Tag: blog

YOU SHOULDN’T FACE DISCRIMINATION BECAUSE OF YOUR DISABILITY

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On behalf of Robin Perkins of Perkins Asbill, A Professional Law Corporation posted in a blog on Thursday, April 26, 2018.

Living with a disability can be challenging enough without other people judging you for it. For this reason, the state of California enacted several laws that provide you with the protections you need in order to live your life free from the preconceived notions and discrimination of some employers.

Just because you live with a disability doesn’t mean that you aren’t qualified for a position or that you can’t perform the duties of a job. As long as any reasonable accommodations you need don’t present an undue hardship on an employer, you deserve to be treated like anyone else. Sadly, not all employers feel this way and violate the laws meant to protect you.

What does the law say?

Under the Disabled Persons Act, California Fair Employment and Housing Act and the Unruh Civil Rights Act, all provide you with the following protections from discrimination due to your disability:

  • An employer may ask you about your ability to perform the duties of the job for which you are applying.
  • An employer may provide you with a response to your request for an accommodation.
  • An employer may ask you for a certification from your doctor regarding your need for a reasonable accommodation.
  • An employer must consider you for the position despite your known or perceived disability.
  • An employer may not require you to undergo a physical or psychological evaluation that is not required of all prospective employees.

Your current or prospective employer should have a good faith discussion with you regarding whether any accommodation you need is possible. These conversations need to determine the essential functions of the position, along with whether any accommodations you would need place an undue hardship on the employer.

What do you think?

If you feel that a prospective or current employer failed to give you a fair chance due to your disability or refused to provide you with a reasonable accommodation, you may have a claim for discrimination. If you fail to receive a satisfactory resolution within your company, you may need to go outside of it for a resolution to your issues. When you do, you may find that your employer will begin retaliating against you, which the law also prohibits.

You do not have to simply accept the situation. If reasonable accommodations are possible, but your employer refuses to provide them to you, you have every right to speak out about it. You also have the right not to go through this alone. Help is available.

DID DISCRIMINATORY INTERVIEW QUESTIONS CAUSE YOU TO MISS OUT?

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On behalf of Robin Perkins of Perkins Asbill, A Professional Law Corporation posted in a blog on Wednesday, March 28, 2018.

As a woman, you may already know that finding your dream job may come with some difficulties. Though you certainly have worked hard with your education and experience gaining, you likely know that gender and pregnancy discrimination remain serious issues in many industries. Unfortunately, discrimination could take place before or after you start a job.

As with most job applications, you may have recently gone through the interview process at a prospective place of employment. While overall you may think that the interview went well, you may also have some lingering concerns over some of the questions asked. In fact, your prospective employer may have made certain inquiriesthat were not entirely legal.

Questions that may indicate discrimination

While it is understandable that employers want to ensure that they hire the right individuals for their jobs and that their employees will have time to work, they cannot discriminate against job applicants while looking for the “right” person. In particular, women can face discrimination if employers have concerns about the applicant being pregnant, potentially becoming pregnant or already having children.

If your interviewer asked you any of the following questions, he or she may have acted in a discriminatory manner:

  • What is your marital status?
  • Are you engaged?
  • How many children do you have?
  • What are your children’s ages?
  • How are your children cared for?
  • What is your spouse’s occupation?
  • Do you take birth control?
  • Are you participating in fertility treatments?

These types of questions may prove even more discriminatory if only female applicants received such questions. However, if a prospective employer does make these or similar inquiries, he or she may be attempting to determine whether you may need maternity leave or other leave under the California Family Rights Act in the future.

How to handle discriminatory questions

When faced with any of these questions, you may have wondered the best way to answer. Some options include:

  • You provide an answer to the question.
  • You state that you do not feel comfortable answering the question.
  • You answer the implied question in regard to the employer’s concerns.
  • You ask how the question is relevant to the job opening.

No matter how you handled the question, you are not in the wrong. If you believe that your answer to any of these questions resulted in you not getting the position, you may want to consider taking additional action.

Even before employment, gender discrimination can take place. If you feel that you have been the victim of such actions, you may wish to obtain an assessment of your circumstances do determine whether filing a legal claim may suit your situation.

HAVE YOUR HONEST WAGES BEEN DISHONESTLY WITHHELD BY EMPLOYERS?

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On behalf of Robin Perkins of Perkins Asbill, A Professional Law Corporation posted in a blog on Friday, February 23, 2018.

