San Francisco Employment Law Firm Blog

October 29, 2008

California Disability Law: Discrimination v. Failure to Accommodate

The second district made an important distinction between disability discrimination and failure to provide reasonable accommodations in Jensen v. Wells Fargo Bank 85 Cal.App.4th 245 (2000). In that decision, the court noted that the elements of a failure to accommodate claim are similar to the elements of disability discrimination under under California Gov. Code section 12940(a), but there are several important differences. For the purposes of the failure to accommodate claim, the employee does not need to show that he is able to perform the essential functions of his present job (like it is necessary to show in order to prove discrimination), but only that he or she is able to perform the duties of the job which he or she is seeking to be reassigned to.

Even more importantly, in claims for failure to accommodate, it does not matter whether the employee was terminated, suspended or otherwise disciplined in retaliation for his disability (like it is required in discrimination claims). The employer’s mere failure to reasonable accommodate a disabled individual is a violation of the statute in and of itself. Cal.Gov. Code section 12940(k).

In other words, prevailing on a disability discrimination claim is harder than proving failure to accommodate, because it requires showing that the employee suffered an adverse employment action, and that there is a causal link between the disability/medical condition and the adverse employment action, while no adverse employment action needs to be shown in order to prevail on a separate claim for failure to provide reasonable accommodations to a disabled worker.

October 28, 2008

San Francisco Paid Sick Leave Act

by Arkady Itkin

A new municipal law has been enacted by San Francisco in 2007, under which all employers must provide paid sick leave to each employee (including temporary and part-time employees) who performs work in San Francisco.

This “San Francisco Paid Sick Leave” began to accrue on February 5, 2007 for employees working for an employer on or before that date. For employees hired by an employer after February 5, 2007, paid sick leave begins to accrue 90 calendar days after the commencement of employment.

Under this law, for every 30 hours worked, an employee shall accrue one hour of paid sick leave. Employees of employers for which fewer than 10 persons (including full-time, part-time, and temporary employees) work for compensation during a given week may not have more than 40 hours of accrued paid sick leave saved at any time. Employees of other employers may not have more than 72 hours of accrued paid sick leave saved at any time. An employee’s accrued paid sick leave carries over from year to year. Employees are entitled to paid sick leave for their own medical care and also to aid or care for a family member or designated person.

October 26, 2008

California Employment Law: Disability under FEHA

by Arkady Itkin

The California Fair Employment and Housing Act basically defines two categories of disability: mental disability and physical disability. Each category contains its own specific definitions. In addition, under FEHA, an employee with a “medical condition” which is not quite considered a disability is also entitled to a reasonable accommodation.

The following are the specific definitions of physical disability under FEHA:having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that affects one or more of several body systems and limits a major life activity. The body systems listed include the neurological, immunological, muscular and skeletal, respiratory, speech, reproductive, digestive, urinary, lymphatic, skin, and endocrine systems. The major life activity is considered limited if it makes the achievement of that major activity difficult.

It should be noted that sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting form the current unlawful use of controlled substances or other drugs, are specifically excluded and are not protected as disabilities under FEHA.

October 26, 2008

Should you complain about discrimination and harassment at workplace?

by Arkady Itkin

It is common for an employee who is subjected to discriminatory conduct or harassment at workplace in California to be afraid to complain about the harasser to his superiors for fear of retaliation and losing a job. However, an aggrieved employee simply has nothing to gain by keeping quiet. In most cases, the harasser’s unlawful conduct not only doesn’t stop, but becomes progressively more unacceptable and egregious, causing more stress to the victim of potential discrimination and harassment.

Even more importantly, by not complaining, and employee not only doesn’t allow the employer to address discrimination and harassment and possibly discipline the harasser, but the victim virtually forecloses possibility of having viable legal claims for discrimination and harassment in the future. Unless the harasser is the aggrieved employee’s supervisor, and employer is not liable for discrimination and harassment, if the employer did not know or had not reason to know that such discrimination or harassment took place.

Therefore, if you believe that you are subjected to unlawful discrimination and/or harassment at workplace, it is crucial that you complain about the conduct in writing to your human resources department and higher if necessary. In your complaints, you should outline in detail the facts and the circumstances of what you believe to be an unlawful conduct toward you at workplace, requesting prompt, thorough, formal investigation of your allegations as required by law.

October 25, 2008

Salesperson overtime exemption

by Arkady Itkin

One exemption from overtime compensation under Fair Labor Standards Act is known as the “Outside Salesperson Exemption.” This exemption permits an employer to not pay overtime as otherwise required under California law, but only if a particular worker (a) has the primary duty of (a) making “sales” or (b) obtaining orders or contracts for services or facilities usage, and

(b) is customarily and regularly engaged away from the employer’s place of business in performing such primary duty.

The information above can be found at 29 USC § 213(a)(1) and 29 C.F.R. § 541.500. In order to qualify for this exemption under California law, however, the employee must spend more than 50% of his/her working time performing truly-exempt sales functions away from the employer’s business establishment (or away from the employee’s home, if that is where the employee is normally based).

