Workers in California and across the entire U.S. are eligible for FMLA leave if they work for a company with 50 or more employees and have been employed for at least 12 months, with more than 1,250 hours logged. People oftentimes use FMLA leave to care for sick loved ones, to recover from the birth of a child or to nurse other injuries. California employers and other employers in the U.S. can calculate FMLA leave balances by using two different methods: the calendar method and the rolling method.
]]> The rolling method calculates the return date backward from the date any FMLA leave is used, while the calendar method provides 12 weeks of leave during the calendar year. The fired man's employer used the rolling method, but the employee thought he was covered under the calendar method, which resulted in the employer expecting the man to return to work on June, 13, 2005 and the employee expecting to return to work on June 27. This miscommunication resulted in his termination, which was deemed inappropriate by the 6th U.S. Circuit Court of Appeals.This case underscores the importance of communication about FMLA and other policies within an organization. Companies should distribute comprehensive employee handbooks that clearly explain FMLA guidelines and also whether the group adheres to the rolling or calendar methods for calculating one's leave.
Source: Business Insurance, "Employer did not communicate FMLA policy, can't fire worker: Appeals court," Jan. 22, 2012
]]>But with more students willing to work for free in today's competitive job market, some argue that businesses are taking advantage of unpaid interns and breaking state and federal wage and hour laws in the process. Unpaid interns oftentimes work nearly full-time hours and handle similar responsibilities as employees. But instead of classifying these individuals as employees, they are classified as interns so that companies can avoid providing the individuals with wage and insurance benefits.
In an effort to challenge one employer's practices of allegedly taking advantage of interns, a former unpaid intern for Harper's Bazaar filed a lawsuit on Wednesday against the fashion magazine's parent company, Hearst Corporation. The lawsuit claims that she was working full-time but was never compensated for her contributions to the company.
]]> According to the lawsuit, the woman began her internship at Harper's Bazaar in August 2010. Her internship did not end until December 2011. During that time, she worked about 40 hours a week coordinating the pickups and deliveries of fashion samples. She also assigned other interns tasks to carry out during the week. However, she was never paid for her work.The lawsuit claims that Hearst violated wage and hour laws because the woman should have been classified as an employee instead of an intern. Under guidelines from the United States Labor Department, it is only legal to classify an individual as an unpaid intern if the individual's tasks at the company are part of an educational training program. The company cannot immediately benefit from the unpaid intern's work and an unpaid intern cannot displace an employee.
The woman hopes to spark a class action lawsuit against Hearst on behalf of hundreds of other interns who are allegedly working full-time hours with no pay at the company. In addition to publishing Harper's Bazaar, Hearst also publishes Cosmopolitan, Seventeen and Good Housekeeping.
Source: The New York Times, "Former Intern Sues Over Unpaid Work and Hopes to Create a Class Action," Steven Greenhouse, Feb. 1, 2012
]]>A woman recently won her two-year legal battle after she was fired from her job of over 10 years simply for working during lunch. The receptionist, who was employed at a real estate company, was terminated and her unemployment benefits were challenged by the company after it was discovered that woman voluntarily worked during one lunch break in January 2010. After holding several temporary jobs since she was fired, she was hired last month as a receptionist at another firm and is very pleased to learn that she will be able to keep her unemployment benefits after being fired two years ago.
]]> The woman's employer defended its case against the former employee by producing policy documents requiring employees to take a break during the workday, but the courts found this evidence insufficient to warrant the denial of the woman's unemployment benefits, especially since she only worked during lunch on one occasion.The woman testified that her supervisor had been increasing her workload, and the only way she thought she would be able to complete her tasks would be to work during lunch. She even suspects that her supervisors were conspiring to give her too much work in an attempt to force her to quit. The company's actions nearly bankrupted its victim, forcing her to seek financial help from others while she sought new employment and fought for her unemployment benefits.
Most states have laws that require employers to provide breaks for employees who work shifts longer than five hours. However, many employees are forced to work through their lunch breaks, and when they refuse, they are sometimes fired. This case, however, shows that employers may unfairly terminate an employee for almost any reason, including working longer and harder than required.