You are likely among the many people who want to do their jobs right and to the best of their abilities. Because you certainly know that working hard could lead you to more successes, opportunities and income, you likely want to ensure that you do not give your employer reason to believe you have slacked off. However, you may feel concerned when you receive one paycheck — or more — that is lower than you anticipated.

Unfortunately, wage theft is a real concern in many areas of employment. Even worse, many workers do not realize that they have had their rightfully earned wages taken or withheld from them. Some employers may try to hide behind misclassifications or policies that do not adhere to employment law and due to a lack of knowledge on the subject, you and many others may not realize you have been unfairly compensated.

When does wage theft occur?

Wage theft does not always come about in obvious ways. Certainly, if your paycheck is lower than the pay you should have received for hours worked, then you likely know something is off. However, you could also face wage theft in other scenarios that may not seem as upfront, such as having to pay for your work uniform or other items needed to carry out your job duties. Other forms of wage theft include:

  • Stealing tips
  • Requiring that you work through meal and rest breaks
  • Deducting from your paycheck without legal cause
  • Paying you “off the books” and therefore, without record of your true pay
  • Requiring that you work off the clock and not paying you for those hours
  • Failing to pay you for overtime hours worked

Of course, other actions could potentially result in unpaid wages, and gaining information on California state laws may prove useful.

Can you fight wage theft?

Losing out on rightfully-earned pay can not only seem disheartening but also cause you to struggle financially. Luckily, options do exist for fighting wage theft. Reports indicate that more lawsuits have been filed in recent years in relation to this type of violation, but it is unclear whether wage theft is occurring more often or whether employees are better understanding their rights.

If you believe that you have missed out on earned compensation due to wage theft, you may want to look into your legal options. A successful legal claim against the liable parties may allow you to obtain back pay and other monetary restitution for resulting damages.

HAS YOUR CALIFORNIA EMPLOYER ASKED YOU TO SIGN A SEVERANCE DEAL?

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On behalf of Robin Perkins of Perkins Asbill, A Professional Law Corporation posted in a blog on Wednesday, January 24, 2018.

The day your boss called you into the office to discuss your current employment started out to be a workday like any other. It definitely didn’t finish that way, however. As you drove home, you could hardly believe you could now count yourself among hundreds of other California workers who showed up for work only to learn their employers were eliminating their positions or that their services were simply no longer needed. Such unexpected news can come as a blow and can be challenging to rise above.

Whether you’d been working for the same company for decades or were there less than a year, you always understood that no job is perfect and no one’s position is 100 percent secure, but you really didn’t think you had to worry about an untimely termination. If things became even more complicated when your boss slid a document in front of you during your meeting and asked you to sign a severance agreement, you are definitely not the first employee to encounter such a request.

Should you sign the dotted line?

Hopefully, you told your boss you’d need some time to think things over since the news of your termination came so suddenly. As with most contractual arrangements, there are potential pros and cons to severance agreements. The following list mentions key factors to keep in mind:

  • Caution is the name of the game when anyone asks you to sign anything in an official capacity. You have every right to make a counter request to take the documents home and read through them slowly and thoroughly before you decide whether to sign on.
  • A major component of most severance deals is that employees must agree to waive their rights to sue their employers regarding any issues pertaining to their terminations or other employment-related actions. Let’s say you think your boss fired you because you are pregnant. If you sign a severance agreement, there is no way to hold him or her legally accountable for wrongful termination even if the situation warrants it.
  • On the other hand, severance agreements are not meant to be one-sided. In exchange for your waiver, your boss must provide consideration. This means he or she must compensate you, either with money, benefits or both.
  • The release of liability you sign is not legally enforceable unless all required provisions are included in the contract.

You may, in fact, determine that the issue at hand is so minor you likely wouldn’t take any sort of legal action anyway because you don’t think it qualifies as unlawful since you know most California employers can hire and fire at will. If this is the case, then an exit contract (as it’s sometimes called) may be something you’re interested in; however, it’s always best to make absolutely certain before putting it in writing.

You can speak to others who have entered such contracts in the past and ask them if they were satisfied or if they had it to do over again, would they sign a second time? There are also experienced attorneys who can review a contract for an employee and provide counsel as to whether it seems in his or her best interests to sign.

FMLA AND CFRA: WHAT’S THE DIFFERENCE?

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On behalf of Robin Perkins of Perkins Asbill, A Professional Law Corporation posted in a blog on Thursday, December 28, 2017.

Life rarely goes as planned. Even when it does, certain events in your life require you to take a significant amount of time away from work. Faced with this prospect, you may begin to wonder whether your job will be there when you are ready to return to it.

