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Archives for May 2020

Pregnant Employees Entitled To Pregnancy Leave In Addition To General Disability Leave

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Becoming pregnant can be one of the most joyous, and simultaneously terrifying, moments of a person’s life. Pregnant employees also have the added fear of losing their job because of the pregnancy. This is especially true for pregnant employees who suffer from a pregnancy-related disability, which could put them out of work for months. Fortunately, California law protects longer leaves of absence for employees who suffer from a pregnancy-related disability.

Under California’s Pregnancy Disability Leave Law (“PDLL”), which is part of the Fair Employment and Housing Act (“FEHA”), employees are entitled to up to four months of leave for pregnancy-related disabilities. Additionally, FEHA requires employers to accommodate any physical or mental disability of their employees, including engaging in a good-faith interactive process with the employee to determine appropriate accommodations. Leave for a finite period of time has been considered a reasonable accommodation under California Law. But for years, it was unclear whether a pregnant employee could take her four months of leave under the PDLL and then take additional leave as a reasonable accommodation under FEHA, or if her leave was capped at four months.

California Code of Regulations §11047 answered this question, stating an employer’s duty to provide reasonable accommodations to a disabled employee is separate from an employer’s duty to comply with PDLL requirements. Thus, pregnant employees are entitled to four months of leave for pregnancy-related disabilities in addition to the protections afforded under FEHA, such as a finite period of leave as a reasonable accommodation.

Additionally, California Code of Regulations §11093 states that at the end of an employee’s PDLL leave, an eligible employee may request additional time off for the birth of the employee’s child under the California Family Rights Act (“CFRA”). CFRA allows an employee a maximum of 12 workweeks of leave. Thus, a disabled employee who has taken four months of PDLL leave may take up to an additional 12 workweeks of CFRA leave.

The California Court of Appeal applied this reasoning in Sanchez v. Swissport, Inc., finding that a disabled employee was entitled to both PDLL and additional leave as a reasonable accommodation. In Sanchez, the plaintiff suffered a pregnancy-related disability which, once diagnosed, required her to be on bed rest through the remainder of her pregnancy. The plaintiff’s employer, Swissport, permitted the plaintiff to take four months of PDLL leave, as well as additional leave provided by the CFRA and accrued vacation time. However, once the leave was exhausted, the plaintiff’s due date was still three months away. Swissport then terminated plaintiff’s employment, believing it had no further duty. The trial court agreed, finding that FEHA leave was capped at four months.

The California Court of Appeal, however, disagreed. The Court held that the PDLL supplements the protection workers are entitled to under the FEHA. Therefore, Swissport had a duty to engage in the interactive process and provide the plaintiff with reasonable accommodation for her pregnancy-related disability.

Similarly, in Gardner v. Federal Express Corp., a Federal District Court denied summary judgment, opining that a question of fact existed as to whether additional leave would have been a reasonable accommodation for an injured employee, even though the employee exhausted his company’s 90-day leave policy. In other words, even if an employee has exhausted mandated leave time, the employer may be required to grant more leave as a reasonable accommodation.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

Just Because You Are Paid A Salary Does Not Mean You Are Automatically Exempt from Receiving Overtime Pay

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When Haeggquist & Eck, LLP asks clients or potential clients whether they have been properly receiving overtime compensation at their job, a common response we hear is, “I am not entitled to overtime because I am paid a salary.”

No matter the origin of this commonly held myth, it is not fully accurate. The nature of an employee’s work, not the basis of the employee’s paycheck, calculates whether the employee is entitled to overtime. An employer can technically pay anyone one a “salary,” but that does not make the employee automatically exempt. Thus, even if an employee is paid on a “salary” basis, if the employee is not working in an exempt position, the employer must still pay overtime above and beyond the employee’s salary.

You May Be Misclassified as An Exempt Worker

Under California law, employees are entitled to overtime pay unless their jobs are exempt from overtime requirements. Exemptions from mandatory minimum wage and overtime laws are narrowly construed in order to curb abuses. Federal labor law is similar, but employers in the state of California must meet the California standards, because the state rules are marginally stricter.