The company's attempts to block the woman's unemployment benefits were decidedly "erroneous," according to the appeals court ruling this month in Illinois. The firm had argued that the woman was insubordinate and thus did not deserve to receive unemployment payments. The judge however, concluded that there was no evidence that suggested that the woman was insubordinate while she worked at the company for 10 years.
Source: Chicago Tribune, "Woman fired for working during lunch wins court battle," Steve Schmadeke, Jan. 18, 2012
]]>A recent worldwide study by DLA Piper Shift revealed that 30 percent of the employers surveyed had used disciplinary actions against employees, including firing employees, for their activities on social media sites. With the average American spending about 16 hours a month on Facebook, and approximately half of them visiting the site every day, more workers could be at risk of losing their jobs over the use of social media.
]]> In order to make sure that one's rights are protected as an employee, workers can take certain precautions to avoid losing their jobs or being denied jobs as a result of social media use. These precautions include making use of privacy features on Facebook to limit who can see posted comments, pictures and other information, as well as limiting who one is friends with on Facebook.Employees should also refrain from placing blind trust in any promise of privacy from Facebook, as Facebook has altered privacy controls in the past, and may do so again in the future. It may be better simply not to post something which, if made public, could mean the end of one's employment. Employees should also realize that private messages on social media sites may be discoverable in court proceedings when they are related to the workplace.
Some employers may have a social media policy in place, which should be read by every employee so that they are familiar with what sort of activity on social media sites is allowed or prohibited by employers.
Employees should also keep in mind that there have been times when employers have overstepped their boundaries by wrongfully disciplining or terminating employees over the use of social media. In these cases, employees aggrieved by such actions always have the option of consulting with an attorney to see whether they might have a legal claim for wrongful termination.
Source: SmartBlog, "4 tips for avoiding getting fired for Facebook," Jessica Miller-Merrell, Jan. 13, 2012
]]>Earlier this week on our San Diego employment law blog, we began discussing some common mistakes employers may make without realizing that they are breaking state and federal employment and labor laws. However, employees can learn more about their rights in order to ensure that their employers are in compliance with these laws.
We already discussed the importance of making sure that workers are properly classified as employees or contract workers for tax, withholding and overtime pay purposes. Today we will discuss four other mistakes that commonly lead to the violation of an employee's rights in the workplace.
]]> In California, employers can end up causing great legal problems for the company if they do not understand laws regarding overtime pay. Although most states only require companies to pay hourly employees overtime if they work more than 40 hours a week, in California, businesses must pay employees overtime if they work more than eight hours a day and more than 40 hours a week.Although it may be common for employees to work through their lunch breaks, employers must also make sure than employees are taking their proper breaks. In order to make sure that employees are not working through their breaks, employers can designate break rooms or lunch rooms for workers.
When it comes to firing an employee, some companies may fail to follow their own procedures. When companies do not follow their own policies, or if they do not follow a uniform procedure when terminating employees, they could be sued for wrongful termination.
Employees are also protected from discrimination and harassment in the workplace, but many companies are not as prepared as they should be when issues of discrimination or harassment arise. Failing to follow procedures when an employee makes a complaint or ignoring these issues could lead to a hostile work environment and serous legal problems.
State and federal employment and labor laws are complex and continue to change, but employees in California should understand that they are protected under these laws, even when employers do not realize that they may not be in compliance with these laws.
Source: The Washington Post, "Common HR nightmares employers can avoid," J.D. Harrison, Jan. 12, 2012
]]>Although a company may not intentionally violate an employee's rights, employees in California should not be afraid to stand up for their rights or to raise awareness about employment law issues if they believe that an employer's practices are not in compliance with state and federal laws.
According to an advisor for an online legal service, employers are susceptible to making common mistakes when they do not understand employment and labor laws. When these mistakes are made, an employer is certainly violating the law, but they may also be able to get away with their actions if employees do not understand their own rights.
]]> In order to better educate employees about their protections under state and federal laws, the advisor for the online legal service has outlined five areas in which employers commonly make mistakes that could result in the violation of one's rights as an employee.One common mistake employers make is misclassifying workers. Is a worker an employee of the company or is her or she considered a contract worker? In order to make sure that a worker is classified correctly for tax, withholding and overtime pay purposes, employers need to follow specific guidelines provided by the federal government.
