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Pre-employment Testing

You’ve just aced a job interview for a major Fortune 100 employer. Congratulations! Now all you have to do is complete a 3 hour written math exam. OK, no problem. You’re great at math. One problem: you have limited use of your hands and cannot grip a pencil. You inform your test proctors of your need for testing accommodations before the exam. On test day, your proctors insist that you use a pencil and refuse your request to use a computer to complete the exam, or to provide additional time, even though you told them about your disability well in advance. Since the test is timed, and since you can only use a pen or pencil with great difficulty, you cannot complete the exam in the allotted time. You wind up not getting a job you were exceedingly well qualified for.

Disability discrimination? You bet. Under California law, employers have to accommodate known disabilities in pre-employment testing so that all applicants have a level playing field. It is illegal to refuse to hire someone due to a disability, just like it is illegal to fire them.

Medical tests after a job offer is extended are legal if they are generalized and not designed to screen new hires for specific conditions. Similarly, pre-employment testing that is general in nature and not designed to screen disabled applicants is also usually legal. If you have are about to take a test you are concerned with, or you think your disability is the reason you were denied a job, I would like to talk to you.

Failure to Reasonably Accommodate a Disability

Under both the FEHA and the ADA, an employer is obligated to try and accommodate a disabled employee. “Reasonable accommodations” include things like making existing facilities usable by individuals with disabilities, job restructuring, part time or modified work schedules, reassignment to a vacant position, providing employees with ergonomic devices, speech to text software, time off to recover, and so on. Employers and employees are encouraged to get creative. The employer is not required to pick the accommodation preferred by the employee, nor is the employer required to undertake anything that would constitute an “undue hardship.”

The first step in figuring out whether your employer can reasonably accommodate you is figuring out the “essential functions” of your job. This is an important legal term that you will hear a lot if you pursue a failure to accommodate or failure to engage in the interactive process claim. The critical legal question in your failure to accommodate case is whether you can perform the essential functions of your position, with or without an accommodation. You do not need to perform them immediately, since time off to recover is often a perfectly reasonable accommodation. Nor should you accept an unreasonable characterization of the essential functions of your job beyond those you see on a daily basis.  Department of Fair Employment and Housing (DFEH) Guidelines provide the following guidance for determining the essential functions of the position:

When determining whether a job function is essential, the following should be taken into consideration: (1) the position exists to perform that function; (2) there are a limited number of employees available to whom the job function can be distributed; or (3) the function is highly specialized. Evidence of whether a particular function is essential includes the employer’s judgment as to which functions are essential; a written job description prepared before advertising or interviewing applicants for the job; the amount of time spent on the job performing the function; the consequences of not requiring the incumbent to perform the function; the terms of a collective bargaining agreement; the work experiences of past incumbents in
the job; or the current work experience of incumbents in similar jobs.

The employee is typically not involved in the process of determining the essential function. (I had one particularly egregious case where the employer tried to make the employee agree in writing to changed essential functions for the position while the employee was disabled.)  Usually this is predetermined (or at least, employers claim it is) and the issue is one of many that gets litigated in disability discrimination and wrongful termination cases.

The next step is figuring out your reasonable accommodation. This is a case by case process that should occur during the interactive process, and ideally the employee is as involved in this process as the employer. Time off, assistive technology, or even a simple solution like providing an assembly line worker a chair are all things that can be considered.

I sometimes come across employers who tell employees they do not do certain things for employees as a “policy.” This is a mistake. The process of determining whether you can be reasonably accommodated has to be an individualized process. That means there is no cookie cutter approach. Your specific situation needs to be considered.

If you think you have not been reasonably accommodated, or you are in the midst of requesting a reasonable accommodation and need some help, contact me. 

 

Failure to Engage in the Interactive Process

If you are a disabled worker, one of the first things you and your employer need to do is engage in the interactive process. This is a good faith dialogue between worker and employer about the employee’s disability. The goal of this statutorily mandated conversation is determining whether the employee can perform the essential functions of their job with or without an accommodation. In other words, can you and your employer figure out a way for you to either keep working, or just keep your job, with your present physical or mental condition. This is an ongoing responsibility. If an employee is accommodated but subsequently has a change in his or her circumstances, the interactive process should continue.

