California gives cheers to Cheerleaders

California has added labor code 2754 that now makes "cheerleaders" of a California based "professional sports team" an employee (and no longer an independent contractor). As an employee, cheerleaders have more rights and protections under labor code, unemployment insurance code, and FEHA verus independent contractors who do not have the same protections. For more information, contact Campano Law Group at 661-945-5300 or via email at acampano@campanolaw.com

Unemployment law update

Unemployment law update: Beginning July 1, 2015, people who wish to challenge an unemployment hearing decision have 30 days to appeal. It used to be 20 days.

How to comply with California's new paid sick leave.

Is there a way to comply with California’s new paid sick leave without violating this new law? Yes. (I probably would not ask the question if the answer was going to be no.)

One of the drawbacks (bad things for employers) with this new law is that the employer has to keep track of the hours worked by the employee and have the amount of accrued paid sick leave put on the paystub or some other writing to the employee. This can be too time consuming and confusing depending on a variety of things, such as the number of employees you have and when the employees started working for your company. For example, the more employees you have means more keeping track of hours worked and sick leave earned. And, when an employee started working for you affects the 90 day work requirement before paid sick leave can be earned.

The new law, however, does give an employer a chance to avoid these headaches in at least one way: by the employer offering paid sick leave (3 days or 24 hours) each year without the employee having to earn it every 30 hours as the new law requires. This way, the employer can be able to avoid having to keep track each pay period for sick leave earned and having to give the employee notice each pay period of how much paid sick leave has been earned because in theory in the employer has already complied with the new law and ensures its employees they have 3 days or 24 hours of paid sick leave available to them.

If you, as the employer, would like more information or assistance with putting together a policy to suit this new law, contact Attorney Angelo Campano at Campano Law Group at 661-945-5300 or by email: acampano@campanolaw.com.

Employment law update

Employment law update: california fair employment laws now protect unpaid interns and volunteers from harassment at work.

For more information, contact Attorney Angelo Campano at 661-945-5300 or email us at acampano@campanolaw.com.

Victims of employment harassment/discrimination are not alone. Recent “Me too” evidence case gives victims of harassment/discrimination a helping hand in employment cases. Pantoja v. Anton (August, 2011) 198 Cal.App.4th 87.

             “Me too” evidence is a type of evidence used in employment cases. Typically, a victim of harassment/discrimination may come to learn that others have also been the victim of harassment/discrimination and will want to use that evidence to help them prove their case. That is where the phrase “me too” evidence comes into play. See Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties (2009) 173 Cal. App. 4th 740. Having others who experienced harassment/discrimination at the same place of work can be very helpful to your case because as they say, “where there is smoke, there is fire.” But, like any evidence, there is always a question of whether it will be admitted into the court by the judge.

Defense lawyers, representing employers, do not like me too evidence, and they will do as much as possible to keep it out. Defense lawyers take the position that the victim of harassment/discrimination had to know that others were also experiencing harassment/discrimination at the time it was going on in order for me too evidence to be admitted into court. See Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590.

If a judge or jury hears that others at work experienced the same harassment/discrimination that you did, then that me too evidence will likely convince the judge/jury that you are not making up or exaggerating your claim. And, when it comes time for the judge/jury to decide if you are right or wrong, having another person also experiencing the same problems can make that crucial difference in your case.

                Generally, in order to have me too evidence admitted into evidence (allow the judge/jury to see/hear it), the victim needs to show that the victim knew that this other victim was or had experienced the same harassment/discrimination that you experienced. Sounds simple, but like many employment cases, victims do not always complain or voice their concerns out of fear of retaliation, losing their jobs in an already weak economy or just plain humiliation. Therefore, a lot of times, a victim of harassment/discrimination may never know of the other victims until well into after a lawsuit was filed, if at all. By then, courts may not admit that me too evidence because you did not know of the other victim while you yourself were going through the harassment/discrimination. Luckily, for employees, that no longer has to be the case.

