California Employment Law Questions and Answers

California Employment Law Attorney Frank Pray Answers to Q & A

Employment Law Answers by California Employment Attorney Frank Pray to Reader Questions from websites LawGuru and AVVO.

California Employment Law Questions and Answers

Real People, Straight Answers.

California Employment Law Attorney Frank Pray offers these Q&A as a live dynamic feed  of his answers posted on  Law Guru or from AVVO as a public service to readers.  This service is for public education, and is not legal advice upon which to base action in any particular matter.

Employment Law Attorney Frank Pray Replies:  “I Dare to Be Spare.”  The following off-the-cuff short form responses to online questions demonstrate a principle first articulated Blaise Pascal in 1657:

I have made this longer than usual because I have not had time to make it shorter.

THESE LETTERS NESTLE EMPLOYMENT WITHIN LAW.

 

From AVVO Nov. 12, 2016

QUESTION:

RE:  Criminal Defense Drug Test Employment Health Care Labor Marijuana Medical Marijuana Wage

I am curious about one thing and perhaps I can gain some insight from you fine attorneys here! The California Supreme Court has ruled that the state’s medical marijuana law applies only to criminal prosecution, not to the workplace, thus employers are free to fire you should you fail a drug test for Marijuana, even when the only time you use it is outside of work hours.

I haven’t been able to find any cases that brings up California Labor Code 96(k): “Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.”

Has this ever been challenged in court? I can’t seem to find anything. With the passing of Prop 64 the other day, would employees be able to use this as a legitimate defense against termination?

ANSWER:

Creative question! The best analogy would be to drinking on the job. An employer can restrict the ingestion of mind altering substances at work. Most have policies against use of alcohol during work hours. We also know managers will have wine or something stronger at extended lunches, and return to work slightly buzzed (or worse) and the employer tolerates this conduct.

But you add: what about drug testing, and testing specifically for marijuana as a controlled substance? Add to the equation that California’s state constitution includes individual privacy rights against private citizen-employers. So you smoke a few on Sunday night and are tested on Monday morning, and trace elements are found. Is this a privacy invasion? The question comes down to whether your use effects your ability to perform your job. That question is especially relevant if you operate heavy machinery or drive for a common carrier, for example. Bottom line: don’t expose yourself to detection. An occasional marijuana user will have detectable traces for about 4 days, while frequent users can be detected for up to 10 days after last use. The rate varies by metabolic rate and the purity of the “kick” ingredient, THC.

Employers will have to make tough decisions. If the marijuana use escalates as anticipated, and if most of the work force is detectable within that 2 to 10 day window, the allowable trace elements may have to be increased over the current ceiling. There may be a new definition of a “highly motivated” work force. Be safe.

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DISCLAIMER:  The Employment Law Attorney Frank Pray replies to these publicly posted inquiries as a public service. This and other internet posted information at http://www.employee-rights-atty.com is not intended as reliable legal advice for your situation. That means you can use the information as a first step to determining your employment law rights, but the information is not reliable legal advice. Further, if your employment and / or termination did not occur in California, you are especially warned not to look to my responses as an effort to practice employment law outside California, as I am not licensed to do so. No present or future professional duty is created or to be implied by this answer. However, my hope is that you have the satisfaction of better understanding your rights, and that this reply points you in the right direction.

 

From AVVO August, 2016

Question: Can I Do Anything About This?

The Reader’s Statement of “facts:”

At work I was demoted because the Chief Doctor didn’t like me. It was confirmed by my manger and HR he made up lies to get me out as a supervisor. I was told I could “either stay in the position until I get worked out of the organization.” Or take a lesser role. I complained to my manager time and again about the hostile work environment and had already formally complained about this doctor. My manager ignored my complaints. I was never written up, coached or spoken to about anything prior to demotion, just went straight to that extreme. They threatened to cut my pay but I would not let them and forced me to change my hours because my current hours didn’t work for them, even though they forced me out of the position. They also made me pick 3 times a day to lactate and told me I spent too much time pumping and that other mothers only pumped for 20 minutes so I should do the same, even though at the time I was exempt. They also did not provide coverage for me during one occasion so I could take a break to pump after I asked for it. I am now just a regular staff nurse, forced into a position that I felt if I did not take, I would lose my job altogether.