October 24, 2008

Employer Deductions of Losses

by Arkady Itkin

If you are an employer who has employees working at the cash register or in any other position where they exchange merchandise or services for money, due to a common human error, these employees will make mistakes and will end up with cash shortages once in a while by not balancing the cash register properly or other mistakes.

An employer should be careful to not pass these losses to the employee and not make the employee pay for those shortage or deduct the amounts missing from the employee’s pay. Under California law, absent a showing of intentional dishonesty or gross negligence, an employer may not deduct for ordinary losses caused by an employee, such as cash shortages, breakage or loss of equipment, etc. Kerr’s Catering Service v. Department of Industrial Relations (1962) 57 C2d 319, 329-30. The rationale behind this rule is in that losses due to an employee’s simple negligence are inevitable in almost any business operation and must be borne as expenses of managing that business. The employer is in a better position to absorb those costs than the employee by having the opportunity to pass the costs to the consumer or otherwise.

October 22, 2008

Certification and Privacy under California Famly Rights Act

by Arkady Itkin

California Family Rights Act (CFRA), an equivalent of the federal FMLA legislation, allows qualifying employees to take up to 12 weeks of time off work when suffering from serious medical condition. Generally, and employer does not have to trust the employee’s word that he or she is or has been ill and thus unable to come to work, and the employer has the right to insist on having a medical certification to that effect.

However, some employer require the employer or the medical provider to disclose details of the medical condition of the employee who is seeking to take leave of absence under CFRA. In most cases, it is unlawful for an employer to require disclosure of such information, and disciplining or terminating employee for failure to disclose such information is no defense to CFRA discrimination, retaliation and wrongful termination claims.

The California Supreme Court has recently clarified the obligation and limitation on medical certifications that employers are entitled to obtain under CFRA in Lonicki v. Sutter Health Cent. 43 Cal.4th 201 (2008). The court looked closely at the language of the applicable legislation – specifically, California Government Code 12945(k)(1) and noted that by stating that an employee’s certification “shall be sufficient” if (a) it contains the commencement date of the employee’s health condition began, (b) the “probable duration of the condition,” and (c) a statement that the condition renders the employee unable to do the job, subdivision (k)(1) of section 12945 limits the type of information that an employer can require an employee to provide in a certification. For example, an employer may not require an employee seeking medical leave to provide detailed intimate and private information about a serious psychiatric condition that has made the employee unable to do the work, nor may the employer deny the employee’s request for medical leave for failing to provide such information. This law also limits an employer’s right, in litigation arising out of an employee’s medical leave request, to claim that the employer acted reasonably because the information provided by the employee was inadequate.

October 20, 2008

Computer Professional Exemption

by Arkady Itkin

California Labor Code section 515.5 defines who qualifies for a computer/technology professional exemption from overtime compensation. There are three main requirements:

(1) the employee must be doing work that is “intellectual or creative” and it should require “discretion and independent judgment,” which requires more than just deciding which procedures to follow but must involve substantial decision making that have real effect on the operation of the employer’s business. Generally, programming, coding and creating databases qualifies as such work as it involves inquiry and innovation and it affects the quality and the usability of the software created.

(2) The employee’s responsibilities primarily consist of “systems analysis techniques and procedures, including consulting with users:” these professionals must work in the “design, development, documentation, analysis, creation, testing, or modification of computer systems or programs” or similar work with computer programs “related to the design of software or hardware for computer operating systems.

October 19, 2008

California Employment Law: Workplace Retaliation

by Arkady Itkin

California statutes prohibiting retaliation bar termination of (or other adverse employment action against) employees asserting their legally protected rights, exercising political affiliations, opposing unlawful discrimination at workplace, or seeking statutory redress (such as investigation of discrimination, harassment, etc.)

To show retaliation under California Fair Employment and Housing Act (FEHA), an employee must show that (1) he or she engaged in protected activity under FEHA; (2) he or she suffered an adverse employment action (such as demotion, transfer, suspension, termination or other action by the employer that materially affects the terms, conditions, or privileges of employment, and/or would tend to discourage a reasonable employee from complaining about the unlawful conduct at workplace); and (3) there is a causal connection between the protected activity and the adverse employment action.

FEHA specifically prohibits an employer from retaliating against employee for opposing any unlawful discriminatory practice prohibited by FEHA, and filing a complaint, testifying, or assisting in any proceeding under FEHA.

October 19, 2008

What is “reasonable accommodation” of disability at workplace

by Arkady Itkin

The California Fair Employment and Housing Act (FEHA) provides a non-exhaustive list of possible accommodations that an employer may consider to accommodate a qualified disability or medical condition of an employee. These typical reasonable accommodations include, but are not limited to:

• Making facilities accessible to and usable by disabled individuals;

• Job restructuring (modifying daily duties of an employee);