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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.

Supreme Court Refuses to Hear Unpaid Wage Lawsuit

The rejection of a case by the California Supreme Court means that workers paid at a piece or flag rate must be compensated separately while performing non-flag rate tasks. The case was that of Gonzales v. Downtown LA Motors, LP (), where a class of auto technicians sued their employer for failing to pay them at a separate minimum wage for performing tasks that were performed on the job when piece rate work was not available. This is a big deal for auto technicians and all employees paid on a piece rate basis and a good reminder that sometimes when the Supreme Court refuses to hear a case, it can be good news.

In Gonzalez the California Court of Appeals overturned the former law that allowed employers to avoid paying their workers for performing tasks that were not covered by the employers’ set piece rate system. For example, some auto repair locations pay mechanics for performing maintenance, but do not pay separate rates for time spent cleaning or doing inventory. California Employers used to be able to not pay the employees at all for that time worked so long as their wages for a two week period totaled more than the minimum wage. Such was the case in Gonzalez. The auto technicians there were required to clean, order parts, and train while no work was available. The court held that the employees were not paid properly because they must be paid for all hours worked, and that It was improper to allow the employer to credit their base pay (the minimum wage) with pay from piece rate tasks. The court also awarded the class several hundred thousand dollars in damages including $550,000 in compensation, $1,000,000 for interest, and additional penalties of $230,000 for unpaid wages at termination.

This decision marked a big shift in California law away from federal law, which allows employers to only pay piece rate workers at the minimum wage when they perform some piece rate work and non-piece rate work. The fact that the California Supreme Court denied review means that this decision is now law.

The Gonzalez case will have far reaching implications for flag and piece rate employees all throughout California. If you suspect that your employer has not properly paid you schedule a free consultation with the California employment attorneys of the Law Offices of Michael S. Cunningham, LLP. Call (858) 376-7390 today.

Spearmint Rhino Settles $12.9 Million Lawsuit in Unpaid Wage Dispute

Exotic dancers are frequently denied fair payment of wages. This usually happens when employers claim that exotic dancers are independent contractors, not employees. However, this is often incorrect.

Earlier this month the U.S. District Court in Riverside, California approved the settlement of three California clubs: Spearmint Rhino, Rouge, and Blue Zebra. The lawsuit against the clubs alleged that the clubs had misclassified its exotic dancers as independent contractors, and in doing so violated minimum wage and other state and federal employment law.

One of the accusations was that the club illegally forced the topless dancers to share their tips with managers, DJs, doormen, and other employees that generally do not receive tips. The women in the lawsuit claimed that they had earned nearly $500,000 a year in tips but were forced to distribute it unlawfully. The dancers also alleged that the club threatened them with retaliation if they tried to assert their rights.

The lawsuit was brought on behalf of 14 dancers who worked in Florida, Texas, Kentucky, and Idaho as well as California, although more dancers will be eligible to join the settlement later. The 14 named dancers will receive an additional bonus, or incentive award, which could be as much as $15,000 for taking the time to pursue the case and use their true identity in public court records.

After dividing up attorney’s fees and costs the dancers’ settlement will be divided proportionally. Dancers in California are entitled to 50.14% of the remaining amount of the settlement, Nevada dancers will receive 42.69%, and the remaining dancers will get 7.16%.

As a part of the settlement the clubs agreed to stop treating dancers as independent contractors and will now treat them as employees, or even shareholders and part owners in some cases. The California clubs also agreed to no longer charge dancers stage fees.

The clubs benefitted by settling other claims tangentially related to this lawsuit. The settlement stipulated that the dancers will also end other claims that were pending in California State Court and arbitration in Nevada.

These claims are unfortunately quite common. According to the administrative department responsible for wage and hour violations, approximately. 197,000 workers received $150 million in back pay for overtime violations alone in 2008.

Other types of workers such as mortgage loan officers are also miscategorized by their employers in order to avoid California and federal pay law. If you think your employer is violating your rights to fair pay contact the lawyers of the Law Offices of Michael S. Cunningham today. Call (858) 376-7390 to schedule a free consultation today.

Sleeping On Job: Late Night Security Guards Must be Paid Even if Are Allowed to Sleep

Employees must be paid for time worked. However, this rule gets tricky for certain classes of employees who work long shifts. For example, security guards are commonly required to stay during long shifts that can stretch for 16 or even 24 hours. Some companies allow security guards to sleep, as long as they remain on call. A recent case before the California Court of Appeals explains how this can work in the case of Mendiola v. CPS Security Solutions, Inc.

In Mendiola the employees provided security guard services for CPS Security. The employees were assigned to construction sites where they operated out of residential trailers for 16 hour regular shifts and 8 hour on call shifts during the night. During the night shifts CPS only provided compensation for time spent conducting investigations, meaning that any time they spent not conducting investigations, but being on call, was uncompensated.

The employees filed a class action lawsuit to recover wages for their time spent being on call. The trial court granted the employee’s requests. The employer appealed. The California Court of Appeals said that the guards performed an important function for the employer and its clients by deterring theft and vandalism. Further, the guard’s ability to engage in their private wishes was “substantially restricted” because they did not enjoy the typical freedom of an off-duty worker.

Although federal wage and hour regulations do not require that employees who reside on work grounds be compensated for the time they are on the premises, the court declined to adopt that provision into California law.

The take home point is that just because an employee is not technically on the job by doing work for an employer, if they are on call and remain at the workplace they should be compensated. However, employers in these situations generally require employees to exclude a total number of 8 hours for sleep time that may take place during the job.

If your employer has not paid you the full amount you have earned you may be able to recover your unpaid wages with a lawsuit. To learn more about your legal options contact the experienced California wage and hour attorneys at the Law Offices of Michael S. Cunningham, LLP. Call (858) 376-7390 today for a free consultation. Keep in mind that timely action can make a big difference in a case.