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On March 1, 2017, Ramit Mizrahi will be speaking about returning to work from long medical leaves. The panel will be part of the Employment Round Table of Southern California’s 2017 Legal Update and Important Legal Issues seminar. The panel is titled “‘I’m Finally Ready!’: When Employees Return to Work After Long Medical Leaves.” Ms. Mizrahi will be speaking alongside Tina Walker (Regional Administrator, Department of Fair Employment and Housing) and Elisabeth Lilly (Senior Counsel, Northrop Grumman Corp.).
Date and time: Wednesday, March 1, 2017, 10 a.m.
Description: The California Family Rights Act and the ADA provide employees with a bridge back to work – or is it more like a highway? Employees on medical leaves are often released to return to work long after they have exceeded their job protections under federal and state law. These employees may have medical limitations or need work accommodations. Their old job may or may not be available, and they may or may not be able to perform essential job functions. Our panel will discuss the issues associated with such returns to work. Tina Walker (Regional Administrator, DFEH Los Angeles Regional Office) will speak from a government perspective, Elisabeth Lilly, Esq. (Senior Counsel, Northrop Grumman Corp.) from that of the employer, and Ramit Mizrahi, Esq. (Founder, Mizrahi Law, APC) from that of returning employees.
Location: Loyola Law School Fritz B. Burns Lounge, 919 Albany St., Los Angeles, CA 90015
Tickets are available here.
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This month’s issue of the California Labor & Employment Law Review features an article authored by Ramit Mizrahi, Andrew Friedman, and Tony Oncidi. The Law Review is an official publication of the State Bar of California’s Labor & Employment Law Section. The article—”The Top Employment Cases of 2016″—highlights the most important California and Supreme Court employment cases from last year. Click on the below image to read the article in full.
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Happy holidays and happy new year!
2016 has been a tumultuous year for all of us. But California continues to serve as a shining beacon, leading the way, including with legislation that protects workers. Here are five new laws worth celebrating as we welcome the new year.
1. Minimum Wage Increase to $15/Hour by 2023 — SB-3
Over the past few years, the California State Legislature has steadily increased the minimum wage, a move that helps stem the rising income inequality in our society. SB-3 increases the minimum wage for all employees to $15 an hour by 2023, and ties future increases to inflation. The schedule (subject to certain conditions) will be. . .
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Given the election outcome, there is much uncertainty about the what the future holds for our country. Workers have many reasons to be concerned, particularly given that our President-elect will likely appoint and nominate people hostile to workers’ rights and civil rights to government positions, including to the Equal Employment Opportunity Commission, the National Labor Relations Board, and the Supreme Court.
Fortunately, we in California are to some extent shielded from changes in federal laws in situations where there are California laws in effect that offer similar or broader protections. To give some examples:
- A California employee can usually sue for discrimination, harassment, or retaliation based on sex, race, and certain other protected categories under either the California Fair Employment and Housing Act (“FEHA”) or under Title VII of the Civil Rights Act of 1964 (“Title VII”). The FEHA covers employers with five or more employees for discrimination and retaliation, and one or more employees for harassment, and also allows individual harassers to be sued personally. Title VII applies to employers with fifteen or more employees and does not allow for individual liability. Title VII also contains caps on compensatory and punitive damages based on the size of the employer, while the FEHA has no such limitations.
- The FEHA explicitly prohibits discrimination based on “gender, gender identity, gender expression” and “sexual orientation,” while Title VII does not. The EEOC and a number of federal courts have taken the (logical and just) position that sexual orientation discrimination is a subset of sex discrimination and therefore prohibited under Title VII (as is discrimination against LGBT individuals in general), but there is a risk that with a change in the composition of the federal courts, we could regress in interpretations of federal law. Regardless, LGBT workers in California will remain protected.
- The FEHA and the Americans with Disabilities Act (“ADA”) offer similar protections with respect to disability discrimination. The FEHA is more protective of disabled employees and explicitly states that the ADA serves only as a “floor.”
- The California Family Rights Act (“CFRA”) and the Family and Medical Leave Act (“FMLA”) are two leave laws that have significant overlap in their coverage and protections. Again, CFRA offers more protections to California employees, particularly pregnant women who also take pregnancy disability leave.
