Rss

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.

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.