CA WORKLAW

So you think you got lucky? (Surviving a Layoff)

2009-05-28T10:10:00.000-07:00

If you find you're working the job of two people after surviving a layoff, you are not alone. More than a third of workers surviving layoffs report they are doing the job of two people: http://tinyurl.com/n7h24v

At least in California, this could mean that employers are not properly paying the remaining employees who were not laid-off. If you are a salaried employee, and are not paid for your overtime work, your employer may only require you to do work that is "exempt" from the overtime rules. Salaried employee are typically (1) involved in work that requires a professional degree (e.g., doctors, lawyers); or (2) spend more than half their day managing other employees or (3) spend more than half their day creating company policy.

When layoffs occur, and salaried employees are required to do the work of subordinate employees who were fired, the salaried employees may no longer be exempt from overtime because they are being forced to do non-exempt work. These cases are known as "mis-classification" cases, meaning that the employer has mis-classified the employee as salaried, in order to avoid payment of overtime.

As layoffs continue, more of these mis-classification cases will likely be filed.

Disclaimer: Nothing on this page is intended as legal advice; nor does the reading of this page create an attorney-client relationship. If you have a legal claim, or need to defend a claim, you are advised to seek an attorney immediately.

Court Overturns Grant of Summary Judgment in Pregnancy Discrimination Claim

2009-05-01T05:46:00.000-07:00

A California appeals court overturned a lower court's grant of summary judgment in a pregnancy discrimination claim: The case is Johnson v. United Cerebral Palsy: http://www.courtinfo.ca.gov/opinions/documents/B198888A.DOC

Dewandra Johnson became pregnant and was taken off work by her doctor for one week. The day after she came back to work she was fired. At trial, she gathered declarations from other witnesses who were fired after disclosing to the company that they were pregnant.

The company claimed that Johnson was fired for time card fraud -- by claiming money for work on a day that she did not work. Plaintiff challenged the reasons for her termination, claiming that she was never disciplined for poor work performance, and that she did work on the day she claimed in her time sheets.

Plaintiff also presented declarations from other past employees who became pregnant and were fired shortly afterwards.

The trial court ignored these declarations, and granted the employer summary judgment, meaning that plaintiff's case was thrown out before she could get a trial.

The appeals court overturned that decision, and handed employees an important victory. In this case, the court ruled, there was enough evidence, given the timing of the termination, the evidence of other women also being fired, and plaintiff's evidence disputing the time card issue, for the case to go to trial and be decided by a jury.

From an employee's perspective there are other lessons to draw from this case. If an employer wants to fire you, they will find a way to do it. "Time card fraud" is a recurring reason used by employers to fire employees. And, even if you think you have a strong claim, and a good lawyer, you never know whether you will get a good judge.

Ms. Johnson was fired in August, 2005. The case will now go back to the trial level for a jury trial -- almost four years later.

Disclaimer: Nothing on this page is intended as legal advice; nor does the reading of this page create an attorney-client relationship. If you have a legal claim, or need to defend a claim, you are advised to seek an attorney immediately.

Discrimination Claims for Unionized Employees

2009-04-22T09:58:00.000-07:00

The US Supreme Court handed employers a victory this month by ruling that a union contract can prevent employees with discrimination claims from filing suit. The ruling is limited to the facts of the case. . .

The clause in the particular union contract read that arbitration would be "the sole and exclusive remedy" for discrimination claims. Given this language, the Court ruled that employees working under this contract could not file discrimination claims in court.

The opinion is here:

http://www.supremecourtus.gov/opinions/08pdf/07-581.pdf

COBRA continuation coverage

2009-04-21T17:21:00.001-07:00

Employers who layoff employees who are subject to COBRA (continuation of medical benefits under federal law) must pay 65% of the premium under federal law.

If you earn more than the income limit you will have to pay back the amount paid to you, as a tax.

The IRS has issued rules about eligibility for the 65% payment of COBRA coverage:

http://www.irs.gov/pub/irs-drop/n-09-27.pdf

Equitable Tolling of Discrimination Claims

2009-04-21T16:31:00.000-07:00

Before filing a complaint of discrimination, you are required to file an administrative complaint with the Department of Fair Employment and Housing. That time limit is normally one year from the last act. (Disclaimer: You must consult an attorney regarding the specific facts of your case to determine applicable time limits.)

The California Supreme Court has extended that time limit in some situations. The Court ruled that employees who first follow internal complaints or some other mechanism to resolve discrimination claims "toll" the time limit for filing administrative complaints with the Department of Fair Employment and Housing.

The doctrine is called "equitable tolling," and the decision can be found here: www.courtinfo.ca.gov/opinions/archive/S153964.DOC