- California’s Labor Code contains a number of protections regarding minimum wages, overtime pay, recordkeeping, and other employee protections, as does the Fair Labor Standards Act (“FLSA”). The California laws tend to be more protective (for example, providing that most non-exempt employees receive overtime for for all hours over 8 worked in a day, not just for all hours over 40 per week, and also requiring that employees receive meal and rest breaks).
- California has a number of laws that protect whistleblowers, including Labor Code section 1102.5 (a broad statute that protects all types of whistleblowing), Labor Code section 6310 (protecting employees who complain about workplace health and safety issues), and Health and Safety Code section 1278.5 (protecting employees who complain about patient health and safety issues). There are some overlaps with federal whistleblower laws.
As the previous paragraph demonstrates, our laws tend to offers greater protections and additional remedies as compared to federal employment laws. For that reason, most California employees choose to sue under the California laws when possible. In addition, asserting California (and not federal) claims allows employees to file and usually to keep their cases in state courts. There, an employee need only convince nine out of twelve jurors to find in his favor in order to win his case, in contrast to the requirement in federal court that the jury find for him unanimously. Judges in state court are also less likely to grant summary judgment and dismiss employees’ cases, and tend to give lawyers more time to try their cases.
We are fortunate to live where we do. The newly enacted Labor Code section 925 will ensure that employers cannot strip California employees of their substantive rights or force them to litigate/arbitrate their claims in out-of-state forums. Even if the courts and the nominees/appointees of the new administration will interpret federal laws in a manner that is less favorable to employees, California workers can continue to pursue their state claims, and can continue to push for even more progress in California.
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Most people know that employers are required to provide reasonable accommodations to employees with disabilities. But they are also required to accommodate those whom they perceive or regard as disabled. A new California case, Moore v. Regents of the Univ. of California, 248 Cal.App.4th 216 (2016) affirms these obligations and has terrific language with respect to employee accommodation and leave rights.
Background
Deborah Moore worked as UCSD’s Director of Marketing. In mid-2010, a new person took over as her supervisor and sought to restructure the department. A couple of months later, Moore was diagnosed with idiopathic cardiomyopathy, a condition affecting the heart muscles that can lead to heart failure. Her doctor ordered her to wear a heart monitor and external defibrillator for several weeks. Moore told her supervisor about her heart condition and needs, and assured the supervisor that “there was nothing to worry about, that it would take care of itself” and that she would be able to do her job, “no problem.” Her supervisor, however, was concerned—unilaterally deciding to “lighten [Moore’s] load to get rid of some of the stress.” The supervisor asked HR what to do in the case of a medical event and admitted that she asked how to handle Moore as a liability. After that, the relationship between Moore and her supervisor soured, with Moore believing that the supervisor was unfairly criticizing her, yelling at her, taking away her duties, and demoting her because of her heart condition. Some time later, Moore advised that she would need some time off to get a pacemaker put in. The supervisor then eliminated Moore’s position and terminated her—even though Moore had more seniority than a colleague of hers and that this was a violation of policy. In the following six-month period, new employees were hired, including for roles that Moore was well-qualified to perform.
Moore’s Complaint and History of Her Case
Moore sued, alleging causes of action under the Fair Employment and Housing Act (FEHA) for disability discrimination, failure to accommodate, failure to engage in the interactive process, and retaliation, as well as causes of action for interference and retaliation under the California Family Rights Act (CFRA). Note that Moore’s disability causes of action were based on perceived disability, rather than actual disability.
The Regents moved for summary judgment, which the trial court granted. Moore appealed.
The Court of Appeal’s Decision
The Court of Appeal held that summary judgment was improperly granted with respect to all but one of Moore’s causes of action. In doing so, the court followed the holding of Gelfo v. Lockheed Martin Corp., 140 Cal.App.4th 34 (2006), which holds that employers have an obligation to provide reasonable accommodations and engage in the interactive process with those that they regard as disabled. It quoted the rationale laid out in Gelfo:
“An employer who in unable or unwilling to shed his or her stereotypic assumptions based on a faulty or prejudiced perception of an employees abilities must be prepared to accommodate the artificial limitations created by his or her own faulty perceptions.”