As simple as the above sounds, this claim pops up in almost every disability discrimination action. A frequent source of disability claims arise from situations where the employer either simply decides an employee’s fate without their input, or just ignores an employee or their doctor’s input. Sometimes, an overly bureaucratic layer creates mistakes that lead to an inadequate resolution, or outright dismissal of an otherwise qualified employee. All of these situations encompass a failure to engage in the interactive process.

Currently, there is a debate in the courts as to whether an employer is liable for failure to engage in the interactive process if there was no actual accommodation possible. For instance, if an employee suffers from a severely debilitating condition that would permanently limit his ability to perform a certain job, is the employer liable for simply firing the employee without even attempting to investigate if any accommodation was possible?

This is a constantly evolving area of the law that I have litigated many times. Contact me if you are either thinking about beginning this process, are in the midst of it, or have gone through it already and something has gone wrong. The earlier you get advice, the better.

Disability Discrimination Claims

In the employment law context, most disability discrimination claims are covered by the Fair Employment and Housing Act, commonly called the “FEHA.” The FEHA applies to any employer with five or more employees. Among many other protections, the FEHA protects the employment rights of disabled workers. The Federal equivalent is the Americans with Disabilities Act, or the “ADA.”  Both acts cover similar rights, but as usual, California law is generally more protective and favorable to employees, with a few limited exceptions.

Under the FEHA, “disability” is a broader term than its common usage in everyday conversation. A disability can be physical, mental, or a genetic characteristic. There are also specific medical conditions defined in the law, such as cancer, that automatically qualify.

  • A physical disability is any physical disease, disorder, condition, cosmetic disfigurement, or anatomical loss that limits a major life activity, such as working.  This can range from a sprained ankle, to carpal tunnel syndrome, to loss of limbs.
  • A mental disability is any mental or psychological disorder or condition that limits a major life activity, such as working. This can range from a learning disability, to bipolar disorder, to depression.
  • If an employer thinks an employee is disabled and discriminates against that employee, the employer is still liable even if the employer was mistaken in believing the employee was disabled.    

Almost any physical or mental impairment is protected as a disability if it makes your work more difficult. Once an employer knows an employee is disabled, the employer is required to engage in the “interactive process” in an effort to “reasonably accommodate” the employee’s disability. In plain English, the process should work like this:

  1. Your employer learns about your disability and how your ability to work is affected or restricted.
  2. You and your employer, and possibly your doctor, discuss how you can continue to do your work with your disability. Common solutions include time off to recover, switching or limiting duties temporarily, ergonomic devices, speech to text software, and a variety of other common and cost-effective solutions.
  3. You eventually recover, or continue working with your accommodations. Or, after an honest and good faith interactive process with your employer, it is determined that your disability is so severe that your employer cannot accommodate you.

Unless accommodating the disability constitutes an “undue hardship” on the employer’s business, the employee must be accommodated. Click on the hyperlinks above to read more about each step in the process.

 

 

Class Actions

A class action lawsuit is any action in which one named Plaintiff fights on behalf of a large group of similarly situated but unnamed co-plaintiffs. The class action most people are familiar with are consumer class actions, as the class size in those cases is often very large. It can be as large as anyone who bought a specific product or signed up for a specific service over the course of a few years.   You have probably received at least one consumer class action notice in the mail in your lifetime, and odds are you ignored it. Payouts for class members in these cases range from nothing but a coupon to a few thousand bucks. While some like to paint these cases as cash grabs for lawyers, they play an important role in consumer advocacy and maintaining a fair marketplace for customers. There is a reason most large companies are trying extremely hard to eliminate the ability of consumers to prosecute these types of cases through mandatory arbitration clauses and class action waivers. Do you have cable, a cell phone, or internet access? Odds are you have signed several of these and waived important rights without knowing it. You have no choice in the matter really, which is unfair. (If you would like do try and change this, write a letter to your congressperson in support of Al Franken’s Arbitration Fairness Act.)

Employment class actions tend to be smaller than consumer class actions, but they serve a similarly important purpose. Our Court system recognizes the importance of class actions in vindicating important civil rights, particularly in employment, in cases where an employer is taking a “death by a thousand cuts” approach to paying its employees. For instance if an employer is intentionally and systematically shaving all of its employees’ hours worked by one hour a week, this might add up to a small amount of damages for each individual employee. An employee, even if they discover this discrepancy, might not care enough to do anything about it. Even if they did want to do something about it, such an employee may have a difficult time finding an attorney who will take a case worth a few hundred dollars.  Meanwhile, the employer is saving hundreds of thousands, perhaps millions of dollars through this systematic wage theft (if they are big enough).

