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What Are the Types of OSHA Violations?

In 2019, the US Bureau of Labor Statistics reported that over five thousand people were killed due to injuries they obtained while working. Their Census of Fatal Occupational Injuries that same year reported that fatalities had risen five percent in the private construction industry since 2018 and the number was the highest than it had been since 2007.

For 2020, The Occupational Safety and Health Administration (OSHA) released a report of their top 10 violations of the fiscal year. This report included the types of safety violations that most often resulted in injuries and even fatalities at workplaces.

What Are OSHA Violations

OSHA violations happen when a company or one of their employees does not adhere to the proper safety procedures or safety hazards are not addressed. A violation presents a risk for an accident or injury but does not necessarily mean this has happened yet. OSHA will administer inspections that may detect such violations before an incident. In some cases, OSHA may issue the company a fine or citation for the violation. If there is a willful violation and an employee is killed, there may also be criminal charges and penalties involved.

OSHA Violations vs OSHA Citations

Citations are often issued when a company commits a violation that does not necessarily present a danger to their employees. A citation is like a warning that serves to alert the company to the violation and let them know that they need to address it. A citation only becomes part of a company’s safety record if they receive it more than once. If the citation is issued two or more times within three years, it is considered a repeat offense.

Degrees of OSHA Violations

OSHA violations are identified by different degrees of severity. The following designations help determine the amount penalized.

Serious Violations

When a violation is too serious for just a citation, OSHA will also administer fines. According to the OSHA Act Section 17(k), violations are considered serious if they can cause severe injuries or death and should have been reasonably prevented by the employer. OSHA classifies the penalties for these violations on a gravity-based scale categorizing them by their severity with corresponding fines.

High-gravity violations are the most severe and carry fines of $14,502.

Moderate-gravity violations are of middling severity and can carry fines anywhere from $8,287 to $12,431.

Low-gravity violations are lower severity and carry fines for $6,215.

Many companies will hire workplace risk assessment consultants to help them identify these violations before they come to OSHA’s attention.

Other Than Serious Violations

OSHA considers violations that may pose a real risk to the health and safety of the employees, but will not result in injury or death, to be other-than-serious. These violations may incur the same fines as serious violations depending on the situation. In some cases, OSHA may decide to give a citation or reduce the amount of the penalty.

Violations that are considered other than serious are categorized as lesser and greater minimal-only violations. Lesser violations are generally met with a citation and no monetary fine. Greater violations may be met with a fine anywhere up to $14,502.

Willful or Repeated

Repeated violations within a three-year period can be met with fines up to a maximum penalty of $145,027 per violation. For serious repeated violations, the minimum penalty imposed is $10,360. If the violation is other than serious and did not initially warrant a monetary fine then the first repeated violation may be met with a $414 fine, the second with a $1,036 fine, and the third with a $2,072 fine.

A willful violation occurs when the employer is aware of the danger to their employees and ignores it. Fines for willful violations range from $10,360 to $145,027. If a willful violation results in a fatality, the penalty may be a hefty fine, prison time of up to six months, or both. When these fatalities result in criminal convictions, the fines may be as high as $250,000 for individual employers and $500,000 for corporations.

Penalties for serious willful violations may be reduced based on the size of the business and the number of employees.

10 or fewer employees result in an 80% penalty reduction

11-20 employees result in a 60% penalty reduction

21-30 employees result in a 50% penalty reduction

31-40 employees result in a 40% penalty reduction

41-50 employees result in a 30% penalty reduction

51-100 employees result in a 20% penalty reduction

101-250 employees result in a 10% penalty reduction

251 or more employees result in a 0% penalty reduction

Posting Requirements

When OSHA issues a citation or notice of violation to an employer, it must be posted in the area where the violation occurred. The posting must be in full view for all employees for at least three days or until the issue is resolved. These notices are also accompanied by a pamphlet that describes the issue, suggests solutions, and provides the date by which it must be remedied.

Failure to Abate

If an employer does not resolve the issue of the violation by the date provided with the notice, they may be fined for each day past that date that the issue goes unresolved. If the issue was never resolved, it is considered a failure to abate. If the issue was resolved and occurs again, it is considered a repeat violation.

De Minimus Violation

A de minimus violation refers to an issue that is technically a violation in that it does not comply with OSHA standards, but it does not necessarily pose a genuine risk to anyone’s health or safety. Rather than issue a citation or a penalty, OSHA will often provide a verbal warning to the employer and simply note the issue in the company safety file.

OSHA Fines & Penalties

As of January 2022, the following penalties are imposed for OSHA violations:

Serious violations – $1,036 to $14,502

Other than serious violations – $0 to $14,502

Willful or repeated violations – $10,360 to $145,027

Posting requirement violations – $0 to $14,502

Failure to abate violations – $14,502 per day past the abatement date up to 30 days

Can OSHA Fine Employees?

Individual employees are not fined by OSHA for safety violations. The employers are the ones responsible for maintaining the health and safety of their employees and keeping the workplace in compliance with OSHA standards.

Most Common Examples of OSHA Violations

The top ten most frequently fined OSHA violation examples of 2020 are:

Fall Protection with 5,424 violations

Hazard Communication with 3,199 violations

Respiratory Protection with 2,649 violations

Scaffolding with 2,538 violations

Ladders with 2,129 violations

Control of Hazardous Energy with 2,065 violations

Powered Industrial Trucks with 1,932 violations

Fall Protection Training with 1,621 violations

Eye and Face Protection with 1,369 violations

Machinery and Machine Guiding with 1,313 violations

The number one recommended way to prevent workplace incidents is though comprehensive training in OSHA safety standards. OSHA provides 10-hour online safety training courses for both construction and general industry workers. This course helps keep employees informed of the precautions necessary to keep themselves and each other safe.

OSHA also provides an annual report of the most common violations they find in order to give people additional information that can help them maintain safe and healthy work areas.

In 2020 the most common violations were found evenly in both construction and general industry. The list does not change too much from year to year, though the order of the categories may fluctuate.

Fall Protection

Fall protection has been the most commonly cited OSHA violation for ten years. Additionally, falling injuries are also the number one cause of fatalities in the construction industry. There are many ways in which a company might violate the fall protection standard set out by OSHA. Common fall protection violations involve incorrect methods of fall protections being used and the lack of or improper installation of safety features. OSHA mandates fall protection for workers when at a height of six feet or more. It is not enough that the protection be present, however. It must also be in good condition and working order.

Hazard Communication

Some jobs call for the use of chemicals and other hazardous substances. When handling or storing these materials, it is important to know the proper way to do so safely. This is why all hazardous substances must be labeled clearly and accompanied by emergency procedures. OSHA updated and revised their hazard communication standard in 2012 with new criteria and formatting for safety data sheets.

Respiratory Protection

OSHA’s respiratory protection standard serves to protect workers from substances in the air such as dust, smoke, toxic fumes, and other contaminants. Employers are required to ensure that the workplace has proper ventilation and that the employees are outfitted with the correct personal protective equipment.

In the wake of COVID-19, respiratory protection became a major factor with stricter guidelines. So many employers were failing to meet the standards in place that respiratory protection rose to the third most common OSHA violation from its spot at fifth place the previous year.

Scaffolding

OSHA’s data states that approximately 65 percent of construction industry employees work with scaffolding. When handling scaffolding, it is important to adhere to all safety precautions for the safety of those navigating the scaffolding as well as everyone below. The risk of people falling or getting hit by falling objects is a very real danger. Failure to comply with OSHA’s scaffolding standard causes over 4,500 injuries and over 60 deaths annually.

Ladders

The Centers for Disease Control and Prevention reported that almost 60 percent of ladder related fatalities happen within the construction industry. Construction industry ladder violations are generally due to employers not providing the right safety training. Another large issue is when workers use a type of ladder that is inappropriate for the task at hand. OSHA’s Ladders standard provides comprehensive guidelines for ladder safety such as staying within the ladder’s weight restrictions, maintaining proper clearance around the ladder, and ensuring the ladder is steady and secure on the ground.

Control of Hazardous Energy (Lockout / Tagout)

According to data compiled by OSHA, approximately 9 percent of fatalities in the construction industry are related to electrocution, often due to improper energy control during maintenance procedures. Non-fatal electrocution injuries are still serious and can result in burns and even broken bones. The control of hazardous energy standard laid out by OSHA is a guideline for workers to protect themselves from the energy stored in their equipment. OSHA requires that all energy be discharged from machinery properly or controlled by a lockout tagout device.

Powered Industrial Trucks

Powered industrial trucks are heavy machinery such as tractors and forklifts. They are specialized equipment that must be used properly and kept well maintained. OSHA’s powered industrial truck standard forbids anyone from operating these vehicles without proper training. This training includes how to identify and avoid hazards as well as dos and don’ts like not using a phone while driving.

Fall Protection Training

It is not enough that fall protection measures be put in place, OSHA’s training requirements for fall protection standard dictates that any workers who are at risk of falling hazards go through the proper training.

Workers must be properly trained in knowledge of when and where that protection is needed and taught to identify and avoid potential hazards. They must also be taught proper maintenance and operational procedures for all necessary equipment including assembly, disassembly, and safety inspection.

Eye and Face Protection

There are many hazards found in the workplace that leave thousands of people blinded each year. These hazards can be related to debris in the air, toxic substances, and in some professions such as welding, even intense light. The standard for eye and face protection set forth by OSHA provides regulations necessary for preventing injuries to the face and eyes. These regulations pertain to things like eye wash stations and their operational instructions, safety measures applied to machinery, and equipment such as goggles and other protective face coverings.

Machinery and Machine Guarding

Many industries involve the use of dangerous machinery. Proper operation procedures and safety measures are necessary to avoid injury. OSHA’s machine guarding standard provides information to help workers protect themselves from moving parts and apply safeguards where needed.

Avoiding OSHA Violations

Adhering to OSHA standards is not just about avoiding punishment, it is about keeping yourself and everyone around you safe and healthy. Entry level workers are highly encouraged to take OSHA’s ten-hour outreach course in order to learn the information they need to maintain workplace safety. There is also a thirty-hour course that provides more extensive information and training for workers in supervisory or safety-based positions.

One way companies work to prevent OSHA violations is by having a third party come in and perform their own inspection to catch issues right away. It is also good practice for managers and employees to be aware of their surroundings and be on the lookout for any potential violations themselves.

Proactive vs Reactive Approach

Many companies have a reactive approach to health and safety. This means that they only address issues when the issue becomes a problem, or someone forces their hand. This approach can have many negative effects on their workers and even the success of the company itself.

Companies are encouraged to take a proactive approach to health and safety. This means being aware of the rules and regulations set forth by OSHA, keeping management and employees fully trained, and always taking steps to catch and prevent potential violations.

If You Have Been Injured Due to OSHA Violations Contact Mesriani Law Group

It is management’s responsibility to ensure that a workplace or jobsite is conducive to the health and safety of their workers and to prevent injuries. OSHA has rules and regulations in place for a reason and when those rules are violated, people get hurt. Being injured in a workplace accident can be a trying time. Being injured because your boss failed in their duty to protect you can make things much worse. Oftentimes, employers will try to shift the responsibility onto the employee and say they are liable for their own injuries. Having a workman’s compensation attorney can help you navigate the entire process. If you have been injured at work as the result of an OSHA violation, call Mesriani Law Group today for a free consultation.

OSHA Violation FAQs

What are the most common OSHA violations?

Fall protection has been the number one OSHA violation for the past decade. A lack of fall protection means a higher risk of workers falling from dangerous heights. In the construction industry, injuries caused by falling are the most common cause of workplace deaths. Hazard communication has held the second place spot for nearly as long from 2012 through 2020. OSHA dictates strict guidelines for the labeling of dangerous substances and the availability of material safety data sheets containing all relevant product and safety information. Coming in at number three and reportedly stealing the number two spot for 2021 is respiratory protection. Workers must be provided the proper ventilation and PPE to keep them safe from contaminants in the air. A proposed reason for the rise in respiratory protection violations is the rise in regulations during the COVID-19 pandemic.

What are types of violations?

There are a few different types of OSHA violations. Serious violations are ones that pose an immediate threat of injury or death to the workers. Other-than-serious violations are ones that pose a threat to health and safety but may not cause injury or death. De minimus violations are ones that technically violate OSHA standards and regulations but do not pose a direct threat to the workers.

What are the two types of violations?

When a company commits an OSHA violation that is a hazard to the health and safety of their workers, they may be penalized and, depending on the seriousness of the violation, they could end up paying thousands of dollars in fines. If a violation is found that is not necessarily a substantial hazard, OSHA may instead issue the company a citation which is more of an official warning.

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What is Severance Pay?

Severance pay is an additional payment made to a terminated or laid off employee; usually in the event of a company downsizing, declaring bankruptcy, or closing. These payments are generally made to long term employees as a way to help compensate for the sudden loss of income. The actual amount of the payment varies depending on the details of the situation and is generally given all at once as a lump sum payment. The federal government and the state of California do not currently have any laws requiring employers to provide severance pay, and not every employer does.

Is Severance Pay Required by Law?

The only times an employer must pay a severance is when they have a pre-existing contract with the employee that says they will, or if there is a union involved that has negotiated for it. Outside of such circumstances, there is no state employment law that regulates it. Severance pay is a matter of contract law in California.

What is a Severance Package vs a Severance Agreement?

When an employee is laid off from a job, they may receive additional payment and benefits beyond their final paycheck. This is known as a severance package. It may include stocks or the next few paychecks the employee would have earned. Legally, employers are not required to provide severance packages. However, many do in order to get their now former employee to sign a severance agreement, which is a contract binding the employee to certain terms in exchange for the payment and benefits.

Because employees are not entitled to severance pay, employers can refuse to provide that payment unless the employee agrees to their terms. Severance agreements are drafted to have the employee sign away some of their rights in exchange for the severance pay. Most agreements involve:

A guarantee not to sue the former employer for discrimination, harassment, or wrongful termination.

An agreement not to discuss the details of their termination, the terms of the agreement, or information about the company.

There are also some things that an employer is not permitted to have an employee sign away such as their right to sue for wage violations, reporting crimes committed by the company, and seeking further employment.

In many cases, an employee can negotiate the terms of their severance agreement before signing. Depending on how much the employer is concerned about the risk of a lawsuit or bad press, they may be more willing to negotiate. Departing employees may be able to secure insurance coverage, more money, and even help finding a new job.

What to Look for in a Severance Agreement

A severance agreement is a binding contract. After it is signed, there is no going back. This is why it is important to carefully read the entire agreement and be certain that you completely understand all of the terms and conditions. Always remember that contracts such as severance agreements are drafted to benefit the person who drafted them, and you should be mindful of preserving your own best interests. Negotiating severance package terms is recommended with the help of a qualified severance package lawyer.

What Does the Employer Gain in a Severance Agreement?

Severance payments may seem enticing, but there are occasions where they are not worth what the employee is actually exchanging. Sometimes, an employer offers a sum of money in exchange for the employee agreeing not to sue because the employer knows that the employee could reasonably be awarded much more money in a lawsuit. There are many circumstances where an employee may want to seek guidance from an attorney before signing the agreement such as:

If the employee feels that they were wrongfully terminated

If the employee was subjected to harassment, discrimination, or retaliation

If the agreement includes non-compete and/or non-disclosure clauses or any other limitations to the employee’s future job options

If the employee is being asked to take blame or admit fault, particularly in situations where the employee was not actually at fault

If the employee was witness to the company violating labor laws or other infractions

What Severance Package Benefits Does the Employee Receive?

In exchange for agreeing to the employer’s terms, the employee may be offered or can negotiate for many different benefits such as:

The value of future salary payments for an agreed amount of limited time

Continuation of insurance benefits including COBRA premiums

Not contesting the employee’s eligibility for unemployment benefits

Providing the employee with help finding new employment

Providing the employee with positive references for future employment

Ownership of company property such as a phone, computer, or car

Additional perks and benefits related to the job such as prorated bonuses

How is Severance Pay Calculated?

Because there are no legal standards for severance pay, there is no universal method for calculating how much an employer might offer. Some employers may determine how much is fair for an individual employee on a case-by-case basis. Some may have a set amount offered in the initial employment agreement. Some may offer a certain number of paychecks based on the length of employment such as one week for each year worked. Others may offer a set value in addition to any unused paid time off.

Planning for Your Severance Package

It is good practice to have a plan for the unfortunate possibility of losing your job. A trying and difficult time can be made easier by adequate preparation. The time to start planning is when searching for a new job in the first place. Asking questions about a potential employer’s severance policies is a good way to make an informed decision going in, and it is important to keep informed on any updates to those policies. Throughout the course of your employment, keep copies of positive performance reviews and records of your value as an employee. This can give you an advantage if you need to negotiate a severance package.

Oftentimes, larger companies will have official severance policies mapped out and available for employee reference. If your employer is one such company, the policy will likely be printed in the employee handbook, or available on request. These policies generally explain:

Purpose – The severance agreement may specify why the company has chosen to offer it. They may also provide information on additional resources to help the employee transition to a new job.

Terms and Conditions – The actions the employee must take in order to receive payment, and actions the employee must agree not to take in order to receive payment.

Eligibility – Since there is no legal requirement for employers to offer severance packages, companies can pick and chose the qualifications needed to receive one. A company might offer severance only to salaried employees, administrative staff, or full time workers.

Legal Releases – Forms and documents the employee will need to sign in order to receive payment.

Possible Modifications – Many companies will reserve the right to modify or eliminate their severance policy for any reason.

Calculations – Since there are no legal guidelines for severance packages, the amount of money and type of benefits offered are up to the discretion of the employer. The agreement may lay out how they came to those decisions such as multiplying paychecks or utilizing unused paid time off.

Payments – The agreement may specify how the money will be received, such as a lump sum or regular payments. This is important to know as it can impact unemployment eligibility and taxes.

Steps to Take Once Laid Off

When an employee is terminated, it is advisable to document what is said during the meeting or conversation and to ask for time to review the severance agreement before signing. Many companies will offer one to three weeks for an employee to look over the documents. It may be a good idea to have a severance pay attorney go over the agreement with you to be sure that it is fair and that you are not signing away a valid right to a lawsuit. It can also be helpful to research how long it would reasonably take for you to find new employment so that you can be sure the amount offered is enough to cover that timeframe.

Negotiating Severance Package

Most companies will allow their employees to negotiate the terms and benefits of their severance agreement. This may be something that the employee can handle on their own, or they may seek the help of an attorney. Regardless of whether or not you negotiate the agreement, it is a good idea to take as much time as possible to review it and understand exactly what you’re agreeing to. There are many aspects of a severance agreement that may be up for negotiation such as:

Amount of Pay – The monetary severance pay offered by the employer. This is usually calculated by multiplying the value of one paycheck by the number of years the employee worked. Employees may negotiate to increase that to one month’s pay for each year worked. Depending on the amount of money being offered, it is also important to understand how the payments may impact unemployment eligibility and taxes.

Departure Announcement – It is recommended that the employee requests to write their own announcement of departure and any recommendation letters. This way you can control the narrative and paint yourself in the best light.

Insurance – Unless you have a spouse or parent who can take you onto their insurance, you’ll want to extend your benefits as long as possible. COBRA is the Consolidated Omnibus Budget Reconciliation Act which gives an employee the right to extend their insurance coverage for a year and a half after the end of their employment. The downside to this is that the employee becomes responsible for the entire premium. When negotiating a severance package, it might be a good idea to ask for the employer to continue paying some if not all of their share of the premium for a length of time.

Liability Release – Almost all employers who offer severance packages will include an agreement for the employee to waive any right to sue the employer. This is an important part to have a lawyer take a look at to be sure that your best interests are protected.

Non-Disclosure – Companies may ask the employee to keep the details of their termination and the severance agreement completely confidential. This can be negotiated to make certain exceptions.

Non-Disparagement – It is common for employers to have their soon to be former employee agree not to say anything negative about them going forward. Employees can also ask that this clause go both ways.

Outplacement Services – Employers often offer outplacement assistance and employees may negotiate the offer or even ask for the financial value of the services in order to hire someone else.

Pensions and Stocks – There are laws regarding retirement plans, pensions, and stock options that vary from state to state. It is important to review those laws before entering severance negotiations.

Perks and Property – If your employment involved the use of a company phone, computer, car, or other personal equipment, you might be able to negotiate transferring ownership to you. There may also be things like parking passes, gym memberships, and discounts that you might be able to extend your use of.

Important Severance Package Considerations

There are several things to remember about severance agreements before entering into one. Be sure to understand all of the following elements to ensure that a severance agreement is written in the employee’s best interest.

Do You Understand the Severance Agreement?

Some companies might overuse complex language to make it difficult for employees to fully understand what they are agreeing to. Never sign a contract you don’t understand. If needed, you can hire an employment lawyer to go over the agreement with you and explain everything.

Mitigation Offset

If a severance agreement contains a mitigation offset clause, the employee will be forced to pay back the severance amount if they obtain new employment within a certain time period. When negotiating your agreement, you should be on the lookout for these clauses and ask that they be removed.

Non-Compete Clauses

In the state of California, it is not legal for an employer to have an employee sign a non-compete agreement. Some employers still try and even if signed, the agreement is not enforceable. When reviewing and negotiating a severance agreement in California, it is best to just have this part removed if it is included.

Common Rights Waived

There are many rights that an employee has once that employment has been terminated. It is often in the employer’s best interest to have the employee waive those rights. This often includes:

The right to sue for discrimination, harassment, defamation, or wrongful termination

The right to discuss the reasons for termination or the terms of the severance agreement

The right to divulge company trade secrets

The right to speak poorly about the employer

The right to sue for any other civil matters

Unenforceable Provisions

There are many things that an employer may be tempted to include in a severance agreement that are not enforceable. This may include:

Waiving the right to sue for wage and hour violations

Waiving the right to report illegal activity committed by the employer

Waiving the right to seek future employment

Refusing to pay earned wages until the agreement is signed

Requiring the employee to do anything illegal

Prohibiting an employee from working with a competitor

An employer is only permitted to have an employee waive their right to sue for age discrimination if an employee is 40 or older and they give the employee at least 45 days to sign and another 7 days to revoke that signature.

When Can a Severance Package Void?

An employee’s severance agreement can be nullified under certain circumstances:

Fraud

If an employee is manipulated into signing a severance agreement by an employer’s fraudulent actions, that agreement is unenforceable. Fraud refers to actions such as making promises they will not fulfill, concealing important information, or lying about important information.

Duress

If an employee is forced to sign a severance agreement under duress, that agreement is unenforceable. An employee is under duress when their employer threatens them in order to get them to sign. These threats generally need to be illegal in nature in order to qualify as duress.

Undue Influence

If an employee is coerced into signing a severance agreement by an employer imposing undue influence on them, that agreement is unenforceable. Undue influence is defined as excessive pressure applied on an employee that exploits their weaknesses.

Unconscionability

If the terms of a severance agreement are considered unconscionable, then not only are those terms unenforceable, but the entire agreement may be declared unenforceable as well. There are two types of unconscionability: procedural and substantive.

Procedural unconscionability – When one side of the agreement has significantly more bargaining power than the other, or if the situation was unfair.

Substantive unconscionability – When the terms of the agreement are too harsh or one sided.

How Can an Employment Lawyer Help

Employees are under no legal obligation to sign an offered severance agreement. It is a contract like any other and the employee has the right to have an attorney go over it with them. Some employers may take advantage of an employee’s fraught emotional state at the time of termination and convince them to sign an agreement they don’t understand. Speaking with an employment lawyer can help you identify unfavorable terms, clear up complicated language, and determine if it would be more favorable to exercise the rights you are being asked to sign away.

There are many factors that may indicate that you should consult with an attorney:

If the language of the agreement is complex or vague

If the employer is trying to pressure you to sign it right away

If the employer is unwilling to negotiate the terms

If the employer is aware of your financial situation

If the agreement is one sided or unbalanced

If you believe your employer is being dishonest

If your employer tells you not to speak with an attorney

Contact Mesriani Law Group to Help Negotiate a Severance Package

The unexpected termination of a job can be a stressful and emotional time and you may not be in the best state of mind to be making legal decisions. A severance agreement is a contract, and it is important to be sure that the terms are in your best interest. An employment lawyer can help review the agreement and explain the terms as well as advise you on areas you may want to negotiate. If you have been terminated from your job and your employer is offering you a severance package and asking you to sign an agreement, call Mesriani Law Group today.

Severance Pay FAQ

How is severance pay determined?

There is no set legal standard for calculating the amount of severance pay an individual employee may receive. This is up to the discretion of the employer and whatever they decide to offer. That said, most employers will take the value of the employee’s weekly or biweekly paycheck and multiply that by the number of years the employee worked for the company. Severance pay can often include the value of unused paid time off as well.

Why do you get severance pay?

