• DFEH Announces Biggest Administrative Award Ever

    On September 12, 2011, the DFEH issued the following press release:

    State Department of Fair Employment and Housing Achieves Historic Victory
    Electrical Supply Company Ordered to Pay $846,300 for Firing Cancer Survivor

    ELK GROVE, CA – The California Department of Fair Employment and Housing (DFEH) today announced its largest-ever administrative award of $846,300 against electrical supplier Acme Electric Corporation for firing an employee because he had cancer.  Headquartered in Lumberton, North Carolina, Acme Electric is a division of Actuant Corporation, a Wisconsin diversified industrial corporation that operates in more than 30 countries.

    “This historic administrative victory underscores the Department’s commitment to vindicating the rights of Californians victimized by workplace discrimination,” said DFEH Director Phyllis Cheng.

    Charles Richard Wideman worked for Acme Electric as western regional sales manager overseeing sales operations in the company’s largest territory from February 2004 to March 2008.   He developed kidney cancer in 2006 and prostate cancer in 2007.  Mr.  Wideman’s cancers required two surgeries and numerous cancer-related outpatient appointments.  The company immediately granted his two requests for time off for surgery and recuperative leave.  However, Mr. Wideman requested further accommodation for the travel limitation his cancers caused from June 2006 through April 2007.  Acme Electric refused to grant or even acknowledge these accommodation requests.  Instead, in December 2007, Mr. Wideman’s supervisor gave him an unfavorable performance evaluation, criticizing him for insufficient travel.  On February 28, 2008, ignoring Mr.  Wideman’s need for accommodation the preceding year and failing to take into account his dramatically improved job performance, Acme Electric fired Mr. Wideman, relying on the insufficient travel pretext.

    “California’s Fair Employment and Housing Act (FEHA) provides that persons with disabilities, such as cancer, must be reasonably accommodated, so that they can continue to work productively,” added Director Cheng.

    After a three-day hearing, the State’s Fair Employment and Housing Commission found Acme Electric violated the FEHA by failing to accommodate Mr. Wideman’s known travel limitation due to his cancers, failing to engage in a good faith interactive process, discriminating against Mr. Wideman because of his disability, and failing to take all reasonable steps necessary to prevent discrimination from occurring.  To compensate Mr. Wideman for his losses, the Commission awarded him $748,571 for lost wages, $22,729 for out-of-pocket expenses and $50,000 for the emotional distress he suffered.  In addition, the Commission ordered Acme to pay $25,000 to the State’s General Fund as an administrative fine.  Acme must further comply with posting, policy changes, and training requirements ordered by the Commission.

    Medical leaves are among the most complicated issues for employers and employees.  Several laws can impact the leave, the employer’s obligations and the employee’s rights.  Knowing how those laws interact will help you make informed decisions about leaves of absences, and hopefully avoid costly litigation.

    If you, or someone you know, has a question about a medical leave of absence, contact an attorney familiar with leave of absence laws.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
     
    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

    idual member of the firm does not establish an attorney-client relationship.

  • Leave Entitlements

    I was looking for some information regarding the various leave laws that employers must consider, and came across a guide from the Department of Fair Employment and Housing.  It is a fairly good summary of most of the various leave laws impacting companies doing business in California.  I noticed it does not discuss leaves of absence under USERRA and other available leaves under California’s Military and Veterans Code, but it is still a good summary.

    California employers and employees should ensure they are familiar with the various rights and obligations imposed by the leave laws impacting their work and should review their handbooks to ensure they are up to date.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
     
    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • ADAAA Recap

    More than two years ago President Bush signed into law the ADA Amendments Act of 2008 (ADAAA), which took effect in 2010.  The purpose of the law was to overturn a series of decisions by the U.S. Supreme Court under the Americans With Disabilities Act (ADA) and effectively expanded the scope of what constitutes a “disability” under Federal law.  Many believed the amendments overly broadened the statute, while others argued the amendments merely clarified the original intent of the law that the courts had neglected.

    The law did not significantly change the requirements for California employers because California’s Fair Employment and Housing Act (FEHA) already defined “disability” more broadly than the ADA.