This is unfair not just to the employees but to other law abiding businesses who want to actually follow the law and treat their employees properly.  Enter the class action. A business that employs 100,000 people might not care much about one employee with a $300 wage and hour lawsuit. But a class action allows that employee to join forces with the other 99,999 employees who are being similarly mistreated. That $300 lawsuit is now worth almost $30,000,000. An employer might pay attention to that number.

The class action not only gives employees a means of vindicating their rights, it provides a powerful economic incentive to employers to follow the law. This is one reason why employers and big businesses are fighting so hard to eliminate the threat of class action lawsuits through arbitration and class action waivers. If you have a service or a product that allows you to opt-out of a class action waiver or arbitration agreement, consider signing it.

 

The Litigation Process

There are really two ways to solve problems in the good ol’ USA. Formally and informally. Informal dispute resolution processes vary from angry demand letters, to beer summits, to phone calls, to closed door meetings… you name it. I label anything involving a trial or litigation, i.e. the courts or forced arbitration, as “formal” dispute resolution.

On this page I will explain the basics of how a trial works, from the beginning of your case to the end. This being the good ol’ USA, on TV and in popular culture we have a myth surrounding the court system. You file a lawsuit, you have a trial, you hopefully win the trial after Perry Mason introduces his surprise witness to a shocked courtroom, and you go home a millionaire.

If only it were that simple. Unfortunately, resolving a lawsuit is a lot more boring than that. There are some exciting parts, maybe, but for the most part it involves a lot of hardwork, preparation, research, and strategy. Doing it yourself is a mistake, and I have no compunction telling you that only a fool has himself for a client. Would you perform open heart surgery on yourself? Would you give yourself a root canal? I hope not.

Nonetheless, you should know the basic process before you hire an attorney to represent you. The basic process of a case is as follows:

1. Find your lawyer. This is what you are doing now, I suppose.

2. Meet with your lawyer. Give them all the documents and information they need. Tell them everything. I mean, everything. They need to know it all. Do not hide bad information. Do not sugarcoat. Bad facts that are not revealed to your lawyer from the get-go have a nasty way of rearing their ugly head in the middle of a case. Trying to hide them never works.

I cannot emphasize this point enough: They’re your lawyer. You have to trust them. Under the law, your lawyer’s most important and fundamental duty is keeping everything you tell them confidential. It is a lawyer’s duty to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” We tend to take this very seriously.

If you do not trust your lawyer enough to tell them everything, find another lawyer and tell that lawyer everything instead. If you do not trust anyone enough to tell them everything, do yourself a favor and do not hire a lawyer or file a lawsuit.

3. If you have a case, you and your lawyer will sign a retainer agreement. This is a contract between you and your lawyer. Usually, it covers things like: what your lawyer is going to do for you, your rights and duties as a client, your lawyer’s obligations to you, how your lawyer is going to get paid, and so on.

4. Your lawyer will analyze your situation and determine the best way to resolve the case. If informal resolution might be possible, your lawyer will initiate that process, usually with a demand letter. A demand letter is simply a letter telling your employer how they screwed up, and what they need to do to rectify the situation for you. If it works, you’re done. If it doesn’t, proceed to step 5.

5. Filing the Complaint. This begins the “formal” resolution process. A complaint is a legal document telling the employer, and the world, what laws the employer has violated, and what you (the Plaintiff) demand to make it right.

6. Once the Complaint is filed, it needs to be served. 10 days after service the Plaintiff can start sending “discovery.” More on that later. (The defendant can start the discovery process at any time.)

6. The employer (now, the “defendant”) files a “responsive pleading.” Usually, this is an “Answer.” Usually, the Answer just denies everything. Sometimes a defendant will file motions attacking the Complaint as defective in some way.

7. Assuming you get past this stage (most complaints do) your case is now “at issue.” This just means the Court can start scheduling substantive dates, like dates for trial.