The optimistic perspective of severance pay is that when an employee is terminated through no fault of their own, the employer may wish to make the transition easier and give them a cushion to fall back on while they seek new employment. A more cynical perspective may suggest that the point is to entice employees into signing away their rights to sue, discuss their termination, or speak ill of the company.

Who qualifies for severance?

Both federal and California employment law do not require employers to offer severance pay to any employees. The qualifying factors for who receives severance is up to the individual employers. Some companies may not offer it at all. Others may only offer it to salaried employees, full time employees, or just upper management. Some companies may include details about severance in their employment contracts and handbooks.

What is the difference between severance pay and separation pay?

Severance pay and separation pay are actually the same thing. Both terms refer to the amount of money an employer may offer when terminating an employee. Severance pay may be part of a severance package that includes other benefits and perks as well. In order to receive all of this, the employee may be asked to sign a severance agreement that holds them to certain terms and conditions.

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What is Overtime Pay in California?

In the state of California, nonexempt employees are entitled to overtime pay of:

5 times their normal rate of pay for each extra hour worked over 8 hours in a day or more than 40 hours in a week.

2 times their normal rate of pay for hours worked over 12 hours in a day or if they work seven days straight and work more than 8 hours on the seventh day.

Sometimes, workers who are nonexempt may be paid differently than an hourly wage and their overtime pay is calculated accordingly. Exempt workers are those to whom the overtime laws do not apply. There are also some special exceptions that have their own guidelines.

What is the Regular Rate of Pay?

An employee’s regular rate of pay is the way their compensation for their work is calculated. This could be by the hour, per year, by piecework, or on commission. Regardless of how the rate of pay is calculated, it can never be lower than the minimum wage. It can also never exceed an 8 hour workday or a 40 hour workweek. There is however a standard under Industrial Welfare Commission Wage Orders that allows for alternative workweek schedules consisting of either 4 days of 10 hour shifts or 3 days of 12 hour shifts. For these schedules, the rate of pay is based on the 40 hour workweek.

Some agreed upon schedules come out to less than 40 hours per workweek. Although a set agreed upon work week may total under 40 hours, the employer is not obligated to pay overtime until the employee works more than 8 hours in a workday or 40 hours within that workweek.

How Much is Overtime Pay in California?

In order to qualify for overtime, the following parameters must be met:

Hours paid time and a half:

Over 8 and up to 12 hours per workday

Over 40 regular hours per workweek

The first 8 hours of the 7th��day worked in a row per workweek

Hours paid double time:

Over 12 hours per workweek

Over 8 hours on the 7th day worked in a row per workweek

How to Calculate Overtime Pay in California

Step 1: Determine Workweek vs Workday

Workday – The default workday begins at 12:01 in the morning. However, employers are able to set their workday to be any block of 24 hours that begins at the same time every calendar day. If an employee works more than 8 hours in a workday, they are entitled to overtime pay for the extra hours worked. Employers are not permitted to average out hours across multiple days. If an employee works 6 hours one day and 10 hours the next, they receive 2 hours of overtime pay.

Workweek – A workweek is a set period of seven days that begins the same calendar day every week. While employees within the same company may have different workweek schedules, a workweek is set for each individual employee and can not be changed unless it is being permanently altered. If an employee works more than 40 hours within a workweek, they are entitled to overtime pay.

Step 2: Calculate Hours Worked

Employees must document the times that they punch in for work, out for break, back in from break, and out for the day. Most employers have a system for all employees to do this, so that the employer can then calculate the hours worked for each person.

Step 3: Determine Amount of Daily Overtime Hours

When calculating daily overtime for nonexempt employees, employers must pay

Time and a half for hours worked over 8 and up to 12

Time and a half for the first 8 hours of the seventh day worked in a row

Double time for hours worked over 12

Double time for hours worked over 8 on the seventh day worked in a row

Step 4: Determine Amount of Weekly Overtime Hours

When calculating weekly overtime for nonexempt employees, employers must pay

Time and a half for hours worked over 40

Step 5: Calculate Daily vs Weekly Overtime Hours

According to California state law, both daily and weekly overtime hours must be taken into account. The overtime hours themselves are only counted once, but they also do not negate each other. This is to protect workers in situations such as if someone works more than 8 hours a day, but they worked less than 40 hours that week. Determining overtime on both a daily and weekly basis ensures that employee gets paid properly. The way this works is:

When an employee’s daily overtime is the same or more than the employee’s weekly overtime, then they must be paid in accordance with daily overtime. In these cases, the weekly overtime is already included in the daily overtime.

When the employee’s daily overtime hours are less than the number of weekly overtime hours, then the remaining time must be accounted and compensated for.

Employers must also ensure that daily double time rules are being followed when calculating weekly overtime as well.

Employers can keep track of these hours by accounting for the hours worked and separating the regular rate of pay from the overtime. This ensures that all hours are accounted for and paid correctly.

No weekly overtime, but time and a half daily overtime for the seventh day in a row worked:

No daily overtime, but time and a half weekly overtime paid for hours worked over 40 in the workweek:

Both daily and weekly overtime:

Time and a half for daily hours worked over 8 up to 12

Time and a half for the first 8 hours of seventh day worked in a row

Double time for hours worked over 12

Double time for hours over 8 on seventh day worked in a row

Time and a half for weekly overtime hours over 40

Step 6: Determine Base Rate of Hourly Pay

Since overtime is 1.5 or 2 times the employee’s regular rate of pay, it is important to figure out what that is. An employee’s regular rate of pay is generally the amount of money earned by the employee each hour generally calculated by dividing the total compensation for the workweek by the hours worked. There are many different ways in which employers pay out their employees’ compensation, and so different ways for the regular rate of pay to be calculated.

Hourly Non-Exempt Employees

The regular rate of pay for hourly employees is the amount of money they earn each hour. If they also receive bonuses or commissions, those are divided by the number of hours worked.

So, if an employee makes $20 an hour, then their overtime pay would be $30 an hour or $40 an hour for double time.

Sometimes, employees are paid different rates within the same workweek. In these cases, the regular rate of pay is calculated by dividing all earnings throughout the week by all of the hours worked. The overtime premiums are then added to the applicable overtime hours afterwards. So, if an employee works 20 hours at $10 an hour and 30 hours at $15 an hour, their total earnings would be $650 which would be divided by 50 for a regular rate of $13. $6.5 would be added to every overtime hour that earned time and a half, and $13 would be added to every overtime hour that earned double time.

Sometimes, employees also earn flat-sum bonuses on top of their hourly rates. When this happens, the bonus is divided by the amount of non-overtime hours they worked, and then that amount is added to the hourly rate. The final sum is the number used to determine the overtime rate of pay. So, if an employee works 45 hours in a workweek at $10 with a weekly bonus of $100, the $100 would be divided by 40 making $2.5 which would make the regular rate of pay $12.5 which would be used to calculate the applicable overtime.

Piece Rate or Commission Employees

There are several different methods that can be used to calculate regular rate of pay for employees who are compensated by piece or commission:

The rate that the employee is paid by piece or commission is considered the regular rate, and that number is multiplied by 1.5 for hours worked over 8 up to 12 in a workday and multiplied by 2 for hours worked over 12 per workday.

The total amount of money earned for the workweek is divided by the total hours worked for the workweek. The overtime premium of that number is then added to the applicable overtime hours.

For group rates, the amount of pieces the group produced during the workweek is divided by the amount of people in the group. Each member of the group is paid accordingly, and that amount is then divided by the hours worked.

Salaried Non-Exempt Employees

When a salaried employee is nonexempt, their salary only covers regular hours worked. In these situations, those employees are entitled to overtime pay. To determine the regular rate of pay for a full time employee, the weekly salary is divided by 40. If the employee is paid monthly, the monthly rate is multiplied by 12 months in a year, then that number is divided by 52 weeks in year, then that number is divided by 40 hours in a week.

Are Salaried Employees Entitled to Overtime?

Some salaried employees may be exempt from overtime pay for many reasons:

Federal law

State Law

California Labor Code Provision

Industrial Welfare Commission Wage Orders

If the salaried employe does not meet the requirements for exemption status, then the employer must pay them overtime rates when overtime hours are worked.

Employees That Are Paid Different Rates Within the Same Job

When employees are paid two or more different rates at the same job within the same workweek, the weighted average is found by dividing the total amount of money earned by the total number of hours worked. So, if an employee worked 20 hours at $10 an hour, 20 hours at $12 an hour, and 10 hours at $14, the weighted average would be $580 divided by 50 hours, totaling $11.6 an hour.

Employees that Receive Bonuses

Nondiscretionary bonuses are included when calculating an employee’s regular rate of pay for the sake of overtime if that bonus is for how many hours they worked, a reward for high performance, or an incentive to stay with the employer.

When calculating regular rate of pay on a flat sum bonus for the sake of overtime, the amount of the bonus is divided by the number of regular hours the employee worked. That amount is then used to calculate the time and a half or double time to be used for any additional overtime hours.

When calculating regular rate of pay on a production bonus, the amount of the bonus is divided by the number of hours the employee worked during the bonus period. That amount is then used to calculate the time and a half or double time to be used for any additional overtime hours in the bonus period.

Bonuses that are not factored into overtime pay are discretionary bonuses such as holiday gifts or special rewards.

Who Is Exempt from California Overtime Laws?

The most notable exempt workers are those who earn a fixed salary that is equal to or greater than double the minimum wage.

There are specific salaried job categories that are generally exempt such as:

Normally Exempt Roles

These requirements reduce the likelihood that high salaried professionals are not able to enjoy the benefits of overtime pay. However, these roles are often rewarded in amounts of compensation that far exceed the need for overtime pay.

Executives

Administration

Professional Employees

Outside Salespeople

The requirements for being classified as an exempt outside salesperson are:

18 years old or older

51% or more of their work is conducted away from the business

They sell products, contracts, the performance of services, and/or the use of facilities

Unionized Employees

Not all union workers are exempt. Exemption for unionized workers requires:

That the collective bargaining agreement explicitly provides for wages and working hours and conditions

That the collective bargaining agreement explicitly provides for regular rate of pay and premium overtime rates that are 30% or higher than state minimum wage

Job Specific Exceptions

The California Industrial Welfare Commission outlines certain job specific exceptions to overtime laws such as:

Agricultural workers

Ambulance workers

Camp Counselors

Live-in household workers

Retirement home managers

Personal attendants

Some 24-hour residential childcare providers

The parents, spouse, and children of the employer

Independent Contractors

The requirements for being an independent contractor are:

Someone who is contracted to perform a specific service for a specific amount of pay

Someone who has complete control over when and how the service is completed

Alternative Schedules

Sometimes, employees may agree to alternative schedules such as working a 40 hour workweek as 4 days of 10 hour shifts. These schedules are not bound by overtime laws. A valid alternative workweek schedule must be:

Voted on via secret ballot by the affected employees

Approved by a two-thirds majority

Reported within 30 days by the employer to the Division of Labor Standards Enforcement

Employers are not permitted to retaliate against any employees for their stance on alternative schedules. Employees working an alternative schedule are still entitled to overtime pay when:

They work more than the daily agreed upon hours

They work more than 40 hours in a workweek

Nonresidents

In the state of California, all nonexempt workers are protected by the state’s overtime laws, including those who are not residents of the state or citizens of the country. There is some back and forth about whether workers who work in the state for less than a day at a time should also be protected by those same laws.

Step 7: Calculate Total Overtime and Pay Balance

According to Labor Code Section 204, overtime in California must be paid by the payday for the next payroll period. The regular hours for that pay period must be paid on time, only the overtime pay may be paid the following payday.

Are Any Amounts Excluded from Overtime Pay?

There are some types of payments and compensation that may not be included when calculating overtime in California such as:

Discretionary Bonuses

Expenses

Gifts

Holiday Pay

Paid Time Off

Can Overtime Be Waived?

In the state of California, all nonexempt employees must be compensated for any overtime worked. If an employer has an employee sign an agreement waiving their right to overtime pay, that waiver is unenforceable, and the employee is still entitled to their overtime pay.

Can an Employer Require Overtime?

In most cases, employers in California are allowed to require their employees to work overtime. One big exception is that employers are not permitted to require employees to work seven consecutive days in a row with no day off for rest. Employees are however able to waive their rest day provided they are aware of their right to take it if they choose.

Are Employers Responsible for Paying Unapproved Overtime?

In the state of California, all nonexempt employees must be paid overtime pay for all overtime hours worked regardless of managerial approval. While employers are permitted to discipline employees who work unapproved overtime, they can not refuse to pay them. In accordance with California law, employees must be paid for whatever time they were suffered or permitted to work. This means that the employer is responsible for any compensation owed for hours worked that they knew about or should have known about.

What Can an Individual Do if Overtime Isn’t Paid?

If an employee was not paid properly for overtime hour worked, they can contact the Department of Labor, file a claim with the Division of Labor Standards Enforcement, or file a lawsuit to sue for the money. When suing a former employer, they can also file a claim for a waiting time penalty in accordance with Labor Code Section 203.

What is the Wage Claim Filing Process?

After an employe files a claim with the Division of Labor Standards Enforcement, that claim is then assigned to a Deputy Labor Commissioner. They will then decide whether to:

Refer the matter to a conference – The parties involved are brought together to meet and attempt to resolve the issue out of court.

Refer the matter to a hearing – The parties involved will testify under oath during a recorded hearing. Afterwards, the Labor Commissioner will serve an Order, Decision, or Award (ODA) to the parties.

Dismiss the matter

The ODA may be appealed by either party. The matter will then be sent to trial where the parties involved will present their cases again, without the initial hearing bearing primary weight on the court’s final decision. IF the employer is the one appealing the ODA and the employee can not afford legal representation, the DLSE may opt to represent them.

What Do I Do If I Win an Overtime Pay Claim But the Employer Fails to Pay?

Sometimes, an Order, Decision, or Award will be in the employee’s favor and the employer will not appeal but will refuse to pay. In this instance, the Division of Labor Standards Enforcement will request that the ODA be entered as a court judgement.

Contact Mesriani Law Group if You Are Owed Overtime Pay

In the state of California, employers are legally required to pay all nonexempt employees 1.5 times their regular rate of pay for hours worked over 8 and up to 12 in a work day, hours over 40 in a work week, and the first 8 hours of the seventh day worked in a row in a workweek. They are also legally required to pay 2 times their regular rate of pay for hours worked over 12 in a workday, and hours over 8 on the seventh day worked in a row. Unfortunately, not all employers properly pay their employees. If you believe your employer has not paid you properly, call Mesriani Law Group today.

Overtime Pay FAQs

How does overtime work?

In the state of California, if an employee works more than 8 hours and up to 12 hours in a workday, those hours are compensated at 1.5 times their normal rate of pay. Also compensated at time and a half are hours worked over 40 in a workweek and the first 8 hours worked on the seventh consecutive day in a row. Hours over 12 on a workday and hours over 8 on the seventh day in a row are compensated at 2 times the normal rate of pay.

Do overtime hours count towards 40 hours in California?

All hours count towards total hours worked. Hours worked over 8 in a workday are daily overtime. Hours worked over 40 in a workweek are weekly overtime. If hours count as both daily and weekly overtime, they are only counted once.

Is 7th day double time in California?

According to California state labor laws, the first 8 hours worked on the seventh consecutive day in a row worked in a workweek are paid at time and a half. Any hours worked after those first 8 hours are paid at double time.

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What are California Paid Sick Leave Laws?

Thanks to the 2014 Healthy Workplace Healthy Family Act, employers in the state of California are required to provide their covered employees with sick pay. For every thirty hours an employee works, they earn one hour of sick leave. However, employers are allowed to limit employees to 24 hours of sick leave in a year. Sick leave may be used for a myriad of reasons including:

Tending to an illness

Recovering from an injury

Seeking a medical diagnosis

Tending to an ill or injured relative

Self-quarantining due to COVID-19 exposure

Dealing with the complications of abuse, assault, or stalking

California Paid Sick Leave Requirements

There are some requirements and limitations for obtaining paid sick leave:

Full time and part time employees including temps and seasonal workers are covered provided they worked for the employer at least thirty days within a twelve month period.

Employees earn an hour of paid sick leave for ever thirty hours they work with few exceptions.

Employers are allowed to limit employees to 24 hours of paid sick leave each year.

Accrued sick time must be rolled over into the new year, however employers may limit the amount to 48 hours.

Employers are not required to carry over unused lump sum paid sick time.

Employers Obligation to Paid Sick Leave Laws

There are many things that California employers must do in order to comply with the Department of Industrial Relations such as:

Have a poster explaining paid sick leave posted where all employees can easily read it.

Have a written explanation of paid sick leave policies given to new employees when they are hired.

Allow employees to earn an hour of paid sick time for every thirty hours worked.

Provide earned sick leave at the employee’s request.

Keep employees informed of how much sick time they have, either as part of their paystub or provided on each pay day.

Maintain records of employees’ sick time both accrued and used going back three years.

Who is Covered by California Paid Sick Leave Laws?

The HWHFA covers all of California, but there are some exceptions depending on the job, circumstances, and even location. Generally, a California employee is covered if they have worked for the same employer for at least 30 days within a year regardless of if they are full or part time. Temporary and seasonal workers are also generally covered when they meet this requirement. If an employee is covered and then leaves a job, but then returns within a year, they will be covered as soon as they are rehired.

Exceptions, exemptions, and restrictions may apply to:

Government employees

Employees working under specific collective bargaining agreements

Home care support workers

Air carrier workers

Cities with their own sick leave ordinances are bound by both local and state regulations such as:

Berkeley

Emeryville

Los Angeles

Oakland

San Diego

San Francisco

Santa Monica

How Much Paid Sick Time Can Be Earned?

Generally speaking, California sick leave law requires that employees be given 1 hour of paid sick leave for every 30 hours that they work. The amount of paid sick leave an employee can earn may be capped at 48 hours per year, though employers are allowed to cap it at as low as 24 hours. There are however some cities that have their own laws and regulations regarding paid sick leave:

Oakland

< 10 Employees = 40 hours sick leave per year

> 10 employees = 72 hours sick leave per year

San Francisco

< 10 Employees = 48 hours sick leave per year

> 10 employees = 72 hours sick leave per year

Berkley

< 25 Employees = 48 hours sick leave per year

> 25 employees = 72 hours sick leave per year

Santa Monica

< 25 Employees = 40 hours sick leave per year

> 25 employees = 72 hours sick leave per year

Emeryville

< 55 Employees = 48 hours sick leave per year

> 55 employees = 72 hours sick leave per year

San Diego

All employees receive at least 40 hours sick leave per year

Los Angeles

All employees receive at least 48 hours sick leave per year

Ways to Earn Paid Time Off

There are several different ways that employers may decide to provide sick leave for their employees:

Statutory Accrual – Paid sick time begins accruing the first day of employment. At the minimum of 1 hour earned for every 30 hours worked, a standard 40 hour workweek would result in 1.33 hours earned.

Other Accrual – Employers may develop their own system for accruing paid sick time provided that the hours are received on a regular basis and result in at least 24 hours within the first 120 days after the employee is hired.

Lump Sum – Some employers may opt to just give employees all of their sick time at the beginning of each year. This does not mean that it has to be every January. Employers are permitted to decide which date to use as the start of the new year so long as it is consistently every 12 months. Many employers may choose the employee’s hire date as lump sum overtime must be given to new employees within 120 days of being hired.

Existing PTO Policy – Some employers may have separate vacation and sick time while others may combine them as one paid time off total. So long as the amount of time given meets the minimum requirements for paid sick leave, it is permissible.

Grandfathered Policies – There are some policies that had been established before 2015 that are permitted to remain in place afterwards provided that:

Paid time off is accrued by at least 8 hours every 3 months

Paid time off is earned by at least 24 hours within 9 months

Types of Paid Sick Leave in California

There are many different reasons why an employee may need to take sick leave. These reasons are often due to a personal illness or injury, the need to take care of an ill or injured relative, or even the complications that arise from being the victim of domestic violence. There are different types of paid leave depending on the details of the situation.

PSL – Paid Sick Leave

California state law maintains that all eligible employees receive at least 24 hours of paid time off every year in case of:

The need to heal from a personal illness or injury

The need to receive preventive care

The need to seek a diagnosis or receive treatment

The need to take care of a relative in the above situations

Eligible employees meet the following requirements:

Full-time, part-time, temporary, or seasonal employees

Are employed in the state of California

Have worked for the employer in question for at least 30 days within a year

Have been employed by the employer in question for 90 days prior to taking leave

Employers are permitted to have their own policies and accrual methods provided that they meet the minimum requirements set out by the law. Some cities have their own laws added to the state law that provide higher minimums in certain situations.

SPSL – Supplemental Paid Sick Leave for COVID-19 (Expired)

In 2021 and 2022, new laws were put in place so that employees could receive additional separate paid leave in order to quarantine and recover from COVID-19.

Other Paid Leave Options

Vacation pay is one of the most well-known types of paid time off. In the state of California, it is completely optional. There is currently no law that states that an employer must have a paid or even unpaid vacation time policy. However, there are laws in place for employers who do have such policies, to ensure that those policies are being followed.

Workers’ compensation is an insurance policy that all employers must have to care for employees who suffer illness or injury due to their job.

What Reasons Qualify for Paid Sick Leave in California?

Employees have the right to utilize their sick time when needed and do not need to provide an explanation to their employer as to the reason why. There are many reasons that a person may need to take sick leave such as:

Being ill or injured

Receiving preventive care

Seeking a diagnosis or treatment

Taking care of an ill or injured family member

Complications caused by abuse, assault, or stalking

The definition of family member is broad and, in some areas, even broader. The law allows an employee to utilize their sick pay to care for their immediate and extended family as well as designated persons who may not be related by blood or law but are considered part of the family.

Employees who are experiencing or have experienced abuse, assault, or stalking may need to utilize their sick time in order to:

Get a restraining order

Go to a shelter or crisis center

Tend to related injuries

Receive mental health care

Take preventative measures against future incidents

Paid Sick Leave Considerations

Accrual Cap – Employers are permitted to limit the amount of sick leave an employee can earn in a year at 24 to 48 hours.

Increment Minimums – Sometimes, employees need to use sick leave for something like a short doctor visit that may not require them to take the entire day. They may only want to use up an hour or so of their sick time. Employers are allowed to impose minimum increments as high as two hours.

Limits – Employers are permitted to limit employees to utilizing only 24 hours or 3 days a year, whichever is more. For an employee whose daily shifts are regularly 8 hours, this amounts to 3 days at 24 hours total. However, an employee who regularly works 10 hour days may utilize 3 days at 30 hours a year. But for an employee who only works 4 to 6 hour shifts, they may take more than 3 days to reach 24 hours.

Waiting Periods – Employers are permitted to impose waiting periods of up to 90 days after the date of hire before a new employee is permitted to utilize accrued paid sick leave. However, even if this waiting period is in place, sick time is still earned starting the date of hire. If the sick pay policy provides leave as a lump sum, the employer has 120 days in which they can wait to provide leave to a new employee.

How to Determine Pay for Paid Leave

When a nonexempt employee utilizes their paid sick leave, they must receive their normal rate of pay. If the employee is paid weekly, then the non-overtime rate of pay would be divided by the amount of non-overtime hours they worked that week. Another method for determining rate of pay is to take the amount of money earned for the previous 90 days and divide that by the number of hours worked, excluding overtime. For exempt employees, sick time should be paid the same way any other paid time off is handled.

Does Paid Sick Time Accrue Each Year?

If an employee does not utilize all of their accrued sick time within a year, the amount left over is carried into the next year. However, this does not necessarily mean that sick time is unlimited. Employers are permitted to limit the amount of sick time an employee can earn up to 48 hours. If an employer provides lump sum sick time, unused time does not have to be carried over into the next year.

Does Paid Sick Leave Get Paid if an Employee Gets Fired or Quits?

While employers must pay their employees for any unused vacation time when they quit or are fired, California state law does not require employers to pay their employees out for unused sick time at the end of employment.

Does Paid Sick Time Reinstate with Seasonal Work?

If an employer does not pay out an exiting employee’s unused sick time and then that employee returns to that same job within a year, the employer is required to restore any unused sick time they had when they left. If the employer did pay out that time, they do not have to restore it.

What if I already Have Paid Time Off?

Some employers have their own policies and systems in place to provide their employees with paid time off. There are several instances wherein such employers have their own way of handling sick leave that must adhere to certain standards such as:

If the policies in place provide paid time off of at least 24 hours a year and permit employees to use that time for health care needs, then they do not need to provide additional specific sick leave

If the employer has its own sick leave policy or multiple plans and policies, they must follow the legal outlines for accrual and usage

If the policies exceed the legal requirements and have their own terms and conditions, they must clearly specify what those terms are

What if Paid Sick Leave Time Runs Out?