                In Pantoja v. Anton (August, 2011) 198 Cal.App.4^th 87, the California Appellate Court ruled that a victim seeking to admit me too evidence did not need to know of the other victim’s harassment/discrimination in order to have me too evidence admitted into court. Instead, the Appellate Court ruled that a victim of harassment/discrimination can use recently discovered me too evidence to (1) impeach the defendant who denies ever committing harassment/discrimination before or (2) to show intent of the defendant to harass/discriminate against others in the same way.

Based on a reading of this ruling, the Appellate Court has provided victims of harassment more opportunities to prove they were a victim of harassment/discrimination. It no longer has to be a “he said, she said” type case. This ruling undoubtedly expands the rights of victims of harassment/discrimination in proving they were the unfortunate victims of harassment/discrimination.

Posted by: Attorney Angelo F. Campano at acampano@campanolaw.com; Tel: 661-945-5300.

An Employee refusing to sign a disciplinary memo can be fired and denied unemployment benefits.

            In many jobs, employers have written warnings or notices they give to employees who are believed to have violated a work rule. Typically, these warnings/notices have a place at the bottom where the employee is supposed to sign his/her name. Generally, it is so the employee cannot later on say they never knew of the warning/notice. Sometimes, the employee refuses to sign the warning/notice because it might be looked at like an admission of fault. In a recent case, one employee refused to sign his name, and was fired for not signing the warning/notice. The employee filed for unemployment benefits and was initially given benefits. The employer appealed that decision and the Appellate Court sided with the employer. The Appellate Court found the employee committed misconduct for not signing the warning.

            In Paratransit, Inc. v. Craig Medeiros, the fired employee filed for unemployment benefits. In California, an employee can be refused unemployment benefits if the unemployment judge finds the employee committed “misconduct”. In this case, the fired employee was granted unemployment benefits by the unemployment judge. The employer appealed, the case made its way to the Appellate Court, where the employer prevailed. The Appellate Court found the discipline notice/warning was a standard policy at work and signing the warning was required as part of the job. Further, the Appellate Court found that just below the signature line, it read “employee signature as to receipt”. The Appellate Court found, in this instance, that the employee signing the notice/warning was just to give the employee notice of the violation, not that the employee admitted fault.

            In the Paratransit, Inc. v. Craig Medeiros, the Appellate Court seemed to support the employer and find the employer’s actions reasonable. According to the Appellate Court, the discipline notice/warning was a part of the job, and the notice/warning made it clear that the employee signing his name was not an admission of fault. The Appellate Court found misconduct by the employee because the employee refused to comply with the employer’s reasonable work rules/policy of signing the warning/notice. With a finding of misconduct, the employee was denied unemployment benefits.

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Employers cannot change arbitration agreement after complaint made by employee.

In a recent case, the California Appellate Court ruled that an arbitation agreement between an employer and employee cannot be modified after the employer believes the employer may file a lawsuit, even if the arbitration agreement expressly allows the employer to modify the arbitration agreement. The Court held that allowing the employer to make changes to its arbitration agreement after the employer learns of a complaint by its employee makes the agreement illusory, and thus unenforceable. As the Court stated, ..."Were it otherwise, the employer could amend the contract in anticipation of a specific claim, altering the arbitration process to the employee‘s detriment and making it more likely the employer would prevail." See Amir Peleg v Neiman Marcus Group, Inc.

(by Attorney Angelo F. Campano at acampano@campanolaw.com)

California Supreme Court teaches public school districts a lesson

            May a public school district be held liable when school supervisors allegedly negligently hire, retain or supervise a school guidance counselor who purportedly molests a student, when the school supervisors who hired the counselor knew or should have known that that the counselor had a history of child molestation? Yes, according the unanimous decision by the California Supreme Court in the case of C.A., a minor v. William S. Hart Union High School District.

           The question may be simple and the answer may be appear be even more simple to many people. The trial and appellate courts, however, thought differently by deciding that the public school district had no such duty for the acts of its supervisors at the school, and therefore, the school district as a whole was not liable for the harm to the student.

           If one reads the case carefully, the issue is not whether the school district is liable to the student for the acts of the allegedly molesting counselor; but rather is the school district liable to individual student because the supervisors at that individual school allowed the counselor to work at the school knowing of the counselor’s actions? This question required an in depth focus on the laws of vicarious liability and respondeat superior, which typically means one being responsible for the acts of another.

