In the case of Nadaf-Rahrov v. Neiman Marcus 166 Cal.App.4th at 952, a California Court of Appeal reversed the trial judge’s decision which had held that an employer “was not required to wait indefinitely for [the employee’s] medical condition to improve” so that she could perform an available job. Plaintiff in the Neimen Marcus case had allegedly told her employer that she was “prohibited from performing work of any kind.” Court of Appeal saw the case differently. According to the Court of Appeal the federal rule in asking employers to allow employees to show that they could perform the work in a vacant position with or without a reasonable accommodation. The court agreed that the position must exist and be vacant. The court concluded that the there was no evidence that the alleged statement that the employee could not perform any work was made at the time of her termination so there could have been jobs that she could have performed when terminated. Of course this ruling does not change the fact that employers still need not provide an accommodation to a disabled employee if that accommodation would cause the employer “undue hardship.” FEHA defines undue hardship as an action requiring significant difficulty or expense when the : cost and nature, the overall resources of the employer, type of employer’s operation, financial resources of employer are considered. However, it does make it clear that the employer must on an ongoing fashion monitor its situation to ensure that the “undue hardship” still exists. Orange County disability discrimination attorneys of Employment Law Team can evaluate the facts of each case and advise potential clients on whether there has been a violation of FEHA, FMLA or other statutes.
Fakhimi & Associates in association with other counsel settles trucking overtime class action.
Attorneys of Fakhimi & Associates along with other co-counsel and associated counsel were able to reach a settlement agreement on a class action on behalf of truckers working for a central California company hauling petroleum products. The settlement provides for payment of a lump sum to be distributed between all employees who worked as truckers for the company from March of 2004 to March of 2008 and were not paid overtime wages for any work over 8 hours a day or 40 hours a week. The settlement still has to receive the court’s Preliminary and Final approval before it becomes official. This settlement is especially encouraging as the defendants had raised certain defenses with regards to exemptions under Motor Carrier Safety Exemption (MCSE) and exemptions under Department of Transportation under HAZMAT. Any trucker who is working more than 8 hour a day or 40 hours a week without receiving overtime wages and whose job does not (or very rarely) takes him across state lines is encouraged to contact Employment Law Team at 877-529-4545. Those hauling rocks, cement or other items from quarries are encouraged to contact us.
New DOL wage and hour opinion letter.
On March 6, 2009, the United States Department of Labor (DOL) released two Opinion Letter FLSA2009-16 which approved “compressed work schedule” by employers. although at first glance this opinion letter may seem to undermine the single workweek rule of Fair Labor Standards Act, in reality the specific situation addressed by the opinion does not run afoul of FLSA as the work performed on Fridays under the particular employer’s plan gets split between two workweeks and therefore, the employee is only working 40 hours each workweek. The bad news for employees is that DOL seems to be open to employers coming up with creative schemes to avoid payment of overtime. It is incumbent upon employee’s rights attorneys to challenge any scheme which seeks to circumvent FLSA or California law by skillfully manipulating the workweek rules.
New Developments in Labor Law (2008)
Beginning January 1, 2009, California’s Senate Bill 940 creates new requirements for employers in the temporary service field. Although current laws require employers to pay employees at least twice a month, new law mandates that temporary service employers pay employees on a week to week assignments weekly and those working day to day daily. This bill would not apply to employees who are assigned to an employer for more than 90 days. This new law will be codified under Labor Code section 201.3. Those employers who use the services of temporary agencies should be very careful in making sure that their vendors are in compliance with this new law.
In the case of McDonald v . Antelope Valley Community College Dist. 45 Cal.4th 88, California Supreme Court held that employees may now have more than one year to file their claim and request a “Right to Sue” letter from the Department of Fair Housing as required by the FEHA Act. The Act applies to cases involving sexual harassment, sexual, racial, or disability discrimination and cases involving failure to accommodate a disability or retaliation. According to the court the doctrine of “equitable tolling” may apply to FEHAs one year statute of limitations and toll the limitations period while the employee is pursuing other available remedies such as an internal investigation by the employer or agency.
New Changes to FMLA
It generally takes months and years before a piece of legislation such as the Federal Medical Leave Act (FMLA) can become law. However, apparently in the last 60 days of an administration, the outgoing president can get new rules onto the books without input from congress. This is sometimes called “midnight rule-making” – even if 60 days (or the 30-day waiting period for lesser rules) make for a long midnight.
FMLA was passed during the Clinton administration, to address issues related to leaves requested by employees who needed to attend to their own medical conditions or conditions of a family member. FMLA lets workers take unpaid leave to tend to medical and family needs. To learn more about FMLA and its California counterpart visit our site at https://www.employmentlawteam.com/lawyer-attorney-1327455.html. Draft regulations put forth by the Department of Labor have now become official through the 60 day rule. Although there are aspects of the law that are welcomed by most ( help provided to military families) there are changes implemented than can severely affect an employee’s rights. For a detailed review of new changes visit DOL’s site at http://www.dol.gov/esa/whd/fmla/finalrule.htm. The new changes put in place will take effect on January 19, 2009.
Among the most controversial new requirements is the requirement that workers must warn their bosses that they are planning to miss work “absent unusual circumstances.” This could severely affect the rights of those workers who may suffer a sudden illness or be faced with an immediate need to care for a loved one. Another rule change that will negatively impact the workforce is that the employers will be allowed to consider FMLA absences in determining bonuses and other rewards. Employers will be able to disqualify employees from bonuses or other payments based on achievement of a specified job-related performance goal (such as attendance) when the employee has not met the goal due to FMLA leave, so long as this is done in a nondiscriminatory manner.
Repeat Labor Code Offenders.
