Orange County Employment Lawyers Blog

Understanding Constructive Discharge and the Mixed-Motive Defense: A Case Review

August 3, 2023 | by Nassiri Law

At Nassiri Law Group, we are committed to representing employees who have faced discrimination and have been wrongfully terminated. We understand the complexities of employment law and strive to ensure that our clients’ rights are protected. In this blog post, we delve deeper into the intricacies of employment law, focusing on the concept of constructive discharge and the mixed-motive defense, through a recent case review.

What is Constructive Discharge?

Constructive discharge is a term that many may not be familiar with, but it plays a significant role in employment law. It occurs when an employer creates a work environment that is so intolerable that a reasonable employee would feel compelled to resign. This can include situations where an employee is subjected to workplace harassment, employment discrimination, or other forms of adverse treatment.

Regulators Eyeing Algorithmic Discrimination in U.S. Workplaces

July 30, 2023 | by Nassiri Law

Across the country, at all levels of government and industry, artificial intelligence (AI) is the source of intense focus as the machine learning technology has advanced leaps and bounds in just a couple of years. AI uses specialized tech to write and learn algorithms. It’s more than just a single program, and its uses are vast, with applications in everything from writing essays to self-driving big rig trucks to criminal case sentencing. Obviously, this has MANY implications for employers and employees. One that has captured the attention of government regulators and anti-discrimination lawyers is the use of algorithms in hiring.

Creators and proponents of AI will tell you that this sort of technology used in hiring helps eliminate the pitfalls of innate human biases to actually reduce instances of employment discrimination. But as our Los Angeles employment discrimination lawyers can explain, that doesn’t tell the whole story.

Because AI technology relies on machine learning, what is put into it will dictate the results it outputs. So if the information going in is even slightly coded for biases in gender, race, nationality, ethnicity, religion, etc., the results are going to perpetuate those biases – and possibly even compound them. This can be intentional, but from what we’ve seen, it’s largely unintentional. But good intentions don’t change the adverse impact.

And this issue now has a name: Algorithmic Discrimination.

Just last year, the Equal Employment Opportunity Commission issued guidance workplace algorithmic discrimination and promised to be proactive in getting ahead of the issue so that workplace policies can keep place with the technology. It’s called the Artificial Intelligence and Algorithmic Fairness Initiative, and it encourages industry self-regulation for companies using AI for recruiting and hiring.

Are There Any Algorithmic Discrimination Laws?

Nursing & Pregnant Worker Rights Solidified in 2 New Federal Laws

July 25, 2023 | by Nassiri Law

Equality in the workforce would be impossible without proper acknowledgement and accommodations for employees who are pregnant or nursing. The inherent physical demands of the condition were long used an excuse to discriminate against these workers. Then in 1978, the federal government passed the Pregnancy Discrimination Act, making it illegal for employers with 15+ employees to discriminate against women because of pregnancy, childbirth, abortion, or any medical conditions related to pregnancy and childbirth. (Applicable medical conditions can include things like severe morning sickness, post-partum depression, gestational diabetes, preeclampsia, pregnancy-induced hypertension, loss of a pregnancy, etc.)

Now, as our Los Angeles pregnancy discrimination lawyers want to make sure everyone’s heard about two much more recent federal protections in place for pregnant and nursing workers. These are:

The PUMP Act

Effective as of December 29, 2022, the Providing Urgent Maternal Protections for Nursing Mothers Act expands protection for breastfeeding employees. The law requires most employers to extend reasonable breaks for breastfeeding employees to express milk for their new baby. This accommodation must be granted for one full year after the birth of the child. During these breaks, the employee will not be expected to carry out any work-related duties. However, if the worker is paid hourly and does not work while pumping, the employer is not required to pay for that time.

Furthermore, the area designated for nursing employees must be private, free of intrusion – and not a bathroom.

Although the act technically applies to all employers no matter what size. However, if the employer has fewer than 50 employees, it may file for an exemption to the requirement. To prevail, the employer would have to prove that compliance would result in undue hardship for the company – and the employer would bear the burden of proof. There are also industry-specific exceptions, such as airline and railroad industries.

PWFA

The Pregnant Workers Fairness Act, now part of Title VII of the Civil Rights Act of 1964, went into effect June 27, 2023. It’s applicable to employers with 15+ employees. It requires employers to extend reasonable accommodations in the event a pregnant employee experiences limitations as a result or related to pregnancy, childbirth, or any related medical condition. While you might be required to provide a doctor’s note, companies can only deny these requests if they can prove that granted the accommodation would result in “undue hardship.”

As recently outlined in the U.S. Supreme Court case of Groff v. DeJoy, “undue hardship” goes beyond a de minimis burden. Employers asserting undue hardship bear the burden of proving the accommodation would result in substantial increased costs and other significant impacts in the overall context of the employer’s business.