When an employee utilizes all of their paid sick leave, the employer is not required to provide them with more. However, if the employee takes unpaid time off to deal with health related issues, there are some state and federal laws that may protect them. The California Family Rights Act and the Family Medical Leave Act allow for eligible employees to take health care related unpaid leave without the fear of losing their job or being retaliated against by their employer.

Can Employers Deny Sick Days?

Employers are not legally permitted to forbid their employees for taking sick days. They are also not permitted to retaliate against employees for requesting or taking sick days. Employees are also not responsible for finding their own replacement when taking sick days. There are however some variables concerning whether or not an employer can require their employees to provide a doctor’s note.

How to Deal with an Employer Who Denies Sick Days or Fails to Pay Sick Leave?

If an employer does not provide their employees with paid sick leave, tries to deny sick leave, does not pay for utilized sick time, or commits other violations of sick leave laws, then the employees can file a civil suit against them.

Sometimes, employers may try to retaliate against employees for taking sick leave, filing complaints, or participating in investigations by:

Demoting them

Cutting their hours

Making threats

Blackmailing them

Termination

If an employer retaliates against an employee for exercising their rights, that employee can pursue legal action against them.

Damages for Being Retaliated Against for Taking Paid Sick Leave

There are many different types of damages that an employee may sue for when their employer violates their sick leave rights or retaliates against them such as:

Back pay

Interest

Unpaid sick time

Up to 3 times damages for unpaid sick time, up to $4k

Administrative penalties

Attorney’s fees

Contact Mesriani if You Have Been Denied Sick Time

In the state of California, employers are legally required to provide eligible employees with paid sick leave. Unfortunately, some employers may refuse to allow their employees to utilize their leave or retaliate against them for doing so. In these situations, it may be best to seek help from an employment attorney. Our lawyers have the experience necessary to advise you through your difficult situation and help you receive the compensation you deserve. If your rights to paid sick leave have been violated, call Mesriani Law Group today for a free consultation.

Paid Sick Leave FAQs

What is the new sick leave law in California?

In response to the pandemic, laws were enacted to give people the opportunity to quarantine and recover if they tested positive for COVID. In 2021, the Supplemental Paid Sick Leave For COVID-19 law was put in place to provide employees with two weeks of additional paid leave specifically for COVID. Another law was implemented in 2022 extending this benefit to the end of the year.

How many sick days do you get in California 2022?

The California paid sick leave law as of 2022 is that employers must provide eligible employees with no less than three days or 24 hours of paid time off each year for heal care related matters. Employers are allowed to provide those hours as a lump sum at the beginning of each year or require their employees to accrue them over time at a rate of one hour earned for every 30 hours worked.

How do sick days work in California?

Every year, eligible employees receive at least 24 hours of paid sick time. Employees are permitted to utilize those hours for the sake of their own health care or to care for a family member. Employers are not permitted to refuse an employee’s right to paid sick leave or retaliate against the employee for exercising that right. When an employee leaves their job, their employer is not obligate to pay them for any unused sick time.

How many sick days can you get without a doctor's note in California?

You are not obligated to explain to your employer exactly why you are utilizing your paid sick days, and they are not permitted to deny your request for sick leave. However, there are occasions where they may require a doctor’s note, especially if you take multiple days off in a row. There is some back and forth on this issue within the law. Essentially, your employer can ask for a doctor’s note, but they can not retaliate against you for not providing one.

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Examples of Age Discrimination in the Workplace

In 1967, the Age Discrimination in Employment Act (ADEA) was put in place to protect workers who are 40 years old or older from discrimination on the basis of their age. While employers are forbidden from discriminating against or harassing their employees because of their age, it does unfortunately still happen. In a survey conducted by the American Association of Retired Persons in 2018, it was revealed that approximately 60% of employees over 45 have experienced age discrimination at work, and most consider their age to be a determining factor in being unable to find new employment.

What is Age Discrimination in the Workplace?

Age discrimination in the workplace generally manifests as older workers being refused employment or advancement, facing harassment, or even being terminated due to their age. In some industries such as those relating to technology, employers perceive older workers as being less knowledgeable and capable. Age discrimination is so pervasive that roughly 2/3 workers over 45 said they had experienced some level of age discrimination.

Sometimes, age discrimination can also be tied together with gender discrimination. The AARP discovered that 72% of female workers over 45 believe age discrimination is a problem whereas only 57% of male employees over 45 felt the same.

Age Discrimination Laws

Employers who are bound by the ADEA and other federal laws related to everyday ageism in the workplace include:

Businesses with 20 or more employees

Labor organizations with 25 or more members

Government entities

Employment agencies

Workers who are NOT protected by the ADEA include:

Military personnel

Independent contractors

People under 40

There are many areas of employment in which an employer may discriminate against an older worker including but not limited to:

Benefits

Demotions

Discipline

Duties and assignments

Evaluations

Forced retirement

Hiring

Interviews

Job descriptions

Job postings

Layoffs

Promotions

Raises

Training

Termination

Wages

Types of Age Discrimination in the Workplace

There are different types of discrimination that people may face at work due to their age:

Direct Discrimination – This is when employees are denied opportunities. This may manifest as younger employees being given training and advancement that are not offered to older employees. Sometimes an older and younger employee are both up for promotion and they have the same qualifications, and the younger employee is chosen for reasons other than age. It is important to know all of the facts of a situation when determining discrimination.

Indirect Discrimination – This is when policies and practices are put in place to deliberately exclude certain employees. This may manifest as job qualification requirements that are not necessary but put older employees at a disadvantage. Sometimes, there may be a legitimate reason for these policies, and this would need to be taken into account.

Harassment – This is when employees are mocked and berated by their boss or coworkers. This may manifest as jokes about their age, comments that they are too old to perform their work, pressuring them to retire, and holding them to a much higher standard than younger employees in the same position.

Retaliation – This is when an employer takes adverse employment action against an employee for filing a complaint or cooperating with an investigation into another employee’s complaint. This may manifest as demotions, cut hours, undue reprimands, and even termination.

Common Examples of Workplace Age Discrimination

The age discrimination examples below highlight some of the most pervasive forms of age discrimination:

Not Being Hired

Employers are not permitted to refuse to hire someone on the basis of their age. Some industries have a habit of only employing younger people and discriminating against older workers.

Hospitality Industry – median age of 31

Retail Industry – median age 39

Business Services Industry – median age 42

Construction Industry – median age 42

Education Industry – median age 43

Manufacturing Industry – median age 44

Financial Industry – median age 44

Transportation/Utilities Industry – median age 45

Some industries such as STEM fields may discriminate against older workers because they believe only younger workers are knowledgeable of new developments. Industries that involve physical speed and strength such as hospitality and construction may discriminate against older workers because they believe they can not keep up with the demands of the job.

Being Denied a Promotion

Sometimes, an older employee is up for a promotion that is then given to a younger employee who is not as qualified as they are. Sometimes there are other factors involved, but if there is a pattern of this practice within the company, there may be a stronger case for age discrimination.

Being Overlooked for Work Opportunities

Older employees are sometimes given less work and duties than younger employees and are passed over for projects and advancement opportunities. This has the effect of both making the worker look bad as well as a way to push them towards quitting or retiring.

Being Isolated from the Rest of a Team

Sometimes, older employees are isolated from their coworkers and made to feel as though they are not really part of the team. They might be left out of meetings and brainstorming sessions. They may also be ostracized from their coworkers and not included in events. They may even be asked to work from home or stationed in isolated areas.

Having a Role or Position Eliminated

One way that employers try to get around anti-discrimination laws is by eliminating the person’s role, terminating their employment for this reason, and then creating a new position that serves the same purpose and hiring someone new. This is often a tactic used to eliminate higher paid workers in order to hire someone who is willing to do the same job for much less money.

Experiencing Unwarranted Warnings or Writeups

When planning to terminate someone for discriminatory reasons, employers sometimes cover their tracks by first creating a paper trail to justify the termination. When an employee has been performing their job well with no issues and then is suddenly put on a performance improvement plan or written up for something innocuous, this may be a sign of something more.

Facing Unfair Discipline

Some employers discriminate against employees by reprimanding them for things that other employees are permitted to do. Sometimes, this is simply a case of personal favoritism, but if there is a pattern where for instance older employees are held to higher standards and criticized more harshly than younger employees in the same position, it may be a sign of discrimination.

Getting Fired or Laid Off

While layoffs and terminations may occur for a myriad of reasons, there may be patterns that show an underlaying motivation of discrimination. If a company lays off a dozen people and all or most of them are over 50, there may be something more at play. Firing someone on the basis of their age is wrongful termination and is illegal.

Forced Retirement

Rather than risk being sued for wrongful termination, some employers may try to force older employees into early retirement instead. They may offer enticing retirement packages or even create a hostile work environment to convince the employee that retiring is in their best interest. Some companies may even have a mandatory retirement for employees over a certain age, but this is not legal.

Adjusting Benefits

The Older Workers Benefit Protection Act was enacted in 1990 as a way to force employers to provide the same amount of all benefits to older workers as they do to younger workers. Though there are some exceptions that may arise depending on the details of the situation. This form of age discrimination can often overlap with disability discrimination as well when related to health care. The benefits that are generally of the main concern with this act are:

Disability

Health Insurance

Life Insurance

Pensions

Retirement Benefits

Inappropriate Behavior Prompted by an Individual’s Age

Older employees are sometimes subjected to comments, remarks, questions, and jokes about their age. They may be mocked or harassed by their managers and coworkers for being too old to do or understand certain things. They may be accused of not being able to perform their job correctly because of their age. While the people making these comments may think that it is no big deal or that they are only joking, it is part of a much larger issue.

Harassment

When employers target individual employees on the basis of their age or other protected characteristics, it is unlawful harassment. Older employees are sometimes berated for small mistakes and disciplined for things that younger employees are permitted to get away with. They may be pressured to work faster and take on heavier workloads and accused of being too old for their job if they can’t keep up.

Retaliation for Filing an Age Discrimination Claim

Employees who are being discriminated against have the right to report that discrimination. Employees also have the right to act as a witness to someone else’s claim and participate in related investigations. If an employer takes adverse employment action against an employee for exercising these rights, that employee may have a case for retaliation. Common methods of retaliation include:

Demotion

Disciplinary Action

Reduced Hours

Termination

Age Discrimination Can Also Impact Younger Employees

While age discrimination is a documented problem for older people, it can also be something that younger workers may face as well. There are many ways in which employers may discriminate against their younger employees:

Underpaying younger workers

Only giving raises or promotions to older workers

Making jokes and comments about them being young

Giving jobs and promotions unnecessary requirements that younger workers can’t meet

Reprimanding younger workers for things older workers are permitted to do

Terminating younger workers due to their age

How Common is Workplace Age Discrimination?

Unfortunately, it is difficult to get an accurate idea of exactly how often age discrimination happens in the workplace because it is usually unreported. The Equal Employment Opportunity Commission received over 554k reports of potential discrimination in 2018 and were able to resolve over 90k of discrimination cases for a total of 505 million dollars awarded. A survey conducted by the AARP that same year uncovered that over half of older employees have faced age discrimination at some point. Age discrimination can often overlap with gender discrimination as well as disability discrimination claims in some situations.

Contact Mesriani Law Group If You Have Been a Victim of Age Discrimination in the Workplace

It is illegal for an employer to harass or discriminate against their employees on the basis of their age. Unfortunately, age discrimination is all too common and negatively affects people every day. Our employment attorneys have the knowledge and experience necessary to hold employers accountable when they break anti-discrimination laws. We are dedicated to guiding our clients through the legal process and helping them receive the compensation they deserve. If your employer has discriminated against you because of your age, call Mesriani Law Group today for a free consultation.

Age Discrimination FAQs

What qualifies as age discrimination?

According to the Age Discrimination Employment Act, employers are prohibited from discriminating against employees who are 40 years or older on the basis of their age. This law includes discrimination in the hiring process and protects potential as well as current employees. Age discrimination in the workplace includes but is not limited to: • Being passed over for promotion • Being given a severely increased workload • Being given a severely decreased workload • Being reprimanded or disciplined for no real reason • Being mocked, ridiculed, or otherwise harassed • Being terminated or laid off

What are the 2 types of age discrimination?

Direct age discrimination refers to when an employer takes deliberate action against an employee due to their age. This is often in the form of an employee having their hours cut or being terminated because their employer determined that they are too old to do their job. Indirect age discrimination refers to when an employer implements certain policies and regulations that create a disadvantage for employees of a certain age. This is often in the form of age range limits and restrictions on certain jobs and benefits. This can sometimes overlap with disability discrimination when employers impose unwarranted fitness requirements on certain jobs and opportunities.

What are 3 examples of discrimination?

A few examples of age discrimination in the workplace include: • Comments, jokes, and other disparaging remarks made about older employees • A company only hiring or promoting younger employees • Employees being terminated or forced to retire once they reach a certain age

What are 3 signs that someone is being discriminated because of their age?

There are a few things to look out for that may indicate that you are being discriminated against due to your age: • You receive performance reviews that talk about not working fast enough or not grasping new ideas and procedures • Your boss begins asking when you are going to retire or suggesting that you are too old to continue working • You are being shut out of meetings, brainstorming sessions, company events, and important projects

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California Sexual Harassment Training Requirements 2023

Most states only have legal requirements for sexual harassment prevention training for government employees, however, there are some states that expand that coverage to include employees that work in the private sector as well. In the wake of the #MeToo movement, California state laws SB 1343 and SB 778 were passed in 2018 to expand workplace training requirements regarding sexual harassment. All employers who have at least five employees must provide training on sexual harassment prevention to all employees. The law requires the training be completed within six months of being hired or promoted to a supervisory position and undergone every two years. Those in supervisory positions must undergo two hours of training and those in non-supervisory positions must undergo one hour.

What is Sexual Harassment in the Workplace?

Workplace sexual harassment is defined as discrimination based on sex. This is a general definition that encompasses a broad array of situations. Furthermore, while the harassment is sexual in nature, it does not need to be motivated by sexual desire in order to qualify. This clarification was added to the definition in the Fair Employment and Housing Act with SB 292 in 2013.

Why is Sexual Harassment Training Needed?

Sexual harassment training is not just needed, it is now a mandatory measure designed to educate and deter sexual harassment in the workplace. There are several laws at both state and federal levels that are being put into place to reduce the occurrence of workplace sexual harassment. Employers are now required to provide a work environment free of discriminatory harassment. If an employee is sexually harassed in the workplace, they may hold their employers responsible and open a sexual harassment claim against them. It is in the best interest of the company as well as the employees that everyone receive proper training to prevent sexual harassment in the workplace.

Sexual Harassment Training Objectives

Government Code section 12950.1 outlined sexual harassment prevention training objectives as:

Helping employers in California alter behaviors in the workplace that lead to sexual harassment as defined by state and federal law.

Informing those undergoing training about the negative consequences of sexual harassment and abusive conduct within the workplace.

Creating and nurturing the values needed for supervisory workers to not only appropriately respond to and correct actions of sexual harassment in the workplace, but also to prevent these incidents from occurring.

Sexual Harassment Training Laws

In addition to the federal Civil Rights Act and the California state Fair Employment and Housing Act, there have been several bills that strengthened rules and regulations against sexual harassment in the workplace.

AB 1825 – Enacted in 2005, this bill mandates that employers in California with 50 or more employees, including part time workers, contractors, and out of state workers, must provide sexual harassment prevention training to supervisory staff every two years.

AB 2053 – Enacted in 2015, this bill added training against abusive conduct to mandatory training requirements of AB 1825.

FEHA Update – In 2016, revisions were made in order to widen and clarify protections for employees, actions employers are expected to take, and requirements for training.

SB 396 – Enacted in 2018, this bill added sexual orientation and gender representation to the harassment prevention training requirements.

SB 1343 – Enacted in 2019, this bill mandates that employers in California who have five or more employees must provide non-supervisory staff with one hour of sexual harassment prevention training every two years and supervisory staff with two hours every two years. The law gave employers one year to provide the first training session to all employees on staff. New hires must receive their first training session within the first six months of employment.

Sexual Harassment Training Requirements

All employers in the state of California have a duty and responsibility to reduce and prevent incidents of sexual harassment in the workplace.

Train Supervisors and Employees

In the state of California, when an employer has at least five employees, they must provide supervisory personnel with two hours of sexual harassment prevention training every two years. They must also provide nonsupervisory personnel with one hour of sexual harassment prevention training every two years. Permanent workers must be provided with this training within six months of being hired. Seasonal employees set to work less than six months must be provided with harassment prevention training within 30 days or 100 hours worked. Temporary employees obtained through a temp agency are required to be trained by that agency, not their temporary employers.

Acceptable Sexual Harassment Training

There are many different ways that employers may provide the required one or two hour training accepted by the state such as:

Classroom – In person training created and conducted by a training instructor in a removed setting.

E-Learning – Computer based education created by a training instructor and instructional designer. Online training must have contact information provided so the employee can speak with the trainer regarding any questions or assistance needed. Trainers must keep record of all written correspondences for two years.

Webinar – Online seminar created and provided by a live training instructor. Employers must have documented proof of the employees attending and participating. The employees must have the opportunity to ask any questions and receive answers and any other assistance needed. Employers must keep record of the webinar, the materials used, and any questions or additional guidance involved.

Effective Interactive Training – Supplemental audio, video, or other technology that in of itself in insufficient to meet training requirements but can be useful when utilized in combination with the above methods.

Proper training methods should include exercises and quizzes that assess the employee’s knowledge of what they’ve learned. Hypothetical scenarios with relevant discussion questions should also be included. When multiple employees are being trained together, role play, and group discussions can be utilized. In person training should allow time for employees to ask questions and e-learning should include a contact link or information so that employees can submit any questions.

Who is Qualified to Provide Sexual Harassment Training?

Under AB 1825, in order to be qualified, a trainer must be knowledgeable and experienced in preventing harassment, discrimination, and retaliation. Qualified trainers must have formal education and professional experience.

Attorneys may be qualified trainers if they meet the following requirements:

Have experience practicing employment law regarding Title VII of the Civil Rights Act or the FEHA

Have practiced in the USA for at least two years

Educators may be qualified trainers if they meet the following requirements:

Have a postgraduate degree or California state teaching credential

Have 20 hours of training or two years of experience teaching employment law regarding Title VII of the Civil Rights Act or the FEHA

Human resources personnel and harassment prevention consultants may be qualified trainers if they have at least two years of experience in any of the following:

Creating or providing training in the prevention of sexual harassment, discrimination, and retaliation

Responding to complaints regarding sexual harassment and other types of discrimination

Investigating complaints of sexual harassment

Providing advice and guidance in the prevention of sexual harassment, discrimination, and retaliation

Qualified trainers are required to be able to teach all of the following:

How to identify unlawful harassment, discrimination, and retaliation in the workplace as defined by both the FEHA and federal laws

What steps to take when addressing workplace harassment

How to report or submit a complaint about harassment

Obligations and responsibilities of supervisors who are made aware of harassment, discrimination, and/or retaliation

How to respond to harassment complaints

Obligations and responsibilities of employers to conduct investigations

How to identify and avoid retaliation

What to include in a harassment prevention policy

The ways in which harassment effects everyone

Those who are considered not qualified due to insufficient experience are permitted to assist qualified trainers with classroom or webinar training sessions on the condition that the trainer is always supervising and available to the attendees.

Sexual Harassment Training Content

Sexual harassment training in California that is in compliance with AB 1825, AB 2053, and the most updated FEHA regulations must include the following:

The legal definition of sexual harassment as expressed in Title VII and the FEHA

The principles of federal, state, and case laws

Actions and behaviors that are considered harassment

The prevention of harassment of employees who are or are perceived as LGBT

Abusive conduct prevention

Strategies to prevent harassment

Remedy options such as civil action available for victims of harassment

Resources available for victims of harassment

The role and extent of limited confidentiality involved in the process of filing a complaint and the subsequent investigation

Potential liability for perpetrators and employers

Obligations and responsibilities of supervisors who are made aware of harassment, discrimination, and/or retaliation

Obligations and responsibilities of employers to conduct investigations

The steps employers are required to take to correct harassment or abusive behavior

The steps employers should take if they are accused of committing harassment

Practical examples of harassment such as real occurrences, hypothetical scenarios, role play, or group discussions

The elements that should be included in a harassment prevention policy

Adding “Abusive Conduct” to Sexual Harassment Training

While general abusive conduct and bullying are still not considered unlawful harassment in California, the FEHA was updated by AB 2053 in 2015 to add that harassment prevention training must include abusive conduct. The amendment defines abusive conduct as:

“Conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.”

Prevention training is expected to include an explanation of the elements of abusive conduct as well as the negative effects it has on everyone in the workplace such as reducing productivity and lowering morale.

Gender Identity Training

Effective in 2018, SB 396 was added on to the FEHA to ensure that employers in California who have fifty or more employes must also include gender identity and expression as well as sexual orientation in their biannually mandated harassment prevention training. Employers are also required to post the updated DFEH sexual harassment training poster pertaining to harassment based on gender identity, gender expression, and sexual orientation. New topics and definitions include:

Gender Expression – The way a person’s appearance and behavior reflect their gender, regardless of the sex and gender assigned to that person at birth.

Gender Identity – The gender a person identifies as, regardless of the sex and gender assigned to that person at birth.

Sex Stereotype – Assumptions made regarding appearance, behavior, and abilities based on myths and stereotypes related to sex and gender.

Retaining Sexual Harassment Training Records

AB 1825 and FEHA regulations require employers to keep employee training records on file for at least two years including:

Dates

Names of trainees

Names of trainers

Training type

Sign in sheets

Written training materials

Recorded training materials

Questions received

Responses provided

Completion and attendance certificates

Other Ways to Help Maintain a Sexual Harassment Free Workplace

The following actions are all ways employers can help ensure that sexual harassment in the workplace is eliminated.

Establish Policy and Procedure Designed to Eliminate Sexual Harassment in the Workplace

Employers are required by the FEHA to create and enforce a harassment, discrimination, and retaliation prevention policy that meets the following criteria:

In writing

Lists all categories protected under the Act

Specifies that it is illegal for managers, supervisors, coworkers, and third parties to engage in prohibited conduct

Includes a process for complaints that ensures

As much confidentiality as possible

Quick response

Timely impartial investigations conducted by qualified personnel

Documentation of progress

Appropriate remedy options

Timely resolution

Includes a way for employees to submit complaints to someone other than their immediate supervisor such as

Direct contact with company representative such as HR or other authority

Complaint hotline or submission form

An ombudsperson

Contact information for government agencies such as the EEOC

Requires supervisors to report complaints to company representative such as HR for internal resolution measures

Specifies that allegations will be investigated quickly, fairly, and thoroughly as to adhere to all parties’ right to due process with evidence based reasonable resolutions

Specifies that while confidentiality will be kept as much as possible, the investigation may not be completely confidential

Requires that appropriate measures are taken if an investigation confirms misconduct

Prohibits any retaliation against any employee filing a complaint or participating in an investigation

Post the Employment Rules Against Sexual Harassment in the Workplace Poster

The official posters ‘California Law Prohibits Workplace Discrimination And Harassment’ as well as ‘Transgender Rights In The Workplace’ must be posted by employers where they can be easily noticed and read by employees.

Distribute Literature

Employers are required to provide their employees with information regarding sexual harassment. They have the option of distributing the official Sexual Harassment Fact Sheet, or creating their own so long as it meets the requirements set out in Government Code section 12950(b). There is no standard for how the document is to be distributed other than that it must be received by every employee.

Employers must also include a breakdown of their discrimination and harassment prevention policies along with an acknowledgement of receipt in any way that guarantees the employee receives and understand the information, such as:

Hard Copy

Email

Web Page

Verbal

Legal Remedies

If an employer does not provide sexual harassment prevention training as required by law, the California Civil Rights Department may get an order to force them to do so. According to the FEHA, not providing sexual harassment prevention training is not sufficient in of itself for establishing liability of an employer in a harassment claim. However, in accordance with AB 1825, providing the prevention training is not a valid defense against sexual harassment claims and does not absolve the employer of liability should harassment occur.

Contact Mesriani Law Group If You Have Been a Victim of Workplace Sexual Harassment

Employers have a responsibility to keep the workplace free of sex based discrimination and harassment. When sexual harassment occurs, the employer is liable if they knew about it or reasonably should have known. Navigating the legal process of addressing sexual harassment can add stress and frustration to an already tumultuous experience. An employment lawyer can help alleviate that by taking on the work and explaining things every step of the way. Our attorneys are experienced, hardworking, and dedicated to helping you get the compensation you deserve. If you have been the victim of workplace sexual harassment, call Mesriani Law Group for a free consultation.

California Sexual Harassment Training FAQs

Which Employers Are Required to Get Sexual Harassment Training?

If a California employer has at least five workers, they must provide those in California with sexual harassment prevention training. While workers outside of California count towards the total number of employees, only those residing in California are required to undergo state mandated training. Workers in other states may be bound by their local labor laws.

