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Total Disability for Disability Benefits and Disability Discrimination Law

Sometimes when an employee becomes injured they qualify for protections under state or federal disability law. However, this can present complications when the employee also seeks disability related benefits through state or private insurance. In a recent case the 9th Circuit Court of Appeals reviewed whether an employee who claims total disability for the purpose of disability benefits can also be protected under the Americans with Disabilities Act (ADA).

Smith v. Clark

In Smith v. Clark County School District a school employee, Smith, suffered a back injury. She then applied for disability benefits under Nevada’s Public Employee’s Retirement System (PERS) as well as medical benefits from her insurance.

Smith also applied for Family and Medical Leave Act (FMLA) leave. On Smith’s FMLA application her doctor stated that Smith was presently incapacitated and was unable to work until she received further notice by a doctor. Smith stated on her application for disability benefits under PERS that she was completely unable to work due to her injury

However, during this time Smith also negotiated with the school over when she could return to work; she claimed that she could work as a literary specialist but not as a teacher. The district offered Smith a position as a teacher with accommodations, but not a literary specialist position. Smith declined this offer.

Smith then sued the school in federal court alleging violations of ADA for failing to provide her with reasonable accommodations for the literary specialist position. The court dismissed the lawsuit because Smith stated that she was permanently disabled, meaning she could not do the work.

Ninth Circuit’s Decision

The Ninth Circuit reversed the decision because the mere fact that Smith had made inconsistent statements in the PERS application was not conclusive that she was totally disabled and could not perform essential job functions. In other words the fact that she was totally disabled for the purposes of PERS disability benefits, but at the same time told the district that she could perform the duties of a literary specialist could not be used against her. The reasoning was because the claim for disability benefits under PERS did not take into consideration whether reasonable accommodations could make employment a possibility for Smith.

If you have been discriminated against due to your disability or perceived disability you may be entitled to compensation. 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.

Imperial County Agricultural Firm Sued for Disability and Genetic Information Discrimination

A recent lawsuit filed by the Equal Employment Opportunity Commission’s (EEOC) San Diego Office is seeking damages for alleged disability discrimination. The EEOC alleges that the Abatti Group and its subsidiaries required potential employees to perform physical exams and answer questions about their medical, and their families’ medical conditions prior to employment.

At least one applicant was allegedly denied employment on the basis of these illegal questions. The worker in question had applied as a dispatcher for Abatti’s El Centro location. The employee was provided a temporary job and he was allegedly informed that he would be considered for permanent hire only after taking a physical exam and drug test. The applicant claimed that he was asked about disability related information and family medical conditions. The applicant told Abatti that he had been hospitalized due to a heart condition that was also shared with his family members. The applicant was not given the position even though he had been working as a temporary employee up until the time of his medical exam.

The EEOC attempted to settle this lawsuit informally, but could not reach an agreement. It is now seeking the typical damages in disability discrimination lawsuits: back pay, compensatory and punitive damages. The EEOC contends that the applicant was not hired due to being considered disabled and that the company illegally asked about his family medical conditions. The EEOC also contends that this information was irrelevant to the applicant’s position.

Genetic Information Nondiscrimination Act

This case in interesting because the EEOC is bringing it under both the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). GINA makes it illegal for any employer to base an employment decision on genetic information. An employer may not ask about an employee or applicant’s genetic information, perform genetic testing for employment related decisions, or otherwise obtain the results of genetic testing. The rationale for this is because employers may make unfair adverse employment decisions based on whether an individual has an increased risk of getting a disease or disabling medical condition.

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. You may be entitled to a lawsuit or settlement for an employer’s discrimination or discriminatory practices. To learn more contact the employment lawyers of the Law Offices of Michael S. Cunningham, LLP. Schedule a free consultation by calling (858) 376-7390 today.

Big Unpaid Wage Lawsuit Win for Flag Rate Mechanics: Gonzalez v. Downtown L.A. Motors

In California it used to be that mechanics could be paid on a piece rate or flag rate for all the hours in a work week. This meant that worker’s base pay would depend on how many hours of work they performed on commissioned time known as a piece or flag rate. Often times routine non-repair work such as cleaning the shop or making reports would not be paid so long as the workers made enough flag hours to cover more than the minimum wage. If the workers were unable to perform enough work to make their hourly average for a pay period at $8 per hour the employer would add to the wage so that the worker earned at least $8 per hour, as well as any necessary overtime.

However, last month the California Court of Appeals rejected this longstanding approach to the flag rate in California. In the Gonzalez v. Downtown L.A. Motors, L.P. case auto technicians at Downtown LA Motors (DTLA) were paid based on flag hour rates when they performed repair work. The employees were not permitted to leave the premises and were expected to perform other tasks such as cleaning, ordering parts, and training while no repair work was available. The mechanics sued alleging that they were not being paid for non-repair work, even though DTLA would ensure that their wages for two week work periods always totaled at least the minimum wage. The court of appeals held that the mechanics were not properly compensated.