Some examples of possible accommodations a pregnant employee might seek under the PWFA:

More breaks for resting, sitting, drinking water, eating, or using the restroom.
Hours that are flexible to allow for conditions like morning sickness or to attend doctor’s appointments.
Restrictions on heavy lifting.
Designated parking that is closer to the building.
Excuse from activities that are strenuous or compounds that are risky.

Groff v. DeJoy: Protecting Religious Accommodation Rights in the Workplace

July 20, 2023 | by Nassiri Law

In a landmark decision, the Supreme Court recently handed down a unanimous ruling in the case of Groff v. DeJoy, clarifying the extent of an employer’s obligation to accommodate employees’ religious practices. This decision has significant implications for workers across the country, reaffirming their right to freely exercise their religious beliefs in the workplace. In this blog post, we will delve into the details of the case, analyze the Supreme Court’s interpretation, and highlight the importance of religious accommodation rights for employees.

Case Background:

The case involved Gerald Groff, an evangelical Christian and former missionary who worked as a substitute mail carrier for the United States Postal Service (USPS). When the USPS made a deal with Amazon to deliver packages on Sundays, Mr. Groff faced a conflict between his faith and his job. He felt compelled to choose between fulfilling his religious obligations and adhering to his work schedule. After being disciplined for missing work due to religious reasons, Mr. Groff decided to take legal action, claiming a violation of his religious accommodation rights under Title VII of the Civil Rights Act of 1964.

Supreme Court Rules Against Race-Conscious Admissions in Harvard and UNC

July 20, 2023 | by Nassiri Law

In the landmark decision of Students For Fair Admissions, Inc., the Supreme Court has ruled against the race-conscious admissions programs at Harvard University and the University of North Carolina (UNC). Chief Justice John G. Roberts Jr., writing for the 6-3 majority, declared that these programs were unconstitutional due to their negative use of race and involvement of racial stereotyping. Here, our Anaheim employment lawyers provides a legal analysis of the Supreme Court’s decision, highlighting its impact on both public and private institutions and discussing its potential implications in the employment arena.

The Application of the Ruling to UNC and Harvard:

The Supreme Court’s ruling applies to both UNC, a public institution, and Harvard, a private institution. UNC was subject to the ruling due to its status as a state-owned entity, as public institutions are bound by constitutional restrictions. In the case of Harvard, the Court determined that despite being a private institution, it accepted federal funding and agreed to be treated similarly to a state actor in matters related to admissions. This decision sets a precedent that private institutions receiving federal funding can be subject to constitutional scrutiny, including in matters involving affirmative action.

Understanding California’s Minimum Wage Increases Effective July 1, 2023

July 20, 2023 | by Nassiri Law

As of July 1, 2023, California is set to implement new minimum wage increases, ushering in significant changes for workers across the state. Our Orange County wage and hour lawyers can help you understand the new laws. These increases, designed to address the rising cost of living and improve income equality, will impact both employees and employers. In this blog post, we delve into the details of California’s minimum wage increases and their implications for businesses and workers.

Overview of Minimum Wage Increases:

Effective July 1, 2023, California’s minimum wage will experience a notable increase. The specific wage rates vary based on the size of the employer, with different rates applicable to small businesses and larger companies. Let’s explore the key details:

SCOTUS Expands Workplace Religious Accommodations Standard

July 13, 2023 | by Nassiri Law

Employers have been required to extend reasonable workplace religious accommodations ever since the passage of Title VII of the Civil Rights Act of 1964. Such requests should only ever be denied when doing so would cause “undue hardship on the conduct of the employer’s business.” But what does that mean, exactly?

Well as our Los Angeles employment discrimination lawyers can explain, since the late 1970s, courts have generally interpreted that to mean any employer effort or cost incurred that exceeded de minimis, or too minor or trivial to merit consideration. Admittedly, that’s a pretty low bar. So it’s long been pretty tough to successfully argue discrimination on the basis of failure to provide religious accommodations. But that’s about to change.

Last month, the U.S. Supreme Court issued a ruling that picked that standard up off the floor. Justices asserted that an undue hardship in these cases should be defined as a burden that is substantial in the overall context of the business. There’s no clear, bright line rule, unfortunately. Determining whether a certain workplace religious accommodation imposed an undue hardship on the employer is a fact-specific determination.

In general, employers seeking to prove the requested accommodation would have caused undue hardship will need to show that it:

Is at minimum, something hard to bear.
Something that causes or entails suffering or privation/disadvantage.
Extreme privation, adversity, or suffering.

Although that’s still pretty broad, the Court made it a point in Goff v. DeJoy to say that in the context of employee rights, undue hardship on an employer needs to amount to something more severe than “a mere burden.” It would have to be unjustifiably excessive.

In other words, it sort of puts the ball back into the employer’s court. If they deny a workplace religious accommodation, the onus will be on them to show why it was not reasonable for their operation to swing. The practical impact of the accommodation would need to be considered in light of the nature, size, and operating cost of the employer. Continue Reading ›

California Employers Not Liable for ‘Take-Home Covid,’ State High Court Rules

July 7, 2023 | by Nassiri Law

Employers in California can’t be held legally responsible if workers contract COVID-19 on-the-job and then spread it to people they live with.