Last year I had the opportunity to represent a couple who worked for a rather large bakery for close to two years. These two young Hispanic workers were cheated out of the overtime they worked by their employer. Once we contacted the employer I was surprised to encounter a rather self righteous person who seemed to think that the two workers were lucky just to have a job with her. She also seemed to think that the immigration status of the employees somehow could be used as a defense for her and her company’s violations of the labor code. The case eventually settled and resulted in a confidential agreement and I assumed that was the end of my dealing s with this particular employer. However, just this weekend I was approached by other employees of the same company who are also being denied overtime wages and rest breaks! This time the company has gone as far as even paying the workers portion of their earning (without additions for overtime) in a separate check without any deductions. So now we not only have violations of overtime and rest/break laws, but the employer has also ventured into the world of violating Labor Code Section 226 which requires a pay stub and a statement be provided to the employee showing all deductions.
Having been hired by the employees affected I intend to do my best to preserve and protect their rights; however, I am rather disappointed to see that this particular employer has not learned his/her lesson. In criminal law an offender with a prior record gets enhanced sentencing for new violations. Should we apply the same standard to violators of the Labor Code too? If we did then that threat might act a deterrent to many employers who simply violate the law because they know they can’t be caught for each violation.
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Attorney’s Fees and their Propriety in Litigation.
Many critiques, especially those who represent employers, argue that statute which make the prevailing employees entitled to attorney’s fees should be amended as such laws promote litigation. I disagree!
Major corporations and most businesses have lawyers on staff or retainer and at the first indication of litigation they will unleash their legal team on the employee. Although most employee rights attorneys are capable, experienced and dedicated lawyers, there can be no doubt that employee’s rights attorneys don’t have the resources available to employers’ attorneys. As a result, attorneys who take employee cases are always fighting an uphill battle and face enormous odds. Attorneys representing employers however, get paid per hour (many times $500 per hour or more) and will get paid loose or win. Should an employee prevail in his/her case she will only receive what is rightfully hers and nothing more. Now, would it be fair to have her pay percentage if her rightful recovery to her attorneys? It would not. As a result legislators have inserted attorney’s fees clauses in most employee right statutes to ensure that capable, diligent and experienced attorneys take on sexual harassment, age discrimination, race discrimination, overtime non-payment cases and other cases affecting the workforce.
Without such provisions (attorney’s fees statutes) employees would never be able to hire qualified attorneys and will always be “out gunned” by employers. Removal of attorney’s fees clauses will have a “chilling effect” on employees seeking their rights. Of course, frivolous lawsuits and cases brought maliciously should always subject the party who brings it or the attorney who knowingly takes part in it to penalties and sanctions.
What Is a Case’s Value?
Our civil justice system is about providing Plaintiff or the party who brings an action or lawsuit with remedies. These remedies can either be in the form of damages or what are called injunctive remedies. Damage generally refers to monetary awards, while injunctive relief can be an order from the court to the defendants to do or refrain from doing something specific.
In a typical employment case the employee or plaintiff will sue the employer for damages. Damages that an ex-employee/plaintiff is entitled to are: past wages, future loss of wages, damages for emotional distress, interest on the losses, punitive damages and payment of plaintiff’s attorney’s fees. Should the terminated employee find a job or be offered his/her old job back by the employer then his or her loss of wages claims is limited to the sum he/she lost before the offer or finding of the new job. Emotional distress is a tricky scenario which involves evaluating many factors before a dollar figure can be assigned to a plaintiff’s losses. Of course, many defendants will try to make a big deal out of the fact that the Plaintiff may not have sought professional help or has not taken any medications. An experienced employment and discrimination attorney however, should be able to counter these points and recover a fair sum if the client has suffered emotional suffering. Finally, punitive damages will be awarded based on how egregious defendant’s conduct has been and how rich defendant is. There are many cases which direct the trial court to limit the amount of punitive damages.
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Does Mediation Work for Employment and Discrimination Cases?
Simple answer is YES. I have litigated every kind of employment law case you can think of. I have been involved in retaliation cases which had to do with an employee complaining of: sexual harassment, sexual discrimination against an employee or an applicant, or violations of the law. I have also been part of cases dealing with age discrimination, disability discrimination and failure to accommodate a disabled employee, failure to pay overtime, failure to pay wages agreed upon, ……. What’s more, I have represented clients on both sides of the aisle. I have defended major public companies and have had the pleasure of representing some of the most vulnerable members of our community the elderly and the young. I write all of this to let the reader know that I have seen it all (pretty much) and am a strong believer in mediating cases. The one caveat I have however, is that you have to use the right mediator.
In my opinion the right mediator is one who knows the area of law, has had experience in that particular field as a lawyer or a judge, and does not depend on a certain industry or side (defense) for most of his cases. If both sides can agree on such a candidate, and the parties are reasonable, I can’t see why most cases cannot be resolved at mediations.
Why I Still Believe in Class Actions
Class Actions as a tool of addressing legal matters and class action lawyers as a whole have been the subject of much attack and criticism by the business industry and some in the media for the past decade or so. The criticism has also made its way into the halls of congress and in 2005, Congress passed the Class Action Fairness Act of 2005. Purpose of the Act was to reduce unwarranted and frivolous Class Actions and to streamline the dockets for cases. As someone who has defended against class actions and their constant threat while serving as the General Counsel and then the lead litigation attorney representing public companies I have seen my chare of bogus class actions which do nothing as far helping consumers and only fill the pockets of the class attorneys. However, as a whole I am a strong believer in the system which allows many powerless individuals to band together and challenge illegal and unlawful conduct of big and powerful interests. Without this tool many wrongs will go unaddressed due to the fact that litigating cases on a one by one basis would not make any sense for any attorney to agree to represent consumers individually.
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