Employment Law Blog

Filter:  Wrongful Termination

Wage and Hour Class Action Mediation Brief

Section 510 of the Labor Code and the applicable IWC Wage Order require employers to pay overtime for hours worked beyond eight in a day and forty in a week (and double-time as provided in the statute and Wage Order).

READ MORE

Whistleblowing and Hazardous Working Conditions

To establish a prima facie case of retaliation, a plaintiff must show that (1) they engaged in a protected activity, (2) that they were thereafter subjected to adverse employment action by their employer, and (3) there was a causal link between the two.  Iwekaogwu v. City of Los Angeles, 75 Cal.App.4th 803, 814 (1999), quoting Flait v. North American Watch Corp., 3 Cal.App.4th 467, 476 (1992).

In order to be protected against discharge, a complainant need only make a good faith complaint about working conditions that they believes to be unsafe. Cabesuela v. Browning-Ferris Industries of California, Inc., 68 Cal.App.4th 101, 1009 (1998) [emphasis added].  An employer is prohibited from retaliating against a complainant who made “a bona fide oral or written complaint to [their] employer of unsafe working conditions, or work practices, in [their] employment or place of employment.” Labor Code § 6310(b) [emphasis added].

READ MORE

Essential Job Functions and Failure to Accommodate

The Fair Employment and Housing Act (“FEHA”) requires that an employer provide reasonable accommodations that allow an employee to perform the essential functions of their job. Gov. Code §12940(m). Where a failure to accommodate was a “substantial factor” in causing the exacerbation of a workplace injury, the employer may recover damages for that exacerbation. See Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 698-699; Fussell v. Timec Company, Inc. (2014) 2014 WL 810917 at *9-13; Bagatti v. Department of Rehabilitation(2002) 97 Cal.App.4th 344, 356-358.

READ MORE

Overtime, Wage Violations, and Employer Obligations Regarding Disabilities

California Labor Code section 510 requires employers to pay overtime compensation for hours worked over 8 per day and 40 per week. An employer may avoid paying overtime for hours worked over 8 per day by adopting a valid Alternative Workweek Schedule. The procedures for adopting a valid AWS are set forth in Labor Code § 511 and the relevant Industrial Welfare Commission (“IWC”) Wage Order No. 4 at California Code of Regulations, title 8, § 11040, subd. 3(B). Among other things, the law requires an employer to hold a secret ballot election regarding the AWS amongst its employees and to file the results of the election with the State.

READ MORE

Privacy Privilege in Discovery

Article I, section 1 of the California Constitution “creates a zone of privacy which protects against unwarranted compelled disclosure of certain private information.” Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347, 357. Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370–371. In determining whether information falls within the zone of privacy, the party claiming the privacy privilege must have a reasonable expectation of privacy under the circumstances, including the customs, practices, and physical settings surrounding the circumstances. Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1, 35–37.

READ MORE

Determining Employment Status in California

“The California Supreme Court has developed a multi-factor test for determining employment status.” Ruiz v. Affinity Logistics Corp. (9th Cir. 2011) 667 F.3d 1318, 1324, quoting S.G. Borello & Sons, Inc. v. Dept. of Indust. Rel. (1989) 48 Cal.3d 341 (“Borello”).  “[U]nder California law, once a plaintiff comes forward with evidence that he provided services for an employer, the employee has established a prima facie case that the relationship was one of employer/employee.” Narayan v. EGL, Inc. (9th Cir. 2010) 616 F.3d 895, 900, citing Robinson v. George, (1940) 16 Cal.2d 238, 243-244. “Once the employee establishes a prima facie case, the burden shifts to the employer, which may prove, if it can, that the presumed employee was an independent contractor.” Id. (citation omitted).
Under California law, primary test of an employment relationship is whether “the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired….” Borello, supra, at 350. While the right to control work details is the most important factor, there are also “’secondary’ indicia of the nature of a service arrangement.” Id. These secondary factors, principally derived from the Rest.2d Agency, include

READ MORE

Unlawful Termination in California: Whistleblowing and Disability

It is the public policy of California that workers not be fired based on their disability, because they have reported illegal activity, or because they have refused to participate in illegal activity.
California Labor Code section 1102.5(b) prohibits an employer from retaliating against an employee for reporting to a government agency any activities that he reasonably believes to violate a state or federal statute.  Labor Code §1102.5 further prohibits retaliation for refusing to participate in any action that would lead to the violation of any state or federal statute. It is illegal to perform contracting work in California without a license (See, e.g. Bus. & Prof. Code§7028). Insurance Fraud is a crime under both Federal and State law (18 U.S.C. §§1341, 1343; Cal. Ins. Code §§1871, et seq.).

READ MORE

The Importance of Independent Testimony

California Code of Civil Procedure section 2025.420 subdivision (b) provides that, “the court, for good cause shown, may make any order that justice requires to protect any party… from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” Code Civ. Proc. § 2025.420 (b)(12) expressly authorizes the court to exclude from a deposition “designated persons, other than the parties to the action and their officers and counsel.”

READ MORE

Wrongful Termination and Reasonable Accommodations Under the Americans with Disabilities Act

Wrongful termination from employment is tortious when the termination occurs in violation of a fundamental public policy. Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090. A policy is “fundamental” when it is “carefully tethered” to a policy “delineated in constitutional or statutory provisions” (id. at p. 1095), involves a duty affecting the public at large, rather than one owed to or imposed solely upon the parties to a dispute (id. at 1090), and is “well established” and “sufficiently clear” to the employer at the time of the discharge. Id. Wrongful termination cases typically arise when an employer retaliates against an employee for refusing to violate a statute, performing a statutory obligation, exercising a statutory right, or reporting an alleged violation of a statute of public importance. Turner v. Anheuser-Busch, Inc. 7 Cal.4th 1238, 1256 (1994). However, as noted in Soules v. Cadam, Inc. 2 Cal.App.4th 390, 401 (1991), an action for tortious discharge is not strictly limited to these situations but will lie “wherever the basis of the discharge contravenes a fundamental public policy.”

READ MORE