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Minimum Wage May Increase in California

California enjoys one of the highest minimum wage rates in the country, at $8 per hour. However, it is well known that at this rate making a living usually requires working 2 jobs and spending minimally. Moreover, California’s minimum wage has not increased in 5 years. However, the California senate is currently considering AB 10, which would raise the minimum wage in California to $9.25 over the next several years in order to keep up with inflation. The bill is currently in the Senate Appropriations Committee, it has passed the state Assembly by a wide margin.

But the people of San Jose aren’t waiting for the new bill to pass before they take action. San Jose recently passed an ordinance increasing the minimum wage to $10 per hour, effective as of March 11 of this year. The measure began as a ballot initiative started by students at San Jose State University. San Jose is the second city in California to raise its minimum wage to more than the state minimum, the only other city with a higher minimum wage is San Francisco.

According to the bureau of labor statistics 127,000 workers in California earned the minimum wage or less. Unfortunately, thousands of California workers earn less than the minimum wage due to unfair labor practices. California law requires all employees to pay their employees at the minimum wage. There are some exceptions for independent contractors, volunteer workers, and educational internships; however these exceptions require the organizations taking charge of the volunteers or interns to follow guidelines in terms of the type of work they can engage in; and independent contractors must be correctly classified, not merely classified as independent contractors to allow the employers to avoid having to pay minimum wage or provide other rights.

When employers fail to pay their workers the proper minimum wage the California Labor Commissioner’s Office can fine the employer for each violation. The employee can also hire an attorney to bring a private lawsuit and recover the fines under the private attorney general act.

If you have a claim against your employer for unpaid wages contact an experienced wage and hour attorney today. In many cases acting quickly can make a significant impact on the amount you are able to recover. To learn more schedule a free consultation with the California employment attorneys of the Law Offices of Michael S. Cunningham, LLP. Call (858) 376-7390 today for a free consultation with the California employment attorneys of the Law Offices of Michael S. Cunningham, LLP. Call (858) 376-7390 today.

Minimum Wage Increase Bill Passes California Legislature

California is poised to once again hold the title of state with the highest minimum wage. Assembly Bill 10, signed by Governor Brown this week, will raise the minimum wage to $9 beginning July 1, 2014 and again to $10 beginning January 1, 2016. The minimum wage was last raised to its current rate of $8 per hour back in 2008. The recent increase was a relatively popular proposal in the California state legislature. However, the same cannot be said of efforts on the federal level.

In February’s State of the Union address President Obama stated that the minimum wage should be raised to $9 an hour. However, Republicans took a hard stance against the efforts of House Democrats to increase the federal minimum wage in a fashion similar to California’s. Although whether the minimum wage increase would truly help the economy remains a divisive issue amongst some experts, many argue that increasing the minimum wage to $10 per hour would lift thousands out of poverty. According to Assembly Speaker John Perez, the boost to $10 will increase earnings by minimum wage workers up $4,000 per year.

Although California’s recent minimum wage increase is nothing to scoff at, it probably won’t stay the highest minimum wage for long. For example, Washington, Oregon, and 6 other states currently index their minimum wage to account for inflation annually. This means that these minimum wages will likely surpass the California minimum wage unless future wage increases occur.

What Happens if an Employer Doesn’t Pay the Minimum Wage?

All too often employers get lax about minimum wage rules. However, California law is clear. You must pay workers for all time worked and at a level that is at least the minimum wage. When they do not they must pay the worker the difference. Additionally, the employer may be subject to penalties for each underpaid employee during a pay period. If an employee brings a private lawsuit against the employer they may be able to recover a portion of these penalties.

Often times when an employer fails to provide the minimum wage, they also fail to provide adequate meal and rest breaks. Employers must pay employees a premium for failing provide proper breaks. This can add up to a lot of unpaid wages over time.

If you suspect that your employer has not paid you for time worked contact the experienced California employment law attorneys of the Law Offices of Michael S. Cunningham, LLP to schedule a free case evaluation. Call (858) 376-7390 today.

Merced Settles Firefighter’s Disability Discrimination Lawsuit for $425,000

Ryan Staiger recently won a settlement against the City of Merced for allegedly discriminating against him on the basis of his disability. Staiger received an agreement for a $425,000 settlement in late November.

The case began after Stainger was hired as a firefighter in 2007. He was soon retracted from duty when the Merced Fire Department’s medical doctors determined that he has residual affects from an arm fracture that he received as a teenager. Stainger then filed a claim with the Department of Fair Employment and Housing (DFEH) in 2008 against the fire department.

The medical exam that Stainger failed was performed by a city doctor and private specialist based on National Fire Protection Association standards. The doctors believed that Stainger’s range of motion was limited in his right wrist and elbow and because of this the doctors felt he was unable to perform the essential duties.