    Some of the major changes added by the ADAAA include:

    • Clarifying that the ADA should be interpreted in favor of “broad coverage of individuals . . . to the maximum extent permitted” by the statute.
    • The addition of other examples of “major life activities” such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
    • Clarifying that employees who are “regarded as” disabled, but are not actually disabled, are not entitled to reasonable accommodations.
    • Modifying the “regarded as” prong of the definition of disability to not apply to conditions that are “transitory” (actual or expected duration of less than 6 months) or “minor.”
    • Requiring the determination of whether an impairment substantially limits a major life activity to be made without regard to the use of mitigating measures (in other words, if the person did not take his/her medication would the individual’s medical condition substantially impair one or more life functions.

    Despite the concerns expressed when the bill was passed, I have not seen a significant increase in the number of ADA cases brought to court.  I don’t know if it is just too early to tell, or I just don’t see the difference because the requirements on California employees and employers have not drastically changed.  Although I have not seen a significant rise in disability discrimination cases, it is still a frequently misapplied area.  I probably receive more phone calls about appropriate accommodations than any other area of law, with the possible exception of wage and hour questions.  If you have a question about disability discrimination or reasonable accommodations, speak with a lawyer familiar with the employment laws before the issue becomes a problem.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • DOL Assists Employers in Understanding Disability Laws

    The United States Department of Labor announced a new “Advisor” on their website that helps employers determine which federal disability nondiscrimination laws apply to their business or organization as well as the various responsibilities faced by companies that receive financial assistance from the federal government.

    According to the DOL, “The Advisor will provide you with a customized list of federal disability nondiscrimination laws that may apply and links to detailed information that will help you understand your requirements under these laws.”  The Advisor may also be useful to job applicants and employees who are interested in learning about which laws might apply.

    The Advisor addresses the following laws:

    • Title I of the Americans with Disabilities Act of 1990 (ADA)
    • Title II, Subtitle A, of the Americans with Disabilities Act of 1990 (ADA)
    • Section 188 of the Workforce Investment Act of 1998
    • Section 504 of the Rehabilitation Act of 1973, as amended (only as it pertains to federal financial assistance)
    • Section 503 of the Rehabilitation Act of 1973, as amended
    • The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended

    It does not tackle Section 501 of the Rehabilitation Act, Title III of the ADA, Workers’ Compensation Laws or any state or local disability nondiscrimination laws.

    The Advisor can be accessed at http://webapps.dol.gov/elaws/odep/q1.aspx.

    The Advisor appears to be a good start for employers who want to know which disability laws apply to them, but don’t forget that State or local disability nondiscrimination laws may have stricter requirements or greater applicability.  Employers and employees should consult with counsel familiar with disability discrimination and accommodation issues to ensure they are complying with all applicable laws.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Some Quick Answers Regarding Sick Leave, PTO & Vacation

    A lot of people are still asking about PTO, Sick Leave and Vacation benefits.  Instead of responding to each one individually, I thought I’d do a quick recap.

    Most employers are not required to provide PTO, Sick Leave or Vacation benefits for employees.  There are some exceptions, such as companies with employees in San Francisco.  But, once you provide any of those benefits there are certain laws that restrict what you can and cannot do with them.

    The difference between PTO, Sick Leave and Vacation. Sick leave is supposed to be taken for … you guessed it, when you are sick.  California law requires employers who offer sick leave to allow employees to use up to one-half of the employee’s annual sick leave to care for family members.  Vacation, on the other hand, can be used for taking time off work no related to illness; be it to take a day in the sun, go on a trip, or just lounge around the house.  Some employers make a distinction by requiring vacation to be used only with advanced approval, whereas sick leave can be taken at any time.  Paid Time Off (PTO), is usually considered a hybrid of sick leave and PTO since you can use the time for anything you want, including sicknesses and illnesses.  The reality is, there is no difference between vacation and PTO.  Some employers offer vacation and PTO, which has never made any sense to me.  More commonly, employers have decided they don’t want to track vacation separately from sick leave and so they lump them together as PTO.

    So what does it matter whether you call it sick leave, vacation, or PTO?  The difference lies in how the law treats vacation and PTO.  Vacation and PTO are an earned benefit.  It is a wage.  Once the employee earns the benefit, the employer cannot take it away without compensating the employee for the benefit.  Sick leave, on the other hand, can only be used for specified purposes.  An employee’s right to use sick leave is contingent upon the happening of some specific event (i.e., they get sick).  If the employee never gets sick, then the employee never had the right to use the sick leave.  That is one reason that employers do not have to pay out unused sick leave upon termination, but they do have to pay out unpaid vacation and PTO.