Answer by Attorney Francis Pray, Employee Rights Attorney

Yes, you can take action to protect important rights related to your demotion and possible discrimination. First, challenge H.R.’s lackadaisical response. Your “complaint” may have been legally protected IF it concerned your status in a “protected category.” Those categories as applicable to you could include your pregnancy and need for lactation accommodation. The timeline is not clear, but you suggest that you complained about a hostile work environment, and were then demoted. IF the complaint could be construed as a complaint about discrimination and harassment related to your protected status, then the demotion could be found retaliatory. Retaliation because of an informal internal complaint about discrimination is itself a violation of the anti-discrimination laws. Also, your employer (H.R.) had an independent duty to immediately investigate and correct harassment and discrimination on the job. Here, your H.R. seemed not only to condone it, but to actively advance it.

The lactation need is a related but independent right. You indicate your employer imposed limits of frequency and duration for your lactation. Both state and federal laws permit breaks for lactation. There is a $100 per violation penalty provided by California [CA Labor C. Sec. 1030-1033] and $1,100 under Federal law if the violation is willful. The law provides for “reasonable” accommodation. That is, the employer has pre-defined “reasonable” arbitrarily without regard to your specific biological realities. You are not “other mothers.” While there is no requirement for a “doctor’s note,” you may want to see your family doctor to clarify to the employer that your lactation may require more than 20 minutes. By the way, the employer has a high hurdle to show that your requested accommodation is an “undue hardship.” The law itself does not limit the number of breaks, but allows the employer to have you use your regular break time. However, additional breaks must be made available if not taken concurrently with the usual breaks. A private space must be provided to you in proximity to your work area, and the time needed is “net time” to lactate, not the time needed to reach the location. The location cannot be a bathroom.

Bottom line: important rights appear to have been violated. Make sure your future internal “complaints” are specific to include reference to your “protected category” rights, and I suggest those be in writing. You should also be aware of statutory time limits to file discrimination and retaliation complaints with the California Department of Fair Employment and Housing.

From AVVO July, 2016

Question: Former Employer Giving Me Bad References.  What Can I Do?

I left my previous employment after my employers’ wife confided in me that she was planning on divorcing her husband and she then asked me if I would take her prenup to a lawyer to see if there was a way out of it. Naturally, having been friends with my employer for a number of years, I told him what had happened and that I didn’t want to be in that situation. I decided that I couldn’t work there any more seeing as he wife could now no longer stand the sight of me (obviously,) I signed a release and received severance for a few weeks. Meanwhile my former employer insisted that I turn over all the written communication his wife had sent me on this subject but I declined. Which, in hindsight was a bad idea, because as I’ve come to find out, he’s pretty much sabotaged every job opportunity since then. This has now been the third job interview where I make it trough several rounds, get to the point of discussing salary & start date and then suddenly, boom, thank you but we’re no longer interested. Having signed a release saying I won’t sue him, does that allow him to tell lies to potential employers and get away with it?! Please help.

Answer by Attorney Francis Pray, Employee Rights Attorney

Your employer is interfering with your job opportunities. The type of case is called “tortious interference with prospective business relations.” Your case is simple on paper, but more difficult on one element particularly — overcoming the former employer’s claim of a “qualified immunity” to discuss your work performance honestly and without malice. You must prove his malicious intent to harm. The private and highly charged husband-wife relationship could support the case for “malice,” if your ex-boss perceives you siding with his ex-wife. Another challenge is to get the testimony (in a deposition) of the prospective new employer confirming the “interference.” Most of these communications are “off the record” when they first occur. Your specific question is whether your signed release prevents your suit for post-resignation defamation or tortious interference. The answer is “no.” A release as a matter of public policy and law cannot cover future illegal acts.