The commission decided to take the case and argued that the reason given for the termination was pretextual because the limitations Stainger experienced would not impede his ability to serve as a wilderness firefighter. The DFEH also argued that the city failed to establish that Stainger would actually be unable to perform the essential tasks in question.

The DFEH asserts that this type of decision to retract the offer to hire Stainger was improper because the fire department could have done a more through and personalized assessment by testing abilities to compensate for the limited range of motion in Stainger’s arm.

The DFEH also claimed that the city failed to tell Stainger that he had the right to get a second opinion from a doctor of his choice. Although the city alleges that it did notify Stainger that he had this right.

After leaving the Merced Fire Department Stainger began working with the California Department of Forestry and Fire Protection.

California Antidiscrimination Law Prevents Employers from Using Disabilities as a Reason to Screen Qualified Employees

California’s Fair Housing and Employment Act makes it illegal for an employer to take adverse employment action against a job applicant or employee just because of the employee’s disability. There is an exception to this when the employee’s disability makes the employee unqualified because of a bona fide occupational qualification, which is what the fire department in this case alleged. However, showing a true bona fide occupational qualification exists is not an easy task for employers.

If you believed that your employer has discriminated against you contact the experienced California Employment Law Attorneys of the Law Offices of Michael S. Cunningham, LLP. You can schedule a free consultation by calling (858) 376-7390.

Meal Breaks and Unpaid Wages

Failure to provide adequate meal and rest periods are one of biggest areas of employment disputes. California has strict meal and break laws, perhaps some of the strictest in the country.

California employers must provide employees who work more than 5 hours in a day a 30 minute unpaid lunch break, which must occur no later than the 5th hour of work. However, employers often break the rules by interrupting an employee. The employer must pay the employee during the break if they interrupt the break by doing any one of the following:

  1. Fail to relieve the employee of all duties,
  2. Fail to give employees free control of their activities,
  3. Impede the employee from taking an uninterrupted the break.

Additionally, if an employee is only working 6 hours they may waive their right to a meal break.

Employees who work long hours in a day may also be entitled to a second meal break. When an employee works for more than 10 hours a day they must receive a meal break no later than the 10th hour of work. Although, like with the first meal break, an employee can waive the second meal break if:

  1. The employee took the first meal break,
  2. The employee is working 12 hours or less, and
  3. Both the employer and employee consent

Also keep in mind that in some situations an employee can take an on duty meal break, if the nature of their work prevents them from being completely relieved of duty.

When employers fail to provide an uninterrupted 30 minute meal break period employers must pay them compensation for an entire hour of work. Although if an employee is given a break the employer is under no duty to ensure that the employee actually takes the break. However, the line between providing breaks and having unofficial policies that discourage breaks is thin. It is best to contact an attorney in these situations to find out if your employer is subtly impeding you ability to take a break.

Employees generally have 3 years to file claims for unpaid wages, although special circumstances may apply. Because claims can be barred after a certain amount of time it is critical that you take action quickly if you think your employer has failed to provide you with proper meal or rest breaks.

The California employment law attorneys of the Law Offices of Michael S. Cunningham, LLP have many years of experience handling wage and hour cases, including lawsuits for unpaid wages due to failure to provide proper breaks. To schedule a free case evaluation contact us at (858) 376-7390 today.

Man Who Tries to Give Kidney to Sister Wins Disability Discrimination Appeal

California disability law allows those who are associated with disabled individuals to receive protection against disability discrimination. A recent case from the California Court of Appeals demonstrates this protection.

In Rope v. Auto-Chlor System of Washington, Inc. a recently hired employee informed his employer, Auto-Chlor that he intended to donate his kidney to his sister, who was disabled. The employee then attempted to take leave under a new law, the Michelle Maykin Memorial Donation Protection Act (DPA). The manager did not respond, so the employee complained to management. However, 2 days before the law took effect the company terminated the employee for allegedly poor performance.

Employee’s Claim

The employee sued Auto-Chlor for several violations including associational disability discrimination, retaliation for a protected activity, violation of the DPA, and wrongful termination in violation of public policy. The trial court dismissed the employee’s claims but the court of appeals reversed the decision, allowing the associational disability discrimination and wrongful termination claims to proceed.

California Court of Appeal’s Decision

The court decided that the employee provided enough evidence to show that the employer had discriminated against him based on his relationship to his disabled sister and the fact that the employee would soon become disabled himself after the kidney donation surgery. These facts could have supported a claim for wrongful termination and associational discrimination.

More on Associational Discrimination

The associational discrimination claim is a powerful tool to fight discrimination in the workplace. It covers claims where the employer takes adverse action (such as termination or harassment) against the employee for a disability that an employee’s close family member or spouse has. It also covers claims as the one here in Rope where the employer fears incurring expenses due to the employee’s association with a disabled person. It is possible that an employer may fear that due to the relationship with the disabled person that the employee will have to take time off to care for them, or possibly raise the costs of their medical benefits plan.

