Wage & Hour Class Actions and Representative Class Actions under the California Private Attorney General Act
Under California law, a non-exempt employee is entitled to overtime pay, or “time- and- half” for all hours worked over eight hours during any work day, and over 40 hours during any work week. Non-exempt employees are also entitled to meal and rest periods. Employers may also misclassify non-exempt employees as “exempt,” managerial employees, depriving employees of their right to overtime pay and meal and rest periods. Hours worked and overtime pay must be itemized on your paycheck as well as any vacation or sick leave accrued. Since many of this violations occur on a company-wide basis, our firm handles violations of the California Labor Code on a class and individual basis and also represents employees similarly aggrieved under the California Private Attorney General Act of 2004 (“PAGA”), which provides employees with a private right of action to collect penalties on behalf of the state and on behalf of the employee and other employees similarly aggrieved.
Wrongful Termination
If you have been terminated because of your race, gender, religion, disability, sexual orientation, gender, national origin or age, you may have a claim for wrongful discriminatory termination. The terms “wrongful termination” does not mean you were terminated for a false reason or that the termination was unfair. You must prove that your termination was caused, in whole or part by one of the aforementioned protected traits. In cases where harassment is so severe or pervasive that it alters the conditions of your employment such that no reasonable person could be expected to return to work there and you believe you must resign, you may have a claim for wrongful constructive termination even if the employer has not terminated the employment relationship. Wrongful termination is a form of discrimination.
Disability Discrimination
In a case involving a known physical or mental disability, an employer may be liable for unlawful discrimination if it fails to provide reasonable accommodations for the employee’s disability.
In California, an employee may be deemed to have a disability if the limitation interferes with their ability to work. Reasonable accommodations can include, without limitation, reduction in hours, work from home, finite leave of absence, ergonomic chair or keyboard or other workplace accommodation. Once the employer because aware of the need for a reasonable accommodation, whether through the employee’s request or through the employer’s own observation, the employer’s obligation to provide a reasonable accommodation is triggered. The employer and employee must then engage in a good faith interactive process to determine whether the requested accommodation is reasonable for the employer with causing the employer undue hardship. If the employer rejects the employee’s requested accommodation without discussion, the employer may be liable for disability discrimination in the failure to discuss reasonable alternatives. This often occurs through a specific rejection coupled with termination. This action also constitutes a failure to accommodate a disability and disability discrimination.
*If you do not have a physical or mental disability, but require a medical leave for your own serious medical condition or that of a family member, you may still be eligible to take a leave of absence under the Family & Medical Leave Act (“FMLA”) for up to 12 weeks, provided other conditions are met.
Disability Discrimination Based on HIV/AIDS
Many employers assume that if a person is HIV positive, they must be gay or lesbian, or if they are gay or lesbian, they must be HIV positive. Until the recent discoveries in medicine that can prevent an HIV positive pregnant woman from passing the virus to her fetus, the children born to these mothers were born HIV positive. Because HIV can be contracted in utero or through breast feeding in addition to blood or sexual fluids, there is clearly no basis for the assumption that a person who is HIV positive is also gay or lesbian. And yet, such ignorance prevails in even the most prestigious professions. In 1999, the California legislature added HIV/AIDS infection to the list of specifically defined disabilities under the Fair Employment & Housing Act. HIV positive persons often face the most stigmatizing discrimination of all disabilities due to its association injection drug use or sex, sexuality and orientation, homelessness and abuse. The ignorance surrounding the contagiousness of the virus and how it is contracted is present in even the most sophisticated and educated persons, including doctors. HIV discrimination is most significant in the workplace. Some HIV positive employees have been refused the right to use the same bathroom or break room as employees who are not HIV positive. Others face such debilitating physical and mental limitations, that they often require leaves of absence or atypical accommodations involving for example, longer bathroom or rest breaks. Employers are required to make reasonable accommodations for persons with HIV/AIDS in the same manner as other disabilities, and yet, the stigmatizing nature of the virus often results in the unapologetic denial of rights. HIV/AIDS discrimination is often coupled with sexual orientation discrimination.