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California workers have yet another reason to rejoice. This month, Governor Brown signed into law a bill that prohibits choice of law and choice of forum provisions in employment contracts.
Why is this law so important?
California has some of the strongest employee protections in the nation. However, some employers have sought to strip away these protections and to deter employees from asserting legal claims through the use of choice of law and choice of forum provisions. These provisions are often buried in arbitration agreements that are presented to employees or job applicants on a “take it or leave it” basis.
A choice of law provision is a term in a contract or agreement that requires that any dispute be governed by the laws of a particular jurisdiction. For example, if a California employee’s employment contract or arbitration agreement has a choice of law provision stating that the contract will be governed by Texas law, Texas law will likely trump California law for claims brought under the contract—even if this reduces or limits the employee’s claims or recovery. Choice of law provisions can make it difficult for employees to even understand their legal rights, as they are likely unfamiliar with the out-of-state laws that would apply to their claims.
A choice of forum provision determines where an employee can assert his or her claim. For example, if there is a choice of forum provision in an employment agreement that requires arbitration in Delaware, that would prevent an employee from being able to file a lawsuit in a California court. Instead, the employee would be forced to pursue their case in arbitration in Delaware. Such a provision serves to deter an employee from bringing forward legal claims because the employee would need to find a lawyer to take on the case in another state, would likely be unfamiliar with the out-of-state forum, would need to travel to the forum, and would have a case that is far more expensive to litigate because the witnesses are not in the same place as the forum.
New Labor Code section 925
This month, Governor brown signed a bill by Senator Bob Wieckowski (D-Fremont)—SB 1241—that creates a new section of the Labor Code:
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Vergara v. State of California, No. B258589, 2016 WL 4443590 (Cal. Ct. App. Aug. 22, 2016)
Nine California public school students sued the State of California and state officials alleging that portions of the California Education Code that govern teacher tenure, dismissals, and layoffs were unconstitutional and denied them equal protection. Over the course of an eight-week trial, the evidence reflected a number of significant problems: Tenure decisions were required to be made so quickly (within two years) that principals had only about 16 months to begin making their reelection decisions—far too little time to adequately assess performance. Dismissals of teachers were so expensive and time-consuming that in a ten-year span only two teachers per year on average out of a total K-12 teacher population of 277,000 were dismissed. “Last in, first out” rules regarding layoffs required that teachers be let go in reverse order of seniority, such that effective teachers were laid off before ineffective ones with more seniority. Extensive evidence was presented about how administrators engaged in a “dance of the lemons”—shuffling grossly ineffective teachers around from school to school, with them often landing in schools serving poor and minority students.
After the trial, the trial court issued a ruling declaring five sections of the Education Code unconstitutional. The court found that competent teachers are a critical component of a child’s success in their educational experience, and that grossly ineffective teachers undermine a child’s success. The court determined that the evidence at trial was compelling and “shocks the conscience.” The court concluded that the challenged policies were unconstitutional, determining that substantial evidence showed that they disproportionately affected poor and/or minority students. Defendants appealed.
The Court of Appeal Upheld the Laws
The Court of Appeal reversed, holding that the statutes did not inevitably cause low-income and minority students to be disproportionately assigned to grossly ineffective teachers in violation of equal protection, nor was there an identifiable class under equal protection analysis for the “unlucky subset” of students in the general population assigned to grossly ineffective teachers. As the court reasoned . . .
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Five years in the making, the EEOC has finally released its guidance on leave as a reasonable accommodation. It reaffirms employers’ obligations and provides clarity where it was sorely needed.
Background
When employees need medical leave, they will often request time off under the Family and Medical Leave Act (FMLA) (or, in California, the California Family Rights Act (CFRA)). But what many employees—and some employers—don’t know is that laws other than FMLA and CFRA may require employers to provide medical leave, including the Americans with Disabilities Act of 1990 (ADA) and California’s Fair Employment and Housing Act (FEHA).