In the case of Kuciemba v. Victory Woodworks, Inc., the California Supreme Court ruled that while take-home COVID claims filed by employee spouses aren’t barred by the exclusivity provisions of workers’ compensation law, employers owe no duty of care to non-employees.

Workers’ compensation claims are predicated upon injury suffered by an employee. An employee who files a workers’ compensation claim can’t also file a lawsuit against their employer, due to the exclusivity rules. But the spouse isn’t entitled to workers’ compensation if they get sick. And the claim here wasn’t based on the employee’s injury, but the spouse’s.

However, claims rooted in negligence must first establish that the defendant owed the plaintiff a duty of care. Employers, the Court ruled, don’t have a special relationship with the spouse’s of employees such that it establishes a legal responsibility to use reasonable care in preventing harm to them. The Court noted that while it’s foreseeable that negligence in employer policies and practices would increase the likelihood of spreading a highly contagious disease to employee household members, to recognize an employer duty of care to non-employees would “impose an intolerable burden on employers and society” that would be in contrast to public policy.

Of course, the bones of this case are more in the realm of injury/tort law rather than California employment law (which is our focus at Nassiri Law Group). But it’s still worth pausing to review, given how substantially COVID-19 upended so many workplace procedures, policies, and practices. So much of this was uncharted territory for the modern world. As such, California courts are still getting around to resolving workplace conflicts – direct and ancillary – that cropped up in the midst of the pandemic and its aftermath. Continue Reading ›

What Are California’s Employee Bereavement Rights?

July 2, 2023 | by Nassiri Law

The death of a loved one can feel like you’re being torn into two – with waves of intense, very difficult emotions washing over you at any moment. In the immediate aftermath of such a loss, people need a moment to breathe, be surrounded by others they love, and start the long process of healing. That’s where California employee bereavement rights kick in.

As our Los Angeles employment lawyers can explain, California law guarantees most employees up to 5 days of bereavement leave from work for the death of a qualifying family member (spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law). Employers are allowed to grant it for the loss of someone outside these categories with whom you were close, but they aren’t required to.

The law allows for five days for the death of each qualifying family member. So if you suddenly lose three of your close relatives – even if it happened all at once – you would be entitled to 15 days, rather than just 5. You have three months to use your bereavement leave, but it doesn’t have to be taken consecutively. That is, you could take a day or two immediately after, and the rest of the time to attend calling hours, the funeral, etc.

Bereavement leave can be paid or unpaid; It will be up to the employer’s policy. If the company has an existing bereavement policy that offers fewer than 5 days of paid leave, the employee can receive pay for the number of days in the existing policy, but the rest might not be paid. If there leave isn’t paid, employees can use accrued paid leave to cover unpaid days.

Proof of death can be required within 30 days. Acceptable forms include a death certificate, obituary, or some other written proof of your loved one’s death, burial, or memorial services. You’re entitled to expect confidentiality regarding these requests. Further, taking bereavement leave won’t adversely impact other types of protected work leave.

Similar to the California Family Rights Act (CFRA), it is against the law for an employer to refuse to hire, discharge, demote, fine, suspend, expel, or discriminate against an employee exercising their right to bereavement leave. They also can’t retaliate against an employee providing information or testimony about another person’s bereavement leave in any inquiry related to the employer’s possible violations of the law. Continue Reading ›

Ex-Employee Files California Transgender Discrimination Lawsuit

June 30, 2023 | by Nassiri Law

A former employee for a prominent wine magazine has filed a California transgender discrimination lawsuit against the publication and its parent company, alleging harassment, failure to prevent discrimination, and retaliation.

According to the Napa Valley Register, the employee worked as an assistant tasting coordinator and writer for the magazine. She says at the time she was hired, she was upfront about the fact that she would be needing some reasonable accommodations to receive periodic gender-affirming medical care. This included surgeries and subsequent recovery times.

Upon undergoing a second surgery, a supervisor reportedly expressed concerns about the time off she was taking for medical care and recovery. This was also around the time that she reported to her employer that a colleague had violated the company’s policies for wine scoring and blind tasting. (A reviewer allegedly changed several wine scores after repeatedly opening wine bags to peek at the label.)

A supervisor reportedly made numerous comments to/about the plaintiff that were demeaning, obscene, offensive, and derogatory – pertaining to her transgender status.

After undergoing a third gender-affirming surgery, she had a difficult recovery, which included substantial psychiatric and psychological impacts. She was recommended for inpatient psychiatric treatment. During this time, she was placed on involuntary administrative leave, and fired about a week later. This also canceled her medical insurance coverage.

Her lawsuit alleges transgender discrimination, as well as retaliation for reporting the policy violation.

The magazine, communications company, and other defendants say the allegations are without merit. Continue Reading ›