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  • This series, beginning here, explores the top ten ways that employers deny employees their medical leave rights.

    #2 – Failing to Consider All Medical Leave Rights Together

    Each of the leave laws that protect California employees operate independently of each other. This means that “[a]n employer must therefore provide leave under whichever statutory provision provides the greater rights to employees.” (29 C.F.R. § 825.702(a).) For example, the Family and Medical Leave Act (“FMLA”) allows an employer to place an employee returning from a covered leave in an “equivalent” position. (29 C.F.R. § 825.215.) In contrast, under the Americans with Disabilities Act of 1990 (“ADA”), an employee who is granted leave as a reasonable accommodation is “entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship.” (See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA (Oct. 17, 2002), at Q&A 18.) Therefore, if an employee on a medical leave is covered by FMLA, the California Family Rights Act (“CFRA”), the ADA, and the Fair Employment and Housing Act (“FEHA”), the employer would need to reinstate her to her original position following a return from a medical leave, absent the employer demonstrating undue hardship.

    The FMLA regulations, at 29 C.F.R. section 825.702, provide several additional examples of the interplay between the ADA and FMLA, including the following…


  • All too often, when employees with disabilities request medical leave, employers fail to properly respond to the requests. They may deny medical leaves to which employees are entitled, may impose requirements that are not lawful, or may fail to honor employees’ reinstatement rights. Over the next few weeks, this series will explore the top ten ways that employers deny employees their medical leave rights.

    #1 – Failing to Consider Leave as a Reasonable Accommodation

    When employees with disabilities request medical leaves, employers sometimes make the mistake of considering their obligations only under the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. section 2601 et seq., and California Family Rights Act (“CFRA”), Government Code section 12945.2. Employers may wrongly believe that if employees do not meet the eligibility criteria under the FMLA and CFRA, or if they have already exhausted their FMLA/CFRA leave, they are simply ineligible for job-protected medical leave.

    The law is clear, however, that leave can be a reasonable accommodation under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. section 12101, and the Fair Employment and Housing Act (“FEHA”), Government Code section 12940 et seq. (See, e.g., Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226 [holding that “a finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform his or her duties”]; Nunes v. Wal-Mart Stores, Inc. (9th Cir. 1999) 164 F.3d 1243 [“Even an extended medical leave, or an extension of an existing leave period, may be a reasonable accommodation if it does not pose an undue hardship on the employer.”]; EEOC, Employer-Provided Leave and the Americans with Disabilities Act (“EEOC Leave Guidance”) (May 9, 2016); 29 C.F.R. Pt. 1630 App. § 1630.2(o) [identifying as possible reasonable accommodations “permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment”].) Note that the FEHA looks to the ADA to provide a “floor of protection,” with the FEHA providing equal or greater protections to employees. (Cal. Gov’t Code § 12926.1.) For that reason, federal authorities are helpful in exploring the minimum protections afforded to employees.

    ADA/FEHA leave often covers situations where FMLA and CFRA leave do not apply…

  • Woman Crying After Sexual Harassment

    What is sexual harassment? A lawyer’s response.

    Sexual harassment is rampant in many workplaces. Sometimes it can take extreme forms (for example, sexual assault), but other times it can be created through offensive and inappropriate comments that a supervisor or coworker considers to be “just joking.” Unwanted sexual conduct and comments can turn an otherwise perfect job into a nightmare.

    There are two categories of sexual harassment:

    1. Quid pro quo sexual harassment, and
    2. Hostile work environment.

    Quid Pro Quo Sexual Harassment

    Quid pro quo sexual harassment occurs when a supervisor or person with authority conditions an employee’s job or job benefits on the acceptance of sexual advances or conduct, or when the supervisor makes employment decisions based on whether the employee accepted the sexual advances/conduct. A supervisor can engage in quid pro quo sexual harassment in a number of ways, including with sexual propositions, graphic discussions of sexual acts, and sexual comments on the employee’s body.

    It does not need to be explicit. For example, if a supervisor insinuates that an employee will have to sleep with him to advance in the company, that is quid pro quo sexual harassment. Having to submit to sexual advances–or even having to laugh along to someone’s inappropriate sexual jokes–should never be a factor in whether someone succeeds at work. . . .

  • Applause

    Mizrahi Law is pleased to announce that founder Ramit Mizrahi has been selected for two highly prestigious lists:

    • Super Lawyers® Up-and-Coming 100: Southern California Rising Stars 2017, and
    • Super Lawyers® Up-and-Coming 50: Women Southern California Rising Stars 2017.

    Top 100

    This is the third year that Super Lawyers has identified its most highly rated Rising Stars on top 50 and top 100 lists.

    This also marks the fifth 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 was selected in the area of Employment Law (Plaintiff side), recognizing her commitment to helping employees.

    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.

  • podium

    On June 20, 2017, Ramit Mizrahi will be speaking about mediating discrimination cases. The panel, titled “Mediating Employment Discrimination Cases in Changing Times,” will be presented at the Southern California Mediation Association’s 2017 Employment Mediation Institute.

    Date and time: Tuesday, June 20, 2017, 6-9 p.m.

    Description:
    Have you found yourself thinking lately, “Wow, the world is changing at a rapid pace and I don’t know what will happen next?” Just as we have seen significant changes in the political and social realms, the field of employment law is rapidly evolving. State laws have taken on a greater importance, including with respect to protections for LGBT employees and undocumented employees. Additionally, long-standing rules have been construed in recent years to expand the scope of protected activity and protection against retaliation. There is much uncertainty ahead.
    Please join our panel as they discuss the evolving employment law landscape, along with the practical implications and application for practitioners and mediators. Each of the panel members are at the forefront of handling cutting edge employment and labor law matters and will share their expertise, insights, and predictions for the world of employment law to come.
    It promises to be a great evening!

    Location: Pepperdine University West LA Campus, Pepperdine University Plaza, 6100 Center Drive, Los Angeles, CA 90045.

    Tickets are available here.

  • podium

    On March 8, 2017, Ramit Mizrahi will be speaking about the summary judgment cases that every California employment lawyer should know. The panel, titled “The 50 Cases You Need to Know to Obtain and Oppose Summary Judgment,” will be part of the Los Angeles County Bar Association’s 37th Annual Labor & Employment Law Symposium.

    Date and time: Wednesday, March 8, 2017, 10-11 a.m.

    Description: Learn the top 50 cases you need to know in preparing and opposing motions for summary adjudication and/or summary judgment in major areas of employment law, including claims of harassment and discrimination based on race, gender, age, disability and claims of retaliation.

    Location: Millennium Biltmore Hotel Los Angeles, 506 S Grand Ave, Los Angeles, CA

    Tickets are available here.

  • podium

    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.

  • 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.

  • Celebrating 2017 with champagne

    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. . .

  • Workers Standing Confidently

    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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