The court based its decision on the argument that federal wage law is far less strict than California wage law. Although employers may pay their workers based only on flag rates as long as they ensure that the workers earn minimum wage averaged over all hours in the work week under the Federal Fair Labor Standards Act; California law requires employees performing non-flag rate tasks to be paid at the minimum wage regardless of the total amount paid to them in the work week.

This case means that employers paying at flag rates must specifically pay workers while performing non-flag rate tasks and the rate for non-flag work must take minimum wage and overtime pay into consideration. Because this case has far reaching implications for the way flag rate employees are paid throughout the state the decision will likely be appealed.

If you are a flag rate employee in the auto repair industry or any other industry you may be entitled to a lawsuit or settlement to reclaim your unpaid wages. 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.

Former Cop Sues Burbank for Wrongful Termination

For the second time an ex-police officer terminated by the city of Burbank filed a federal lawsuit against the city alleging he was wrongfully terminated. The officer, Elfego Rodriguez, was one of ten Burbank officers fired for allegedly using excessive force in a 2007 robbery investigation. Rodriguez has denied the allegations from the beginning of the case and maintains that he was actually fired because of racial discrimination and harassment.

The lawsuit was originally filled against the city several years ago, but the judge dismissed the case because Rodriguez had failed to exhaust his remedies within the police department.

In response the city of Burbank claims that Rodriguez was fired for lying about assaulting a misidentified robbery suspect. The city had explained past proceedings about the termination that Rodriguez had allegedly intimidated witnesses and hid evidence to try to defend his reputation. However, Rodriguez claims that the city officials devised a plan to retaliate against the former officer by accusing him of illegal conduct that he did not commit.

Racial Discrimination and Wrongful Termination

Title VII of the Civil Rights Act and California’s Fair Employment and Housing Act both make discrimination in employment illegal. There are two forms of discrimination disparate treatment, and disparate impact. Disparate treatment is when an employee is the victim of explicit prejudice, or poor treatment because of his or her membership in a protected class. Disparate impact on the other hand prevents an employer from using practices that on their face seem neutral but actually cause a detriment to employees of a protected class. When an employee complains that they were subject to discrimination an employer may not retaliate against them.

If an individual is retaliated against or harassed for complaining of racist treatment they may file a lawsuit against their employer. In these cases the employee must make an initial allegation that the employer had taken adverse employment action against them after they had made a complaint for discrimination. The employer then has a chance to rebut this showing by giving evidence that the adverse action was taken for legitimate non discriminatory reasons.

California employers may not racially discriminate against their employees nor retaliate when employees make complaints about discrimination. If your employer has wrongfully terminated you or retaliated against you for reporting discrimination contact the experienced California Employment Law attorneys of the Law Offices of Michael S. Cunningham, LLP. Call (858) 376-7390 to schedule a free consultation.

FEHA Right to Sue Letter is Necessary for Successful Disability Discrimination Lawsuit

A recent case out of the California Court of Appeals demonstrates that not complying with all the steps in a disability case can mean big trouble. In Dickinson v. Allstate Insurance Company a former insurance adjuster of Allstate, Eric Dickinson, suffered a stroke in 2004 which left him with a weakened left side; resulting in a limp and slurred speech. While on disability leave he requested training so that he would not fall behind in his work, but his supervisor denied this request. After returning to the job Dickinson requested accommodation to spend less time on the road because he would develop leg numbness, this request was also denied. Dickinson’s computer also malfunctioned requiring him to enter routine information manually. An audit of his cases showed that he had been mistyping phone numbers into the system. He was soon after terminated for falsifying company documents, which Dickinson maintained was an innocent mistake. Dickinson then sued his supervisor and Allstate for disability discrimination and a number of other harms. At trial the jury found that Allstate had committed disability discrimination by failing to accommodate or engage in the interactive process.

However, Allstate appealed the verdict claiming that Dickinson never filed a charge with the Department of Fair Employment and Housing (DFEH). The court of appeals agreed, because Dickinson provided no evidence that he ever received a right to sue letter from DFEH he could not prevail even if his claims were correct.

This is a very unfortunate case because, as the court pointed out, Dickinson could have simply reopened his case after getting a right to sue letter. However, he went through all the expense of trial just to find out that he did not comply with the first step.

The right to sue letter is a crucial first step to a disability discrimination lawsuit. It is not necessary to wait until the charge has been investigated to receive a right to sue letter. A right to sue letter can be requested immediately before DFEH even gets an opportunity to investigate the claims. Although, it is also important to note that wrongful discharge in violation of public policy claims can be brought regardless of whether a right to sue letter is requested.