When Must New Employees and Supervisors Receive Sexual Harassment Training?

When an employee is hired to a new job or promoted to a supervisory position, the employer has six months to provide them with the mandatory sexual harassment prevention training. Supervisory staff must receive two hours of training and nonsupervisory staff must receive one hour of training. This training must be undergone every two years throughout their employment.

Do Temporary or Seasonal Employees Need Sexual Harassment Training?

Even if an employee is only hired for a temporary or seasonal job, they still must undergo sexual harassment prevention training. For these workers, training must be completed within 30 calendar days or the first 100 hours worked. If the temporary worker is the employee of a staffing agency, it is the agency who is responsible for providing the training, not the temporary employer.

Can Sexual Harassment Training Be Completed Online?

There are many ways in which sexual harassment prevention training can be completed online that is within compliance of legal requirements. One benefit of web based training methods is that they can be paused and completed intermittently so long as it is completed in its entirety.

Do Employees Get Paid for Sexual Harassment Training?

Sexual harassment training in California is required by law to be provided by the employer. Furthermore, the training is not to be conducted during the employees’ personal time. It is meant to be paid training included in employment and the employer is also responsible for any costs required. Employees must be paid for their time and must not be required to pay anything themselves.

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What Are Examples of Sexual Harassment in the Workplace?

There are many different ways in which sexual harassment can manifest in the workplace. Some ways may be obvious and direct, sometimes obvious to other people. While other ways may be more subtle and harder to prove. Sexual harassment can be physical or verbal and there are some things that may not seem like a big deal to many people but make some people uncomfortable. One of the defining factors of sexual harassment is that it is unwanted conduct. A manager placing a hand on an employee’s shoulder may be an innocent gesture. But if the employee asks them not to do that, and they continue to do so, it may constitute harassment.

What is Sexual Harassment in the Workplace?

Sexual harassment is considered sex based discrimination and includes any unwanted conduct that is of a sexual nature that would make any reasonable person uncomfortable. Generally speaking, the conduct needs to be severe or pervasive in order to be considered harassment.

Common sexual harassment examples include but are not limited to:

Unwanted touches

Sexual bribery or blackmail

Sexual jokes and comments

Sharing sexual pictures or videos

However, sexual harassment is not always about sexual desire. Other examples include but are not limited to:

Making derogatory remarks about someone’s gender

Asking a trans person about their anatomy

Asking invasive questions about someone’s orientation

Where Can Sexual Harassment Occur?

In general, sexual harassment can happen anywhere. In the workplace, personal sexual harassment such as advances tends to happen in one on one situations such as private meetings. Comments, propositions, photos, and videos may even be sent via email or direct messages. Generalized harassment just as derogatory comments or jokes may happen in more group settings such as a break room. Non work company functions such as office holiday parties can also be a common situation in which sexual harassment may occur due to a more relaxed setting and the possible addition of alcohol.

Can Sexual Harassment Occur in the Job Interview Process?

The law forbids employers from asking prospective employees about any protected category. This includes questions about sexual orientation, gender identity, marital status, or pregnancy. Employers are also not allowed to make employment contingent on sexual favors. While sexual harassment unfortunately can and does happen during the job interview process, it is still illegal.

What are the 2 Primary Types of Workplace Sexual Harassment?

In a work environment, sexual harassment is divided into two categories.

Quid Pro Quo – When a boss, manager, supervisor, or anyone with power over someone’s employment uses that power to try and leverage sexual favors. This may include offering benefits, setting conditions for promotion, or threatening adverse employment action if rejected.

Hostile Work Environment – When unwanted sex-based words or actions are extreme or consistent enough that it creates an intolerable work environment that negatively impacts the employee’s ability to do the essential functions of their job.

Though different, these categories may coincide in the same workplace and present their own challenges when faced with the burden of proof.

Common Examples of Sexual Harassment in the Workplace

Sexual harassment is a term that encompasses a wide verity of behavior including but not limited to:

Standing in someone’s personal space

Grabbing or brushing against someone

Degrading jokes and comments

Telling explicit stories

Sharing explicit pictures or videos

Making offensive gestures

Asking invasive questions

Sending explicit messages

Staring at someone

Following someone

Blocking someone

Propositioning someone

Hugs and backrubs

Commenting on someone’s appearance

Commenting on someone’s body

In order to be considered harassment, the behavior must be unwanted and pervasive. If the behavior is welcomed, or if the person is asked to stop the behavior and does, it may not qualify. Isolated incidents may be considered harassment if they are severe such as quid pro quo harassment.

How Common Is Sexual Harassment in the Workplace?

The Equal Employment Opportunity Commission reported that between 2018 and 2021, 35.4% of the charges they handled were for harassment, 27.7% of which were for sexual harassment. They also reported that 78.2% of those charges were filed by women. Nearly two thousand of the sexual harassment charges were accompanied by a racial discrimination charge with 71.2% of them listing Black/African American as the race in question. Nearly 800 of the sexual harassment charges were accompanied by a national origin discrimination charge, nearly half of which identified as Mexican or Hispanic. Furthermore, 43.5% of the sexual harassment charges also involved retaliation charges. The state with the most workplace sexual harassment charges filed with the EEOC was Alabama.

Other Workplace Sexual Harassment Considerations

Since sexual harassment is considered sex discrimination, it does not have to be explicitly sexual in nature or motivated by sexual desire. Harassment in the form of enforcing gender stereotypes, sexist remarks and actions, and invasive questions about someone’s sexual orientation or gender identity is still considered sexual harassment.

Employers are not only responsible for refraining from committing sexual harassment, they are also expected to protect their employees from harassment by their coworkers or third parties such as vendors, clients, or customers. Employers must take steps to prevent sexual harassment such as providing training, and they must also take action when they are made aware of harassment occurring in the workplace.

While women make up the majority of sexual harassment victims, it is a problem that faces all genders. Sexual harassment can occur in any combination including groups of people rather than one on one. Anyone can be a perpetrator or a victim.

What Should You Do if You Have Been Sexually Harassed at Work?

When facing any kind of harassment at work, it is important to gather as much evidence as possible. Keep documentation and note down details. In the event that someone does not realize that their actions are making people uncomfortable, it may be as easy as asking them to stop. If this does not work, the matter should be taken to management or human resources. If the matter cannot be resolved internally, a complaint can be filed with a government agency. It may also be wise to seek legal advice from an employment attorney.

Document the Sexual Harassment

Sexual harassment often happens in private, making it difficult to prove. It is important to document any incidents that occur. Be sure to note the:

Date and time

Names and location

Words and actions

Try to note down what happened as soon as you can and be as detailed as possible. If the harassment is occurring via text or email, keep copies of all conversations. Sometimes, coworkers may notice what is happening and may be able to give witness testimony.

Check Employee Handbook and Report to HR

Companies should have their own guidelines and procedures for addressing sexual harassment. These can often be found in the employee handbook or posted in the break room. There may be a specific department or portal for filing complaints. If the harassment is coming from a coworker or customer, the next step may be to alert your manager. If they cannot help, or the harassment is coming from a member of management, a formal complaint should be sent to human resources. The best course of action is to always submit written complaints via email so that you have a copy of the complaint and proof that it was sent and who it was sent to.

File a Complaint

If your employer does not address or resolve the issue, the next step is to file a complaint with the EEOC. This complaint should be filed as soon as possible and should be as detailed as possible. Oftentimes, a perpetrator will have more than one target. If multiple employees have been victimized, then it is encouraged for each of them to submit complaints. This can strengthen the validity of the claim and may help reduce possible retaliation from the employer. The EEOC will conduct their own investigation into the claim, and if they determine that the claim is valid, they will issue a right to sue letter. In California, employees can also file a complaint with the Department of Fair Employment and Housing, also known as the California Civil Rights Department.

How Much Time Does an Employee Have to File a Sexual Harassment Complaint?

There is a limit to how much time a person has to file a harassment claim. Complaints to the EEOC must be filed within 180 days of the last incident. In California, that time limit may be extended to 300 days if the person is also filing a complaint with the DFEH/CRD. Complaints to the DFEH/CRD must be filed within 3 years of the last incident. After a right to sue letter has been issued by the EEOC, the person has 1 year from the date it is issued in which to file a lawsuit. The time limit for filing a lawsuit after receiving a right to sue letter from the DFEH/CRD was extended from 1 year to 3 years in 2020.

Find Legal Representation

Workplace sexual harassment is a violation of both federal and California state law. When someone is sexually harassed at work, they have a right to not only seek help from designated government agencies, but also to file a lawsuit. While people are allowed to represent themselves, it is almost always better to have a lawyer. Even if you’re not sure whether or not your situation constitutes illegal sexual harassment, it can be beneficial to speak to an employment attorney and find out what your options are.

Employers Duty When Sexual Harassment is Reported

Employers have a responsibility to keep the workplace free of sexual harassment. Harassment prevention training must be provided every year to all employees. Supervisory staff must undergo two hours of training and nonsupervisory staff must undergo one hour. There must be specific harassment prevention policies and procedures in place that are clearly provided to all employees and consistently enforced. There must be an accessible system for employees to report any instances of harassment. When an employee reports sexual harassment, the employer is required to conduct a thorough unbiased investigation in a timely manner. Appropriate action must be taken in order to resolve the situation. Employers are prohibited by law from retaliating against employees for making complaints.

Who Can Be Held Liable for Workplace Sexual Harassment?

While perpetrators of sexual harassment can be held liable for their own actions, in many cases, the employer may be found liable as well. If a company does not have proper harassment prevention procedures in place, does not provide harassment prevention training, or allows the harassment to continue, they can be found liable as well. Sometimes, there may be no way for an employer to know what is happening. This is why it is important to report the harassment to your human resources department. Employers can be held liable for sexual harassment that they did not commit if they knew it was happening or reasonably should have known it was happening.

What is the Difference Between Sexual Harassment and Non-Sexual Harassment?

Sexual harassment is sex based discrimination that manifests in pervasive or severe unwanted verbal or physical conduct. The harassment is sexual in nature but is not limited to sexual pursuit.

Non-sexual harassment is discrimination based on any other protected category such as age, race, religion, and disabilities. It is also pervasive or severe unwanted verbal or physical conduct and negatively impacts an employee’s ability to perform the essential functions of their job.

What is the Difference Between Sexual Harassment, Assault, & Misconduct?

Sexual harassment is a violation of civil laws. It consists of verbal conduct such as comments, passive conduct such as displaying explicit material, and minor physical contact such as rubbing someone’s shoulders. If you are the victim of sexual harassment, it is advisable to speak to an attorney.

Sexual assault is a violation of criminal laws. It consists of severe physical misconduct such as unwanted sexual contact and being forced to engage in sexual activity. If you are the victim of sexual assault, it is advisable to speak to the police.

Sexual misconduct is a violation of specific policies that a company has in place. It may include violation of civil and criminal laws as well as legal behavior. Many companies do not allow employees to engage in sexual relationships of any kind with each other or between management and staff.

Contact Mesriani Law Group if You Have Been a Victim of Workplace Sexual Harassment

Workplace sexual harassment is a violation of both federal and California state law. Although there are many regulations in place to prevent it, thousands of cases still occur each year. There are many steps that victims must take and time frames in which those steps need to be taken. Many people are discouraged to come forward because they don’t know their options, or they fear retaliation from their employer. Seeking advice from an employment attorney can help make the entire process easier. Our firm specializes in discrimination, sexual harassment, and wrongful termination. If you have been the victim of sexual harassment in the workplace, call Mesriani Law Group today for a free consultation.

Workplace Sexual Harassment Example FAQs

What is an example of workplace harassment?

A manager continuously comments on an employee’s appearance and finds reasons to touch them. The employee expresses to the manager that this makes them uncomfortable and asks them to stop. The manager continues the behavior and escalates by beginning to send the employee lewd messages and explicit photos. The manager then offers the employee a promotion and a pay raise in exchange for sex. The employee refuses and is terminated the following week. The employee in this scenario could have a case for sexual harassment and retaliation.

How can you be sexually harassed in the workplace?

There are generally two categories of workplace sexual harassment. Quid pro quo harassment is when someone with power over someone’s job offers them benefits or advancement in exchange for sexual favors or threatens them with adverse employment action unless they provide sexual favors. A hostile work environment is when an employee is subjected to constant or severe conduct that negatively impacts their ability to do their job. This can include physical as well as verbal harassment.

What is the most commonly reported type of workplace harassment?

In 2018 alone, 7,609 charges of sexual harassment were filed with the EEOC, a 13.6% increase from the previous year, coinciding with the emergence of the #MeToo movement. According to a report from the EEOC, they received over 98 thousand charges of harassment between 2018 and 2021. Over 27 thousand of those charges were for sexual harassment. Though there has been a steady decrease since 2018 with only 5,581 charges filed in 2021, it is unclear if this is due to a decrease in sexual harassment or a decrease in reporting it. Nearly half of those sexual harassment charges were accompanied by a retaliation charge, though that percentage has been decreasing as well.

What are sexually inappropriate comments?

In a professional setting, any sexual comments may be considered inappropriate with the exception of industries where such topics are relevant to the work. When defining harassment, one of the key factors is that the conduct is unwelcome. This can come in the form of: • Jokes or innuendo • Derogatory comments • Flirtation or advances • Speculation about someone’s body

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What is a Hostile Work Environment in California?

Most people can generally say that they have worked jobs with unpleasant bosses and unfriendly coworkers. But when negative behavior crosses the line into discrimination and harassment to a degree that becomes abusive or intimidating and makes it impossible for someone to do their job, it may be considered a hostile work environment. It is important to know what steps to take and what options and legal protections you have if you find yourself in such a situation.

What is the Definition of Hostile Work Environment?

Just because there is a negative work environment, does not necessarily mean there is a hostile work environment. However, there are several factors involved in determining if a hostile work environment is present:

Discrimination of a protected class

Offensive conduct

Threats and/or intimidation

Physical and/or mental abuse

Hinders the employee’s ability to do their job

Employers are not only liable for creating a hostile work environment, they are also liable if they allow it to occur. There are both state and federal laws that combat employment harassment and discrimination including hostile work environments. California law determines that a hostile work environment is present if there is severe or pervasive abusive conduct.

What are Considered Criteria for a Hostile Work Environment?

In order to determine if a situation constitutes a hostile work environment, it is important to ask the following questions:

Is conduct discriminatory or retaliatory against a protected class or action?

Is the conduct ongoing and constant?

Would a reasonable person feel the conduct creates a hostile or abusive environment?

Has the victim’s ability to do their job been negatively affected?

Did the employer know or reasonably should have known about the situation?

Did the employer fail to take action to stop the abusive conduct?

What Is Not Considered a Hostile Work Environment?

Just because there are factors present that create an abusive work environment, that does not mean it is considered hostile under the definition of the law. Many situations may be unfair or upsetting, but are not illegal, such as:

An employer showing favoritism with no discrimination against a protected class

Coworkers ostracizing an employee because they don’t like their personality

An employer who yells at everyone and is always rude to all employees

A coworker making an insulting comment once

An employer making new employees do the worst job duties

What Constitutes a Hostile Work Environment in California?

The following patterns of behavior are enough to make a workplace a hostile environment.

When Hostile Behavior Becomes Discriminatory

Both federal and state laws protect employees from workplace discrimination. A hostile work environment can occur when discrimination becomes pervasive and severe enough to negatively impact the employee’s ability to work. Categories protected from discrimination include:

Age – Workers who are forty or older are protected from discrimination.

Disabilities – Workers with physical or mental impairments or illnesses are also protected from discrimination. Conditions are generally chronic and limit major life activities such as:

Sensory impairment

Paralysis

Cerebral Palsy

Diabetes

Missing limbs

Clinical depression

Autism

ADHD

PTSD

Schizophrenia

Genetic Information – Employers are prohibited from collecting genetic information from their employees or using that information against them. This includes testing and family histories of diseases.

Medical Conditions – Characteristics associated with diseases or health issues related to cancer are also protected under anti-discriminatory laws. Employees do not need to be actively experiencing symptoms in order to be protected.

Race – Not only is it illegal to discriminate against someone for their race, color, ancestry, or national origin, but it is also illegal to discriminate against someone due to the race of the people they associate with. Workers are also protected against being discriminated against for being perceived as a race that is not their own. Things like racial slurs, offensive jokes, and derogatory comments are prohibited.

Religion – Employers are prohibited from discriminating against employees for their religious beliefs or practices. This may include harassing someone with slurs and stereotypes or refusing to allow someone to take time off to observe holidays.

Sex – Sex based discrimination covers a wide range of categories in addition to biological sex.

Gender – Discrimination against someone for their gender identity or presentation is prohibited regardless of their biological sex.

Sexual Orientation – It is illegal to harass or discriminate against employees for their sexual orientation or perceived sexual orientation.

Pregnancy – Employers cannot discriminate against an employee who is pregnant, experiencing complications of pregnancy or childbirth, an employee who is breast feeding, or an employee who could become pregnant.

Sexual Harassment – Sex based discrimination includes unwanted and offensive conduct that is of a sexual nature including comments, jokes, invasive questions, unwelcome sexual advances, and threats.

Toxic Work Environment

A toxic environment can be an early warning sign that a work environment may become hostile. When observing toxic behavior in the workplace concerning discrimination, harassment, bullying, hostility, or insults it is important to keep a record of everything. Be as specific as possible regarding dates and times, who said what, and who was present. It is also usually a good idea to report these things to human resources or upper management in writing and via email if possible.

Consistent Hostile Behavior in the Workplace

Generally speaking, minor isolated incidents do not constitute unlawful harassment or a hostile work environment. The EEOC requires that the harassing conduct in question be pervasive and severe in order to qualify. What they describe as “petty slights, annoyances, and isolated incidents” do not count on their own. Smaller incidents should still be documented, however. Keeping detailed records is one of the best ways to prove that the behavior is consistent. Discriminatory or harassing behavior should also be reported to management or human resources.

Inappropriate Behavior Becomes Aggressive

Hostile behavior in the workplace is usually aggressive. This can be physical or verbal in nature such as intimidation, yelling, insults, or general cruelty. Aggressive behavior and bullying in general are not always proof of a hostile work environment, but they are a factor. When physical aggression is involved, the most important thing is everyone’s safety. Try to deescalate or remove yourself from the situation and report the incident.

Hostile Behavior Disrupts the Ability to Work

One major way to know that a work environment has become hostile is when it begins interfering with your ability to do your job. Consistent aggressive behavior can make it impossible to concentrate on the tasks at hand. Discrimination and sabotage can also make it impossible to advance your career further. The matter should be reported to human resources via email, and it may be time to contact the EEOC and consult with an employment attorney.

Hostile Work Environment Requires a Formal Complaint

Most companies have their own guidelines and procedures for reporting and addressing discrimination, harassment, and hostile work environments. If you have an employee handbook, it should be outlined there. It is always important to be sure that you have made a formal written complaint and given your employer the opportunity to address and remedy the situation. It is also good practice to be sure that you retain a copy of the complaint and proof that you submitted it. If your employer does not take action, you may want to explore your legal options.

Signs of Hostile Work Environment

There are many elements that create a hostile work environment and many signs that this may be what you are experiencing. Some things to look out for include:

Discrimination – Slurs, jokes, and derogatory comments made about someone’s age, race, religion, gender, sex, orientation, or disability.

Images – Pictures and symbols including photographs and drawings that are offensive or threatening being displayed in the workplace or posted or sent online.

Sexual harassment – Jokes, comments, and questions of a sexual nature, propositions, requests for sexual favors, threats, and unwanted physical contact that a reasonable person would find offensive.

Bullying – Insults, jokes, pranks, derogatory comments, and ostracization in the office, online, and at work sponsored social functions.

Sabotage – Ruining someone’s work or reputation, setting them up to fail, or holding them to impossible standards or higher standards than everyone else.

Intimidation – Physical or verbal threatening behavior such as blocking someone’s path, shouting at them, or standing in their personal space.

Touching – Unwanted physical contact that would reasonably be considered uncomfortable. Even “harmless” touching if the person is asked to stop and does not.

Favoritism – Employers granting perks, benefits, and promotions to select employees and not others based on personal preference. This is unlawful if it is based on protected characteristics.

Minor offenses – Some things such as isolated incidents and general unpleasantness that would not be enough to warrant a hostile environment on their own but these can pile up and supplement other problematic behaviors.

Am I Experiencing a Hostile Work Environment?

Just because a work environment is bad, does not necessarily mean that it is hostile by legal definition. Employers do not have a responsibility to provide an emotionally healthy and positive work environment. Being a generally terrible boss is not illegal on its own. The law considers a work environment to be hostile when that hostility is motivated by discrimination against protected characteristics. When trying to determine if you are experiencing a hostile work environment, consider the following:

Is the boss mean to all of the employees, or only people belonging to certain groups?

Is there personal favoritism, or are specific types of people shown special treatment?

Is the employer only hiring or firing certain types of people?

Are the negative comments being made about specific types of people?

Have there been one or two incidents or is there a consistent pervasive problem?

Reporting a Hostile Work Environment

If an employee is experiencing a hostile work environment, the first step is to file a detailed complaint with their employer. This complaint should be made in writing and sent via email to the human resources department. If there is no human resources department, the complaint should be filed with upper management. If the employer does not take action to resolve the issue, then the employee can file a complaint with the California Department of Fair Employment and Housing. The DFEH may investigate the matter and try to resolve it on their own or issue the employee a right to sue letter. At this point, the employee may file a lawsuit against their employer.

How to Prove a Hostile Work Environment?

One of the best ways to prove a hostile work environment is through documentation. Having a detailed timeline of events and proof that the issue was brought to the employer’s attention. Retain copies of all complaints and email or text conversations regarding the situation including any correspondence that illustrates the discrimination or harassment. Witness testimony is another important piece of evidence. Sometimes coworkers can attest to having seen and heard the hostile treatment firsthand.

Employers Responsibilities When Discovering a Hostile Work Environment

When there is a hostile environment in the workplace, it is the employer’s responsibility to respond quickly and effectively. There are several steps an employer can take to appropriately address the issue:

Listen – Employers should always take complaints seriously. Do not disregard or brush off employee concerns or assume they are overreacting. Pay attention to what they are saying and gather all the information necessary. If the employee is concerned for their wellbeing, find a way to remove them from the situation in a way that is not punishing them for coming forward. Let them know that you hear them and that you are taking the matter seriously.

Investigate – A thorough and impartial investigation should be conducted with as much confidentiality as possible. The company can have an internal investigation procedure or bring in a third party. The investigator should look into all the facts of the situation including conducting individual interviews with the accuser, the accused, and any possible witnesses. The employer should take all of the information collected into consideration to be sure that a fair and reasonable judgment is made.

Communicate – All parties involved should be updated as to the results of the investigation. A written correspondence should be issued in a timely manner declaring that either the harassment was confirmed, or that it could not be confirmed.

Take Action – If the investigation confirms the employee’s complaints, the employer has a responsibility to act. The guilty party should face appropriate disciplinary action be it a write up, suspension, or termination depending on the severity of the situation and the company’s anti-harassment policies. If the punishment is not termination or harassment cannot be confirmed, it may still be appropriate to reassign one of the parties so that they are no longer required to interact. It is important to be certain that any action taken does not also punish the victim. Regardless of the outcome, it may be necessary to review and update the company’s policies and training regarding harassment and discrimination prevention to prevent further incidents.

Ways to Prevent a Hostile Work Environment

The state of California has laws and guidelines in place to ensure that employers are taking action to prevent workplace harassment and hostile work environments.

All employers are expected to have written company policies addressing harassment, discrimination, and retaliation prevention. These policies must be provided to all employees and include:

A list of all of the categories protected under the FEHA

A reminder that coworkers, management, supervisors, and third parties are prohibited from engaging in unlawful practices

A process for filing complaints beyond the employee’s immediate supervisor

A reminder to supervisors to report any complaints to HR or designated representatives

An assurance that complaints will be investigated in a timely, thorough, and fair manner

An assurance that confidentiality will be kept as much as is possible

An assurance that action will be taken if the investigation confirms misconduct

An assurance that employees will not face retaliation for filing complaints or participating in an investigation

There is also literature created by the DFEH such as a sexual harassment brochure and an information sheet that should be provided to employees. The DFEH’s anti-discrimination and harassment posters must also be posted somewhere that is prominent and accessible to all employees.

Employers in the state of California with five or more employees must provide all employees in California with sexual harassment prevention training every two years. Supervisory staff must undergo two hours of training while nonsupervisory staff must undergo one hour of training. The training must include:

An understanding of state and federal laws

Ways to prevent and respond to abusive conduct

Practical examples of discrimination, harassment, and retaliation

Remedies available to those facing workplace harassment

Ways to prevent and respond to general workplace bullying

Recent laws also added that other sex-based harassment such as gender identity and presentation, transgender status, and sexual orientation also be covered in mandated training.