One of the more common categories of exemptions apply to those persons employed in an “administrative, executive, or professional” capacity. This is likely the category from which the “salary” myth was derived, as it constitutes one of the elements—often referred to as the “salary basis” test—that must be met in order to be exempt. The three exemptions have some similarities, and some differences.

Similarities Between Common Exemptions

All three exemptions require the employee: (1) be “primarily engaged in duties that meet the test of the exemption; (2) “customarily and regularly exercise discretion and independent judgment in performing those duties”; and (3) earn “a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.” In 2020, the minimum compensation for exempt employees is $54,080 per year for an employer with more than 25 employees, and $49,920 per year for employers with 25 or fewer employees. That number will rise slightly every year.

If an employee’s job does not meet all three of those elements, it will not qualify for the administrative, executive, or professional exemption, and the employee will be entitled to overtime pay.

Consider the first factor. Generally speaking, an employee must spend the majority of his or her time performing exempt duties. If the employee does too much non-exempt work, the exemption will not apply. The classic example here would be a “manager” working in a retail business who actually spends the majority of his or her time stocking shelves, cleaning, dealing with customers, or otherwise performing the tasks that hourly employees are expected to do. Under these facts, the manager might not be “primarily” engaged in exempt, executive functions; and he or she would, therefore, be entitled to overtime pay and a guaranteed minimum wage.

Differences Between Common Exemptions

The differences between the common exemptions boil down to the nature of the work performed. “Executives” are employees who direct business operations, manage at least two other employees on a

regular basis, and have at least some meaningful involvement in hiring and firing decisions. The “professional” category applies to classic professions, like doctors and lawyers, or other so-called practitioners of the “learned arts,” like scientists and college professors. The trickiest category is probably the “administrative” exemption. Generally speaking, administrators fill roles that support executives or business owners in non-manual tasks, but they also perform more than merely clerical functions.

If an employee’s job does not actually involve exempt functions, the employee must be paid overtime. Determining whether job duties fit the exemptions can be a tricky inquiry that depends on the facts and circumstances of a particular situation.

If you think you might be performing non-exempt job duties, you should consult an experienced labor and employment attorney who can advise you on whether your employer should be paying you overtime.

Even If You Are or Were Properly Classified, Not All Your Work May Be Exempt from Overtime

The nature of the world is such that things can, and often do, change. Some exempt employees may have been properly classified when they were hired, but their job duties may shift over time to the point where the employees are no longer “primarily” performing exempt functions. Even temporary changes, such as might occur during periods of uncertainty or upheaval at a company, can cause workers to temporarily lose their exempt status if they are called on to fill non-exempt roles for a substantial period of time.

Too often, employers expect exempt employees to “rise to the occasion” when a business faces unexpected challenges. This is all well and good, but, if “rising to the occasion” means exempt employees start filling non-exempt roles just to get by, then those employees may be entitled to a guaranteed minimum wage and overtime pay. Whether an employee loses exempt status will depend on the facts on the ground at the particular job. While it may be OK to have an exempt employee working a nonexempt job for a day, maybe even for a week, if the changed circumstances continue unabated, there may be a problem with the exemption.

What Should I Do If Suspect I Am Misclassified?

Just because you are paid a salary, does not automatically mean you are exempt from overtime and minimum wage compensation. Misclassification of non-exempt employees is a serious violation of state and federal labor law. If you believe you have been misclassified, you should consult a labor and employment attorney. You may be entitled to recover unpaid wages and overtime pay from your employer.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

Is HR on Your Side When You Report Sexual Harassment?

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Experiencing any kind of mistreatment at work can make one feel unsafe and devalued, and sexual harassment is no exception. Your company is legally obligated to prevent sexual harassment against employees and take steps to protect you from future abuse should you become a victim.

Your company may even have its own policies that go beyond the law, outlining how and to whom to report instances of sexual harasssment and what happens as a result. Despite laws and policies, however, an everyday reality for many people who experience sexual harassment at work is not being sure who they can turn to for help. Your company policy might direct you to report the issue to a supervisor or human resources (HR), but are the people who are tasked with managing conflict at work really on your side?