We will continue this discussion later this week, focusing on four other areas of employment and labor laws that businesses commonly misinterpret which could lead to the violation of an employee's rights.
Source: The Washington Post, "Common HR nightmares employers can avoid," J.D. Harrison, Jan. 12, 2012
]]>The 49-year-old woman has cited wrongful termination in her lawsuit against the real estate title company she was fired from last month. However, her former employer claims that they fired the woman because she was not performing her job well during her probationary period.
]]> According to the lawsuit that was filed last month, the woman said that she found out on the evening of Dec. 13, 2011 that she needed to report to a Florida courthouse by 8:30 the next morning. The woman claims that she texted the office manager at her work and also notified her employer by email that she would not be coming in to work on the morning of Dec. 14, and she would let her office know as soon as possible if she had been selected or not to serve on a jury. According to the lawsuit, the supervisor even texted the employee back confirming that the office knew she would be reporting to the courthouse.The next day when the woman was on break at the courtroom, she checked her phone's voicemail after noticing a call from her employer and discovered she had been fired. In the voicemail her supervisor also stated, "I'm sorry you had to be out of the office this morning and you didn't tell us."
After the incident, the woman filed a lawsuit against the company, accusing the former employer of breaking the law by terminating her during her jury obligation. The owner of the company said the termination was a result of the woman not performing her job well as a new employee. She had just started at the company in November and had not yet passed her probationary period. The supervisor also stated that the woman did not give the company enough notice that she was selected for jury duty.
The woman said that she hopes her lawsuit will remind employers and employees of the state and federal laws the jobs of Americans are protected under.
Source: Naples News, "Fired for jury duty? Jane Trejo-Beverly, Naples woman, sues employer Island Title 5 Star Agency," Aisling Swift, Jan. 5, 2012
]]>However, employees need to understand that they are protected by many state and federal laws in California. They can use these laws to their advantage to make sure that an employer is held accountable for violating the rights of employees and to protect other employees from being discriminated against, harassed or wrongfully terminated in the future.
After claiming that the work environment at a Chick-Fil-A restaurant in Chula Vista, California, became too difficult to endure, four female employees recently announced that they are filing a lawsuit against the company and a male supervisor citing sexual harassment.
]]> According to the women, a male supervisor at a Chick-Fil-A in Chula Vista has been sexually harassing employees for two years. The women said that they were threatened by the store owner when they raised complaints about the issue. They are all from different ethnic backgrounds, and they were allegedly told that they could be deported if they raised further complaints at the company.However, one employee said that the work environment just got worse and the male supervisor would even harass employees when customers were at the restaurant. She reported that one time her boss took her into a walk-in refrigerator and kissed her and sexually touched her. Although the restaurant does have cameras, the four women reported that the incidents occurred in locations where there were no cameras.
The female employees are seeking an undisclosed amount in damages. One of the Chick-Fil-A employees is currently on disability leave.
Source: 10News, "Sex Harassment Suit Filed Against Chick-Fil-A," Jan. 6, 2012
]]>The lawsuit claims that the employer, AutoNation, behaved inappropriately toward workers based on their disability, sex, sexual orientation and weight. The lawsuit also accused the employer of behaving inappropriately toward those who took family leave under the California Family Rights Act and toward those who stuck up for the rights of their co-workers who were allegedly being treated poorly.
]]> The two former employees state they were subjected to sexual harassment when they were required to join co-workers at a strip club. Further allegations from the two include employers coercing one or more employees into participating in sexual acts with prostitutes. This behavior created a "sexually charged environment," that was oftentimes difficult to work in.The complaint points out that AutoNation has already been slapped with a lawsuit for prejudice against homosexuals. Of the two former employees who are filing the sexual harassment complaint, one is homosexual and claims that he had to deal with listening to homophobic slurs from employers while at work. The other employee is not gay, but was subjected to derogatory comments as well after showing support for his co-worker.