Fortunately, the legislatures of both the federal government and the state of California understood that people must live their lives, and sometimes, that means not being able to work. The federal government responded to this need by enacting the Family and Medical Leave Act of 1993, and the state enacted the California Family Rights Act. Each act provides you with certain rights, but significant differences exist that you may want to be aware of if you need to take an extended absence from work.

The basics

Before discussing the differences between FMLA and CFRA, it may help to know the basic benefits offered to you under the acts. You may take 12 weeks of leave from your job without fear of losing your job for the following reasons:

  • You suffer from a serious health condition.
  • Your parent, spouse or child suffers from a serious health condition.
  • You recently adopted a child, had a child or a foster child was placed in your home.

One aspect of FMLA and CFRA that many people tend to misunderstand is the definition of a “serious health condition.” For the purposes of taking this type of leave, the definition includes the following:

  • An injury or accident requires you or an eligible family member to receive restorative plastic surgery or dental work.
  • An illness or injury leaves you or an eligible family member incapacitated for at least three days.
  • You or an eligible family member end up incapacitated due to hospitalization.
  • Your incapacitation or that of a qualifying family member continues after release from inpatient care.
  • You or a qualifying family member requires ongoing care and treatment for an incurable and long-term health condition.

If your situation qualifies you for FMLA or CFRA, you may also continue to receive health insurance benefits paid for by your employer during your time away from work.

The differences

The differences between the two acts include the following:

  • FMLA allows you leave to care for an injured or ill service member who is a child, parent, spouse or other next of kin. CFRA restricts leave to just a child, parent or spouse.
  • FMLA considers pregnancy as a serious health condition. CFRA does not include pregnancy itself as a qualifying condition. However, leave may be available under the state’s Pregnancy Disability Leave.
  • FMLA allows leave if a family member is, or is called to, activity duty military under certain conditions. CFRA does not cover this type of leave.
  • FMLA does not consider registered domestic partners as equal to spouses. CFRA does.

You may also be able to take advantage of California’s Paid Family Leave, which would provide you with six weeks of paid leave if you qualify for this temporary disability insurance program.

The problem

Whether it’s FMLA or CFRA, a great deal of confusion continues to exist regarding an employee’s use of this type of leave. You may encounter resistance from your employer regarding taking this leave. The application process and requirements placed on you in order to qualify can be complex. If you find yourself in a position in which you need FMLA or CFRA leave, it may benefit you greatly to gain an understanding of your rightsand assistance with obtaining the time off you need.

MAKING ENDS MEET WHEN YOU TAKE OFF WORK FOR FAMILY HEALTH CRISIS

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On behalf of Robin Perkins of Perkins Asbill, A Professional Law Corporation posted in a blog on Monday, November 20, 2017.

You never know when a serious health crisis will arise in your family. Perhaps you are one of many California workers currently helping a family member in his or her fight against cancer. Maybe your spouse is suffering a debilitating illness related to Lyme disease or some other chronic illness. Caring for a loved one who is extremely ill can be quite stressful. In addition to the strain it may place on your personal physical and mental well-being, it can also cause major problems at work.

California, like most other states, has laws regarding family leave and benefits to which you may be entitled if you have to take an extended absence from your job in order to care for an ailing loved one. Such laws may vary, depending on which region of the state in which you happen to work.

Paid family leave facts that may pertain to your situation

Determining whether you’re eligible for family leave can be stressful. That’s because laws are not standard throughout the state. For instance, if you work in San Francisco, you may eligible for additional benefits that workers in other areas are not. Knowing where to turn for support ahead of time may help you avoid a lot of stress. The following list provides facts that may help clarify your particular eligibility issues:

  • In this state, you may able to receive more than half regular wages while on paid family leave, so long as that amount does not exceed $1,173 per week.
  • To collect paid family leave benefits, your situation must fall under an approved category, such as the need to miss work to bond with a newborn infant or adopted child or to care of an immediate family member who is ill.
  • Only certain family members qualify as immediate relatives, such as spouses, children or parents.
  • The type of illness your family member has must also be on the list of approved reasons to collect benefits. In short, a minor sore throat or even the flu typically does not satisfy eligibility requirements.
  • Your own illness generally does not qualify you for paid family leave benefits unless you happen to work in San Francisco.

Family medical leave laws are often complex and the last thing you need while caring for an ill loved one is to have to battle the system just to get the benefits you need to help make ends meet at home while you’re absent from work. Knowing what resources are available to help you simplify the process may prevent stress overload.