Contact Mesriani Law Group If You Are Experiencing a Hostile Work Environment

Being in a hostile workplace can take enough of a toll on a person without the added stress of filing a lawsuit. If all other options have been exhausted and it is time to take legal action, it may be best to seek the help of an employment attorney. A lawyer can help guide you through the process and fight for your best interests. Facing discrimination and harassment in the workplace is something that no one should have to go through alone. Our attorneys are hardworking, experienced, and dedicated to getting our clients the compensation they deserve. If you have been the victim of a hostile work environment, call Mesriani Law Group today for a free consultation.

Hostile Work Environment FAQs

What qualifies as a hostile work environment?

When discriminatory and harassing behavior becomes so pervasive and constant that it negatively impacts an employee’s ability to do their job, then it may be considered a hostile work environment. The offensive behavior must be motivated by discrimination based on a protected characteristic such as age, race, religion, sex, gender, sexual orientation, disabilities, or as retaliation for whistleblowing.

How do you prove you are in a hostile work environment?

One of the best ways to prove a hostile work environment is through documentation. Keep copies of any correspondence or documents that show discrimination or harassment. Make detailed written complaints sent to human resources via email. Create a timeline of events detailing exactly what happened, when it happened, and who was involved. It is also extremely beneficial to have eyewitness testimony as well if possible.

What four factors contribute to a hostile work environment?

Creating a hostile work environment includes many aspects and details. While every situation is different, the main determining factors that define a hostile work environment are: • Discrimination against a protected class or retaliation against a protected action • Conduct that any reasonable person would find abusive • Conduct that is pervasive and consistent • The victim is unable to perform their job due to the conduct

What are the signs of a toxic workplace?

There are many early warning signs that a work environment has become toxic: • A lack of morale among employees • Abusive or aggressive employers • Unchecked harassment among coworkers • Unfairly high standards and harsh reprimands for not meeting them • Uneven workloads • Favoritism and nepotism • A high number of stress induced health issues

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What is the California Family Rights Act?

The California Family Rights Act, which is also referred to as CFRA or the Moore-Brown-Roberti Family Rights Act, is a state law that allows those eligible to take up to 12 weeks of unpaid time off of work due to certain personal situations and have their jobs protected. Situations covered by CFRA include major health concerns, a relative’s major health concern, circumstances surrounding a newly acquired child, or some situations involving a relative’s military service. In 2020, Governor Newsom signed Senate Bill 1383 which expanded the guidelines pertaining to what employers were bound by the law and what employees were protected by it.

California Family Rights Act Key Takeaways

Employers with 5 or more employees are bound by this law.

Employees are granted 12 weeks of job protected leave.

The leave is unpaid.

Leave may be granted for the following situations:

Bonding with a newborn child

Bonding with a newly adopted child

Bonding with a newly placed foster child

Tending to an ill family member

Serious personal health concern

Certain military exigencies

Leave may be granted to care for the following family members:

Spouse

Registered domestic partner

Child

Grandchild

Sibling

Parent

Grandparent

Specially designated person

What Employers Are Subject to CFRA?

Senate Bill 1383 was signed into law in September of 2020 and was first enacted in January of 2021. Prior to this bill, CFRA only covered employers with 50 or more employees within the same 75-mile radius. The law now covers:

All private employers who have 5 or more employees

All public employers

All state government employers

All political or civil employers

Who is Eligible for CFRA Coverage?

Similar to the Family Medical Leave Act, in order to be eligible for the California Family Rights Act protected leave, an employee must have:

Been employed by the present employer for at least 12 months before the beginning of the leave

Worked for the present employer for at least 1250 hours within the 12 months prior to the beginning of the leave

Recent Updates to CFRA Eligibility

In September of 2022, Governor Newsom signed AB 1041, effective January of 2023, which broadened the definition of ‘family member’ under CFRA by adding ‘designated person’ to the list of people an employee may take leave to care for. As society drifts further from the confines of the nuclear family structure and into more unique chosen families and household configurations, a designated person is any individual who shares a familial relationship with the employee. California employers are discouraged from restricting who may be categorized under this new term, however they are permitted to only allow leave for one designated person per year. This new addition to the definition of family member was applied to Labor Code 245.5(c) as well.

What Protections Does the CFRA Offer?

The CFRA allows for eligible employees to take up to 12 weeks of unpaid leave within a 12 month period and have their job protected and their health insurance remain intact. Reasons that a person may take CFRA leave are:

The birth of a new child

The adoption of a new child

The placement of a new foster child

Military related qualifying exigency involving a partner, child, or parent

To tend to a family member suffering from a serious health condition

To tend to a personal serious health condition

A mental or physical illness, injury, or other condition may be considered a serious health condition if:

It involves incapacity due to inpatient care

It involves incapacity that results in more than 3 days in a row of absence from daily activities such as work or school

It is incurable and requires long term treatment

It involves restorative surgery after a disfiguring injury

Elective cosmetic surgery and routine doctor visits are not included in the definition of serious health conditions unless unforeseen complications result in inpatient care.

Prior to 2021, there was an age restriction of 18 or younger when considering the caretaking of a child. Now, the CFRA allows parents to take protected leave to tend to their adult children as well. The definition of family member was also extended to include in-laws and chosen family. The new adjustments also allow for the parents of a new child to both take leave even if they both work for the same employer.

Qualifying military exigencies may refer to:

Sudden deployment

Military related events

Childcare related arrangements

Mental health care

Other situations up to the discretion of the employer

Is My Job Protected?

When an employee takes CFRA leave, their job is almost always protected, and they should be able to return to their same position or one identical to it when they come back.

There are rare exceptions wherein a person may be denied reinstatement such as:

If they obtained their leave fraudulently

If they would have lost their job if they had not taken leave (such as mass layoffs)

Is CFRA Leave Paid?

Generally, while employers must continue an employee’s health insurance, CFRA leave is unpaid. However, there are some ways in which an employee may receive wage replacement such as:

State Disability Insurance

Paid Family Leave – 8 weeks of paid leave for:

Bonding with a new child

Tending to a partner, child, or parent with a serious health condition

Some military exigencies

There are some employers who may offer paid time off for certain situations, but this is optional. Some employees may also utilize paid time off such as sick pay or vacation time. Some employers may even insist that employees utilize that paid time off before taking leave. Companies will often outline such policies in their employee handbooks.

Do I Need a Doctor’s Note for Verification?

Employees should always provide their employer with documentation from a health care provider if the leave is due to a serious medical condition. Employees should also give their employer as much advanced notice as possible. It may also be necessary to send updates at reasonable intervals throughout the leave. Some employers may also require documentation from the health care provider that confirms that their employees are able to return to work at the end of leave. It is also advised to have proof that the employer was notified. Giving these notices via email is a good way to maintain a clear paper trail.

When taking leave to care for a family member, the documentation from the doctor should include:

The date that the condition began

The length of time that the condition will continue

The length of time that the employee will need away from work

Confirmation that the health condition requires a family member such as the employee to provide assistance

When taking leave to care for a personal condition, the documentation from the doctor should include:

The date that the condition began

The length of time that the condition will continue

Confirmation that the health condition prevents the employee from being able to perform their job duties

If an employer does not believe the documentation provided, they may require a second opinion obtained at the employer’s expense.

Comparing CFRA to FMLA

There are many similarities and differences between FMLA and CFRA. FMLA is a federal statute whereas CFRA is state law. They also define family members differently and have different qualifications for serious health conditions. There are also some past similarities and differences that have changed as the individual acts have been amended over time.

Both CFRA & FMLA:

Provide 12 weeks of unpaid leave

Health insurance benefits and coverage must be maintained by the employer throughout the duration of the leave

The employee’s job is protected, and they must be reinstated to the same position they were in before they left or one that is identical or nearly identical to it

The employer may require a note from the health care provider verifying the duration and necessity of the leave, including updates sent at reasonable intervals

Employees may decide or be required to utilize paid time off to supplement their leave

Allows leave to bond with a new child, leave due to personal illness, and leave to care for ill family member

Thanks to SB 1383, now both CFRA and FMLA cover military exigencies

Does CFRA Run Concurrently With FMLA?

FMLA is similar to CFRA and exists for the same purpose.

FMLA provides 12 weeks of unpaid job protected leave under the following qualifications:

The employee works for a private employer who has 50 or more employees

The employee works for a state or federal employer

The employee has worked for the employer for 12 or more months prior to the date the leave begins

The employee has worked for the employer for 1250 or more hours in the 12 months prior to the date the leave begins

When an employee qualifies for both FMLA and CFRA, their leave runs concurrently for the 12 weeks.

Primary Differences Between FMLA and CFRA

Family and Medical Leave Act:

Federal law

Applies to employers with 50 or more employees

Pregnancy is considered a serious health condition

Family members covered are spouse, children, and parents

There is a cap on damages in related lawsuits

Employees can not claim for emotional distress in related lawsuits

California Family Rights Act:

California State law

Applies to employers with 5 or more employees

Pregnancy is not considered a serious health condition

Family members covered includes extended and chosen family

There is no cap on damages in related lawsuits

Employees can claim for emotional distress in related lawsuits

Can an Employer Deny CFRA Leave?

Employers are not legally permitted to deny an employee’s right to CFRA leave. Unfortunately, many employers still attempt to do so. When this happens, employees are advised to stand their ground. Make a formal written complaint via email to the human resources department or whomever is in charge of such matters. Explain the situation, include documentation from the doctor, and specify that the leave of absence is necessary to tend to your own or family member’s health. If the employer continues to refuse to allow the leave, it may be best to contact an attorney for further advice. In some situations, it may be recommended that you send another email, again with documentation attached, explaining that you will be going on leave and will be returning on the specified date. It is usually advised that you do not resign from your job. Go on your leave but specify that you will return. If your employer then terminates your employment, you may be able to take further legal action.

Can an Employer Punish an Employee for Exercising CFRA Rights?

Employers are not legally permitted to prevent, punish, or retaliate against employees for exercising their rights. In the state of California, covered employees have the right to:

Request time off for CFRA leave

Take time off for CFRA leave

Participate in legal investigations regarding CFRA rights violations

Some ways that an employer might retaliate against an employee for exercising those rights include but are not limited to:

Cutting hours

Demotions or pay cuts

Refusing promotions or opportunities

Harassment or unwarranted reprimands

Termination

What if an Employer Violates My CFRA Rights?

If an employer violates an employee’s rights under CFRA, that employee may be able to take legal action against them. Such violations include:

Refusing to allow an employee to go on leave

Refusing to allow an employee to return from leave

Retaliating against an employee for taking leave

When this happens, the employee may contact the state Civil Rights Department and file a formal complaint. At that point, the CRD will investigate the claim and do what they can to try to resolve the matter. If a resolution can not be reached, they may issue the employee a right to sue letter. At that point, the employee may obtain an employment lawyer and file a lawsuit.

How to Report a CFRA Violation?

When submitting a claim to the CRD, it is important to be as detailed and precise as possible. Provide a timeline of when, how, and why you exercised your rights; and when, how, and why those rights were violated. Documentation evidence and witnesses can also be very helpful in proving a claim. Keeping track of all of these things will also be important if and when you need to file a lawsuit.

Statute of Limitations for Filing a CFRA Violation

As with all legal matters, time is of the essence due to the statute of limitations in place. When a CFRA violation occurs, the employee has one year from the date of the violation in which to obtain a right to sue letter from the CRD. Once the letter is obtained, the employee has one year from the date the letter was issued in which to file a lawsuit.

Remedies for a CFRA Violation

There are many damages that a person might be able to claim due to a CFRA violation, including but not limited to:

Back Pay – Some people may be given reduced hours, demoted, or even fired in retaliation for taking leave. In these cases, the employee may sue for the money they would have earned if this had not happened.

Emotional Distress – Being denied or punished for taking leave to bond with a new child, take care of a sick relative, or tend to your own illness can be devastating. Some people may seek compensation for the stress and grief caused by the experience.

Fees – Things like administrative and attorney’s fees may be added to the total amount that a defendant will be asked to compensate.

Punitive Damages – In cases where a defendant is proven to have acted with fraud, malice, or oppression, the court may deem it necessary to order them to pay punitive damages as a way to punish them and deter similar behavior in the future.

Reinstatement – Though some people may not want to return to an employer who treated them so poorly, some people just want their jobs back.

Contact Mesriani Law Group if Your CFRA Rights Have Been Violated

Eligible employees have the right to take leave outlined by the CFRA. Employers are not legally permitted to deny that leave, or retaliate against employees for taking it. Unfortunately, some employers may disregard the law. When this happens, it may be necessary to seek legal assistance. Our employment attorneys are experienced, hardworking, and dedicated to helping our clients through their difficult time and getting them the compensation they deserve. If your employer has violated your CFRA rights, call Mesriani Law Group today for a free consultation.

CFRA FAQs

Who is eligible for California family Rights Act?

When an employer has five or more employees, they are bound by CFRA leave laws. Said employees are eligible for CFRA leave if they have been working for the employer for no less than twelve months prior to the start date of the leave. They also must have worked no less than 1250 hours within the twelve months prior to the start date of the leave.

Is CFRA and FMLA the same thing?

CFRA and FMLA are two different things that serve the same purpose. FMLA is federally based, covers pregnancy as a medical condition, and covers a narrower range of family members than CFRA. FMLA also covers employers with 50 or more employees whereas CFRA covers employers with 5 or more employees.

Do you get paid for California family Rights Act?

CFRA is unpaid leave that protects an employee’s job and health benefits. However, the state of California has additional programs such as disability insurance and paid family leave that may help an employee supplement their income depending on their specific situation and reason for being out of work. Individual employers may also have policies regarding paid time off for employees.

When can I apply for CFRA?

The circumstances under which a person may request CFRA leave include bonding with a new child, tending to a sick or injured relative, or healing from a personal illness or injury. When taking leave to bond with a new child, the leave must be taken within one year of the acquisition of that child.

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Who is Protected Under the Fair Employment and Housing Act?

Under the Fair Employment and Housing Act, employees are protected from discrimination in the workplace as well as retaliation against fighting discrimination in the workplace. The FEHA does however require employees to take advantage of any and all administrative remedies before they will issue a Notice of Right to Sue. This notice allows the employee in question to pursue legal action for any unlawful business practices.

The FEHA also protects people’s rights to fair housing against discrimination for race, national origin, religion, disability, gender, or family status. Along with the Unruh Civil Rights Act, the FEHA works to ensure all California residents have fair housing opportunities.

What is the Fair Employment and Housing Act?

The Fair Employment and Housing Act protects the people of California from employment and housing discrimination. This includes claims regarding harassment, retaliation, and denial of medical and pregnancy leave. When someone is the victim of employment or housing discrimination, they need to file their complaint with the Department of Fair Employment and Housing. In employment matters, they may also file a complaint with the Equal Employment Opportunity Commission.

FEHA vs EEOC

The California Fair Employment and Housing Act and the Equal Employment Opportunity Commission are similar and support the same goals, but there are some fundamental differences:

FEHA – An act presiding over California state that governs the course of actions that need to be taken in order to pursue legal action against employment and housing discrimination.

EEOC – A federal agency created to investigate incidents of employment discrimination and provide employees with options going forward.

What are the Protected Classes Under FEHA?

The Fair Employment and Housing Act protects people from discrimination due many things including but not limited to:

Age

Ancestry

Disability

Familial Status

Gender, Gender Identity, and Gender Expression

Genetic Information

Marital Status

Medical Condition or Status

Military Status

National Origin

Pregnancy or Pregnancy Disability

Race, Color of skin

Religion

Sexual Orientation

Veteran Status

What Employment Discrimination Looks Like

Employers are bound to anti-discrimination laws throughout the entire job applicant and hiring process including how they advertise open positions to the way they review applications and conduct interviews. From there, anti-discrimination laws are applicable to all aspects of employment including:

Promotions

Pay and benefits

Working conditions

Training

Demotions

Terminations

Any public or private company, employment agency, or labor organization with five or more employees must adhere to anti-discrimination laws and may not retaliate against any employee that exercises their right to not be discriminated against in their workplace.

Employers Duties Under FEHA

It is in the best interest of companies to have strict anti-discrimination policies and to prevent workplace discrimination before it happens as this can protect the company from the consequences and resulting legal action.

Some of the guidelines laid out by the FEHA require employers to follow:

Educating employees of their rights

Providing written copies of the FEHA in any languages spoken by 10% or more of the workforce

Providing anti-discrimination and anti-harassment training to employees

Providing communication opportunities for disabled employees to seek accommodations

All employers with five or more employees in the state of California must remain compliant with the Fair Employment and Housing Act.

FEHA Retaliation is Prohibited by Law

Not only does the FEHA protect employees from discrimination, but it also protects employees from being retaliated against if they complain about discrimination. Some employers may punish employees for filing complaints in a variety of ways such as:

Pay cuts

Reducing hours

Demotions

Increased workload/the worst assignments

Hostility severe enough to cause constructive termination

The FEHA has four main factors that determine if someone is being retaliated against:

The employee’s actions were protected under the FEHA

The employer’s actions had an adverse effect on the employment of the employee such as demotion or termination

The protected actions of the employee were a major contributing reason for the employer’s actions

The employer’s actions were a major contributing cause of harm to the employee

Retaliation for a FEHA Protected Activity

To have a legitimate claim, retaliation or wrongful termination must occur in response to complaints against actions protected under the FEHA.

Opposing Harassment or Discrimination

Employees have a right to refuse to engage in discriminatory behavior and to oppose such behavior in the workplace. Employers are not allowed to retaliate against employees for standing up against harassment, discrimination, or denial of pregnancy or family leave.

When witness to or pressured to participate in discriminatory practices, employees have many options:

Contacting state agencies for information and advice

Helping another employee contact state agencies

Refusing to participate in discriminatory practices

Acting against discriminatory practices

These actions are protected under the FEHA, and employers are prohibited from retaliating against employees for taking them.

Filing a FEHA Complaint

Employees also have a right to file complaints with the FEHA when they are subjected to harassment or discrimination. Not only is this action protected, but it is often advised to be one of the first steps an employee should take in these situations. Employers are prohibited from retaliating against employees for filing these complaints. Those who do so are committing what is known as whistleblower retaliation.

Providing Assistance in a FEHA Claim

Employees also have a right to assist or participate in someone else’s claim with the FEHA. Employees may be part of FEHA investigations or even lawsuits regarding FEHA violations. Employers are prohibited by the FEHA for retaliating against employees for assisting in these matters.

Requesting Reasonable Accommodations

Employees have a right to request reasonable accommodations for any disabilities, as well as religious purposes. Employers are prohibited from retaliating against employees who request accommodations such as not performing certain tasks or requesting time off for religious observance.

What Qualifies as Adverse Action?

Retaliation does not just mean that an employer is being unpleasant towards their employee, they have to have taken adverse action against them. This is defined as actions that have a material and adverse impact on the terms and/or privileges of the person’s employment to an extent that prevents them from being able to do their job or hinders their ability to move up within the company. This may be a single large impactful action such as demotion or termination, or it could be smaller individual actions that all add up to an adverse effect.

Supervisors and upper management are the ones responsible for retaliation. If an employee is being retaliated against by a coworker, they may still bring a claim against their employer if their supervisor or manager was aware of the retaliation and allowed it to happen or did not take reasonable steps to put an end to it.

Proving Connection Between Retaliation & FEHA Opposition

In order to prove that an employee is being retaliated against for engaging in protected behavior, they must be able to prove a connection between their actions and the adverse actions of their employer. Specifically, they must prove that their actions were a substantial motivating reason for their employer’s actions. This does not mean that it has to have been the only motivating factor, but it does have to be a direct cause. This proof can be circumstantial such as the timing of the events. If an employee had a perfect employment record, filed a complaint with the FEHA, and then was terminated the next day for no reason, they could have a good case for a retaliation claim.

What if There Were Other Reasons That Qualified for Termination?

Many employers will try to argue that they found a valid reason for terminating an employee. This is known as after-acquired evidence. Sometimes, this is a fabrication to cover up the existence of discrimination or retaliation. Sometimes it is true. If an employer had a real substantial reason for terminating an employee, then that employee might not be able to win a wrongful termination suit.

In order for an employer to successfully argue that the termination was rightful, there are a few things they need to prove:

That the employee was guilty of wrongdoing within their job

The wrongdoing was substantial or serious enough to warrant termination

Termination for that type of wrongdoing was in line with company policy

That is not to say that any wrongdoing on the part of the employee will prevent them from winning a wrongful termination suit. Generally, only things like fabricating a job application, breaking the law, or a serious violation of company policy would be enough to affect an employee’s claim.

What to Do If You Have Been Retaliated Against for Taking Action?

If you have been retaliated against by your employer, there are options and steps that you can take. If the retaliation is in the form of adverse action that is not termination, then, if at all possible, it is advised to make a formal written complaint via email to your human resources department, or a different member of upper management. In some instances, this can remedy the situation.

If the matter cannot be resolved, or if the adverse action is termination, then the best option is to file a complaint with the Department of Fair Employment and Housing. This complaint should be as detailed as possible with a comprehensive timeline and the names of those involved. When filing this complaint, you may request an immediate right to sue letter, or choose to wait until the DFEH has conducted their investigation into the complaint. Only after receiving this letter, will you be able to file a lawsuit for DEHA retaliation.

Statute of Limitations for FEHA Claims

Until 2019, the statute of limitations within which to file a complaint with the DFEH was one year from the date of the violation. Employees now have three years from the date of the violation to file their complaint. After the complaint has been filed, the employee has one year from the date that they are issued their right to sue letter in which to file a lawsuit.

AB 9 Extension Impact on Statute of Limitations

In October of 2019, Assembly Bill 9 was signed into law. This bill extended the statute of limitations for filing complaints with the DFEH from one year to three years. This does not affect the one year statute of limitations for filing a lawsuit after receiving a right to sue letter, meaning that employers can be sued up to four years after a violation occurs.

What Damages Can Be Recovered for FEHA Retaliation?

There are many types of damages that an employee may be compensated for in a wrongful termination claim such as:

Lost Wages – The economic damages of money and benefits that the employee would have been earning if they had not been terminated. This can include the costs incurred by searching for a new job and may be reduced by any income being made by similar work after the termination occurred.

Pain and Suffering – The non-economic damages of emotional distress caused from the retaliation and the ordeal of being terminated. This can include stress, reduced quality of life, and anxiety that may be ongoing afterwards.

Attorney’s Fees – In California, judges may award attorney’s fees as part of a retaliation suit.

Punitive – Sometimes, a defendant’s behavior is so egregious as to warrant punishment and a deterrent against that same behavior in the future. In these cases, a judge may award additional punitive damages if there is evidence of malice, oppression, or fraud.

Contact Mesriani Law Group for FEHA Related Injustices

The Fair Employment and Housing Act exists to protect people from workplace harassment and discrimination. When an employer violates the FEHA, it can have a serious detrimental impact on their employees. No one should have to fight for their rights in the workplace. When these violations occur, an employment attorney can help navigate the situation, guide you through the steps you need to take, and help you recover the compensation you deserve. If you have been the victim of an FEHA violation, call Mesriani Law Group today for a free consultation.

FEHA FAQs

What does FEHA prohibit?

Employers are forbidden from harassing their employees or discriminating against them or prospective employees due to any FEHA protected classes such as age, disability, gender, pregnancy, race, religion, or sexual orientation. They are also forbidden from retaliating against employees for engaging in protected activities such as filing a complaint regarding an FEHA violation. Employers are also forbidden from denying family leave to eligible employees.

Does FEHA apply to all employers?

The FEHA applies in its entirety to any and all employers who have at least five or more employees. This may include both public and private employers as well as employment agencies and labor organizations. Employers with even one employee are bound by the FEHA’s regulations against harassment. People who hire independent contractors are also generally bound by FEHA regulations.

What is violation of FEHA?

There are many ways in which an employer may commit a violation of the FEHA including but not limited to:

• Refusing to hire members of a specific race • Refusing to promote certain genders • Substantially cutting the hours of an employee who filed a complaint • Denying an employee pregnancy leave • Making sexual advances towards an employee • Failure to provide reasonable accommodations to a disabled employee

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What is the EEOC and What Do They Do?

United States federal law prohibits employers from discriminating against protected demographics such as age, disabilities, gender, race, or religion. In 1964, the Civil Rights Act saw the creation of the federal government agency called The Equal Employment Opportunity Commission also known as the EEOC to help enforce those laws. These laws apply to employers who have at least fifteen to twenty employees including employment agencies and labor unions. Not only are employees protected against discriminatory harassment and termination, but they are also entitled to equal hiring and promotion opportunities as well as fair wages and benefits.

The Equal Employment Opportunity Commission manages all avenues of handling job discrimination such as:

Interpreting the law

Administering the law

Issuing regulations

Accepting claims

Investigating claims

Mediating settlements

Litigating cases

Holding hearings

What is the EEOC?