Disability discrimination law is a complex area that involves both employment and tort law. Having experienced attorneys on your side can make your case much smoother. The employment discrimination lawyers of the Law Offices of Michael S. Cunningham, LLP can help you if you have wrongfully discriminated against. To schedule a free consultation call (858) 376-7390 today.

Failure to Reimburse Employee Expenses is a Cause for Unpaid Wage Lawsuit

California law generally prohibits employers from requiring employees to bear the costs of business expenses. These costs can include cell phone expenses, client entertainment, and some uniforms. California Labor Code § 2802 states that employers must reimburse employees for “necessary expenditures and losses incurred as a direct consequence of the discharge of his or her duties…”

When an employer violates this law an employee is entitled to collect interest on the expenses made as well as recover for attorney’s fees and costs incurred in bringing a lawsuit. Although an employer is not required to reimburse expenses when the employee believed the expenses were unlawful at the time. Nevertheless, even if the expenses were actually unlawful and the employee didn’t know the employee would still be able to claim expenses.

Additionally, under California Labor Code § 2804 an agreement to waive full reimbursement for expenses is not enforceable even if an employer requires the agreement as a term of employment. Similarly, an employer’s deadlines for requiring an employee to submit reimbursement are not enforceable. Employees are entitled to reimbursement for up to 4 months after the date of the expense.

Common Examples of Violations

One common violation of this rule involves uniforms. A dress code is not a violation of this rule, but requiring the purchase of items directly through the employer is basically the same thing as a pay deduction.

Travel is another common is way that employers violate the reimbursement rule. When an employer requires an employee to run errands they must pay for the employer’s time and if the employee uses her own vehicle the employer must also pay mileage costs. IRS guidelines dictate that employers should pay 55 cents per mile in these circumstances. Time spent driving should also be paid at the employee’s regular rate of pay.

What if An Employer Violates These Rules?

Some employers have internal rules governing how to request reimbursement if a request was initially denied. However, employees are not required to comply with an employer’s formal rules, notifying the employer is enough. In the case of Stuart v. RadioShack the court held that an employer, not the employee has the duty to investigate if it has reason to believe that an employee incurred expenses on behalf of the employer. Employees may bring a lawsuit to enforce their right to reimbursement regardless of whether they followed the employer’s rules governing reimbursement.

If your employer has failed reimburse you or pay your wages you may be entitled to a lawsuit. To learn more contact the experienced California Employment Law attorneys of the Law Offices of Michael S. Cunningham, LLP. Schedule a free consultation by calling (858) 376-7390 today.

Employer Sued for Failing to Use Interpreter in Meetings with Deaf Employee

In an ironic reversal of roles the Placer ARC, a nonprofit dedicated to serving individuals with developmental or intellectual disabilities, is now defending itself against a disability discrimination lawsuit. The Equal Employment Opportunity Commission (EEOC) filed a complaint against Placer ARC (which stands for Advocacy Resource & Choices) on March 25, alleging that it violated the Americans with Disabilities Act (ADA) by failing to provide a deaf employee with an interpreter.

According to the EEOC’s complaint the employee, Homeyra Kazerounian, was first hired in Placer ARC’s Auburn office where she was always provided with an interpreter to help her communicate during meetings. However, after transferring to the organization’s Roseville office the employer failed to comply with her requests for an interpreter, and instead required Kazerounian to communicate by writing notes. The EEOC’s attorney David Offen-Brown said that by failing to provide an interpreter she was unable to meaningfully participate in meetings.

Placer ARC released a statement defending themselves from the accusations of discrimination. Executive Director Barbara Guenther wrote that Placer ARC is committed to following employment laws and regulations and “dedicated to the support, education and well-being of individuals with intellectual and developmental disabilities.”

Employees with Disabilities Are Entitled to Reasonable Accommodations

Discrimination under ADA does not just include overt animus or preference for individuals without disabilities. Discrimination can include an employer failing to make reasonable accommodations for the known physical and mental limitations of qualified employees. Reasonable accommodations are necessary unless an employer can prove that the accommodation would have an undue hardship on its business.

According to the EEOC’s representative at one point Placer ARC said that it believed that hiring an interpreter would be too expensive. However, expense in and of itself will not allow an employer to escape liability for discrimination. An employer has a duty to engage in the interactive process once an employee lets the employer know they need accommodation. There are likely a number of solutions short of hiring an interpreter that Placer ARC should have explored. Although since Placer ARC has not yet filed its answer to the complaint we do not yet know exactly what options, if any, were considered.

If you believe that your employer or former employer has discriminated against you because of your disability or perceived disability contact the experienced California employment law attorneys of the Law Offices of Michael S. Cunningham, LLP. Call (858) 376-7390 today to schedule a free case evaluation.