YOUR PREGNANCY SHOULDN’T LAND YOU IN AN UNEMPLOYMENT LINE

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On behalf of Robin Perkins of Perkins Asbill, A Professional Law Corporation posted in a blog on Friday, October 27, 2017.

Are you one of many California mothers-to-be who feels as though she has waited a lifetime to conceive a child? No wonder when you learned of your expected bundle of joy, you wanted to rush right out and share your good news with all your friends, families and coworkers. Since you work in an office, you weren’t worried in the least that your pregnancy might somehow impede your ability to do your job.

You simply figured you’d get up and stretch your legs as needed as the months wore on and you neared your due date. In fact, you and your spouse already agreed you would work right up until your baby arrived. You had it all planned and were excited and eagerly anticipating the months ahead, that is, until  you told your boss you were pregnant and lost your job a couple weeks later.

There are laws against wrongful job termination

Like most states, employers in California may fire people at will. That does not give them free license to unlawfully terminate your position, however. There are several types of issues that may signify unlawful termination in the workplace, which are highlighted in the following list:

  • If you believe your boss fired you as a form of discrimination or harassment, you may have grounds to file an official unlawful termination complaint.
  • If you recently filed a complaint against your employer and were terminated in retaliation, you definitely have reason to further investigate the matter.
  • If you were working under a signed contract or legally enforceable verbal agreement, your employer can not violate those terms.
  • Your employer may also not violate existing state or federal labor laws.

In addition to causing you emotional trauma, your sudden and unexpected termination from work may have placed undue financial hardship on your growing family as well. It’s not uncommon nowadays for both spouses to work full time, just to make ends meet. Suddenly losing an entire income may take you to the brink of serious financial crisis. This is why the law allows you to fight against unfair treatment in the workplace.

How to prepare for action

It’s best to try to remain calm and not directly confront your former boss, no matter how tempting it may be to give him or her a piece of your mind. Instead, you may stand more of a chance for success if you ask an experienced employment law attorney to act on your behalf to request a review of your file and inquire as to the particular reasons for your dismissal. From there, such matters may be addressed in court, if necessary.

FAMILY CAREGIVERS CARRY HEAVY LOADS AT HOME AND AT WORK

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On behalf of Robin Perkins of Perkins Asbill, A Professional Law Corporation posted in a blog on Thursday, September 28, 2017.

The latest statistics reveal that 60 percent of employees in California and across the country are also caring for a loved one in some capacity. Most of them are working full-time jobs and are experiencing health issues of their own, either because of age or the stress of their burdens.

If you are among those caregivers, you know firsthand how difficult it is to balance the needs of your ailing loved one with your job, your family and your personal well-being. Unfortunately, many in your circumstances find that their employers are not always compassionate toward their situations, and some face outright discrimination because of their position as caregivers.

What does FRD look like?

The law protects you from many kinds of discrimination, and among them is Family Responsibilities Discrimination. If you have caregiving responsibilities to your children, your ailing partner, your elderly parents or yourself as an expectant mother, you may be the victim of FRD if your employer does any of the following:

  • Rejecting you for a position for which you are well qualified
  • Passing you over for a promotion you deserve
  • Demoting you
  • Harassing you because of your absences
  • Terminating you
  • Pressuring you into removing your ailing loved one from your health insurance plan
  • Denying you the legal right to time off to care for an ailing loved one

The fear of any of these consequences may make you reluctant to approach your employer to request time off to tend to the needs of your family, especially if you have seen co-workers mistreated for similar reasons. In fact, about 28 percent of care-giving employees report they have kept their family obligations secret from their employers.

Finding support wherever you can

Advocates for family caregivers remind them to take care of themselves. Many caregivers admit they delay seeking medical attention for their own complaints, and you may be among those suffering from untreated high blood pressure, diabetes, pulmonary disease and depression. Support groups exist to help you carry the load, and you may find great benefit in taking advantage of their services.

Meanwhile, if you feel your employer has discriminated against you because you are a family caregiver, you may begin with a calm discussion to ascertain why your employer treated you this way. If this conversation doesn’t end satisfactorily or the negative actions continue, you have every right to seek assistance from a legal professional.

A DIFFICULT PREGNANCY SHOULDN’T AFFECT YOUR EMPLOYMENT STATUS

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On behalf of Robin Perkins of Perkins Asbill, A Professional Law Corporation posted in a blog on Thursday, August 31, 2017.