Though the Civil Rights Act that created the Equal Employment Opportunity Commission was established in 1964, the organization was not officially up and running until July of 1965. From then on up through 2021 the Equal Employment Opportunity Commission has established 37 different field offices in 15 different districts across the country in addition to its main headquarters located in Washington D.C. From there, they maintain and enforce the laws that protect workers from discrimination and harassment in the workplace.

How the EEOC Works

There are several types of demographics that are protected from discrimination and harassment under United States federal law:

Age

Disabilities

Ethnicity

Gender

Genetic Information

National Origin

Pregnancy

Religion

Sex

Sexual Orientation

Employers are also prohibited from retaliating against any employees who complains, files a claim, or is a part of an investigation regarding harassment or discrimination. In 2020, approximately half of all claims filed with the EEOC were in regard to retaliation.

Laws Enforced by the EEOC

It is illegal to discriminate against employees or potential employees at any point in the employment relationship and complaints made to the EEOC can be due to a myriad of situations including but not limited to:

Hiring

Training

Wages

Benefits

Harassment

Promotions

Demotions

Termination

Employers with 15 or more employees (20 or more in age discrimination claims) can be investigated and even prosecuted by the EEOC. Even labor unions and employment agencies are bound by federal discrimination laws. Sometimes, the EEOC does not even need an official complaint from an employee in order to take action. A commissioner’s charge is when the commissioner of the EEOC takes action and issues a charge against an employer at their discretion.

There are many federal laws on the books that fall to the EEOC to enforce such as:

The Equal Pay Act (1963) – Employers must pay men and women equal wages for equal work. Although this law is currently enforced by the EEOC, it actually predates the Civil Rights Act and was therefore originally under the jurisdiction of the Department of Labor.

Title VII of the Civil Rights Act (1964) – Employers are not allowed to discriminate against employees or applicants for employment due to their race, sex, or religion. Employers are also forbidden from retaliating against any employee who reports this kind of discrimination. As of the 1980s, this law has also been applied to instances of harassment against these protected demographics.

The Age Discrimination in Employment Act (1967) – Employers are not allowed to discriminate against employees or applicants for employment on the basis of their age. This law protects workers who are age 40 or older and protects their right to equal benefits. If an employer adds to a severance agreement that an employee waive their right to sue on the grounds of age discrimination, they must also provide them with additional information.

Sections 501 of The Rehabilitation Act (1973) – Section 501 specifies that federal employers are not allowed to discriminate against employees or applicants for employment on the basis of any mental or physical disabilities. Federal employers must also provide any employees with disabilities any reasonable accommodations they need in order to do their jobs.

The Pregnancy Discrimination Act (1978) – In 1976, the Supreme Court decided that pregnancy is not a protected category under the Civil Rights Act. Therefore, a new law was drafted by congress to forbid employers from discriminating against employees or applicants for employment who are pregnant or may become pregnant as a form of sex discrimination.

Title I of The Americans with Disabilities Act (1990) – Employers are not allowed to discriminate against employees or applicants for employment on the basis of any past, present, potential, or presumed disabilities. Employers also have a responsibility to provide any employees who have disabilities with reasonable accommodations necessary for them to be able to do their jobs.

The Genetic Information Nondiscrimination Act (2008) – Employers are not allowed to discriminate against employees or applicants for employment on the basis of their genetic information. This law generally also forbids employers from collecting their employees’ genetic information. If employers do obtain their employees’ genetic information, they must keep it confidential.

What Role Does the EEOC Play?

Before getting involved in individual cases, the EEOC actually takes many measures against discrimination in general.

Regulation and Guidance

By providing education and outreach, they can help prevent discriminatory practices from occurring in the first place. They also assist government agencies in adhering to the regulations set forth by the EEOC and maintaining their affirmative employment programs. They even provide training for Administrative Judges on conducting EEO complaint hearings and adjudicating administrative appeals on those complaints.

The EEOC sets forth regulations that act as interpretations of the employment laws issued or amended by Congress. The point of these regulations is to provide the definitions, rules, and guidelines needed to follow and enforce those laws. The EEOC ensures EEO compliance to ensure federal employee rights. They also provide clarifications and specificity in areas such as whether employees with mental disabilities are protected by ADA laws and whether employers can use a person’s criminal record against them during the hiring process.

Federal Employee Rights

The federal government is also governed by the EEOC when it comes to staying EEO compliant. Federal employees with discrimination, harassment, or retaliation grievances must bring their complaint to the EEOC office. This compliant is investigated and processed by an administrative judge who hears the case.

Charge Processing

When any employee who is under the protection of EEOC regulations faces discrimination, they file a complaint known as a charge. This includes not only harassment and discrimination from the employer themselves, but also harassment and discrimination committed by members of their staff or 3rd parties that they did not prevent or put a stop to. Similar to federal employee claims, the EEOC then evaluates that charge and determines how best to proceed. If they determine that the claim is not valid or was not filed properly, they may dismiss it.

If they determine that the claim may be valid, there are several steps that they will take:

Investigation – The EEOC will conduct interviews with the employer, employee, and any witness to the situation. They will also collect any documentation evidence that may be relevant. They will conclude whether or not there is reason to believe that discrimination occurred.

Mediation – If the EEOC concludes that there was discrimination, they may bring the employee and the employer together in a meeting with a neutral third party mediator to try and resolve the issue and/or negotiate a settlement.

Litigation – If the matter can not be resolved or a settlement can not be reached, the matter may be moved to litigation. In rare instances, the EEOC may choose to litigate the matter themselves. More commonly however, they may present the employee with a right to sue letter confirming that the charge has been filed and is eligible to go to court. Sometimes, the employee may request this letter before the EEOC has finished processing the charge.

How Does the EEOC Prevent Discrimination?

There are many different things that the Equal Employment Opportunity Commission does to stop discrimination from happening in the first place:

Free presentations explaining why the EEOC exists and how it operates. These presentations may be given at conferences, private meetings, and for different employer groups or professional organizations.

Establishing liaisons for small businesses to communicate with and get the information they need.

Providing disabled veterans with the resources and information they need.

Educating teenagers about their rights and options when it comes to workplace discrimination.

Additional paid extensive training available for employers via the EEOC Training Institute.

What to Do If You Are a Victim of Workplace Discrimination?

When someone is harassed or discriminated against due to their age, race, religion, gender, sexual orientation, or disabilities, they are able to file a complaint with the EEOC. This complaint is called a charge and is a written explanation of how an employer or union is guilty of discrimination and a request for action to be taken, signed by the employee. Before filing a complaint, the employee must submit an inquiry online and go through an intake interview with a member of the EEOC. Depending on the details of the situation, the employee may have 180 or 300 calendar days in which to file a charge. The Equal Pay Act is the only law enforced by the EEOC that does not require a formal charge to be filed before the employee can file a lawsuit.

EEOC Complaint Process

When an employee enters into the complaint process, the information they provide is fully confidential up until the actual charge is filed. After the charge is filed, the employer must be notified by the EEOC within 10 days. In some situations, such as when the employee is a minor, someone else may file the charge on their behalf. At this point, there are several steps that can be taken:

Alternative Dispute Resolution – Federal agencies such as the EEOC must provide alternative dispute resolution. One way that the parties may choose to resolve the issue is through mediation. The EEOC will prove a neutral third party to sit with the employee and employer to negotiate a resolution or settlement. The parties may request a mediation at any time if the EEOC believes the charge is valid. These mediations often take approximately three months.

Response and Investigation – After the employer has been notified of the charge, they must respond within 30 days. After they have made their respondent’s position statement, the parties making the charge have 20 days to respond. The EEOC conducts investigation into charges of discrimination by conducting interviews and requesting documentation related to the situation. Once all the evidence has been reviewed, the investigator will determine whether or not it is a valid claim. These investigations generally take at least 10 months.

Right to Sue – The EEOC may issue a Right to Sue letter to the employee. This is a notice that the employee has the right to file a federal lawsuit. The employee may request this letter after 180 days into the investigation, or the EEOC may issue it if they do not wish to litigate the charge themselves. If an employee is filing a charge under the Equal Pay Act or the Age Discrimination in Employment Act, they do not need to have a Right to Sue letter. If someone is suing for age discrimination, they have 60 days in which to file a lawsuit. Someone suing for wage discrimination has two years from the date of the last paycheck.

Litigation – EEOC cases are prosecuted by the Office of General Counsel. It would be impractical for the EEOC to try to prosecute every case themselves, and so they take special care to determine the strength and validity of each charge before deciding on litigation. The EEOC prosecuted 93 cases in 2020, recovering approximately $106 million.

Damages Recovered in EEOC Claims

When the EEOC files a lawsuit, they may seek both compensatory as well as punitive damages from employers who discriminated against their employees or allowed their employees to be discriminated against by other workers. Compensatory damages are meant to restore the victim, whereas punitive damages are meant to punish the wrongdoer and deter the behavior.

Compensation and injunctive relief for employees in discrimination cases may include back-pay, court and attorney fees, or even job reinstatement. There is a maximum limit to how much an employee may recover based on how many employees the employer has:

15-100 employees: maximum $50k

101-200 employees: maximum $100k

201-500 employees: maximum $200k

>500 employees: maximum $300k

Contact Mesriani Law Group if You Have an EEOC Claim

Everyone has the right to a workplace that is free of harassment and discrimination. Unfortunately, these things are still all too common. When an employer discriminates against their employee, they must be held accountable. Our employment lawyers are experienced, hardworking, and dedicated to helping our clients receive justice and the compensation they deserve. If you have been harassed or discriminated against by your employer, call Mesriani Law Group today for a free consultation.

EEOC FAQs

What does the EEOC do?

The Equal Employment Opportunity Commission also known as the EEOC is responsible for enforcing federal laws prohibiting employers from harassing or discriminating against their employees based on the employees age, disabilities, ethnicity, gender, genetic information, national origin, pregnancy, religion, or sexual orientation. They investigate charges of discrimination and hold employers accountable for their actions.

What is the most common complaint brought to the EEOC?

When an employee files a complaint or participates in a discrimination investigation, their employer may punish them by cutting their hours, demoting them, or creating a hostile work environment. When this happens, it is considered retaliation. The EEOC has found that almost half of all charges filed with them are for retaliation.

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How Does the Fair Labor Standards Act Protect Employees?

In 1938, the Fair Labor Standards Act was passed which protects employees’ rights to fair wages. Also known as the FLSA, this law protects employees by placing regulations on interstate commerce employment. It oversees things like child labor, minimum wage, and overtime pay; and has standards for both salaried employees and those paid by the hour.

What is the Fair Labor Standards Act?

The FLSA is a federal law that oversees wage regulations for both full and part time employees whether they are employed by a private company or government employer. It regulates things such as the minimum wage, child labor, recordkeeping, and overtime. Federal minimum wage was increased to $7.25 in 2009 and has not been raised since. Generally, if employees work more than forty hours per workweek, they should be paid ‘time and a half’ which is 1.5 times their regular rate of pay.

Who is Protected By the FLSA?

The Fair Labor Standards Act protects employees of public agencies, interstate commerce, production of commercial goods, domestic service, hospitals, schools, and other education facilities. Independent contractors and volunteers are not legally considered employees, and as such, are not protected by the standards and regulations of the FLSA. Employees who are eligible for overtime compensation are required to complete a record of their attendance and times worked.

Primary Areas of Coverage in FLSA

Minimum Wage – The FLSA maintains the federal minimum wage. As of 2009, the minimum wage has been $7.25 per hour. While states are free to set their own minimum wage rates, the only states with a minimum wage lower than the federal rate are Georgia and Wyoming. Both states pay a minimum wage of $5.15 per hour, although employers who are subject to FLSA regulations are required to pay no less than the federal minimum.

Overtime – If an employee is sixteen or older, they may work as many hours as their employer allows. However, if an employee works more than forty hours in a workweek, they may be entitled to overtime pay. Overtime pay must be at least one and a half times the normal hourly rate of pay for the employee.

Hours Worked – The FLSA oversees all time that an employee is doing their job either on site, on duty, or at a designated location.

Recordkeeping – The FLSA requires that employers keep accurate records of employee timecards and payroll. They must also have an official poster of FLSA requirements displayed for employees.

Child Labor – The FLSA maintains regulations that ensure that work does not interfere with a child’s education or best interests. It also limits the types of jobs that children can work and the conditions they can work under.

FLSA Minimum Wage Protections

Though the FLSA maintains a federal minimum wage of $7.25 per hour, many states have instituted their own laws that set their own minimum wage. The FLSA does not govern state law outside of provisions that are in line with preexisting FLSA requirements.

California Minimum Wage

As of January 2023, the state imposed minimum wage in California is $15.50 per hour for all employers. In the past, employers with 26 or more employees were required to pay slightly more than employers with fewer employees. California minimum wage has been rising steadily for years now:

Minimum Wage by Year

FLSA Overtime Protections

The FLSA maintains that an employer must pay covered non-exempt employees time and a half for any time worked over forty hours in a given work week. This does not include paid time off. A work week might not line up with what is considered a calendar week but is a fixed increment of 168 hours. While the work week may vary for different employees, employers are prohibited from averaging hours beyond the confines of a given work week. Furthermore, overtime pay must generally be paid out on the pay period in which it was earned.

Classifying Employees Under FLSA

It is important to know whether a worker is an employee or an independent contractor. Not only are there differences in the rights and benefits, but employers may face fines and legal action if they are caught misclassifying their workers. There are many questions that can be asked to help determine if a worker is an employee or an independent contractor:

Does the employer or the worker determine when and how the work is done?

Does the employer or the worker determine what the worker’s responsibilities are?

Does the employer or the worker provide the supplies and equipment needed?

Does the employer or the worker pay the payroll taxes?

Does the employer or the worker set the rate of pay?

Who is Exempt from Minimum Wage & Overtime Wages?

If an employee is considered nonexempt, then their employer is required to pay them overtime. If an employee is considered exempt, then their employer is not required to pay them overtime. While there are some jobs that are considered exempt in of themselves, there are three conditions that must be met to determine if an employee is considered exempt, such as:

The amount the employee is paid – Generally $35,568 or more a year

The way they are paid – Generally salary

The type of work performed – As defined by FLSA regulations

Freelance workers and independent contractors are not covered by the FLSA. Employers with less than $500,000 a year in sales as well as small farms that do not engage in interstate commerce are also exempt. Other exempt workers also include:

Executives who manage at least two people and authorize job status of others

Administrators who directly work for management and control their own work duties

Outside salespeople who work primarily offsite and on commission

Computer workers paid at least $684 weekly by salary or fee basis

Workers employed by seasonal recreation establishments

Employees of small local newspapers including delivery workers

Sailors on foreign vessels

Personal caregivers such as homecare aides and babysitters

Employees working under an apprenticeship

Record Keeping That Meets FLSA Standards

When an employer is covered by the FLSA, they must keep detailed records for their non-exempt employees. While there is no uniform standard for how these records are kept, there are specific pieces of information that need to be recorded with complete accuracy for each employee:

Full Name

Social Security Number

Date of Birth (employees under 19)

Sex

Occupation

Start of Workweek Day and Time

Daily Hours Worked

Workweek Hours Worked

How wages are paid

Pay Rate by Hour

Total Straight-time Earnings

Workweek Overtime Earnings

Wage Deductions and Additions

Wages per Pay Period

Dates of Pay Period

Date of Payment

Different types of records must be kept on file for different lengths of time. Payroll, collective bargaining agreements, and sales or purchase records must be kept for at least three years. Things like timecards, work schedules, and other methods for computing wages must be kept for at least two years. These records should be kept on site or at a central record keeping office. Employers are required to make these records open and available for Division inspection.

How FLSA Defines and Regulates Hours Worked

The law defines the word ‘employ’ as “to suffer or permit to work”. The time that an employee spends on site or on duty is considered part of their workweek. The workday begins when the employee first starts working and ends when the employee completes their work. The workday often includes more than just hours worked. There are many different classifications of hours under the FLSA and variables that determine if they are considered working hours.

Waiting – There are two different kinds of waiting time. Being engaged to wait is considered work time such as short periods of down time between tasks. Waiting to be engaged is not considered work time such as free time between jobs.

On Call – An employee is considered working while on call if they are required to stay on site. Generally, if an employee is free to go about their day, they are not considered working while on call. The extent of that freedom may change whether or not the employee is considered working.

Breaks – Short breaks, often five to twenty minutes, are generally considered to be part of hours worked and are paid time. Employers may implement their own consequences for employees taking extended breaks and may be permitted to not count the extra time as time worked. Meal breaks, often thirty to sixty minutes, are usually not considered to be part of hours worked and are unpaid so long as the employee is completely free of their work responsibilities while on break.

Sleep – If an employee is on duty for shifts of twenty-four hours or longer, they may negotiate unpaid sleeping breaks with their employer. These breaks must be more than five and less than eight hours and the employer must provide a proper sleeping area. For shifts shorter than twenty-four hours, authorized sleeping breaks are considered time worked.

Training & Meetings – There are four factors that must apply in order for a meeting or training program to be unpaid: Outside of working hours, attendance is voluntary, unrelated to the employee’s job, and no work is required to be done.

Daily Commute – Regular travel time from home to work and back is not considered hours worked.

One Time Extended Commute – If an employee routinely works at one location and is required to go to another location in another city for a day, the additional commute time may be considered time worked. Employers are permitted to exclude the employee’s normal commute time from those hours.

Daily Travel – Some jobs may require travel as part of the employee’s duties such as deliveries or traveling between job sites. This travel time is considered hours worked.

Trips – If an employee is required to travel for work and is kept away overnight, this is considered travel away from home and is hours worked. Not only is working time counted, but also work hours on days off while away.

FLSA Regulations on Child Labor

There are many restrictions on the type of work that employees under eighteen years old may be permitted to perform as well as the conditions under which they are permitted to work. The FLSA does not allow minors to work jobs that they consider hazardous to the minor’s wellbeing or education. There are also restrictions governing the hours a minor is allowed to work and the breaks they must be provided. Each state also has their own laws regulating child labor that employers should be aware of.

Recent FLSA Updates

The 2018 amendments to FLSA regarding tipped employees were updated in 2020 and 2021. The new regulations forbid employers from taking any part of the employee’s tips and also updated the restrictions on when an employer can alter an employee’s pay based on earned tips.

The Joint Employer Rule was rescinded in July of 2021.

The United States Department of Labor recently began proposal of a new rule to update the regulations and guidelines for determining if a worker is an independent contractor or an employee in accordance with the FLSA. This rule was proposed in October of 2022, replacing the January 2021 rule with a more accurate and precise method for classification. The rule is considered mutually beneficial for both workers and employers, reducing the risk of employee misclassification, and increasing employer confidence and peace of mind when hiring independent contractors.

Common Violations of FLSA

Unfortunately, there are many ways in which employers can and do violate the Fair Labor Standards Act:

Misclassification – Employers may sometimes classify an employee as exempt based on their job title or type of pay rate even though the job duties and amount of pay indicate that the employee is nonexempt. It is important for employers to be mindful of all the variables of a situation and for employees to be well informed of their rights.

Not compensating off the clock work – When an employee works beyond their scheduled time, even if they are clocked out, that is still considered hours worked and the employee should be compensated. Even if the employer did not request or permit the off the clock work, they are still responsible for paying the employee.

Not compensating working breaks – When an employee is expected to be on call through their breaks, or works through their lunch, that time is considered hours worked and the employee must be compensated. In order for a break to be unpaid, the employee must not be performing any job-related duties such as cleaning, replying to emails, or interacting with clients.

Overtime waivers – If an employer has an employee sign a document waiving their right to overtime pay, that document is invalid and unenforceable.

Averaging workweeks – Sometimes, an employer may average out the number of hours an employee has worked over two or more weeks to avoid paying overtime. If an employee takes a day off one week and then works an extra eight hours the next week, the employer may average those hours out to say the employee worked forty hours each week. This may seem mathematically logical, but it is actually legally prohibited.

What to Do If Your Employer Violates the FLSA

Because there are employers who will violate FLSA, employees must be aware of the options available to them and the steps to take if they find themselves in such a situation. Complaints regarding FLSA violations can and should be filed with the Department of Labor’s Wage and Hour Division.

The WHD investigates violation claims by having a representative conduct interviews with the employer and various employees, research payroll and timecard documents, and gather any other information that may indicate if a violation has been committed.

The person who files the complaint does not need to be the person against whom the violation was committed. Anyone who witnesses their employer violating the FLSA may report that violation.

It is prohibited for an employer to retaliate against an employee who has filed a complaint or participated in an investigation against them.

How to File FLSA Complaint

When filing a complaint with the WHD, there are several details you will need to provide:

Your name

Your address

Your phone number

The company’s name, address, and number

Owner/employer/manager name

Your job duties

Your pay rate and method

It is good to be as detailed as possible when providing information. Your complaint is the starting point of their investigation. When filing a complaint as a third party, you may not have all of the information needed, but it is important to share as much as possible.

Contact Mesriani Law Group if You Have Experienced a FLSA Violation

The Fair Labor Standards Act exists to protect workers and their right to fair wages. All too often, employers try to circumvent the law and get away with cheating their employees out of the money they’ve earned. When these violations occur, employees have the right to file complaints against their employers. If you are facing retaliation for filing a claim with the Department of Labor or participating in an investigation against your employer, call Mesriani Law Group today for a free consultation.

Fair Labor Standards Act FAQs

What are the four main elements of the FLSA?

There are four primary areas established and enforced by the Fair Labor Standards Act. Establishing and enforcing minimum wage, overtime pay, regulations for recordkeeping, and regulations for child labor. While some jobs and employees may not be covered by the FLSA or exempt from overtime, the act generally applies to part time as well as full time workers of both private and government employers.

What are some common mistakes made under FLSA?

Whether intentional or accidental, there are employers who do not adhere to the regulations set forth by the FLSA. One of the most common mistakes employers make is misclassifying their employees. Not paying overtime properly and allowing employees to work off the clock or during their breaks without compensation are also violations that occur far too often. It is important for everyone on both sides of an employment relationship to be familiar with the law and how it applies to them.

What is not regulated under the Fair Labor Standards Act?

There are several aspects of employment that the Fair Labor Standards Act does not oversee. This includes but it not limited to things like the payment of wages in excess of FLSA requirements, lunch and rest breaks, termination letters, and final payments for terminated employees. The FLSA also does not regulate paid time off. It is important to also be aware of state laws and regulations pertaining to all employment matters.

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What is Maternity Leave?

Maternity leave is the term used for the length of time that a new parent takes off of work when they give birth, adopt a child, or are given a new foster placement. The state of California has laws to protect employees and their job security when they need to take maternity or parental leave. There are some laws that also allow for some employees to have paid leave as well.

California Maternity Leave Laws

The following laws are all laws that help provide new parents with enough time to welcome the newest member of their family.

California New Parent Leave Act:

This law was implemented in 2019 and applies to companies with twenty or more employees within a seventy-five-mile radius. This new law allows employees that qualify to take 12 weeks of unpaid leave off to take care of a new child. In order to qualify, the following criteria must be met:

Employee must have worked for at least 1 year and at least 1,250 hours

Employee must notify employer within 30 days or as soon as possible

While a new parent is on leave, their health coverage must be maintained, and the employee must be given their same job/position upon return.

California Family Rights Act (CFRA):

This California law applies to companies with fifty or more employees within a seventy-five-mile radius and provides new parents with 12 weeks of unpaid leave off. To qualify, an employee must:

Employee must have worked for at least 1 year and at least 1,250 hours

Employee must notify employer within 30 days or as soon as possible

Employer must respond within 10 days and continue to provide benefits throughout the leave. It is important to note that health insurance premiums must still be paid and that the premium will be paid after taxes which means that premiums will go up. Upon returning, the new parent must be given the same or similar job back.

California Pregnancy Disability Leave Law (PDLL):

This law applies to companies with five or more employees and allows new mothers to take up to 4 months of unpaid leave off to deal with pregnancy related issues like severe morning sickness, doctor ordered bed rest, prenatal care, and childbirth recovery. This law also requires that your employer keep your position available for return. This law doesn’t require any certain length of employment to qualify and employers much continue to provide benefits during the PDLL time of absence. This law can be used in addition to the 12 weeks allowed under the CFRA which means that mother that qualify can take up to 7 months off to welcome a new child.

California Paid Disability and Family Leave:

California can provide paid leave for employees that are temporarily unable to work due to disability or want to take time to bond with a newborn. This benefit is called California’s short term disability insurance (SDI) and it provides a percentage of an employee’s normal pay while they use their disability leave for pregnancy or childbirth. This is actually paid into by the employee into a state fund in the form of taxes that are withheld from paychecks.

The same program offers California Paid Family Leave (PFL) which provides an additional 6 weeks of partially paid leave for parents who want to bond with their newborn. These programs are available to any employee regardless of employer size but employers with less than 20 employees are not required to provide job protection. This means that while every employee has the right to take advantage of these programs, smaller employers can terminate the employees or refuse to make their old position available upon return.