           In answering the question, the California Supreme Court held that the school supervisors owe its students a duty of care, and that the school district can be liable for the negligence of those individual supervisors. In support of its holding, the California Supreme Court held that there is a “special relationship” between the schools, supervisors and its students. Quoting from the case, the Court stated that:

 “…a school district and its employees have a special relationship with the district’s pupils, a relationship arising from the mandatory character of school attendance and the comprehensive control over students exercised by school personnel, “analogous in many ways to the relationship between parents and their children.” (Hoff v. Vacaville Unified School Dist., supra, 19 Cal.4th at p. 935; see M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 517; Leger v. Stockton Unified School Dist., supra, 202 Cal.App.3d at pp. 1458-1459.)… We conclude plaintiff’s theory of vicarious liability for negligent hiring, retention and supervision is a legally viable one. Ample case authority establishes that school personnel owe students under their supervision a protective duty of ordinary care, for breach of which the school district may be held vicariously liable. (See, e.g., Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747; Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1458- 1461.) If a supervisory or administrative employee of the school district is proven to have breached that duty by negligently exposing plaintiff to a foreseeable danger of molestation by his guidance counselor, resulting in his injuries, and assuming no immunity provision applies, liability falls on the school district under Government Code section 815.2.”

           To sum up, what this case means is that the school district, and not just the individual school and supervisors, can be held liable for the acts of the supervisors at the school that leads to harm to its students. In light of the recent and ongoing allegations/investigations of public schools in California, school districts will not always be able to shield itself from the harm suffered by its students.

Additional Resources

Campano Law Group
http://www.campanolaw.com/
acampano@campanolaw.com
Tel: 661-945-5300

California Courts Website

An employer cannot discriminate against you because of your disability

California Fair Employment & Housing Department (DFEH) prohibits an employer from discriminating against an employee if the employee has a disability. This brief guide will explain what you need to show that your employer has discriminated against you becaue of a disability.

 

1st: Does the employee have a disability?

The general rule of law is that a person is physically disabled under FEHA when he or she has a condition that affects a body system and that condition limits a major life activity. See California Govt. Code 12926 (k)(1)(A)(B). A "body system" includes neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine. "Major life activities" include caring for one’s self, performing manual tasks, speaking, breathing, seeing, walking, hearing, learning and working.

2nd: Could you perform the essential functions of the job?

If you have a condition and it affects a major life activity, does that prevent you from performing the essential functions of the job? Keep in mind that you have to be qualified to have performed the job to begin with. If you were not qualified for the positon, your employer is not necessarily breaking the law if you have a physical disability and are denied the job. If you are asking your employer to be reassigned to a position because of a disabilty, you, the employee, have the burden to prove you were qualfiied for that reassignment. Otherwise, if you were not qualified, a court may find the employer did not discriminate against you.

3rd: Were you discriminated against because of your disability?

Last, but not least, can you, the employee, show that you were discriminated against because you have a disability. Generally, the closer in time between when your employer learns of your disability and any action taken against you will help you prove you were discriminated against because of your disability. For example: On monday your employer learns that you have a physical disability. On Tuesday, you were fired without reason. That short time between the two events helps establish you were discriminated against because of your disability.

4th: Does your employer have a defense, a valid reason for not giving you the job?

Even if you can satisfy the elements of disability discrimination it does not mean your employer is automatically at fault for discriminating against you. Your employer is allowed to present a defense to why they did what they did and still not be held to have discriminated against you. One defense an employer has is that an employer is not required to create new position or bump other employees to accommodate the disabled employee. See Rory Cuiellette v. City of Los Angeles 2011 DJDAR 5687 citing Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389; citing Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 972.

Additional Resources

If you feel you have been discriminated against at work because of a disabilty, you should either contact an employment lawyer such as the Campano Law Group. Or, go to the California Department of Fair Employment and Housing (www.dfeh.ca.gov) where you will find more information on the law.

Campano Law Group

California Department of Fair Employment & Housing