Not everyone has an easy pregnancy, but even a normal pregnancy will affect your employment in some ways. However, the way in which it can’t affect your job is your boss’s reaction. Your employer can’t discriminate against you in any fashion because of your pregnancy.

Your employer may even be required to provide you with certain accommodations during your pregnancy. This could even involve moving you into a different position temporarily. However, you should return to your original position when you return to work after the birth. If you are having a particularly difficult pregnancy, you may need to take time off work in order to deal with the issue. You are entitled to take that time.

What accommodations am I entitled to during my pregnancy?

Reasonable accommodations include those things that help keep you and your unborn child safe and comfortable while you are working. These may include many things, such as one or more of the following:

  • More frequent or longer breaks
  • A chair or stool
  • Less strenuous duties

This is not an exhaustive list of the accommodations you may need or that your employer may provide you. You can discuss other assistance with your employer.

You can get time off for pregnancy issues

As mentioned above, California law provides for something called pregnancy disability leave. If you suffer from a condition during your pregnancy that requires you to be off work, you can take up to four months. Your employer can require you to use your paid sick time first, but can’t require you to use your vacation time. You do not have to be employed for a certain amount of time or work a certain number of hours to use this type of leave.

Whether you receive payment for this time off depends on your employer’s temporary disability policies. In addition, if that policy allows for more than four months, you may take that same amount of time if necessary. You also do not have to take all of the time at once. You may use it to modify your work hours or work week. You may decide to take several days in a row at certain times, or you may take it all at once if you need to do so.

If your employer fails to provide you with reasonable accommodations or attempts to deny you pregnancy disability leave, you may file a complaint. The law affords these rights to you, and if your employer is subject to the laws regarding pregnancy discrimination and disability, you should receive them. If you need help obtaining what you need in order to work while pregnant, it is available.

5 FAQS ON FAMILY LEAVE IN CALIFORNIA

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On behalf of Robin Perkins of Perkins Asbill, A Professional Law Corporation posted in a blog on Tuesday, April 25, 2017.

If you struggle to balance work and family caregiving responsibilities, you are not alone. From new parents with infants to older workers with aging parents, caregiving issues are huge for many workers.

What are the options, in California, for helping to manage both your paid employment and caregiving duties?

In this post, we will use a Q & A format to take note of five useful things to know in understanding your options.

How many employers have company-specific policies that allow for paid time off?

Some supportive employers do offer paid family leave to employees to take care of a newborn or other family member. If you work for a progressive employer, in a favorable industry such as tech, the leave may even be several months.

Nationally, however, only about 14 percent of workers have access to paid family leave through employers. Indeed, the majority of workers in the U.S. do not even get personal medical leave under employer-provided insurance policies for temporary disability. Fewer than 40 of employees have such coverage.

Does California law go beyond federal law in providing family leave?

Yes.

Under the federal Family and Medical Leave Act (FMLA), employees who have worked for a certain amount of time for an employer are entitled to take unpaid, job-protected leave for up to 12 weeks upon the birth or adoption of a child, to care for an immediate family member, or for a serious health condition.

In California, a state law called the California Family Rights Act (CFRA) provides similar protections. Like the FMLA, leave under CFRA is unpaid.

CFRA differs from FMLA, however, in how it treats pregnancy. Under the FMLA, pregnancy is classified as a “serious health condition.” Under CFRA, pregnancy is not lumped in with other serious health conditions. Instead, if you are pregnant and work for an employer with five or more employees, CFRA grants you the right to take up to 16 weeks (about four months) of pregnancy disability leave (PDL).

What about paid leave?

As noted earlier, some employers do offer paid leave to allow employees to take on caregiving duties. Most employers, however, do not.

In California, state law provides for a 6-week paid family leave (PFL) program to bond with a new child or take care of a seriously ill family member.

PFL benefits are only partial. They offer eligible workers up to 55 percent of what they were making previously. And they only last for six weeks.

To be sure, that’s better than nothing. But when what you making is cut nearly in half, clearly that’s a serious financial hit.

What if you work part-time or intermittently? Can you still be eligible for PFL?

Yes, it is possible to be eligible for PFL, even if you work intermittently or part-time. But you must be able to show you are unable to keep doing that work due to caregiving duties. You must also show a wage loss.

What about keeping your job when you come back from using family leave?

Under the FMLA, if you who work a company with 50 or more employees, your job is protected while you’re gone on leave.

Last year, Governor Brown vetoed a California law that would have created comparable protections for employees at small businesses with between 20 and 49 employees. This means that, even in California – one of only a handful of states with paid family leave – you can lose your job for using that leave if you work for small employer.