8. The Discovery process, if it has not started yet, will get undergoing in earnest at some point between the filing of the complaint and your trial. Discovery is basically the official mechanism for fact gathering in the litigation process. In the California Code of Civil Procedure, there are specified discovery tools that lawyers can use to make the other party give them information. If the other party fails to give the information, the Court can make them give up the information. These tools include depositions, requests for documents, “interrogatories” (basically, written questions), requests for admission, and other fact gathering devices. This process often is the most time consuming, costly, and important part of litigation. If you have a trial, the trial will consist entirely of the “universe” of facts uncovered in this process.

9. Summary Judgment. In many cases, a party (usually the defendant) will ask the Judge to decide the case before it gets to a jury. If there are no “triable issues of material fact,” the Judge will render the verdict.  If that happens, that’s the end of the road. This is a difficult hurdle for any party since usually, there is some fact left in dispute. If a fact is still in dispute, for example, the parties disagree whether the light was red or green and there is no indisputable evidence conclusively deciding the issue, then the case goes on. In some cases there is a legal defect in the case that makes the factual dispute irrelevant. For example if the law says that a certain employee is not entitled to overtime, and that is the only claim, the Judge can toss the case even if there is evidence showing the employee worked overtime.

10. Trial. Where the rubber meets the road. This is where you and your lawyer make their case to the jury or the Judge. The most basic trial consists of the Plaintiff presenting their case, the Defendant presenting theirs, and then both parties submit their case to the Jury and let them render their verdict.  Every trial is different, however, and there is not really a cookie cutter approach.

Trials are not as exciting as they are on TV. Most of the trial is sitting in a courtroom, listening to a witness answer questions or listening to lawyers argue. Everything is thoroughly scheduled before-hand; there are no Perry Mason-esque surprise witnesses. Most of the time the lawyers (and the Judge) know who is going to testify and what they are going to say. This is because the universe of facts available at trial is usually defined before the trial even begins. The trial is thus won or lost on (a) correctly defining the parameters of that universe of facts; and (b) presenting those facts in a compelling way that convinces the Jury that you are right and the other side is wrong.

Most cases do not go to trial. Trials are inherently risky, time consuming, and expensive. Anything can happen, no matter how well prepared you are. A juror could get sick, and you have to replace them with an alternate that changes the tenor of the jury room. A witness could decide to not show up. An important document can go missing. A witness might recant prior deposition testimony. Nothing substitutes for rigorous, thorough preparation, but no plan survives first contact with the enemy. A trial is a fluid, dynamic (and time consuming) process.

11. Post-trial Motions and Appeals. So you have won your trial. Do not celebrate yet. The losing party can ask for a new trial, can ask the Judge to reverse the jury verdict, or can just appeal the whole thing and make the court do it all over again. There are a lot of hurdles you need to jump through to actually get your judgment and start collecting.

12. Collection. Phew, that took a while. Sometimes it can take years to get to this point. And you are still not done. Assuming you have a Judgment that says you are entitled to money, now you have to initiate the collections process. This is the official process you need to go through to actually force the Defendant to pay you. It is almost like a whole different case in itself.

The sad truth about trials is most Judgments go uncollected, since collections is such a pain. Many cases that go to judgment even settle after trial, oddly enough, since a Plaintiff will usually never collect the full money judgment against a Defendant who is hell bent on stymieing the collection process. This is another reason most cases do not go to trial; if you win, you still have a high mountain to climb before you actually get any money.

You may have gotten through all of this and wondered “so when do we settle the case?” The answer is: any time the parties agree to settle the case. Usually this happens after each party has enough information to make an informed decision about settling. The settlement amount will usually take into account the facts of the case, the stage of the proceedings, and the risks of taking the case further for each party. Settlement can happen at any time and is facilitated in a variety of ways.

Still have questions? Want to get started? Contact me. 

Independent Contractors

Independent Contractor?

Lots of employers try and get around wage and hour law by classifying their workers as independent contractors. This can be a very costly mistake, particularly with California’s new law fining employers $25,000 for intentionally misclassifying their employees as independent contractors. (It also makes them tell the world they have been naughty by publicly posting the fact they were penalized. A little public shaming can go a long way sometimes.)