From AVVO June, 2016

Question:  Mandatory Overtime for CA Nurses?

I’ve been an RN in California many years and now work for an Acute Dialysis company. All the RN’s in employment are being required to work up to, and over 24 hour long shifts on a regular basis. This is continuous on the clock work with only meal breaks. Our employer says we have to stay because they are emergency dialysis cases. We do not feel safe doing this, cannot get our employer to implement a maximum hour limit, and since we are non-union don’t seem to have any recourse in this matter. This employer contracts with various hospitals to perform acute dialysis services. As long as the physician orders the treatments we have to perform them. They do pay us appropriately for double time after 12 hours. Only thing we can find is an older Senate Bill 1027 that discusses maximum overtime hours for RN’s, but not sure it is applicable any longer. Any suggestions on what can be done?

Answer by Attorney Francis Pray, Employee Rights Attorney

California is one of a small number of states that restrict mandatory consecutive overtime for nurses.  Nursing employees cannot be required to work more than 12 hours in a 24-hour period, except in cases of emergency.  The regulation includes an anti-retaliation provision.  The reason is patient safety.  Studies have shown increased error rates with sleep deprivation and resulting fatigue. [Note also that an “alternative work schedule” requires strict compliance with 3 statutory requirements, and overtime must be paid at the 12- hour mark in any event.]  As you are working in a life critical function, your resistance to breaking the law would be a protected activity, and firing you because of that resistance would be a “wrongful termination in violation of public policy.”  Your employer may say the clinic employees are volunteering to work the overtime, but that assertion can be disproven by evidence of discriminatory actions taken against nurses who decline to work more than 12 continuous hours in a 24-hour period.  If the “mandated” overtime involves all the nurses, you should discuss among yourselves a concerted action to require compliance with the law, and even consider a class action if the duration and scope of the violation justifies formation of a class.

From AVVO “Asker” Who Rated this Response as “Best Answer.”  June 18, 2016

Asker
Posted 16 days ago.

This information could be very helpful for our staff! Is there any specific labor code or regulation that mentions the “Nurses not being required to work more than 12 hours in a 24 hour period, except in an emergency” that I could reference? We are all willing to work long hours when needed, but would like to be asked, not told we have to. Sometimes we do feel unsafe. Thanks!

Francis Xavier Pray
Francis Xavier Pray, Employment / Labor Attorney – Newport Beach, CA
Posted 1 minute ago.

Sorry for the delay in posting this reply by comment. The Regulation is IWC Work Order Sec. 11040 and the specific subpart applicable to nurses reads as follows:

(9) No employee assigned to work a 12-hour shift established pursuant to this order shall be required to work more than 12 hours in any 24-hour period unless the chief nursing officer or authorized executive declares that:

(a) A “health care emergency”, as defined above, exists in this order; and

(b) All reasonable steps have been taken to provide required staffing; and

(c) Considering overall operational status needs, continued overtime is necessary to provide required staffing.

Note: the mere existence of an emergency is not enough. Independently of the occasional emergency, there must be reasonable steps to provide adequate staffing. To me, this implies that patient safety would require more nurses “on call” to work fewer hours per nurse rather than relying only fewer nurses working longer hours.

From AVVO May, 2016

Question:  Could this be considered a Wrongful Termination and Discrimination Case in the State of California?

I was an Assistant Store Manager for one of a Sushi Chain Store. I was forced to Resign after reporting a Job-Related Injuries “Slip and Fall” to one of the Assistant Store Manager working that same evening this occurred. (May 24, 2016) The next day May 25, 2016 I returned to work as scheduled, in the office I was greeted with one of the HR and my Supervisor Area Manager sitting on the desk was a Resignation Notice, Severance Agreement General Release (stating as” Employee shall have seven (7) days to consider whether to sign this Agreement, during which time Employee is advised to consult with an attorney regarding its terms. For period of seven (7) days after signing this Agreement, Employee may revoke it by notifying Employer in writing. This Agreement shall not become effective or enforceable until such revocation period has passed.” In the State of California as an Employee “It is unlawful for an Employer to Discriminate in any way or Discharge an Employee claiming an Industrial Injury.”

