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FAQ

"It is not women's liberation, it is women's and men's liberation."
-Ruth Bader Ginsburg

Discrimination, Harassment, and Retaliation

Was the person discriminated against because he/she is in a protected class?

Our firm represents employees/tenants/persons who are in a protected class, e.g., who have been harassed, discriminated, or retaliated against, or have experienced other adverse actions due to their disabled status, race, color, ancestry, ethnicity, national origin, religion, gender (pregnancy or sex), sexual orientation, gender identity/expression, marital status, veteran status, age, medical condition, perceived disability, or who have been denied medical leave to take care of themselves or a family member, or who have been denied accommodation and/or a good faith interactive process.

If the person needs an accommodation, is there one available, such as additional leave or an open position (not just tasks)? Is the accommodation being requested reasonable- such as, changing a schedule around so the person can have his/her/its Sabbath off, or moving a shelf lower to help with a restriction of no over-head reaching?

Reasonableness is the standard for determining whether an accommodation must be made or is available. This is juxtaposed against various considerations: how many employees an employer has; how large the company is and how big of a request is made (is it a one time item, or something that must occur numerous times; or is it a really expensive or burdensome request, vs something that is a one time, inexpensive purchase). Course one must keep in mind that “reasonable” accommodations are not just limited to what the person/employee/tenant has requested; specifically, an interactive process or discussion is required when the person is a protected class member (listed above), and either requests accommodations, or the Employer/landlord/business knows an accommodation may be needed. Employer/landlord/business may need to hire someone fit to help with the discussion and determine what accommodations could be available.

Accommodation can mean leave to take care of ones self or another as well. If an employer cannot accommodate the employee, the employer can provide leave, even if the employee is already on “workers’ compensation leave”, the employer can put the employee on FMLA/CFRA leave.

Employers with five or more employees can be sued for discrimination/retaliation, and must look for a reasonable accommodation. (Under state law, and under Federal law, 15 or more employees).

Employers with one or more employee may be sued for harassment.

Employers with fifty or more employees (with 75 miles of location) must offer FMLA/CFRA leave, but only if employee has been there one year, accrued at least 1,250 hours and employee has not taken that leave in the last year.

If the employee complained of unlawful activity, was an investigation done?

Applicable Statute of Limitations ("SOL") and Government Agencies That Can Help

For discrimination, harassment or retaliation, or denial of medical or family leave (including CFRA):

California:

Department of Fair Employment & Housing (DFEH). For employment claims: File 1 year from the last date of discriminatory activity (www.dfeh. ca.gov or 1-800-884-1684). Once DFEH issues a “right to sue” letter, the complainant has 1 year from the date of issuance to file a civil action in court. For housing claims, no need to exhaust, can file directly in court – 1 year SOL.

Federal:

Equal Employment Opportunity Commission (EEOC). File 300 days from the last date of discriminatory activity (if employee is outside of California, SOL may be only 180 days). (www.eeoc.gov or 1-800-669-4000.) Once the EEOC issues a “right to sue” letter, the complainant has 90 days to file a civil action in court. The EEOC also covers the Age Discrimination in Employment Act (ADEA), precluding discrimination against those over 40. (Same SOL as above.) The EEOC also covers the Americans with Disabilities Act (ADA) for employment matters. (SOL is 300 days.) The Equal Pay Act is enforced by the EEOC. The SOL is 2 years from last discriminatory paycheck, 3 years if willful.

For non-employment ADA claims, such as access cases, file with the U.S. Department of Justice (visit www.ada.gov or call 1-800-514-0301). (SOL for these is state personal injury – 2 years.)

File with the U.S. Department of Labor (DOL) for a violation of the Family Medical Leave Act (FMLA) within 2 years (3 years if willful) from the discriminatory activity (www.dol.gov/whd/fmla or 1-866-4-USA-DOL).

Fair Housing Act. File with Housing and Urban Development (HUD) (http:// portal.hud.gov/hudportal/HUD?src=/topics/housing_ discrimination or 1-800- 896-7743). SOL is 2 years.

Termination

Did you get your final check?

At termination an employer must provide the employee with all wages, including all vacation pay. Sick pay, unless it is what some call “Paid time off” or “PTO” would not be paid out to the employee. Employers must pay employees they terminate within 1 business day. For employees that quit, the final paycheck must be within 3 business days.

Do you think you were wrongfully terminated?

At or before termination, was the employee participating in lawfully protected activity? For example, filing a complaint, was a whistleblower (fired after making a complaint), recently asked for an for accommodation due to a disability, religious practice or pregnancy? ,Or had the employee recently participated in investigation? These actions could be the employee was wrongfully terminated.

Applicable Statute of Limitations ("SOL") and Other Tips Related to this Topic

For terminations related to harassment, discrimination or retaliation, see the section above, but note: you must look for work, otherwise no matter whether you win on liability, you could prevail with no monies at all since you have done nothing to lessen your harm while trying to seek a legal remedy. This obligation is called “mitigation” and is a requirement for all employees claiming he/she/it/they’ve lost their job due to a harassment/discrimination or retaliatory reasons.

Wrongful termination in violation of public policy claims have a 2 year SOL and must be brought in Court.