The two former employees also allege employers used drugs and alcohol during company sponsored events. Because the two men refused to participate in the activities, they claim that they were treated differently at work.
Additional allegations by the two employees include fraudulent accounting. One employee experienced pay shortages and when he inquired about the issue, employers informed him it was part of a pay plan deduction. However, the man claims that his signature was forged by his employer on the pay plan deduction forms.
The complaint has been filed in a California Superior Court. The complaint cites numerous violations of employee rights including: discrimination, hour and wage violations, retaliation, termination, unfair business practices and violation of the California Fair Employment and Housing Act.
Source: Human Resources Journal, "Former Male Employees Allege Sexual Harassment at Car Dealership," Dec. 19, 2011
]]>Employers in many states run credit reports on job applicants as part of the background check process. Unfortunately, these reports don't always give applicants a fair shot at getting hired because employers may assume that one's poor credit history indicates that the individual is not responsible or trustworthy. Credit reports also might disclose one's private information such as going through a divorce, losing one's house to foreclosure or medical concerns.
]]> The new law, which went into effect Jan. 1, 2012, prohibits employers in California from using credit reports during the background check process in order to determine whether or not a prospective employee is capable of doing the job.However, employers may still use the reports when hiring individuals for positions that require a clean credit history. Employers may still legally check credit reports on individuals who apply for the following types of jobs:
Many are in favor of the new law in California and they believe that job seekers will be treated more fairly during the application process. Although a person may have made some financial mistakes in the past, that is not always an indicator that an individual is incapable of doing his or her job well.
California is the seventh state to adopt laws that protect some job seekers from having their credit reports reviewed during background checks.
Source: WHEC.com, "Some states working to block companies from checking credit scores of prospective employees," Jan. 3, 2012
]]>According to the lawsuit, the woman said that UCSD threatened her in December of 2010 stating that she would be terminated if she didn't show the employer proof of her legal right to work, despite the fact that she had already provided UCSD with the documentation when she was initially hired.
The lawsuit alleges that noncitizens working at UCSD were required to show different documents compared to employees who were U.S. citizens to prove their identities and legal right to work. However, federal law requires that employers impose the same documentation requirements on citizens and noncitizens.
]]> Additionally, under federal law, the applicant or employee can make the decision as to which specific documents to show to the employer to establish their identity and right to work. The lawsuit asserts that the medical center in San Diego required 500 applicants and employees who were not citizens over a five-year period to show a green card, accepting no other documents, while not asking workers who were citizens for any specific documents in particular.Federal law allows employees to show their identity and legal status with one document if they choose, such as a U.S. passport or a green card. They can also use two documents, such as a driver's license to prove identity, and a Social Security card to show eligibility to work.
The medical center is further accused of asking hired noncitizens to submit renewed verification of their legal status after working for a period of time.
UCSD was contacted by the Justice Department in January regarding its hiring and employment practices. The medical center has since participated in training to learn more about the proper process for hiring and employing immigrant workers. After learning about the lawsuit, a spokesperson for UCSD said that the medical center believes that it has since complied with the law.
Source: Sign on San Diego, "Feds sue UCSD over immigrant hiring practices," Janet Lavelle, Dec. 6, 2011
]]>According to reports, the man filed a lawsuit against the NBA and three of his former superiors last week, claiming that they subjected him to unlawful retaliation after he lent support to three women by reporting their complaints about the alleged occurrences of sexual harassment.
]]> He asserts that despite his prior good performance evaluations with the league, his attempts to help defend the rights of other employees that were possibly being violated resulted in others retaliating against him in the workplace by denying him a promotion and ultimately firing him.The man said that when he raised his concerns with superiors, they were more concerned about how the complaints would damage the careers of the men instead of the women who were being subjected to the inappropriate behavior.
Two of the complaining female employees had indicated that a fellow security employee had sexually harassed them by showing sexually explicit materials on his computer screen at work, and by making offensive sexual remarks.
The third woman claimed that a vice president of the NBA in charge of security asked her to make copies of a raunchy picture and made statements about females which she considered to be demeaning. When she complained, she was allegedly passed over for promotions and subsequently terminated.