    Having a bona fide sick leave policy allows employers, under certain circumstances, to reduce an otherwise exempt employee’s salary if the employee has exhausted his/her available sick leave and takes additional time off for sickness or illness.  I’ve addressed this issue a number of times in prior articles.  Since PTO can be used for illnesses and sicknesses, it qualifies as a sick leave policy under San Francisco’s Sick Leave requirement, employees can use it for family  illnesses, and it qualifies as a bona fide sick leave policy allowing the reduction mentioned above.  PTO is also an accrued benefit that, like vacation, must be paid out upon termination.

    Common Questions.

    If our Handbook allows for PTO time to be taken at 1 hour intervals, does this mean I can have Exempt employees take PTO if they are leaving an hour early to go to the doctor? Or, does it still have to be a 4 hour interval?

    The quick answer is, yes.  You can always deduct PTO, sick leave or vacation leave in whatever increments you decide.  The real question is whether you can reduce an exempt employee’s salary in increments of less than four hours when the employee has exhausted the available sick leave and PTO.  The answer to that question is, maybe.  I believe the answer is, yes, but there are no cases that have specifically authorized the reduced salary in cases where the policy allows employees to take sick leave and PTO in less than four hour increments.  The rationale of the Conley case implies that you can, but that specific issue was not before the court.  So, if you do reduce your exempt employees’ salaries for absences of less than four hours, you do so at your own risk.

    If the companies policy is to entitle all employees to a paid holiday but someone ends up working that day anyway, is it just tough luck that the person is actually working when everyone else is being paid not to work?

    Some employers may allow you to take the vacation day on an alternate date, or they may even pay a “holiday premium,” but the law does not require employers to pay extra for holidays or to allow employees to take holidays off.  Arguably, if the employer offers paid holidays, but you are required to work on a particular holiday you could be entitled to an extra days’ pay, but I’m not aware of any cases that have agreed with that argument.

    As an employer do I have to offer sick-pay?  If so how do I determine the amount of sick days offered in one calandar year?

    If you are an employer in San Francisco or some other city that requires mandatory sick leave, then the answer is, yes, and the amount of sick days will depend on what the specific regulation says.  I’ve mentioned San Francisco’s Sick Leave law in a prior article.  If your employees are not working in San Francisco or other municipality with similar regulations, then you do not have to provide sick days and the number of sick days is entirely up to you.  It will depend on your company’s needs and what it takes to attract qualified employees.

    The company I work for recently changed owners. The previous owners had a PTO yearly accrual for employees who have worked for the company 10 years or more at 25 days per year. The new owners have reduced this amount to 17 days per year. Is this legal? Do employees who have been affected have any recourse?

    Employers can change or eliminate their PTO policies at any time.  They cannot, however, take away accrued PTO.  For example, if you worked the required 10 years and had 25 days of unused but accrued PTO, the company can lower the amount of PTO you will accrue in the future but they cannot take away the PTO you have earned.  The company may not allow you take the time off, but when you quit or if you are fired or laid off the company will have to pay you the unused accrued PTO.  The same is true for vacation wages, but not necessarily sick leave (remember, you are only entitled to sick leave if you meet the “condition precedent” of being sick – I don’t write the rules, I just interpret and enforce them).

    There is another issue raised by the question regarding what happens when new owners take over a company and change the rules.  The business structure (i.e., corporation, LLC, sole proprietorship, etc.) can affect whether you are losing benefits that are previously accrued and is probably left for discussion in a future article.

    That’s about all I can do for today.  There are plenty of more questions that I hope to address in future articles.  Thanks for the feedback.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Options After the DFEH Closes Your Case

    EG asks:

    If I’m not satifsied with the outcome of my DFEH complaint what is the next step?

    If the DFEH makes a determination that they have not been able to find sufficient evidence that the employer violated the law, the DFEH will close the file and issue a Right to Sue Notice.  The Right to Sue Notice allows the employee to file a lawsuit in court.  The employee has one year to file the lawsuit in most cases. Failure to file the lawsuit within the applicable time frame will bar the employee from pursuing the claim in court.  There may be additional claims that have different statutes of limitations.