If a termination in California is not connected to the protected class a person is in, or due to a refusal to do activity that is illegal, or other statutory claim, the termination may not necessarily be “wrongful”. California is an “At-will” state, which means an employee can leave at any time and an employer can let them go at any time. No reason must be given to the employee, unless the Collective Bargaining agreement (union contract), employment contract or government provision requires. There is no requirement an employee receive a severance, unless their contract, so requires it.

Applicable Statute of Limitations and Government Agencies That Can Help Whistleblowers who are subject to the following statutory deadlines

False Claims Act / Qui Tam claims (involving the misuse of public funds). File within 6 years of the violation or 3 years after the govt. knows – no later than 10 years after the violation.

Blowing the whistle on a publicly-held corporation for S.E.C. or other corporate/financial accountability violations. File complaint within 180 days from the violation with DOL’s Occupational Safety & Health Administration (“OSHA”) (www.whistleblowers.gov or DOL at 415-625-2547 or OSHA at 1-800-321-0SHA (6742)).

Workers who have suffered adverse personnel actions, file with OSHA within 30 days of adverse action (www.osha.gov/opa/worker/complain.html).

CA law: 3 years to file under Labor Code § 1102.5 for retaliation for whistleblowing. For a government employee, 1 year under Government Code § 8547.

Wage and Hour Issues

Overtime- When is it owed to me?

In California the following times are when overtime and double times are paid, unless your employer as one of the following situations: (1) a union, who’s contract may trump the following times; (2) a valid election done by the employees and registered with the state. Overtime of time and a half pay is owed: (a) over 8 hours in one day; (b) over 40 hours in one week; and (c) for hours worked up to 8 on the 7th consecutive day of work? And if an employee works into its 12th hour, then they are owed double their normal hourly rate.

What breaks am I entitled to and when should my employer give them to me?

For every 4 hours an employee works, they are supposed to have a duty free, uninterrupted 10 minute rest break. For every 5 hours of working an employee is entitled to a 30 minute, uninterrupted meal break. If an employee works beyond these hours, such as 8 hour day- that employee is entitled to: 2 ten minute rest breaks and 1 thirty minute meal break. If the employee works into their 10th hour or more, the employee would be entitled to another 30 minute uninterrupted meal break. Some employers can enter into “On duty” meal breaks, meaning the employee does a position where leaving the work station or persons the employee is working with are unsafe and thus, must work while eating. In certain careers that is allowed. There can also be a lawful “waiver” of the first meal period, but never the second.

My employer says I am an independent contractor, is that true?

It depends on a series of factors that when weighed together a court would determine if the person is an employee versus an independent contractor. Usually if the person has their own business doing the activity, like a law firm, or accounting and they are doing those duties for other “clients” they are true independent contractors. But, if the “employer” is having the person report at specific times; use the employer’s materials/tools; follow the “employer’s” systems and rules, then that person is probably an employee, rather than an independent contractor and would be owed monies and the state & federal government would also be owed taxes the employer never paid.

How do I know if I have been paid for all my hours?

Your “paystub” which lawyers call “Wage Statements” should show all of the following: Valid name and address for your employer; Your pay rate -all of them (so your overtime and double time rates too if you work them); how many hours you worked in the pay period at the various rates; the pay period; your last four digits of your social, or an employee identification number; all your bonuses and tips, and benefits accruing, including sick, vacation or “PTO” – Paid Time Off you’ve accrued and/or used in that pay period and all the taxes taken out. The purpose behind all of these requirements is so an employee can figure out if the employer paid them for all their pay and so an employee would lawfully know what the entity or person’s name is who is responsible for any violations.

Applicable Statute of Limitations ("SOL") and Government Agencies That Can Help For wage and other compensation-related violations

Aggrieved employee Can file with either/both:

California Labor Commissioner (www.dir.ca.gov/dlse or 1-866-924-9757). 3 years to file a wage claim, 4 years to file a breach of a written contract claim, 2 years to file a breach of an oral contract claim, 1 year to seek penalties for Labor Code violations under the Private Attorneys General Act (“PAGA”), but 6 months to file a retaliation or termination claim with the labor Commissioner. California’s Unfair Competition Law (Cal. Bus. & Prof. Code § 17200) extends some deadlines to 4 years for filing a civil action in court. The California Equal Pay Act has same 6 month SOL for filing with the Labor Commissioner, or 2 years to file in Court (3 years if willful).

Federal U.S. Department of Labor (“DOL”) (www.dol.gov/whd/workers.htm or 1-866-4-USA-DOL). 2 years to file for minimum wage violations or unpaid overtime. If the violation is willful, the deadline to file is 3 years.

Other Employment Related Items

The firm does not handle claims against unions. For complaints about unions or union representation (such as their failure to file a grievance to enforce union contract), make a complaint to the National Labor Relations Board (www.nlrb.gov or 1-866-667-6572). SOL is 6 months.

Employees may also have to comply with deadlines imposed by an employer’s internal grievance procedures or union. Especially public employees (can be limited to six months). Consult an employment attorney as early as possible as ignorance of the law is no excuse for untimely complaints.

Defamation claims or invasion of privacy claims- employees have one year from the violation to bring the claim.

Personal Injury

Personal Injury Claims

Slip and falls, auto or motorcycle accidents: have a two year statute of limitations and must be brought in Court.

Defamation claims: libel or slander, or invasion of privacy claims have a one year statute of limitations and must be brought in Court.

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