The former security director disputes the NBA's defense that it terminated him for inadequate performance. Prior to his termination, he had testified in court in support of the third female employee's sexual harassment claims, indicating that NBA officials had known about her complaints. That lawsuit was eventually settled.
Source: CBS News, "Ex-staffer: I stuck up for women so NBA fired me," Dec. 15, 2011
]]>The woman filed a wrongful termination lawsuit against her former employer, a Christian school, after she was fired from her position as a preschool teacher in May 2009. According to the lawsuit, the school had violated California's Fair Employment and Housing Act (FEHA), which makes it illegal for employers to discriminate against employees.
]]> The woman began working at the Christian school in August 2002. She was married at the time but later divorced while she was employed at the school. When the woman had a child with her boyfriend in June 2007, she told church representatives that she did plan on marrying her child's father.But nearly two years after having the child together, the woman and her boyfriend were still not married. The Christian school fired the preschool teacher citing that the woman's living situation did not conform to the teachings of the church.
In a ruling consistent with other decisions in similar cases, the California Court of Appeal concluded that the school did not violate FEHA laws since religious corporations are exempt from the public policy. The court also concluded that the woman could have prevented her termination from the school either by choosing to marry her boyfriend or by choosing to change her living arrangements.
Employees are protected under state and federal laws in order to ensure that their employment with a company is secure. If an employee believes that he or she was wrongfully terminated, the individual may be able to take legal action in order to hold the employer accountable for any illegal actions.
Source: Business Insurance, "Christian school not liable in firing teacher living with boyfriend," Judy Greenwald, Dec. 13, 2011
]]>The complaint was filed in January by a woman who was a former council aid for the city. She claimed that she was fired because she did not take orders to deposit a check for the city. She believed that there was a mistake with the check and she did not want to get into trouble for depositing it into the wrong bank account.
]]> According to the woman, she was asked by the deputy mayor to deposit a check from Cox Communications, which the deputy mayor claimed was to sponsor an athletic event for area youth. The woman believed the check to be wrong because it was for the amount of $2,400. The company, however, had only promised to give $1,000 to the event.Though the woman believed there was an error with the check, she said the deputy mayor told her to deposit it anyway and rejected her request to call Cox Communications to verify the amount of the check. Instead of following his instructions, the woman refused to deposit the check.
The woman's attorney argued that she was just trying to do the right thing. "That's what we want from our public employees," he stated.
Although she ultimately had been correct in her suspicion that she was not given proper instructions for depositing the check, she was fired due to her "inability to take direction," according to the deputy mayor. He added there had been prior accounts of similar problems.
The woman's attorney is expected to appeal the judge's decision, and must do so within 60 days with the 4th District Court of Appeal.
Source: Sign on San Diego, "Judge dismisses wrongful termination lawsuit," Wendy Fry, Dec. 9, 2011
]]>After upholding a lower court decision in the discrimination case, the three-judge panel with the 11th Circuit Court of Appeals concluded that transgender employees cannot be discriminated against simply because they choose not to conform to gender stereotypes.
Although the ruling was certainly a victory for the woman and those fighting for employee rights, one attorney stated that this case is another example of the need for a federal law to prohibit employers from discriminating against LGBT employees. "Congress must pass the Employment Nondiscrimination Act (ENDA)," the attorney argued.
]]> The woman's lawsuit was filed in July 2008. She had worked as an editor for two years in the General Assembly's Office of Legislative Counsel in Georgia. When the employee was first hired, she was living as a man. The employee had identified as a female for a long time prior to her employment, but continued to live as a man. After struggling with her identity, the employee decided to make the transition from male to female.In 2007, the employee told her supervisor about her plans to transition, and her supervisor consulted her boss. But after confirming that the employee was going to transition from male to female, the employee was terminated. According to court papers, the woman's employer admitted that the decision to terminate her was because of the employee's "intended female appearance."
After reviewing the case earlier this month, the federal appeals court ruled that the employee was wrongfully terminated from her position as a result of discrimination.
Source: San Diego Gay and Lesbian News, "Video: Eleventh Circuit Court upholds victory for transgender employee fired by Georgia Legislature," Dec. 6, 2011
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