    Proceeding with a lawsuit in court should only be done after careful consideration and is best done with the assistance of an attorney.  While an individual can represent himself/herself without an attorney, I do not recommend filing a court case without an attorney competent to handle the case. I know of more than one meritorious case that has been lost because an employee decided to forego hiring an attorney.  If you cannot locate an attorney willing to handle your case, that may be an indication regarding the likelihood of being able to prevail in a court of law.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • October is National Disability Employment Awareness Month

    I didn’t come up with the title … Congress did.  In 1945 Congress enacted a new law declaring the first week in October “National Employ the Physically Handicapped Week” to educate the American public about issues related to disability and employment.  In 1962, the work “physically” was removed to acknowledge the employment needs and contributions of individuals with all types of disabilities.  In 1988, Congress expanded the week to be a montha dn changed the name to National Disability Employment Awareness Month.”

    Under the Americans with Disabilities Act and the Fair Employment and Housing Act, employers are required to provide reasonable accommodations to individuals with disabilities unless the accommodation would create an undue hardship.  If an employer knows, or should know, that an employee requires an accommodation, the employer must engage in an interactive process of determining what, if any, reasonable accommodation will enable the employee to perform the essential functions of the job.  Failing to engage in the interactive process can subject the employer to liability.  Conversely, if the employee fails to to engage in the interactive process the employee may destroy an otherwise viable discrimination claim.

    Accommodating employees or obtaining an accommodation from an employer is sometimes not an easy task.  Each party bears responsibility and the process works best when the employer and the employee work together.  Because this is an area of increasing litigation, both parties should educate themselves regarding their rights and responsbilities.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Common Statutes of Limitation

    A “statute of limitation” is the time within which a lawsuit or claim must be filed. “Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute.”  California Code of Civil Procedure Section 312. While there may be instances wherein the statute of limitations is tolled, missing a statute of limitations can have dire consequences. If a claim or lawsuit is not timely filed, the plaintiff may be barred from pursuing his or her claims.

    One reader asked for a list of common statutes of limitation in employment litigation.  So, here goes my list (Beware – Statutes of Limitation may differ from state to state.  The Statutes of Limitation listed below apply in California):

    Discrimination/Harassment/Retaliation under California’s Fair Employment and Housing Act (age, race, sex, disability, national origin, etc.) – Claims must be initially filed with the Department of Fair Employment and Housing within one year of the discrimination/harassment/retaliation.  Once the DFEH issues a Right to Sue Notice, the claimant has one year to file a case in court.

    Discrimination/Harassment/Retaliation under Title VII, ADEA and ADA (age, race, sex, disability, national origin, etc.) – In California, claims must be initially filed with the Equal Employment Opportunity Commission within three hundred days (other jurisdictions it may be as little as one hundred-eighty days).  Once the EEOC issues a Right to Sue Notice, the claimant has ninety days to file a case in federal court.

    Breach of Contract – If the contract is written, the lawsuit must be filed within four years of when the
    breach occurred.  If the contract is oral or implied-in-fact, it must be filed within two years of the breach.

    Unpaid Overtime, Minimum Wage, Meal and Rest Breaks – Claims must be filed with the Labor Commissioner or in court within three years of when the wages were earned.  This means, if the employee has worked more than three years, the employee may lose a portion of the claims he or she could have brought earlier.  In court, many plaintiff’s counsel include a cause of action under Business and Professions Code Section 17200 to extend the statute of limitations by an additional year.  Effectively, this gives employees up to four years to file a wage claim in court (not with the Labor Commissioner, though).

    Wage Claims Based on Breach of Contract – Must be filed within either four years or two years, depending on whether the contract is written or oral or implied-in-fact.

    Vacation Pay – There is currently a split in authority as to when the statute of limitations on vacation pay claims begins to run.  In Sequeira v. Rincon-Vitova Insectaries, Inc. (1995) 32 Cal.App.4th 632, the court held that the statute of limitations begins to run when the vacation pay is earned. Therefore an employee who had accrued 12 years of vacation pay under a written employment agreement could recover only the portion accrued during the 4 years preceding termination.  Later, in Church v. Jamison (2000) 143 Cal.App.4th 1568, the court held that the statute of limitations does not begin to run until the employee is terminatedbecause Labor Code Section 227.3 says, “all vested vacation shall be paid … as wages” to a terminated employee.