As the former Legal Director of the HIV/AIDS Legal Services Alliance as well as an AIDS activist, Ms. Farrell has handled many of the early cases involving HIV/AIDS discrimination and has successfully litigated against employers who discriminate and violate employee privacy, as well as medical providers who refuse to treat HIV positive patients. Having lost a member of her family to the HIV virus in the early nineties, Ms. Farrell is empathetic to the stigma and pain suffered by victims of HIV/AIDS discrimination and has worked as a volunteer attorney for several nonprofit HIV prevention and harm reduction organizations since 1998. She has also focused on HIV/AIDS discrimination in employment in an effort to undermine stigma and require employers to provide reasonable accommodations as well as maintaining specific workplace policies that seek to prevent HIV/AIDS discrimination. If you are HIV positive and have been denied a reasonable accommodation or a medical leave of absence, if you have been harassed or subjected to differential treatment, you may have a claim for disability discrimination. Many employers assume that if a person is HIV positive, they must be gay or lesbian, or if they are gay or lesbian, they must be HIV positive. HIV infection can be contracted by anyone. There is clearly no basis for the assumption that a person who is HIV positive is also gay or lesbian. And yet, ignorance regarding these issues prevails in even the most prestigious professions, such that sexual orientation discrimination based upon actual or perceived orientation, commonly occurs in conjunction with HIV/AIDS disability discrimination.
Denial of Medical Leave Under the Family & Medical Leave Act
The federal Family & Medical Leave Act (“FMLA”) and the analogous California state leave law, the California Family Rights Act (“CFRA”) provides that if you have been employed for a year or more or have worked at least 1,250 hours within the year prior to taking leave; and, if your employer has 50 or more employees within a 75 mile radius of your worksite, you are eligible to take an unpaid medical leave of absence for a period of 12 weeks for any of the following reasons: (1) for the birth and care of the newborn child of an employee; (2) for placement with the employee of a child for adoption or foster care; (3) to care for an immediate family member (spouse, child, or parent) with a serious health condition; or (4) to take medical leave when the employee is unable to work because of a serious health condition. The law also requires that employers maintain all group health benefits during any period of leave. Following the conclusion of leave, the employer is required to reinstate the employee to the same or comparable employment. Employees need not specifically identify the FMLA or CFRA in requesting leave. If you are an eligible employee under the FMLA/CFRA and you are either denied a medical leave for a period of 12 weeks, terminated while on leave or denied reinstatement to the same or comparable position following your leave, you may have a claim for violation of the FMLA/CFRA.
Eligible employees who the spouse, son, daughter or parent of a military member are provided with additional grounds for a 12 week leave beyond the categories identified in 1-4 above, and entitled to 26 weeks of leave time in a single 12 month period to care for their service member relative under the National Defense Authorization Act of 2010.
*If you do not qualify for leave under the FMLA/CFRA, you may still be afforded a reasonable accommodation for a finite leave of absence under the FEHA or the Americans with Disabilities Act (“ADA”), as amended, for a physical or mental disability.
Gender/Sex Discrimination
Gender discrimination typically affects women, who are treated adversely in the workplace specifically because of their gender. This may mean they have been harassed based on sex, they have been passed over for promotion in favor of a less qualified male, they have received a poor performance review because they are female, they have been denied the right to wear pants or required to wear high heels in the workplace or the employer refuses to hire them because they are female. This may most often occurs among employers with a traditionally male workforce, or in circumstances involving a woman who requires a pregnancy disability leave, or simply becomes pregnant.
Pregnancy Discrimination
Discrimination based on pregnancy is a form of gender discrimination and can occur in several contexts. If a woman becomes pregnant during her employment and is demoted or terminated without grounds, this may be an indication of intentional discrimination based on pregnancy. Women can also be discriminated against if they are denied a leave of absence for their pregnancy, whether for medical appointments, morning sickness or childbirth. Often the employer will hire a temporary replacement during a longer period of leave, and refuse to reinstate the pregnant employee following the conclusion of their pregnancy disability leave. Women who take a pregnancy disability leave are entitled to reinstatement to the same or comparable position (including pay, title and hours), following the conclusion of leave. Employees who qualify for FMLA leave, may also take, in addition to pregnancy disability leave, an additional twelve weeks of leave to bond with their child or for their own serious medical condition following the conclusion of their pregnancy disability leave. If you have been demoted or terminated because you are or were pregnant, took intermittent leave for medical appointments or for morning sickness for example, or because you took a leave of absence for childbirth, you may have a claim for pregnancy and gender discrimination as well as for unlawful denial of pregnancy disability leave.