Keep in mind that the employer here seemed to be trying to illegally discriminate against the employee before the new law that would have protected him took effect. The employer would not have as much luck now, the DPA is now in effect and protects employees by allowing them to take 30 days off in order to donate organs.

If you have been the victim of discrimination contact an experienced attorney right away. Call the experienced California disability discrimination attorneys of the Law Offices of Michael S. Cunningham, LLP for a free consultation at (858) 376-7390.

California Court Affirms Wrongful Termination Lawsuit for Disability Discrimination

Generally, before filing a lawsuit for disability discrimination one must file a claim with the Department of Fair Employment and Housing (DFEH). However, if an employee does not bring this claim they may still bring a lawsuit against an employer for wrongful termination in violation of public policy. The California Court of Appeals recently clarified the limitations of a disability discrimination wrongful termination lawsuit in the case of Lee v. Harbor, WL 753877 (February 28, ).

In this case the employer, Harbor, asserted that an employee, Lee, was not able to perform the essential duties of his job even with reasonable accommodation because his position required him to lift 18,000 pounds in cases of beer every day. Further, Harbor argued that Lee was not able to take other positions within the company because there were no vacancies. However, Lee testified that before termination he worked as a transfer driver and that the company seemed to need an extra transfer driver position. Additionally, a former employee said that one of the transfer drivers employed at the time Lee was terminated was in a temporary position.

The court held that Lee’s and the former employee’s observations of the needs of an additional transfer driver could have showed that Harbor’s explanation that no position was open was false. This meant that Lee could have won a wrongful termination claim, and the court sent the case back to the trial court to determine the issues.

Interestingly, the court also held that Lee was entitled to a lawsuit for mixed discrimination. Lee is a 53 year old disabled African American man. The court allowed the mixed discrimination claim to go forward despite Lee not showing additional evidence that race or age played motivating factor in the decision to terminate him besides the fact that he was African American and old enough to qualify for age discrimination protection . This goes to show that the burden of production rests with the employer to show that an employment decision, like termination, was due to a legitimate or non-discriminatory reason.

Contact the Employment Law Attorneys of the Law Offices of Michael S. Cunningham.

Disability discrimination is illegal. An employer must not use an employee’s disability as a reason to take adverse action against her or him. Even if an employee does not pursue a claim under FEHA, they still may sue the employer for a wrongful termination in violation of public policy. The seasoned employment discrimination law experts at the Law Offices of Michael S. Cunningham, LLP can help you assert your legal rights whether you have been wrongfully terminated due to disability, race, or other issue. To learn more schedule a free case evaluation by calling (858) 376-7390 today.

Kaiser Permanente Sued for Discriminating Against Food Service Worker in San Diego

It is ironic how the organizations that you think would know the most about disability discrimination sometimes find themselves facing discrimination charges. Kaiser Permanente, the country’s largest managed care organization was recently sued by the Equal Employment Opportunity Commission (EEOC) for allegedly discriminating against a food stocking employee with Hydrocephalus.

The lawsuit states that the employee was hired in June 2008 at one of Kaiser’s San Diego Medical facilities. The worker had a condition known as hydrocephalus. Symptoms of hydrocephalus include memory difficulties, dizziness, and problems concentrating. The EEOC says that the during the employee’s first few weeks on the job he requested additional training time and the help of a temporary job coach so that he could more effectively learn the job duties. A non-profit organization, Toward Maximum Independence, that provides job coaching services would have been able to provide the help to the employee for free. However, Kaiser decided not to grant the request and terminated the employee in August 2008.

The EEOC filed a lawsuit after trying to settle the dispute informally. The EEOC has requested significant damages including backpay, compensatory damages, and punitive damages as well as a court order to prevent future discrimination.

It is unclear what legal defenses Kaiser will assert in this lawsuit. An employer’s defenses to disability discrimination lawsuits in failing to provide reasonable accommodations are generally limited to the following:

  • the employee was terminated for reasons other than disability,
  • the accommodation requested was unreasonable,
  • the employee could not have performed the essential functions of the job even with reasonable accommodation,
  • the employee posed a direct threat to themselves or others in performing the job

It is hard to see how providing a free temporary job coach would have been unfeasible for an organization as big as Kaiser. It is possible that Kaiser did not know that the services existed, but even then an employer is required to engage in the interactive process with employees to determine what reasonable accommodations exist.

If you have been discriminated against by an employer, former employer, or potential employer due to your disability or perceived disability contact a California employment law attorney right away. To learn more contact the employment lawyers of the Law Offices of Michael S. Cunningham, LLP. To schedule a free consultation call (858) 376-7390 today.