Family and Medical Leave Act (FMLA):

The FMLA is a federal law that requires companies with fifty or more employees and any public agency, including public and private elementary and secondary schools, to provide employees with up to 12 weeks of unpaid, job protected maternity leave. To qualify an employee must:

Employee must have worked for at least 1 year and at least 1,250 hours

Employee must notify employer within 30 days or as soon as possible

Who is Required to Provide Maternity Leave?

According to California employment laws, if a company has 5 or more employees, they must provide 12 weeks of unpaid leave for employees who are new parents. They must also allow up to 4 months of unpaid pregnancy related disability leave for employees who are unable to return to work due to pregnancy and/or childbirth. If a company has 4 or fewer employees, they are not required to hold an employee’s job or position in the event of a pregnancy or new child.

Length of Maternity Leave in California

There are three different kinds of maternity or parental leave that a new parent may take in California:

Pregnancy Disability Leave – When a person’s pregnancy or the act of childbirth leaves that person disabled and unable to return to work, they may be entitled to anywhere up to 4 months of leave under certain conditions.

Family Leave – Companies with 20 or more employees may provide up to 12 weeks of leave for their employees to bond with a new child.

Reasonable Accommodation Leave – When an employee has used their provided family related leave, they may still be unable to return to work for various related reasons. New mothers dealing with a pregnancy related temporary disability fall under a protected class so reasonable accommodations may be required, even if this means additional time off.

There are some occasions that may call for an employee to take all three kinds of leave, and may do so consecutively, taking seven months and then however much is considered reasonable to the situation. The employee is generally also able to continue to receive benefits through their job, and in some cases, also receive pay. This however depends on the job itself as well as the type of leave taken. There are separate laws and regulations governing payment while on leave. Maternity leave in and of itself is considered unpaid leave.

Pregnancy Disability Leave

Pregnancy disability leave (PDL) is an option available for an employee who has become disabled in some way due to pregnancy or childbirth. In order to be eligible for pregnancy disability leave, two factors are taken into consideration:

Was the employee rendered disabled due to pregnancy, childbirth, or some type of related medical condition?

Does the employer have 5 or more employees?

If the answer to both of these questions is yes, then the employee is eligible to take pregnancy disability leave for up to 4 months. This does not however mean that the employee must take their entire leave in one go. Depending on the health condition, the employee may need to take leave intermittently.

When determining whether someone is eligible for pregnancy disability leave, it is important to remember that simply being pregnant does not make someone disabled. However, there are many complications and illnesses related to pregnancy and childbirth that may result in a doctor determining that someone is unable to work. While it is common for conditions towards the end of a pregnancy to result in disability, there are some situations that may call for disability leave earlier or later, including but not limited to:

Debilitating morning sickness

Gestational diabetes

Hypertension

Loss of pregnancy

Mandated bed rest

Preeclampsia

Post-partum depression

Recovery after childbirth

While the pregnancy itself is not considered a disability, the act of childbirth is generally legally considered to render an employee disabled while they recover. Childbirth recovery can generally take from 6 to 8 weeks, but it varies case by case. Depending on the person’s health and in the event of complications, it may take longer.

Family Bonding Leave

Any parent who is an eligible employee may take up to 12 weeks of leave to bond with a new child, whether that child was recently born, adopted, or temporarily placed as a foster child. This leave may be added onto whatever leave an employee took for their pregnancy as well.

As of 2018, there are three factors that are required for an employee to be eligible for family bonding leave:

The company must have 20 or more employees within a 75 mile radius

The employee must have been working for the employer for at least 12 months before the leave begins

The employee must have worked at least 1,250 hours or more for the employer in the past 12 months

Family bonding leave can be taken intermittently; however, it must be taken with the first year of the child’s birth or placement with the family.

Generally, employers are permitted to require that employees take at least two weeks at a time for family bonding leave, but employees are legally entitled to request two instances of a shorter leave.

Reasonable Accommodation Leave

In the state of California, it is a public policy violation for an employer to discriminate against their employees due to mental or physical disability. It is the responsibility of the employer to ensure that any disabled employees are accommodated fairly. Reasonable accommodations are any adaptation to the employee’s duties or environment that would help them to do their work. Generally, with pregnancy related disabilities, that accommodation means time off work even if the employee has utilized all of their allowed pregnancy related leave.

There are a few requirements that must be met when determining if an employee is eligible for reasonable accommodation:

If the employer has 5 or more employees

If the employee has a mental or physical disability that prevents them from being able to properly do their job

If the accommodation will give the employee the ability to properly do their job

If the accommodation will not be an undue hardship for the employer

Right to Pay During Maternity Leave

Officially, maternity leave is unpaid. But there are some situations wherein an employee may receive some kind of pay or benefits while on leave.

Medical benefits during maternity leave – When an employee is out on pregnancy disability leave or family leave, the law states that their employer must continue to provide any medical benefits that the employee was receiving beforehand. Employers are also prohibited from changing the requirements for those benefits for an employee who takes pregnancy or family leave.

California State Disability Insurance – In the state of California, it may be possible to receive payments from short term disability insurance (SDI) while out on pregnancy or childbirth related disability leave. If a person’s paychecks have had at least $300 withheld in what is known as the base eligibility period. This is a span of 12 months that ends the quarter before the start date of the employee’s disability leave.

Temporary disability pay – Legally speaking, employers do not generally have to provide paid pregnancy disability leave. However, if they do provide paid temporary disability leave in other instances for other employees, they may be required to do so for pregnancy and childbirth related disability leave as well.

California’s paid family leave – In some instances, a person may be entitled to anywhere up to $1300 a week for as long as 6 weeks in paid leave to bond with a new child within the first 12 months after the child is born, adopted, or placed with the family through foster care.

Accrued paid time off – While on maternity leave, an employee may decide to utilize their accrued vacation or sick pay. Some employers may even insist that they do. For family leave, an employer may insist that the employee utilize any accrued time whether paid or unpaid. However, for pregnancy disability leave, the employer is only permitted to insist that the employee utilize sick leave. Otherwise, the decision of whether or not to utilize PTO is up to the employee.

How to Request Maternity Leave

It is expected that an employee give their employer advanced notice of when they plan to go on leave. Generally, they should inform their employer of:

When they are going on leave

How long they will be out

Whether they will be taking pregnancy disability leave and/or family leave

Technically speaking, this information is given by submitting a request to go on leave. However, their employer is not legally allowed to deny the leave if the employee is entitled to it under California state law and has given proper notice.

An employee may submit a verbal request for maternity leave, but it is advisable to submit a written request that clearly states all pertinent details including the date of when it was submitted and to keep a copy for your own records as well.

If possible, it is good practice to give your employer 30 days prior notice before going on leave. Some employers may even make this mandatory policy. In the event that such advanced notice can not be given, it is expected that the employee notify their employer as soon as feasibly possible. Employers are not legally allowed to deny a last minute request for leave due to a medical emergency related to pregnancy or childbirth. They are however permitted to ask relevant questions to verify if the employee is eligible for leave.

Pregnancy Discrimination

In the state of California, it is a public policy violation for an employer with 5 or more employees to discriminate against any person because of pregnancy. There are many ways that an employer might discriminate against an employee on the basis of their pregnancy, including but not limited to:

Not hiring someone because they are pregnant or might become pregnant at some point

Terminating an employee or demoting them due to pregnancy related medical conditions

Not providing an employee with necessary reasonable accommodations for disabilities caused by pregnancy or childbirth

Rejecting an eligible employee’s request for maternity or pregnancy disability leave

Discriminating against or harassing an employee for needing to breastfeed, pump, or tend to pregnancy related conditions

Burden of proof in pregnancy discrimination cases is on the employee. It is their responsibility to provide the facts or elements that prove their claim. These elements can include but are not limited to:

That the employer was subject to California pregnancy discrimination laws

That the employer negatively interfered with the person’s employment by denying employment, termination, demotion, or denying promotion

That the employer’s actions were primarily due to the person’s pregnancy, disabilities caused by pregnancy, or the possibility that the person may become pregnant

That the person was harmed in some way due to the employer’s actions

Which Workers Receive Protections Against Pregnancy Discrimination?

While the language of the law states “any person”, there are actually some specifications that go into determining who is protected against pregnancy discrimination. There are four basic categories that protected employees tend to be grouped into:

Job Applicants – People who actively seek employment with an employer either through a written application or by submitting a direct request.

Traditional Employees – People who have been hired by an employer who controls how they do their work.

Temporary Employees – Someone who was placed with an employer by an agency. In these instances, the agency and the employer may both be held accountable for discrimination.

Unpaid interns – As of 2015, pregnancy discrimination protections have been extended to unpaid interns as well

Just because someone fits into one of these categories does not mean that they are automatically protected, however. If a pregnant person applies for a job and is refused on the basis that they are underqualified, then that does not fall under discrimination. The law also does not protect people whose employers are their own direct family members such as their spouse, parent, or child. Independent contractors are afforded legal protections against pregnancy based harassment, but not discrimination.

What Forms of Pregnancy Discrimination Are Illegal?

Pregnancy discrimination is a broad term that encompasses any action that is taken to treat someone differently from others due to their pregnancy or because they had recently given birth. This discrimination can be used to impact many things such as:

How much a person is paid

Job duties and benefits

The work they are given

The conditions in which they work

This discrimination may happen and is prohibited at any point during a person’s employment and even before it such as:

During the recruitment process

During the hiring process

During training

When giving promotions and advancements

When giving pay raises

When approving or denying time off

During layoffs and terminations

Discrimination is not just about if an employer makes a person’s job worse, but also if an employee becomes disabled and the employer refuses to make improvements in the form of reasonable accommodations as well.

Can You Get Fired for Taking Maternity Leave?

Companies who have less than 5 employees and select non-profit religious organizations are not legally required to allow their employees to take maternity or parental leave, nor do they have to hold that employee’s job for them. There are a few other situations that are also not protected:

If the person has been employed by the company for less than 12 months

If the person has worked less than 1,250 hours during the past 12 months

If the employer is the person’s parent, spouse, or child

If the person is an independent contractor

Right to Reinstatement

When an employee takes pregnancy disability leave, they have a legal right to be able to return to the same position they held before. However, there are some instances where the employer may be allowed to move them to a comparable position. There are some companies that require employees returning from any type of disability leave to provide them with a ‘release to return to work’ certification from their doctor before allowing them to return to their original position, but if they do not require this of any employee out on any type of disability leave, they may not require it of people returning from pregnancy disability leave.

Regulation 7291.10(a) forbids any employer from transferring or refusing to reinstate an employee who has returned from pregnancy disability leave, barring exceptions laid out in 7291.10(c).

Regulation 7291.10(b)(2) goes on to specify that if there was no written agreement of reinstatement, or if there is a discrepancy with the reinstatement date, the employee must be reinstated within two business days of notifying the employer that they are ready to come back to work. If it is not possible to reinstate them within two business days, then it must be done as soon as possible.

This does not mean that the employee has more rights to being reinstated or other benefits than if they had not gone on leave. An employer may refuse to reinstate an employee to their same position if they can prove at least one of the following:

That if the employee had not gone on leave, they would no longer be employed in that same position by the time the reinstatement was requested. For example, if the location they were working at was closed down.

That keeping the job for the employee, either by leaving it open or hiring a temp worker, would have a substantially negative impact on the business running safely and efficiently.

Generally, if an employer can not reinstate an employee to their previous position, they are expected to reinstate them at a position that is similar or comparable. However, they still have no greater right to this position than they would have if they had not gone on leave and their position was being eliminated. An employer may refuse to reinstate an employee to a comparable position if they can prove at least one of the following:

That they would not have offered the employee a comparable position if they had not gone on leave

That they do not have any available comparable positions. A position is considered available if it is a position the employee is qualified for or entitled to and is open when the employee is scheduled to return, or within 60 calendar days of that date. The employer is responsible for informing the employee of available comparable positions. If there is no available position when the employee is scheduled to return, but one opens up and the employee is reinstated within those 60 days, the time in between does not count towards pay or benefits.

That placing the employee in the available position would have a substantially negative impact on the business running safely and efficiently

That the employee was laid off from their position for legitimate reasons not related to the pregnancy disability leave. When the employee is laid off, the employer no longer has a responsibility to uphold their leave, benefits, or reinstatement outside of any collective bargaining agreements.

When the pregnancy disability leave is concluded, they may be eligible for CFRA leave. In this instance, their rights regarding reinstatement are outlined by the CFRA and not the PDL. When an employee returns to work from CFRA leave, they have a legal right to be reinstated to the same or comparable position.

Maternity Leave Rights Violations

If and when an employer violates their employee’s legal rights, that employee has a few options:

Seek informal resolution with the employer

File an administrative claim

File a lawsuit

There are pros and cons to each choice, and some people may need to exhaust all three options. In these cases, it is good to speak with an employment lawyer, but it is not required to have one. There are many benefits to having an attorney in these cases, such as:

Information, evidence, and document collection

Finding the best way to apply the law to the facts of the case

Knowing how to best navigate the legal process

Obtaining the best possible compensation

While having an attorney does not automatically guarantee a positive outcome, it is generally better to have one. A good lawyer has the skills and experience necessary to handle the complexities of the case.

Contact Mesriani Law Group

The right to take maternity leave is extremely important. Having that right violated can be devastating and have serious negative consequences. An employment lawyer can help alleviate the stress and hardship and take care of getting you the compensation you deserve. Our attorneys are experienced, hardworking, and dedicated. If you have been discriminated against by your employer due to pregnancy or pregnancy related disabilities, call Mesriani Law Group today for a free consultation.

Maternity Leave FAQs

How much time do you get off for maternity leave in California?

An employee who becomes pregnant may be eligible for 4 months of pregnancy disability leave and 3 months of family leave. A person may choose to take family leave after they have used all of their disability leave and may even be eligible for additional reasonable accommodation leave after that.

How much do you get paid for maternity leave in California?

While there is no legal obligation for an employer to provide paid maternity leave to their employees, there are ways for individuals to receive payments while on maternity leave. State disability insurance, California paid family leave, and any paid time off benefits provided by the employer are all options that an employee might seek to utilize.

How do you calculate maternity pay?

California’s paid family leave calculates approximately 60 to 70 percent of the weekly income you earned for the 5 to 18 months leading up to the date of the claim. This number uses the highest earning quarter in that timeframe. There may be other factors that impact how the amount is calculated such as other income, military service, and overdue court ordered support payments.

How long before due date should I take maternity leave?

There are many different factors that can go into a decision of when to begin maternity leave. Sometimes, complications with the pregnancy can cause a person to go on pregnancy disability leave early on. Other people may choose to wait until the due date in order to take all of their time after the baby is born. Generally, it is common for employees to begin maternity leave anywhere from a week to a month before their due date.

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What is Constructive Dismissal?

In the state of California, the terms constructive discharge, constructive dismissal, or constructive termination are used to refer to situations where an employer has intentionally created or allowed a hostile work environment that is so toxic and intolerable for an employee that they are forced to quit.

Wrongful constructive termination refers to situations where the reasons behind the dismissal would be grounds for a wrongful termination claim under California state law if the employer had fired them directly. As with a standard wrongful termination case, wrongful constructive termination may be based on the applicable exceptions to California’s at-will employment laws.

Some situations that may not warrant but can contribute to a constructive termination claim include:

Severely reduced hours

Increased workload with no assistance

Unaddressed harassment from coworkers

Being consistently unduly reprimanded

Wrongful Constructive Dismissal Laws in California

The purpose of wrongful constructive termination law is to protect an employee’s right to sue for wrongful termination in the event that they were forced to quit rather than having been fired.

It is not enough just to claim wrongful constructive termination. The employee must prove two things:

The employer committed an act of workplace retaliation by intentionally creating or allowing the creation of working conditions that were intolerable enough as to cause the employee to have no other choice than to quit.

The employer did not have the right to terminate the employee, and if they had, the employee would have been able to file a valid wrongful termination claim against them.

In California, if an employee is not part of a union, the employment relationship is considered at-will by default, though there may also be specific terms in their employment contract that verify it. This means that the employer does not have to give reason or notice in order to terminate an employee. They also may create or encourage hostile working conditions in general.

There are, however, some exceptions to this standard that may allow for an employee to claim wrongful constructive dismissal.

How is Constructive Dismissal Defined?

According to California state law, there are three factors in determining constructive dismissal:

The employer intentionally created or knowingly permitted certain conditions.

The conditions were so intolerable that the employee felt forced to quit.

The employer should have reasonably known that the conditions would force a reasonable employee to quit.

There are many methods an employer may use to force someone to resign such as discrimination, harassment, and intimidation. However, if the working conditions were merely bad, but not completely intolerable, it is not enough to claim constructive termination. There are many ways that an employer may make things difficult for an employee that individually do not constitute intolerable conditions such as:

Reduced hours or unsavory shifts

Reduced pay or demotions

Transfers and reassignments

Unfair reprimands and evaluations

Rude coworkers and supervisors

It is also not enough that intolerable conditions existed. The employer must have been aware and either intentionally created them, or knowingly permitted them to occur. The point of a constructive dismissal is that an employer has terminated an employee by forcing them to quit.

Although California is an at-will employment state, employers are still prohibited from discriminating against their employees. An employee can not be terminated due to being a part of any of the following protected classes:

Age

Disability

Gender/Sex

Pregnancy

Race

Religion

Sexual Orientation

They are also protected from retaliation in the event of:

Whistle Blowing

Sexual harassment complaints

Taking protected leave

If an employer fired an employee due to one of these reasons, that employee may have the right to claim wrongful termination. But if they resign, they lose that right. This can be a factor in an employer deciding to force a resignation rather than issue a termination.

Constructive Dismissal Examples in California

There have been many instances where an employee has believed that they were constructively terminated, but the court held that the conditions were not enough to qualify such as:

The presence of a workplace violation

A single isolated incident of discrimination

A demotion due to a poor evaluation

Being changed from full time to part time

A change in pay or bonuses

Job duties not being what the employee expected

The employee personally believing they should be paid more

Some examples of instances where the courts agreed that conditions may qualify as constructive termination include:

An employer failing to reimburse their employee for business expenses to the point that the employee was unable to cover their own cost of living

Consistent ongoing patterns of discriminatory behavior due to age, race, or sex

Excessive and aggressive verbal harassment in a hostile work environment

Physical threats and harassment including job performance sabotage

A well performing employee suddenly singled out and being subjected to harsh reprimands, inaccurate poor performance reviews, and verbal harassment

Why Do Employers Want Employees to Quit vs Firing Them?

When an employee resigns, they lose some of the rights they would have had if they had been fired, including but not limited to:

Unemployment benefit eligibility

Increased damages for discrimination or retaliation claims

The right to sue for wrongful termination

In order to avoid having a former employee exercise any of these rights, an employer may try to force them to quit rather than firing them directly. In those situations, the concept of constructive termination allows for an employee to regain their rights. It also prevents employers from circumventing clauses in employment contracts that demand any termination have a reasonable motive.

What Should I Do if I’m Being Forced to Quit?

Before resigning, an employee who believes they are being forced out should speak with an employment lawyer. There is no guarantee that the details of their situation will qualify as a constructive termination, and if not, resigning will forfeit their right to sue. It is better to get legal advice from an experienced employment attorney before making any major decisions.

In the event that the employee had resigned already, they will need to know what their options are, what rights they have, and if they have a case for wrongful constructive termination.

What if an Individual Stays Employed Rather Than Being Forced to Quit?

An employee can only claim constructive termination after they have been forced to resign, not before. Though staying at a job under intolerable conditions does not necessarily count against a later claim. It is reasonably understood that a person may have no choice but to stay in such an environment to the detriment of their own wellbeing. It is also acceptably common for an employee to make attempts to improve their situation before resorting to resignation. However, while remaining at a job under intolerable conditions may not automatically negate a constructive termination claim, the longer an employee stays, the more difficult it may be to prove that the conditions were in fact intolerable.

Do I Have a Wrongful Termination Claim if I Was Forced to Quit?

In order to claim wrongful constructive termination, the employee must prove that the termination was in fact wrongful. There are many types of wrongful dismissal that include being terminated for:

Breach of contract

Public policy violations

Retaliation for whistleblowing

Retaliation for filing a complaint

Retaliation for filing a workers compensation claim

Requesting medical accommodations

These things constitute a wrongful termination. Because California is an at-will employment state, other forms of constructive termination may not be considered wrongful. Beyond these exceptions, employers have the right to fire any employee for any reason, and employees have the right to quit for any reason. Bad shifts, shortened hours, low pay, and a toxic environment are not enough on their own without an underlying cause that constitutes wrongful termination under California law.

Proving Constructive Dismissal

An employee can not just decide to quit and then claim constructive termination. The California courts have a system for determining if a resignation was actually a termination. There are several factors that the employee must prove:

That there were intolerable working conditions at the time of resignation

That the conditions were so intolerable that the employee had no choice but to quit

That any other reasonable person would have had no choice but to quit in those conditions

That the employer was aware of the conditions and was either directly responsible for creating them or knowingly allowed them to be created

All of these factors must be proven for a valid constructive termination claim. An isolated or trivial incident, a situation that the employer was not aware of, or a situation that was remedied before the employee resigned do not qualify as constructive termination. The working conditions must also have been truly bad enough that the employee was forced to resign rather than conditions that were not ideal and prompted a decision to quit.

Constructive Dismissal Statute of Limitations

There is a set period of time that a person has to file a lawsuit after an incident occurs. This is known as the statute of limitations. When it comes to constructive termination cases, the statute of limitations depends on the specific nature of the case, though in all cases the start date is the date of resignation.

In order to claim constructive termination as violation of an implied oral contract, the statute of limitations is two years.

In order to claim constructive termination as violation of public policy such as discrimination or harassment due to age, race, religion, gender, sexual orientation, pregnancy, or disability, the statute of limitations is two years.

In order to claim constructive termination as retaliation for whistleblowing, the statute of limitations is three years.

In order to claim constructive termination as a violation of the Fair Employment and Housing Act, the statute of limitations is three years to file with the Department of Fair Employment and Housing.

Contact Mesriani Law Group if You Have Been Constructively Discharged

If your employer is creating an intolerable work environment in an effort to force you to quit, the best thing you can do is seek legal advice. An employment lawyer can assess your situation, explain your legal rights, and help you make the necessary steps forward. If you have been forced to quit due to intolerable working conditions, an attorney can determine if you have a wrongful constructive termination case, and if so, help you get started filing a claim. If your employer has forced you to resign or is attempting to force you to resign, call Mesriani Law Group today for a free consultation.

Constructive Discharge FAQs

Why is constructive discharge important?

If an employer decides to fire an employee because of discriminatory or retaliatory reasons, then that employee can sue them for wrongful termination. The employee may also be eligible for unemployment benefits. However, if the employee quits, then they waive their right to sue and may lose eligibility for unemployment. Many employers with malicious intentions will use this to their advantage and deliberately create a hostile environment for the employee they want to get rid of in an effort to force them to quit. The idea of constructive termination is to protect employees in these situations. If they can prove constructive dismissal, then the resignation can be legally viewed as a termination instead.

What do you have to prove to claim constructive discharge?

When claiming constructive dismissal, an employee must prove three main factors: • That the employer was deliberately trying to force them to quit as a form of discrimination, retaliation, or any other grounds for wrongful termination • That the employer intentionally created or willfully allowed others to create a hostile or toxic work environment that was intolerable • That the intolerable working conditions were severe enough that the employee had no other options but to resign All three elements must be present in order for a resignation to be considered a constructive termination.

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Examples of Reasonable Accommodations in the Workplace

People who have disabilities may sometimes need accommodations. In the context of the workplace, reasonable accommodations are adaptations and changes to environment or procedures that assist disabled workers in performing their job. There are also accommodations that prospective employees may need throughout the hiring process as well. Needs and abilities vary from person to person and therefore so do the accommodations granted to each individual. Many different types of accommodations are relatively easy to provide and most come at no real cost to the employer.

Who is an Individual with a Disability?

When an individual has mental or physical limitations to their ability to perform major life activities, they are considered disabled by the Americans with Disabilities Act and are entitled to reasonable accommodations. When requesting accommodations at work, if the disability is not visibly obvious, the employer may ask for a doctor’s confirmation that the accommodation is necessary.

Types of Workplace Reasonable Accommodations

Reasonable accommodations come in three main categories:

No Tech – Accommodations that require minimum cost and effort. This can include allowing someone more time to complete tasks or letting them eat at their desk.

Low Tech – Accommodations that require a small amount of cost and effort. This can include providing lumbar support for chairs or wrist supports for mice and keyboards.

High Tech – Accommodations that require extra cost and effort. This can include installing automatic door and providing screen readers.