Qualifying as an independent contractor is difficult. In California, the most significant factor to be considered is whether the employer has the right to control the worker’s final product, and the manner and means in which the work is performed.  For example, think of a McDonald’s employee working the cash register versus an artist commissioned to create a sculpture for a park. McDonald’s has very specific things that it needs its cashiers to do on a very specific schedule set by McDonald’s. McDonald’s cashiers have to wear McDonald’s uniforms, sell McDonald’s products, work McDonald’s hours, and even speak to customers the way McDonald’s wants them to. The artist creating the sculpture, however, is commissioned to use his or her creativity and artistic talent to create something unique. The owner of the park has no say in how he or she does it or what the final product looks like (beyond generalities such as requesting a sculpture of a person rather than a duck). The artist can come and go as he or she pleases so long as the work gets done by a specified date within a specified budget.

Of course most situations are not that cut and dry. Additional factors that may be considered depending on the job are:

1. Whether the employee is performing work distinct from the employer.

2. Whether the work is a part of the regular business of the employer.

3. Whether the employer supplies the instrumentalities, tools, and the place to do the work. For example, the McDonald’s cashier uses McDonald’s point of sale device, works at the McDonald’s restaurant, and wears McDonald’s clothes. The artist uses his own tools and might create much of his work at his or her own studio.

4. Whether the worker is invested in the tools and instrumentalities the worker uses for the work;

5. Whether there is a special skill involved in the work;

6. Whether the worker shares in the profit or loss depending on the worker’s performance;

7. Whether the work is of a set duration or an indeterminate period of time;

8. Whether the worker is paid per job or by time worked;

9. The intent of the parties.

Although the intent of the parties is relevant, employers often think that if they simply have the employee sign an “independent contractor” agreement, this magically make the employee an independent contractor. Such agreements are not determinative and are given little weight by courts.

I can usually tell if someone is an independent contractor or not very quickly. Sometimes it is a little more complicated. Usually, it is an unscrupulous employer trying to save a couple bucks with an unsuspecting (or uncaring) employee. If you are a so-called “independent contractor,” I’d like to talk to you.

 

The Fair Labor Standards Act (FLSA) vs. The California Labor Code

There essentially two different sets of wage and hour laws that are both applicable to California employers. The Federal Fair Labor Standards Act (commonly known as the “FLSA,” and sometimes pronounced “flis-a”) and the California Labor Code. There are a variety of similarities and differences between these two laws.

The overarching distinction is that California wage and hour law trumps Federal law when California’s laws are more protective. For example, although under Federal law the minimum wage is $7.25 per hour, since California has a higher minimum wage of $9.00 per hour, California law trumps Federal law. Similarly, California allows for daily and weekly overtime, whereas under Federal law you are only entitled to overtime if you work over forty hours in a week, no matter how many hours you work in a day.

There are also several important differences when it comes to whether employees are considered “exempt” or “non-exempt” from overtime and minimum wage standards.  It is generally harder for an employee to qualify as exempt under California law than under Federal law. This is good for employees. One of the most important distinctions is that in California, an employee must actually spend more than half of his or her time performing exempt duties (such as making sales). Under Federal law, courts will look to the “primary duty” of the employee’s job. This is sometimes referred to as the “qualitative (Federal) vs. quantitative (California)” approach. In practice the Federal standard gives employers much more wiggle room to create idealized job descriptions and then simply claim the employee fell short of expectations.

Here’s a handy-dandy cheat sheet of some common differences between Federal and California wage and hour law:

California:

  • Minimum wage is $9.00 per hour.
  • Tips cannot be counted against the minimum wage; if you are a tipped worker, you still must receive at least $9.00 per hour for every hour worked.
  • Employers must provide a meal break of at least one half hour on any shift that lasts at least five hours.
  • Employees are entitled to daily overtime of one and a half times their regular hourly wage for any hours worked over eight in a day, or any hours worked on the seventh consecutive workday in a single workweek up to eight hours. Employees are owed double their regular hourly wage for all hours worked after twelve in a day, or any hours worked after eight on the seventh consecutive workday of a single workweek. California employees are entitled to recover unpaid overtime plus interest against employers.
  • Exempt employees must be paid on a Salary basis of at least twice the current minimum wage per week.
  • Courts utilize the “primarily engaged” test to determine if an employee performs work qualifying as exempt; exempt employees must perform exempt duties at least 50% of their time, unless the employer can show the employee was not performing up to the realistic expectations of the job.
  • When an employee is separated from employment (whether they quit, are laid off, retire, or are fired) the employee is entitled to full payment of all owed wages upon separation from employment. If the employer fails to give the employee all of their owed wages immediately (if you are fired) or within 72 hours (if you quit) you are entitled to “waiting time penalties” equal to a normal days wages for every day that your employer fails to pay you.
  • There is no “highly compensated employee” exemption; you must qualify for all of the relevant exemption criteria for your job category.
  • Very strict restrictions on deducting money from paychecks. Generally, the only permissible deductions are for benefits. Deductions from commissions or wages for unidentified returned items, broken employer property, overpayments of wages, or for loans are prohibited.
  • Definition of employer and employment is broader, thus more entities and individuals can be liable for employment violations.