When It’s in the Company’s Best Interest

Because companies and their HR departments are made up of people with their own values and notions of justice thrown in to mix, it’s hard to paint all them all in a single shade of grey. That said, it would be fair to say that your company’s HR department has a vested interest in protecting the company. That means HR’s willingness to stick up for you when you report sexual harassment could come down to how well you could substantiate your claim in a lawsuit against the company.

It might sound a little cynical – especially for people with careers in HR who do want to help victims – but whether or not HR is on your side depends on the reality of whether it’s in the company’s best interest to be.

To compound matters, how seriously HR responds to sexual harassment reports can vary from company to company despite laws protecting employees. Also, as may be the case for smaller businesses, “HR” might not exist beyond a company owner or manager who wears that hat among many others – which can make reporting sexual harassment even more problematic if this person is the abuser or directly subordinate to them in another capacity.

That said, many companies have robust HR practices and policies that can react quickly to investigate reports and deliver solutions based upon their findings. The trouble with even this, however, is that offending employees may not be immediately removed from the workplace and left to target their victim in other ways or find a new individual to harass.

A similar result can occur when an HR investigation fails to corroborate a victim’s claims, leaving management free to drop the issue without taking action. In an even worse scenario, reporting to HR can cause a company to unlawfully target the victim for other kinds of unlawful mistreatment like discrimination or retaliation.

An Employment Lawyer Is Always on Your Side

Because of HR’s interest in protecting a company, it has an inherently dubious quality to it when it comes to handling sexual misconduct at work. If your company believes your claim could end up in costly litigation, HR might be more than willing to bend over backwards to help. If your claims are inconvenient for the company, they may be ignored or even result in other forms of mistreatment.

Whenever you experience sexual harassment at work, however, an employment law attorney is always on your side. At Haeggquist & Eck, LLP, we’ve advocated for employees who’ve experienced many kinds of mistreatment at work, sexual harassment chief among them. Whenever you experience something illegal happening to you at work, you can turn to our attorneys to help you work through your claim and get the best possible result.

Turning to an attorney first doesn’t mean you shouldn’t also follow your company’s policies for reporting sexual harassment. The best course of action, though, is to take advantage of a free consultation with our attorneys to discuss your specific situation and learn about which steps you should take next.

For more information about how Haeggquist & Eck, LLP can help, reach out to us online or call (619) 342-8000.

Sexual Harassment When You’re Working Away From the Office

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Millions of Americans make their living mostly or entirely through remote work. Whether this means working from home or on the go, it’s a fact of life for many that they’ll almost never need to set foot into their employer’s office.

Despite a lack of physical proximity to coworkers and supervisors, however, misconduct such as sexual harassment can still harm employees. It’s a fact most don’t consider until the offender’s intentions become clear or an event is so abrasively apparent that it makes an employee feel unsafe even in his or her own home. Let’s examine what entails sexual harassment for workers under any circumstance and how they might apply to situations where an employee is working remotely.

What Is Sexual Harassment?

As a matter of law, sexual harassment is any unwelcome conduct of a sexual nature that can occur as an isolated incident or be so frequent or pervasive that it creates a hostile work environment. Physical examples of sexual harassment are rather obvious to many: unwanted touching such as grabbing, kissing, fondling, sexual assault, and other actions that involve any part of the offender’s body coming in contact with the survivor.

Because one is working remotely, it’s possible that he or she is experiencing none of these physical acts of sexual harassment. That, however, doesn’t mean it’s not taking place. There are plenty – if not more – ways a person can engage in acts of sexual harassment without ever touching the survivor.

Non-Physical Sexual Harassment Can Occur Anywhere

Whether it’s in the office or several time zones away, various forms of non-physical sexual harassment can occur without regard for physical proximity to the survivor.

