Employment Law Blog

Filter:  Fair Employment and Housing Act

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.

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The Definition of “On-Duty” and “Off-Duty” Periods

Employees must be relieved of all duty during their meal and rest breaks. Brinker, 53 Cal.4th at 1035–1036; Faulkinbury v. Boyd & Associates (2013) 216 Cal.App.4th 220, 236. During breaks, an employee “must be free to attend to any personal business he or she may choose.” Brinker, 53 Cal.4th at 1036. An employee is working and “on duty” when he is “subject to the control of an employer,” “including all the time the employee is suffered or permitted to work, whether or not required to do so.” Wage Order No. 9 § 2(H). Time spent by an employee waiting on standby for the benefit of the employer is considered to be on duty. Madera Police Officers Assn. v. City of Madera (1984) 36 Cal.3d 403.

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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.).

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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.”

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