Sarbanes-Oxley Act of 2002
Sarbanes Oxley, or “SOX” was enacted to protect investors from fraudulent accounting activities by publically traded corporations and requires senior management to certify the accuracy of reported financial statements and implement controls and reporting methods based on the adequacy of those controls. A SOX violation may occur when, an employee reports inaccuracies or false information in the corporations accounting activities and is subject to retaliation and/or termination as a result of such reports. Typically, this affects employees who work as CEO’s, compliance specialists, auditors or accountants who report violations to senior management and face retaliatory consequences such as demotion or termination. If you believe you have been subjected to an adverse employment action due to your protected activities under SOX, you may have a claim for violation of this statute.
Race/Color Discrimination
Discrimination based on race or color occurs when an employee is subjected to differential treatment in the terms and conditions of employment based upon race in whole or part, such that race constitutes a motivating factor for the differential treatment even if other legitimate factors exist. Examples of differential treatment discrimination include, discriminating against an employee because of his or her association, friendship or marriage to persons of a certain race or ethnicity, denial of promotion, or denial of benefits of employment because of race. Differential treatment discrimination involves racial animus and intentional acts to treat persons of a certain race differently and adversely. Discrimination may also occur as a result of a disparate impact, a neutral policy that disparately affects persons of a particular race or color, such as segregation of particular employees in a certain job class, which may disproportionately result in racial segregation, even if the there was no intent to discriminate. English only policies may constitute either differential treatment or disparate impact depending upon whether there is an intent to discriminate against, for example monolingual Spanish speakers.
Racial Harassment
Racial harassment is a form of racial discrimination and like sexual harassment, is actionable if the conduct is sufficiently severe or pervasive such that it creates a hostile environment altering the terms and conditions of employment. Employees who encounter harassment based on their race are subjected to derogatory conduct or comments about their race or color such as racial jokes, use of epithets or traditional symbols of racial hatred, which in their most severe form (which may also be pervasive) may be a hangman’s noose, swastikas or white hoods associated with the KKK or other racial hate groups. This conduct is illegal and actionable.
National Origin Discrimination
Like discrimination based on race or color, discrimination based on an employee’s national origin is illegal under state and federal law. Employees who are subject to differential treatment, national origin based harassment or adversely impacted by a facially neutral practice may have a claim for national origin discrimination. Employers cannot refuse to hire an employee, harass, demote or terminate an employee because of their country of origin. Oftentimes, employees who have been victims of discrimination based on race or religion, are also subject to discrimination based on national origin.
Age Discrimination
Employees who are 40 years of age and above, are protected from discrimination and harassment because of age. Because there is a direct and legally identifiable correlation between age and income level, age discrimination often occurs when the employer seeks to reduce the high cost of older worker’s salaries by terminating workers over 40 and replacing them with younger cheaper workers. Discrimination based on age may also occur in circumstances where the employer enacts a neutral policy that has a disparate impact on older workers, or undertakes a reduction in force that results in the predominate termination of workers over 40. Age discrimination is illegal under California and federal law.
Religious Discrimination
Discrimination based on religion or creed make take the form of harassment through comments or actions; a failure to accommodate religious practice, such as wearing a yamaka, kaftan or hijab or requiring an employee to work on their Sabbath; or if you have been denied employment because of your religion. If you believe you are being harassed or discriminated against because of your religious faith or associated dress, or are required to perform work on religious holidays or Sabbath, you may have a claim for religious discrimination.
Whistleblower
The term “whistleblower” originated from the whistle a referee uses to identify an illegal rule violation. This term has since emerged as a legal term and statutory violation, signifying an employee who reports a violation of state or federal law, health or safety violation, tax fraud, falsification of bank documents or other illegal acts to a government or law enforcement agency, and is fired or threatened with termination. Under California law, employers are prevented from making or adopting any policy that would prevent an employee from reporting such violations and are further prevented from retaliating against an employee for disclosing what they reasonably believe constitute violations of law to a government or law enforcement agency. Other whistleblower protections involve anti-retaliation provisions for the refusal of an employee to participate in an activity which they reasonably believe constitutes a violation of law. If you have reported conduct by your employer to a government or law enforcement agency which you have reason to believe constitutes a violation of law and you were fired or threatened with termination, you may be a “whistleblower” and entitled to compensation.