Answer by Attorney Francis Pray, Employee Rights Attorney

I would anticipate that the employer will claim that your termination was already approved and ready for execution before your slip and fall. That will be a documentary proof issue.

Your facts raise the following issues: Is this a Labor Code Section 132(a) violation? [Retaliation for presenting a workers’ comp claim] Is this a disability discrimination / accommodation violation of the Fair Employment and Housing Act? If you are over 40, does the release agreement tendered to you violate the requirements of the Federal Age Discrimination in Employment Act? Finally, could the general release, if you sign it, operate to release your workers’ compensation rights? As you were “forced to resign” the question is how much “force” was used. That is, was there a “constructive termination” of employment based on duress, fraud, or ongoing harassment that would make continued employment intolerable to a reasonable person? The answer to your question is “yes,” your facts suggest a possible “wrongful termination,” on multiple theories, including a “wrongful termination in violation of public policy.” Bottom line, you should likely consult with an attorney before signing the general release of all claims.

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From AVVO, March 2016:

An employee at the gym I go to has called me a racist name twice. What can I do legally?

An employee at the gym I go to has called me a racist name twice. What can I do legally?

Answer by Employment Law Attorney Frank Pray:

The California Unruh Civil Right Act, Civil Code Sections 51 states a powerful principle, backed up with damages and a provision for recovery of penalties and attorney’s fees. [Civil Code section 55, part of the Unruh Act, provides that attorney’s fees “shall be awarded to the prevailing party.”] Section 51(b) states:

(b) All persons within the jurisdiction of this state are free and
equal, and no matter what their sex, race, color, religion,
ancestry, national origin, disability, medical condition, genetic
information, marital status, or sexual orientation are entitled to
the full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of every kind
whatsoever.

So what can you do? First, this employee is a liability to the company, and should be disciplined, likely by termination of employment. The employee is an agent of the company, and the company is liable for his racist comments stated in the course of his employment to you, using the Gym as a paying customer. But to tag the Company with punitive damages, you need to take an intermediary step: notify the upper management in writing of the specific date, location, wording, and the identity of any witnesses. The employer then has a duty to investigate and take immediate appropriate corrective action. If it sits on the complaint, or if it whitewashes the charges to protect the employee, it is then exposed to being made an example of what happens to companies that do not self-police.

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From AVVO, March 2016:

When does an employer have to pay out a bonus?

My employer has a bonus system where employees get paid a small % of any cost savings they can create. The policy says we must stay through the end of Q2 to be paid the bonus. But the policy doesn’t say *when* we’ll get paid. What is the …

Answer by Employment Law Attorney Frank Pray:

The bonus is due according to the terms of your employment compensation agreement and subject to compliance with timely payment under the CA Labor Code. Always look first to your bonus plan, and if applicable, your offer letter, stating the terms of the bonus. Bonuses may be delayed to account for quarterly or year end results, for example. For example, if the bonus is tied to profits, and that number cannot be calculated until the close of the fiscal year. The general “default” rule is that the bonus is earned when you have completed all tasks and met all conditions for payment of the bonus, even if the revenue is not realized to the Company.

The bonus is to be paid in the semi-monthly pay cycle in which it is “earned.” An arbitrary delay in paying bonuses, even if delayed by agreement, is contrary to the overriding public policy that wages be paid semi-monthly. Many employers do not realize that a bonus payment can effect the overtime rate for the employee. The bonus paid in the pay period is divided by the number of hours worked in the pay period, and this “bonus hourly rate” is then increased to 1.5 that number for each over over 8 in a day and 2X for each hour over 12. Finally, many employers will set a requirement that for a bonus to be earned, the employee must be employed on the date of the bonus payouts. This is a legal condition. The catch would be terminating an employee to avoid payment of the bonus. That motive would be illegal, and would be basis for a wrongful termination suit.

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