Acts such as these can constitute sexual harassment:

  • Comments of any kind made in an email, instant message, text, or verbally over the phone about a person’s appearance or body as well as their real or perceived sexual activity (even if the recipient is not the subject of such comments)
  • Sexually explicit comments or jokes, even if made in passing or without a direct recipient
  • Requesting sexual favors, be they physical or non-physical (such as sending suggestive photographs and communications)
  • Sending sexually explicit or offensive images, including photographs, videos, drawings, etc.
  • Cyberstalking and other attempts to invade one’s privacy online

These are not the only ways someone may experience sexual harassment. As with most employment law violations, there may be unique situations that seem to fall into a gray area where it’s difficult if something crossed the line into sexual harassment. An employment law attorney can help you by learning about your situation and providing advice on how you can move forward.

Quid Pro Quo & Working From Home

When someone asks for a sexual favor in exchange for an employment perk (or to prevent adverse actions like firing) is known is quid pro quo sexual harassment. Latin for “this for that.” Quid pro quo is particularly pernicious because it involves a great deal of manipulation upon the receiving party.

While a sexual favor in this context would mean a physical sex act in most cases, remote workers could be survivors of this form of abuse, too. Requesting suggestive photographs or videos in exchange for a raise or career advancement may be enough to satisfy a quid pro quo sexual harassment claim. Even requesting explicit text-based conversations or verbal ones over the phone in exchange for similar employment-related matters could qualify.

Get a Lawyer To Help You With Your Claim

If you’re working remotely and believe you are a survivor of sexual harassment from a coworker, supervisor, or another individual associated with your employer, reach out to Haeggquist & Eck, LLP for help. We are an employment law firm whose attorneys are highly experienced at handling employment law violations of all kinds. We often see sexual harassment cases come through our doors, and we have the experience and skill necessary to help you get the best possible result.

If you need legal assistance, take advantage of a free consultation with one of our attorneys. Contact Haeggquist & Eck, LLP online or call (619) 342-8000 to request a complimentary consultation today.

Amber Eck of Haeggquist & Eck featured on ABC Channel 10 for Class Action Lawsuit Filed Against Farmers Insurance

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an Diego barbershop, Pappy’s Barber Shop, has paid for business interruption insurance coverage for years from Farmers Insurance but was denied the claim when he filed shortly after closing his business due to COVID-19. ABC 10 News interviewed Attorney Amber Eck on the class-action lawsuit that has since been filed against the insurance company.

Click here for the full article.

 

Workers’ Compensation Benefits Presumed For Employees Diagnosed With COVID-19

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On May 6, 2020, Governor Newsom signed Executive Order N-62-20, creating a presumption that any COVID-19 diagnosis qualifies an employee for workers’ compensation benefits.  The presumption applies if all the following requirements are satisfied:

  1. An employee tested positive for COVID-19 within 14 days after a day of working/performing services at the employer’s place of employment;
  1. The workday mentioned above was on or after March 19, 2020;
  1. The place of employment mentioned above is not the employee’s home or residence; and
  1. The COVID-19 diagnosis was done by a licensed physician and the diagnosis is confirmed by further testing within 30 days after the original diagnosis.

Under the order, workers are entitled to full benefits including “full hospital, surgical, medical treatment, disability indemnity, and death benefits.” An employee must use all available paid sick leave before he or she can collect temporary disability benefits. If an employee was diagnosed with COVID-19 on or after May 6, 2020, the employee must be certified for temporary disability within 15 days of the diagnosis, and every 15 days thereafter.  If an employee was diagnosed before May 6, 2020, the employee must obtain certification by May 21, 2020, documenting the time period which the employee was unable to work, and must be recertified for temporary disability every 15 days thereafter.  The presumption applies to all California workers’ compensation insurance carriers and will stay in place until July 5, 2020.

Although the presumption can be rebutted by “other evidence” within 30 days of the claim, this is a powerful incentive for employees to return to work.  Governor Newsom stated, “we are removing a burden for workers on the front lines, who risk their health and safety to deliver critical services to our fellow Californians, so that they can access benefits, and be able to focus on their recovery.”

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

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