Common Examples of Reasonable Accommodations in the Workplace

There are many ways in which an employer can provide reasonable accommodations for their employees such as:

Alterations – Changing the way a job is performed, the time frame it is performed in, or the people responsible for individual aspects of the job itself.

Equipment – Altering equipment such as chair modifications or changing the display and audio settings on a computer and/or providing devices such as desk heaters or magnifiers.

Help – Allowing personal aids or caretakers to provide assistance.

Materials – Making alterations to the format of provided information.

Parking – Providing accessible parking for employees.

Reassignment – Moving an employee to an equal position that is better suited to their needs.

Scheduling – Allowing for flexibility within an employee’s schedule to allow for extra breaks or time off for doctor’s appointments.

Technology – Providing things such as screen readers, modified headsets, and assistive software.

Job Restructuring

An example of reasonable accommodation may be changing the way a job is performed. This can be done by reassigning workloads amongst different employees, changing the employee’s location, or even removing or replacing certain duties.

Rearranging the way tasks and duties are divided amongst coworkers is one way to reasonably accommodate employees with disabilities. If there are two receptionists and one of them is dyslexic, that employee might handle the majority of helping guests and transferring calls while the other handles the majority of the paperwork and typing.

Some disabilities may prevent people from being able to perform their job in the given work environment, perhaps due to mobility or sensory issues. If the job can be done from home or at a more accessible location, it may be reasonable to allow the employee to do so.

There are also some aspects of the way a job is performed that may be easily eliminated or changed completely. A deaf employee may be allowed to handle correspondences via text and email rather than making phone calls. An employee with mobility issues may be permitted to mail things out rather than making deliveries.

Modified Work Schedules and Flexible Leave Policies

Some disabilities may cause an employee to require a modified schedule. If accommodating that schedule does not cause the employer undue hardship, then it would be considered a reasonable accommodation. This may involve extra breaks, regular days off, or even a part time schedule.

A person with an ongoing illness may require regular days off to receive treatment.

A person with chronic pain may only be able to work every other day or require three day weekends in order to recuperate.

A person with diabetes may require extra breaks to eat and manage their insulin.

There are also some disabilities that may require employees to take a leave of absence for more than a day or two. The employer is not necessarily required to provide paid leave in these situations, but they are expected to allow for disability leave when applicable.

A person with a condition that involves flair ups may need extra time off.

Some treatments may have extended recovery time.

The workplace may be temporarily inhospitable due to a person’s disability.

A person with a prosthetic may need time off for repair or replacement.

A flexible work schedule accommodation may also involve an employee being permitted to work remotely a day or two a week or working weekends instead of weekdays.

Modification or Purchase of Equipment or Devices

There are many accessibility aids that can help someone with disabilities in the workplace. Employers are required to provide reasonable equipment when necessary. However, employers are only responsible for things specifically needed for the job. Accessibility aids required for daily functions such as glasses or hearing aids are the employee’s responsibility.

Employees who are visually impaired may require:

Screen reading software

Braille or raised print copies of documents

Magnifying devices

Additional lighting

Employees who are hard of hearing may require:

Teletypewriters

Text telephones

Transcript software

Employees with mobility issues may require:

Telephone headsets

Modified equipment controls

Modified desks for wheelchairs

Stabilizing devices

Employees with dyslexia or ADHD may require:

Guided reading software

Employees with chronic pain may require:

Modified seating

Training

Employers are required to provide employees with disabilities the same opportunities for advancement as their coworkers. This means ensuring that any training is accessible to everyone. Ways that employers may provide training accommodations include:

Making sure that training sites are accessible

Providing training materials in alternative formats

Including sign language interpreters in presentations

Adding captioning to video/audio guides

Modification of Policies

There are some companies that have policies that may prevent a disabled person from being able to do their job efficiently or safely. These policies would have to be amended or the employee given exemption. Examples of this may include:

A worksite that does not allow animals permitting an employee to bring their service dog

A company with a ‘no eating on the clock’ or ‘no food at your desk’ rule allowing an exception for a diabetic employee

An employee with sensory issues or ADHD being allowed to wear headphones

Modified emergency evacuation plans for employees with mobility issues

A company that only provides on site parking for management providing a space for a lower-level employee with mobility issues

Modification of Physical Site or Building

Sometimes, the way the worksite itself is designed poses a hindrance to disabled employees that their coworkers do not face.

Structural changes are sometimes necessary, such as:

Building ramps

Adding accessible bathrooms

Installing elevators/escalators

Non-structural changes may also provide solutions, such as:

Setting up water coolers

Syncing an alert light to the doorbell

Moving meetings and training to another area

Provision of Readers, Communication Access Providers, or Personal Assistants

Some employees may need accommodations by way of third party assistance. This assistance may be needed occasionally or frequently depending on situation at hand. If providing this assistance does not cause undue hardship to the employer, it is considered a reasonable accommodation.

Readers may be employed to assist employees with vision impairments as well as those with dyslexia or learning disabilities. The reader should be able to comprehend the materials being read so that they can clearly and accurately provide the information.

Sign language interpreters can be especially useful for employees who are hard of hearing and/or mute to easily and clearly convey and receive information with their boss, coworkers, and clients.

Captioners and transcribers may be needed for employees who are hard of hearing or have auditory processing disorder when dealing with video presentations.

Drivers may be provided for vision impaired employees who are required to travel as part of their job.

Personal assistants can help in a myriad of ways such as:

Carrying things for employees whose disability involves a weightlifting restriction.

Retrieving or filing things on high shelves for an employee in a wheelchair.

Performing fine motor functions for those with conditions such as Parkinson’s.

Reassignment to a Vacant Position and Light Duty

Sometimes, an employee may develop a disability during their employment that makes it difficult or impossible to perform the job they were already doing. Sometimes, accommodations can be made. If there are no viable reasonable accommodations that can be provided, the employer may need to reassign them to another position with job duties they would be able to perform.

The reassignment should not be a demotion and should pay the same or a comparable salary. The reassignment should also not conflict with another employee being entitled to the position due to a collective bargaining agreement or any seniority system in place.

Some employers have provisions in place to assign employees to light duty when needed. This is not a requirement under the ADA, but a prudent option for industries that involve heavy labor and/or high risk of injury such as construction, fire departments, and law enforcement. Light duty positions are considered a reasonable accommodation if:

The employee is unable to perform their current job due to disability

The employee is qualified and capable of performing the light duty work

Reassigning the employee to the light duty job would not cause undue hardship

Other Accommodations

Other accommodations and considerations may be needed for employees with disabilities depending on the specific situation.

Some jobs compensate their employees for gas milage when traveling is part of their duties. If an employee can not drive due to their disability, the employer may compensate them for public transportation costs instead.

Employees who have learning disabilities may be provided extra personal training to ensure that they are able to fully grasp the skills needed for their job.

Employees with ADHD may be permitted to use their own organizational system rather than company standard or given more flexibility in how they complete tasks.

Employees may be permitted to join meetings via phone or video chat if their disability prevents them from attending in person.

Workplace Reasonable Accommodation Considerations

The following are all considerations that employers must account for when providing reasonable accommodations.

Cost – Most accommodations require relatively low cost to the employer, and some can be provided at no cost at all. Reasonable accommodations are often far less expensive than anticipated.

Essential Job Functions – While employers are expected to provide reasonable accommodations, they are not required to alter their standards for quality and production.

Providing Accommodation – Employers are not usually expected to provide accommodations unless an employee with a disability requests it.

Selection – If there are multiple accommodations that may provide the same assistance to an employee, the employer is permitted to chose which one they will provide.

Undue Hardship – If providing an accommodation would impose an undue hardship on the employer, such as exorbitant cost or difficulty, then they are not required to provide it.

What Are Essential Functions?

The tasks and duties that make up the foundation of a job are referred to as essential functions. The ability to perform those functions to a satisfactory level is what makes someone qualified to hold the position. An essential function is defined by:

Being the reason the position exists

The skill and expertise necessary

How many employees are able to complete the same tasks

Reasonable Accommodation Process

The ADA and the EEOC maintain that accommodation requests be taken into consideration case by case. First, the employee must inform their employer that they have a disability. Employers are not responsible for accommodating disabilities that they are not aware of. The reasonable accommodation process depends on open communication and cooperation between the employer and the employee.

Requesting Reasonable Accommodations in the Workplace

Every employer has their own procedure for requesting accommodations, usually through a manager or human resources department. The request must state the presence of the disability as well as how the disability prevents the employee from properly doing their job. It is best to make the request in writing and retain a copy for your own records. While it is not necessarily required to use the phrase ‘reasonable accommodation’ or cite the ADA, it is good to be clear and direct.

Obtain Preliminary Documentation

Employers are not entitled to an employee’s entire medical history. However, if an employee is requesting accommodation for a disability that is not obviously evident, the employer may request specific documentation from a healthcare provider confirming the disability and the need for accommodation. It is best to only prove the information absolutely relevant to the accommodation request and not allow the employer unlimited access to medical records.

Employers Responsibility When Responding to Reasonable Accommodation Requests

When an employee submits a request for a reasonable accommodation, they then begin what is known as an interactive process with their employer. This is an open communication between the employee and the person handling the request so that they can come to an agreement as to the best accommodation necessary for the situation. The employee may have specific ideas in mind and the employer may have follow up questions. The employer can request a confirmation from a health care professional that the accommodation is necessary if the disability is not obviously evident. The employer may also wish to review ADA guidelines to be sure of the extent of their responsibility. If the accommodation the employee is requesting is deemed too costly, the employer may want to do research to see if an equal but less expensive alternative is available.

Using JAN as a Tool

In 1983, the Department of Labor’s Office of Disability Employment Policy founded a free service known as the Job Accommodation Network to provide employers with information and guidance regarding job accommodations. Before the ADA was created, this tool established the standard for employer guidance when it came to working with those with disabilities. JAN provides a helpful summary of common problems and possible solutions known as The Employers’ Practical Guide to Reasonable Accommodation under the Americans with Disabilities Act. The guide is frequently updated as new situations are brought to their attention.

Does An Employer Need to Provide the Accommodation Requested?

When an employee informs their employer that their disability is affecting their ability to do their job effectively, the employee may already have an accommodation solution in mind. The employer may choose to provide that particular accommodation, or they might find another equally effective accommodation that may be cheaper or easier to provide.

Furthermore, employers are not required to eliminate any essential functions of the employee’s position. If the employee is unable to perform that function due to their disability, the employer may find them reasonable accommodations or transfer them to another position of comparable pay.

Similarly, employers are not required to provide accommodations that would create an undue hardship on the employer. This is generally in reference to expense and difficulty, taking into consideration the cost in relation to the employer’s finances as well as the impact of providing the accommodation. The definition of what falls under this classification varies between situations as an accommodation that could be easily provided by a large company might impose an undue hardship on a small business.

Employers are also not required to provide employees with personal services and devices needed for everyday functions. Things like glasses and hearing aids may be covered by employer provided health insurance, but they are not considered workplace accommodations.

Implementing Reasonable Accommodations

While there are no exact required guidelines regarding the procedure for implementing an accommodation, it is best practice to move things along quickly and maintain respectful communication. Employers are encouraged to keep perspective on what the employee needs in order to perform their job and not on the disability itself. The employee is often the best person to ask when trying to come up with appropriate accommodations as they know best where the difficulty is and may already have ideas. It can also be beneficial to take the abilities and strengths of individual employees into consideration when assigning job duties.

Monitoring Accommodation Effectiveness

It is important that the employer and the employee work together when implementing an accommodation. The employee best understands their disability and what they need to perform their job. The employer best understands the business and what impacts certain accommodations might have. Ultimately, the employer has final say in how they will accommodate their employees, but the accommodation must sufficiently resolve the issue. It is advised that all parties keep a clearly documented record of the process.

What Happens if Workplace Reasonable Accommodations are Denied?

Sometimes, when an employer denies an accommodation, the matter can be easily resolved. They may require medical confirmation or a more thorough explanation of how the employee’s work is impacted. It might be the specific accommodation requested is not possible, but an agreement can be reached for a comparable solution.

If a manager or supervisor denies an accommodation request, the employee may be able to take the matter to human resources. If the company has no HR department, higher ups such as a district manager or business owner may be the next step.

If the employee is a member of a union, grievances can be filed through their union rep. There may be other procedures for filing internal complaints as well.

If all else fails, it may be necessary to file an external complaint. Employees can contact the Equal Employment Opportunity Commission to file a claim for disability discrimination. It may also be necessary to speak with an employment lawyer.

Contact Mesriani Law Group if Reasonable Accommodations are Denied?

People with disabilities have the right to reasonable accommodations in the workplace. Employers are required to provide those accommodations unless they would cause undue hardship. Unfortunately, not all employers comply with ADA regulations and try to deny their employees accommodations. When this happens, legal action may be necessary. Our employment attorneys have the experience and dedication to help our clients through this stressful and difficult process. If your employer has denied your right to reasonable accommodations, call Mesriani Law Group today.

Workplace Reasonable Accommodation FAQs

What are examples of accommodation in workplace?

Some reasonable accommodation examples are: An office worker who has a vision impairment may ask for an extra lamp for their desk, a magnifying glass to help read paperwork, and screen reading software for their computer. An employee battling cancer may require a flexible schedule to allow for treatments and rest days. They may also need extra breaks or extended leave. A cashier with chronic pain may request to be permitted to sit while they work.

How do you explain reasonable accommodation?

The Americans with Disabilities Act defines a reasonable accommodation as any change made to the job itself, the workplace environment, or the procedures of the hiring process that allow a person with a disability a fair chance to get and perform a job as well as someone who does not have a disability. A reasonable accommodation should not cause undue hardship for the employer.

What is reasonable accommodation in HR?

A company’s human resources department is generally responsible for processing and fulfilling requests for reasonable accommodations. They may ask follow-up questions, request medical confirmation, and ensure that effective accommodations will be possible and affordable for the company.

How do I write a reasonable accommodation request?

An accommodation request should explain that you have a disability and because of that disability, you are unable to perform the essential functions of your job and are requesting an accommodation. You do not have to go into detail regarding personal medical information but be clear about where the issue is and how it can be resolved.

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What is Medical Discrimination in the Workplace?

Employers in the United States are not permitted to discriminate against employees on the basis of their medical conditions. The Family and Medical Leave Act and the Americans with Disabilities Act are federal laws that dictate the guidelines surrounding medical and disability discrimination. Employers cannot use medical conditions as a motivation for any employment decisions including hiring, training promotions and demotions, assignments, or firing.

What is Medical Condition Discrimination?

Medical condition discrimination occurs when an employer takes adverse employment action against someone or treats them differently due to their existing or future medical conditions. This can occur when an employer refuses to hire someone who has an obvious disability. They may also hire someone with a disability and then harass them or refuse to provide reasonable accommodations. Sometimes, an employee may disclose a medical condition later in their employment and then face demotion or termination.

Examples of Medical Discrimination in the Workplace

Employers may not discriminate against people due to their medical conditions at any point during the hiring process including:

Job advertisements

Recruitment

Interviews

Hiring decisions

Ways in which employers illegally discriminate against employees due to their medical conditions include but are not limited to:

Testing and training designed to weed out people with certain health conditions

Paying a disabled employee less than their abled coworkers in the same position

Denying company health insurance based on an employee’s medical history

Refusing to allow an employee with diabetes to eat or take insulin while on the clock

Refusing an employee’s request to take leave to seek treatment

Retaliating against an employee for taking leave due to a medical condition

Denying an employee’s request for reasonable accommodations

Mocking an employee for their medical condition

Demoting an employee for developing a medical condition

Denying a raise or promotion based on a medical condition

Terminating an employee due to a medical condition

What is a Medical Condition?

Any ailment or illness that has an effect on a person’s wellbeing can be considered a medical condition. Some are relatively minor such as nearsightedness or a food allergy, and others can be much more severe such as pregnancy, cancer, or muscular dystrophy.

What are Common Medical Conditions?

There are many different types of medical conditions that may result in discrimination in the workplace such as:

ADHD

Asthma

Blindness

Cancer

Carpal Tunnel

Deafness

Depression

Diabetes

Epilepsy

Heart Disease

High Blood Pressure

HIV/AIDS

Loss of Limb

Multiple Sclerosis

Muscular Dystrophy

Parkinson’s

Paralysis

Pregnancy

Sensory Hypersensitivity

Stroke

What is a Perceived Medical Condition?

There are times when an employer might assume that an employee has a medical condition even though they do not. This may be due to a stereotype, a rumor, or just a misunderstanding. The employer may then go on to discriminate against the employee based on that assumption. This is known as discriminating against perceived medical condition.

What Laws are Designed to Prevent Medical Condition Discrimination at Work?

On a state level, the California Fair Employment and Housing Act was created to fight against medical discrimination. On a federal level, there are several laws to protect workers:

Family and Medical Leave Act (FMLA)

Americans with Disabilities Act (ADA)

Rehabilitation Act (Rehab Act)

Genetic Information Nondiscrimination Act (GINA)

The FMLA allows for covered employees to take necessary leave without risking their jobs. The ADA protects employees with mental or physical disabilities. The Rehab Act is similar to the ADA. GINA prevents employers from using a person’s genetic information against them.

Americans with Disabilities Act

The ADA specifically applies to employers in the private sector with fifteen or more employees. Those employers may not discriminate against people with disabilities. The ADA defines a disability as a physical or mental impairment that limits a person’s major life activities but does not strictly define what a major life activity is. It is important to note that different laws and organizations may have different ways of defining what a disability is. Some of these definitions may contradict each other or qualifying for one may disqualify someone from another. People with disabilities should be careful and research all options available.

Reasonable Accommodations Under the ADA

Under the ADA, employers must provide employees with reasonable accommodations for disabilities when requested. Employers are required to interact with the employee to find the best accommodation. Some common accommodations may include:

Extra breaks

Extra sick days

Flexible scheduling and work requirements

Ergonomic equipment

Screen readers

Sign language interpreters

Employers may also consult the Job Accommodation Network at the Department of Labor for assistance.

Rehab Act & Medical Discrimination

The Rehabilitation Act is similar to the Americans with Disabilities Act in its efforts to protect employees with disabilities from discrimination. However, the Rehab Act applies to all federal government employers with any number of employees.

FMLA & Medical Discrimination

The Family and Medical Leave Act applies to private employers with at least 50 employees as well as federal government agencies with any employees. FMLA protects employees with disabilities by providing 12 weeks of unpaid leave per year to tend to medical related needs. It is not necessarily a protection against discrimination so much as it is job protection. However, it can go hand in hand with the ADA which does safeguard against discrimination but does not extend to those unable to perform their jobs completely like FMLA.

FEHA and Medical Discrimination in the Workplace

California state law has its own regulations regarding medical discrimination. The Fair Employment and Housing Act applies to employers with five or more employees. Employers are prohibited from discriminating against workers with disabilities, medical conditions, or mental impairments. The FEHA protects against discrimination at any point in the employment process including hiring, promotions and demotions, pay rates, or terminations.

GINA and Medical Discrimination in the Workplace

Employers with 15 or more employees are bound by the Genetic Information Nondiscrimination Act. This means that they are not allowed to discriminate against employees on the basis of family history, genetic characteristics, or genetic testing. If someone has a family history of cancer, their employer cannot take adverse employment action against them on the assumption that they will also develop cancer.

Should an Employee Discuss Their Medical Condition with Their Employer?

Everyone has the right to decide who knows what about their health. There may be many pros and cons to disclosing a disability with an employer depending on the details of the situation. Some disabilities are apparent on their own. Sometimes it may be necessary to disclose information in order to receive accommodations or FMLA leave.

Is it Medical Discrimination if an Employer Asks You to Take a Medical Exam

Employers are only permitted to have prospective employees undertake a medical exam if they ask it of all employees and it is necessary for the job itself. Firefighters are an example of a job that may require a medical exam. Employers are also not permitted to ask questions about a perspective employee’s health. However, they are permitted to ask specific questions related to the essential functions of the job. This may include asking if the applicant can perform heavy lifting or climb up and down stairs.

Steps to Take If an Employee Experiences Medical Discrimination or Retaliation at Work

Although medical discrimination is illegal, it still happens. Fortunately, there are options and steps that an employee can take in those situations.

How to File a Complaint If Medical Discrimination is Experienced

There are many ways in which an employer may break medical discrimination laws. Each law has its own options and steps for employees to take.

Americans with Disabilities Act – When an employer violates the ADA, employees can file a complaint with the Equal Employment Opportunity Commission within 180 days. This complaint must be filed before the matter can be taken to court. Some state and local laws may provide extensions for the time limit in which the complaint must be filed.

The Rehabilitation Act – When an employer violates the Rehab Act, federal employees can file a complaint with their office’s corresponding Equal Employment Opportunity office within 45 days. This complaint must be filed before the matter can be taken to court.

Family and Medical Leave Act – When an employer violates the FMLA, employees can either file a complaint with the Secretary of Labor through the Department of Labor’s Wage and Hour Division. Employees in this situation also have the option to directly file a lawsuit within two years.

Statute of Limitations on Filing a Medical Discrimination Claim

When filing an employment discrimination complaint with the EEOC, employees have 180 days from the date in which the discrimination occurred. There are some state laws that may extend that limit and so it is important to know what the specific deadline is in your area.

When filing a claim regarding FMLA, employees have two years from the date in which the violation occurred. Employees can also file a complaint with the Secretary of Labor, but this will not result in any extensions for filing a claim.

Damages That Can Be Collected in a Medical Discrimination Claim

Employees may be eligible for various types of compensation from medical discrimination cases. This may include:

Administrative costs

Emotional distress

Insurance premiums

Legal fees

Lost wages

Medical Costs

Pain and suffering

Policy changes

Reinstatement

Contact Mesriani Law Group If You Have Been a Victim of Medical Discrimination at Work

People with disabilities, medical conditions, and family health issues have the right to work in an environment free of discrimination. It is against the law for employers to harass or discriminate against employees due to existing, possible, or perceived medical conditions or to deny them their right to reasonable accommodations or FMLA leave. When employers violate these laws, legal action may need to be taken. No one should have to face these things alone. Our employment attorneys are experienced, hardworking, and dedicated to guiding our clients through the legal process and fighting to get them the compensation they deserve. If you have been the victim of medical discrimination in the workplace, call Mesriani Law Group for a free consultation.

Medical Condition Discrimination FAQs

What is medical discrimination?

Medical discrimination at work is when employers treat some employees differently than others on the basis of a medical condition. This can include firing someone for being ill, refusing to provide a disabled employee with reasonable accommodations, or denying an eligible employee their right to take FMLA leave. Harassment or creating a hostile work environment for an employee due to their medical condition is also discrimination. The employee does not have to actually have the medical condition in question. Sometimes an employer will be told an employee has a condition or believes that they are at risk of developing one and will discriminate against them based on the perceived medical condition.

What are the 3 types of discrimination?

There are several ways in which employers might discriminate against employees due to medical conditions such as: The Hiring Process – When employers post a job application that lists unrelated health standards as requirements or force prospective employees to undergo medical screening as part of the application process, they are in violation of anti-medical discrimination laws. Work Environment – Some employers may perpetuate harassment or ostracization of employees due to their medical conditions. They may also refuse to provide reasonable accommodations that would not cause undue hardship such as assistive equipment or not allowing a diabetic employee to take snack and insulin breaks. Adverse Employment Action – A common form of medical discrimination is when employees are retaliated against for needing accommodations or taking FMLA leave. Employees may also face discrimination-based demotions or even termination due to their medical conditions.

How do you prove medical discrimination in the workplace?

One of the strongest forms of evidence is clear documentation. This is why it is advised to send requests and complaints in the workplace via email. It is always good to have a concise record of what was said, when it was sent, and who it was sent to. When filing a complaint, it is important to be as detailed as possible. Dates, times, the names of the people involved as well as any witnesses should be included.

What questions can employers ask about medical conditions?

During the hiring process, employers are permitted to ask questions that are directly relevant to the essential functions of the job. If a movie theater is hiring for someone to work at their concession stand, they may be allowed to ask applicants if they will be able to lift and carry bags of popcorn kernels and soda syrup boxes that can weigh up to 50 pounds. Employers are not permitted to ask general questions about an applicant’s health or medical history. When an employee is asking for reasonable accommodations for a disability or requesting FMLA leave, their employer may be permitted to require a confirmation letter from the employee’s doctor confirming that it is necessary. Employers are not entitled to specific details of the employee’s medical condition. However, in regards to accommodations, they may be permitted to ask questions that will help them provide the most suitable option for the employee.

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California is an at will employment state, meaning that either party can end the employment relationship at any time for any reason.

The exception to this is that an employer is not permitted to terminate an employee due to discrimination against a protected category or as retaliation for engaging in a protected activity.

Sometimes, employers will try to cover up a wrongful termination by claiming to have had legal motivations.

If you are a California employee and believe you were wrongfully terminated, call Mesriani Law Group.