    Waiting Time Penalties Under Labor Code Section 203 – A claim for just the penalty must be filed within one year of the termination.  A claim seeking both the penalty and the underlying wage must be filed within the time frame to bring a suit based on the underlying wage.  There is some discussion that recent interpretations regarding the statute of limitations for meal and rest breaks claims would extend the statute of limitations to three years even if the penalty alone is sought.  To my knowledge this specific issue has not been address since Murphy v. Kenneth Cole.

    Termination in Violation of Public Policy (aka Tameny Claim) – Claims must be filed in court within two years of the wrongful termination

    California Government Tort Claims – Some claims against the State of California or other public agencies must be presented to the government agency in a particular format before filing the claim in court.  Such claims usually must be presented to the government agency within six months.

    Defamation (libel/slander) – Lawsuits must be filed within one year from when it was determined that the defamatory statements were made.

    Fraud – The lawsuit must be filed within three years of when the aggrieved party discovers the facts constituting the fraud or mistake.

    Family Medical Leave Act – Any action  must be filed within 2 years after the violation, or within 3 years if the violation was willful.

    California Equal Pay Act – Court actions for wage discrimination claims (i.e., the opposite sex is paid a higher wage based on gender) within two years for most actions, and three years if the violation was willful.  While there is no administrative exhaustion requirement, claims may alternatively file a claim with the State Labor Commissioner within 6 months of the violation.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • DFEH Allows Employees To Obtain Immediate Right-To-Sue Online

    Several months ago the California Department of Fair Employment and Housing (DFEH) updated its website to allow employees to make an online appointment to lodge a complaint of employment discrimination or harassment. Now the DFEH allows employees to obtain immediate right-to-sue notices online. The website (www.dfeh.ca.gov) instructs that “Persons represented by counsel, who wish to proceed directly to court on employment discrimination, harassment, and retaliation complaints, can now request a right-to-sue letter online.”

    Employees filing a claim of discrimination with the DFEH can choose to forgo an investigation and ask for an immediate right-to-sue. The right-to-sue is the employee’s “ticket” to sue the employer in court. By choosing the immediate right-to-sue route, the DFEH will not investigate the claim, and the employee can immediately sue the employer in court. If during the initial interview the DFEH determines a case has no merit, it will allow the employee to request an immediate right-to-sue. The DFEH website repeatedly warns the employee that obtaining an immediate right-to-sue should only be done after consulting with an attorney.

    The new “online” route to obtaining an immediate right-to-sue notice can streamline cases where an attorney wants to file a lawsuit. It may also lead to an increased number of discrimination or harassment lawsuits because the employee can obtain the right-to-sue from the comfort of their own home.

    It will be interesting to find out if the number of discrimination and/or harassment lawsuits increase as a result of the new online procedure.

    You can download an audio version of this article here: California Employment Lawyer Netcast for June 27, 2008.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Paid Sick Leave Bill Passes Assembly

    On May 28th, the California Assembly approved AB 2716 which will require all California employers to provide paid sick leave to every worker. The bill passed on a partisan basis by a vote of 43-25. No Republicans supported the bill. This bill will now be sent to the Senate.

    • Businesses of 10 employees or more would have to provide up to nine days of sick leave per year.
    • Smaller providers would have to provide up to five days per year.
    • Full-time and part-time workers would earn sick days at the rate of one hour per 30 hours worked.
    • The benefit could be used after 90 days of employment.
    • Employers can cap the annual sick leave
    • The sick leave can be used for diagnosis, care or treatment of health conditions of the employee or the employee’s family member, or for leave related to domestic violence or sexual assault.
    • Employers would be prohibited from discriminating or retaliating against any employee who requests paid sick days and would have to comply with specified posting requirements.
    • Employees who do not receive the required sick days could bring an action for enforcement including attorneys’ fees.

    The text of the bill can be reviewed at www.leginfo.ca.gov.

    People interested in this bill should contact their senators.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.