive damages award. Rite Aid appealed the decision. The California Court of Appeals found that Martinez was able to show that she had suffered intentional infliction of emotional distress because her supervisor routinely made derogatory remarks about her mental health by calling her crazy and stating that she needed to see a psychiatrist. Her supervisor also called her too old in front of customers, made inconvenient and unwarranted schedule changes and even made false complaints about her performance to get her fired. The Court of Appeals held that all together this was enough to warrant a finding of IIED.

Employers engaging in a pattern of discrimination are potentially liable for serious damages if they cause employees emotional distress. To learn more about your rights to a disability discrimination lawsuit or settlement contact the California employment attorneys of the Law Offices of Michael S. Cunningham, LLP. To schedule a free consultation call (858) 376-7390 today.

When Can an Employer Avoid Paying Overtime in California? The Alternative Week Rule

Generally speaking, non-exempt employers must pay workers time and a half (or double in some instances) for time worked that qualifies for overtime under the California Labor Code. This includes hours worked over 8 in a day. This works to the disadvantage of some employers in industries that require workers to handle long shifts. However, California allows employers a solution to avoid having to pay overtime if workers elect for an alternative schedule. This exception is known as the alternative work week.

The alternative work week allows employers to offer workers a shorter work week. For example, 3 or 4 days instead of 5, in return the employee gives up the right to receive some overtime, but only for the hours worked over 8 in a day. Employees under the alternative week schedule are still entitled to receive overtime for hours worked over 40 in a week, as well as the double rate for hours worked over 12 in day.

An employer may not simply decide to apply the alternative workweek, there are specific requirements an employer must follow. First, the employer has to put the work week alteration to a vote with the affected workers. But before the vote, they must provide the workers with a written proposal of the changes, and conduct a meeting 2 weeks before the day of the vote. Additionally, the vote must be a secret ballot during normal work hours, which the employer must pay for. If successful the proposal for an alternative workweek will only be valid if two thirds of the employees approve the alternative work week.

After the alternative workweek is approved the employer is still on the line if the employees decide to repeal it. If one third of affected workers propose a repeal of the alterative workweek the employer must hold another secret ballot and repeal the schedule if 2/3 of the workers vote to repeal it.

Additionally, the fact that an employer does not have to pay for overtime for more than 8 hours worked in a day does not affect the requirement to provide workers with rest breaks. Employees working more than 10 hours a day require the option to take a 30 minute lunch break. If working more than 12 hours they must have the option to take a 10 minute break.

If your employer has failed to pay you the overtime you rightfully earned, you are not alone. Each year thousands of employees and former employees bring lawsuits against employers to receive unpaid overtime compensation they are entitled to. To learn more contact the experienced California employment attorneys of the Law Offices of Michael S. Cunningham, LLP. Schedule a free case evaluation by calling (858) 376-7390 today.

Time Limitations for Filing a Disability Discrimination Lawsuit

An employee must first receive a right to sue letter from the Department of Fair Employment and Housing (DFEH) prior to filing a disability discrimination lawsuit. An employee generally has 1 year from the time of the violation to file this charge. This 1 year period is known as the first statute of limitations. An employee has 1 year after receiving the letter to sue the employer, this is the second statute of limitations.

As with any law, there are exceptions, and they can get rather complicated. There are two major exceptions to these rules: the continuing violations doctrine and equitable tolling.

Continuing Violations Doctrine Depends on Whether the Incident was Discrete or Ongoing

The continuing violations doctrine allows employees to bring a charge to DFEH more than 1 year after discrimination occurred if the charge involves continuing discrimination and is brought within 1 year after the discriminatory behavior stopped. For most 1 time instances of discrimination, such as firing, failing to hire or promote, the continuing violations doctrine will not apply. The doctrine will only apply to cases where discrimination is ongoing to a specific individual; even if most of the discrimination occurred more than 1 year before filing a charge. In practice this usually means that the 1 year period does not actually start running until the employee quits, is terminated, or the employee responsible for the discrimination is terminated or leaves.

Equitable Tolling

The equitable tolling doctrine is a principal created by judges that seeks to impose fairness on statutes of limitations. It can potentially apply in many situations; however in practice it is usually effective in about 2 situations. The first is when an employee files a charge with the federal equivalent of DFEH, the Equal Opportunity Commission (EEOC). If DFEH gives the employee a right to sue letter, but the employee also files a charge with the EEOC, the 1 year period does not run for the duration of the EEOC’s investigation.

The second situation is when the employee is following internal grievance procedures. For example, if an employee suffers disability discrimination, they may bring a formal grievance charge, which will prevent the 1 year period from running during the pending grievance. However, there are limitations. The grievance system must have a hearing where the employee is able to present their claim and evidence of the discrimination.

Contact a Discrimination Disability Lawyer

To learn more about your rights under disability discrimination law call the California employment attorneys of the Law Offices of Michael S. Cunningham, LLP at (858) 376-7390. Schedule a free consultation today.

Supreme Court Limits Employee Retaliation Cases

The U.S. Supreme Court decided a case that will have a significant impact on retaliation cases under Title VII of the Civil Rights Act of 1964. Generally, an employee can sue an employer if the employer made a decision about the employee and the motivating factor was based on race, color, religion, sex, or national origin under federal anti-discrimination law, even motivating factors were also present. However, the language of the statue does not specify that the same language regarding the decision being only a “motivating factor” applies to cases of retaliation. A charge of retaliation can be brought “because [the employee] has opposed any practice made an unlawful employment practice by [Title VII], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” So up until now courts have been split as to whether to interpret the cause of retaliation in the same way the cause of a direct discrimination act.

In the case of University of Texas Southwestern Medical Center v. Nassar, Nassar, a doctor of Middle Eastern heritage complained that he had experienced harassment due to his race. However, after he made the complaint he alleged that he suffered retaliation from his employer because of his complaints. He filed a retaliation lawsuit and won based on the jury instruction that the complaint he made only needed to be a motivating factor for suffering retaliation. The employer appealed the decision all the way to the Supreme Court.

The Supreme Court found that the law governing Title VII was originally based in the law of personal injury (Tort law). Tort law generally requires that a party prove that if it were not for the act of one party, the damage would not have resulted. As a result the court concluded that the lesser motivating factor requirement was incorrect. The court found that the correct standard is the higher, “but-for”, standard.

This essentially means that an employee must show that retaliation occurred because of an employee’s complaint. If there were other legitimate motivating factors for an employer’s actions after the complaint, the employer can escape liability for retaliation. This ruling will affect a wide variety of retaliation claims, including sex discrimination, race, and potentially even other discrimination law that is based on Title VII.

Employment discrimination law is a complex area that involves both employment and tort law. Having an experienced employment attorney on your side is vital to a successful discrimination lawsuit. The employment lawyers of the Law Offices of Michael S. Cunningham, LLP can help you if you have been wrongfully discriminated against. To schedule a free consultation call (858) 376-7390 today.