Under the ADA and FEHA, employees may be entitled to medical leave for disability-related issues:
- Even if they work for small employers that are not covered by the FMLA/CFRA;
- Even if they are not eligible for FMLA/CFRA (for example, if they have not worked for the employer for at least a year or has not worked 1250 hours); and
- Even if they have already exhausted their 12-weeks of FMLA/CFRA leave.
In June 2011, the EEOC held a meeting to discuss the issue of leave as a reasonable accommodation under the Americans with Disabilities Act. The invited speakers unanimously agreed that both employees and management would benefit from clear and uniform guidance on the subject. While the guidance was forthcoming, I published an article titled Leave As A Reasonable Accommodation Under The Americans With Disabilities Act, which explored various issues that keep coming up in this context. The EEOC’s guidance confirms that employers must be mindful of their obligations to accommodate disabled employees, including by providing unpaid leave. Note, too, the California employees may be. . .
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Mizrahi Law is pleased to announce that founder Ramit Mizrahi has once again been selected for two highly prestigious lists:
- Super Lawyers® Up-and-Coming 100: Southern California Rising Stars 2016, and
- Super Lawyers® Up-and-Coming 50: Women Southern California Rising Stars 2016.
This is the second year that Super Lawyers has identified its most highly rated Rising Stars on top 50 and top 100 lists.
This also marks the fourth year that Ramit Mizrahi was selected a Super Lawyers® Southern California Rising Star. Only the top 2.5% of eligible attorneys in Southern California are selected as Super Lawyers Rising Stars, reflecting peer recognition of excellence in practice.
Ms. Mizrahi’s selection as one of the top 100 Rising Stars and top 50 Rising Stars women–already a highly select group of attorneys–reflects that she is highly respected among her peers and is one of the top-rated attorneys in Southern California.
Ms. Mizrahi remains committed to serving as a tenacious advocate for her clients while working to build collegiality and community in the legal profession.
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Update 9/4/16: On August 29, 2016, the Court of Appeal issued an opinion on rehearing that retreated from its prior holding that the FEHA creates a duty to provide reasonable accommodations to an applicant or employee who is associated with a disabled person. However, the opinion still holds that the trial court erred in granting summary judgment to the defendant on the plaintiff’s claims for associational disability discrimination, failure to prevent discrimination, retaliation, and wrongful termination in violation of public policy. The court indicated that, given that the plaintiff has abandoned his failure to accommodate cause of action, it would not decide the point. It noted, however, that “when section 12940, subdivision (m) requires employers to reasonably accommodate ‘the known physical … disability of an applicant or employee,’ read in conjunction with other relevant provisions, subdivision (m) may reasonably be interpreted to require accommodation based on the employee’s association with a physically disabled person.” Because the cause of action was abandoned, “[w]e only observe that the accommodation issue is not settled and that it appears significantly intertwined with the statutory prohibition against disability discrimination. . . .” I leave the below analysis as a discussion of what could have been a dramatic expansion of rights for California workers who care for disabled relatives, reflecting an issue that continues to remain undecided for now.
A new case—Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 246 Cal.App.4th 180—dramatically expands the rights of California employees who care for disabled relatives. It holds that the California Fair Employment and Housing Act (FEHA) creates a duty for employers to provide reasonable accommodations to an employee who is associated with a disabled person.
Background
Employees with disabilities have long been protected in the workplace, including by the FEHA and by the Americans with Disabilities Act (ADA). They are protected from discrimination, retaliation, and harassment based on their disabilities. In addition, employers must take affirmative steps to accommodate them to enable them to work. If a qualified employee with a disability requests a reasonable accommodation, the employer must provide it unless it “can demonstrate that the accommodation would impose an undue hardship on the operation of its business.” There are many types of reasonable accommodations, such as job restructuring and changes to job duties, modified schedules, reassignments, use of specialized equipment, and medical leave.
Employees have also been protected from discrimination based on their relationship or association with a person with a known disability. This includes discrimination based on unfounded fears and stigmas (for example, against someone whose partner has HIV) and discrimination based on assumptions that employees might not be as available because of their caregiving obligations (for example, against a parent whose child has special needs).
However, until recently, employers’ obligations to provide workplace accommodations to people who care for those with disabilities were limited.