Federal Law

  • Minimum wage is $7.25 per hour.
  • Up to $5.12 per hour in tips can be counted against the minimum wage, meaning a tipped worker can be paid as little as $2.13 per hour.
  • No meal break requirement.
  • Employees are only entitled to overtime if they work over forty hours in a workweek. Employees are entitled to liquidated damages of double their overtime damages if Employers willfully fail to pay overtime. California has no such damages provision.
  • Exempt employees must be paid on a salary basis of at least $455 per week.
  • Courts utilize the “primary duty” test to determine if an employee is expected to perform exempt duties. In practice, compared to the California test this gives employers more leeway to argue that employees are exempt based on job titles and written job descriptions, rather than what employees actually do all day.
  • There is no law penalizing an employer for failing to immediately pay wages upon termination, other than the underlying wage violation.
  • Employees earning over $100,000 per year are generally exempt. Although the burden still rests with the employer to prove the employee is exempt, the standards for making this determination are much less rigorous for such “high compensated” employees.
  • Employers have more leeway to make deductions, and have a good faith “safe harbor” for deductions made in error.
  • Definition of employer and employment is more narrow, making it harder to make more employers liable in joint employer situations.

Questions? Contact me, why don’t ya.

 

California Minimum Wage

california farmworker rights

California Workers

Every California employee is entitled to at least the minimum wage. What is minimum wage? Currently, California minimum wage is $9.00 per hour. It will increase to $10.00 per hour on January 1, 2016. Several local cities and counties have higher minimum wages, such as San Francisco, which has a minimum wage of $10.74 per hour.

There are a lot of misconceptions about minimum wage laws. Let me dispel some of them here:

  • Unlike under Federal law, if you receive tips, your employer cannot credit your tips against the minimum wage. You must receive at least the minimum wage for every hour worked, without exception.
  • You cannot agree to work for less than the minimum wage. Any such contract is illegal.
  • Any unpaid hour of work is a minimum wage violation in California. Unlike Federal law, in California there is no “averaging” of a day’s wages. This is all explained in the case of Armenta v. Osmose, Inc. It does not matter if your daily wages add up to more than the minimum wage when averaged against your total hours worked in a day. If you worked an hour for which you were not paid, that is a minimum wage violation. I see this come up a lot in wage and hour litigation.
  • Adults and minors both must be compensated by at least the minimum wage. There is no difference.

In California, if you are owed minimum wages, you may also collect double whatever you are owed thanks to Labor Code section 1194.2.  If you think you might be the victim of a minimum wage violation, contact my office for a free consultation.

Overtime Wages

In California, employees are entitled to both daily and weekly overtime wages, whichever is greater.  Pursuant to California Labor Code section 510 and 1194, California employees are entitled to one and a half times their regular wage for all hours worked over eight in a day, and double their regular wage for all hours worked over twelve in a day. Additionally, if you work seven days in a row, on your seventh day you must be paid at least one and a half times your regular wage for your first eight hours of work, and double your regular wage for all hours worked over eight.

Even if you do not work over eight hours in a day, if you work over forty hours in a week, you are still entitled to one and a half times your regular wage.

There are some exceptions to the above general rules.  For instance, some employees are considered “exempt” (e.g., doctors and lawyers) and are not entitled to overtime.  Misclassification of non-exempt employees as exempt employees is a very common source of overtime violations. If you would like to know if you are entitled to overtime, contact me for a free evaluation of your case.