Orange County Employment Lawyers Blog

Federal Court “Tips” The Scales in Favor of Restaurant Workers

March 4, 2019 | by Nassiri Law

Back in November, the U.S. Department of Labor rescinded the controversial Obama-era 80/20 Rule, dictating how restaurants paid tipped workers, barring employers from taking tip credit from workers who spend more than 20 percent of their time doing non-tipped work. Now, Orange County fair wage attorneys understand a federal judge for the U.S. District Court for the Western District of Missouri rejected the DOL’s guidance, finding it “unpersuasive and unworthy.”

The judge further stated that the Labor Department’s issuance of an opinion letter abruptly shifting gears on this issue after 10 years of consistently construing such regulation as limited by the 80/20 rule wouldn’t persuade the court to apply a new interpretation of litigation. Noting the DOL gave zero reasoning or evidence of any in-depth consideration for reversing its position, and it doesn’t stand up to the standard set by the U.S. Supreme Court, and characterized the November rule change as a “sudden surprise” and an “unjustified departure” from the agency’s previous guidance.

Per the Fair Labor Standards Act, 29 USC s. 201, employers must pay workers at least $2.13 hourly for their wages, then take a tip credit in order to make up the difference between the worker’s wages and federal minimum wage. The 80/20 rule arose because tipped workers were spending an extensive amount of time carrying out non-tip-generating duties, like rolling silverware or setting tables. The updated guidance from the DOL was that the agency was no longer going to limit the amount of time workers could spend performing those duties. Continue Reading ›

Wave of Wal-Mart Gender Discrimination Lawsuits in California to Follow Flood of Florida Claims

March 1, 2019 | by Nassiri Law

Gender discrimination lawsuits are piling up once more against retail giant Wal-Mart, with nearly 100 unfair wage and hour claims filed in Florida and more expected in both California and Ohio later this year. Orange County gender discrimination lawyers are quite familiar with a long history of allegations against Wal-Mart by female workers alleging they were discrimination against for years – in some cases decades.

Perhaps most notable was the 2011 case of Wal-Mart v. Dukes, in which late U.S. Supreme Court Justice Antonin Scalia, writing for the 5-4 majority, reversed the certification of a national class of female employees of Wal-Mart, finding it inconsistent with Federal Rule of Civil Procedure 23(a), which requires those seeking class certification to prove the the whole class of plaintiffs has either common questions of law or fact. Despite basically being too expansive, Justice Ruth Bader Ginsburg’s dissent described the company’s corporate culture as being “suffused” with gender bias.

Since then, the namesake plaintiff of the Dukes case has died. But many of the women who were originally part of that class she filed originally in 2001 are now in this action. When Dukes case was dismissed, the remaining claims were left under the consideration of the Equal Employment Opportunity Commission. Late last year, the EEOC granted them permission to sue for gender discrimination, citing violations of Title VII of the Civil Rights Act of 1964. That federal law prohibits employers from discriminating against workers on the basis of (among other things) their gender. Disparate treatment in the workplace resulting in systemic adverse treatment of a protected class is considered grounds for a Title VII claim.

Orange County Employment Attorney Talks Claims for Employer Retaliation

February 26, 2019 | by Nassiri Law

It is no secret that businesses do not want to pay out more in liability damages than they have to. Larger firms have entire departments dedicated to reducing liability, which usually include human resources professionals and legal advisers/consultants. Orange County employment lawyers know this isn’t necessarily a bad thing – if the goal is reducing the discriminatory and unlawful actions that spark workplace litigation in the first place, such as discrimination or wrongful termination.

Unfortunately, far too many companies retaliate against employees for engaging in activities protected under federal and state law – such as filing a claim for Orange County workplace discrimination or sexual harassment or cooperating with outside investigators examining such claims.

Retaliation involves some type of unlawful adverse employment action carried out by an employer with the intent of punishing a lawful action by an employee (often one that hurts the company’s bottom line or reputation). The California Department of Industrial Relations has a specific unit dedicated to Retaliation Complaint Investigation. Continue Reading ›

California Cancer Discrimination: Employer Can’t Terminate on Basis of Diagnosis

February 26, 2019 | by Nassiri Law

A cancer diagnosis is often one of the most pivotal points in a person’s life, not only because it causes one to face possible mortality, but because it is expensive and often impedes a person’s ability to work and/or care for their family. However, it should not be the basis on which you’re fired. If you believe it is, an Orange County cancer discrimination attorney can help you determine whether you have a viable case and lay out your legal options.

Rarely will an employer say, “We’re cutting your hours because you have cancer.” Instead, they will look for other excuses. They will say accommodations aren’t possible without hardship (when that’s not really true). They will say you weren’t performing according to company standards – even if you’ve had great annual reviews until that point. Sometimes they’ll start giving you poor reviews to leave a paper trail so they have a leg to stand on. This is why from the moment you suspect an issue, you should start documenting everything too.

Late last year, a Catholic school tried to argue that it had terminated a 5th grade teacher following her cancer diagnosis/revelation she’d be absent much of the school year because of something called the ministerial exception. This is not to be confused with ministerial v. discretionary duties, for which dispute can arise when civil tort plaintiffs suing government agencies for negligent acts/omissions by employees want the court to find the employees’ duties were “ministerial,” as in directed by the government absent their own discretion, making the government liable. In this case, Biel v. St. James School, the question was whether the teacher was a religious ministerial employee.

Why would this matter for someone with breast cancer? Continue Reading ›

What Kind of Damages Will I Receive in a California Employment Lawsuit?

February 23, 2019 | by Nassiri Law

Working with an experienced Los Angeles employment lawyer, it is absolutely possible to prevail in a California employment lawsuit. The amount of damages (monetary compensation) you receive as a result of winning your case will depend on a myriad of factors. Because your attorney is probably working your case on a contingency fee basis (paid a portion of awarded damages if outcome if successful, paid nothing if not), he or she is likely to consider and discuss all of this with you before you even begin the process, as potential valuation of a case can determine whether it’s worth pursuing in the first place.

Your Los Angeles employment lawyer can explain, there are two basic types of damages that can be awarded in California employment lawsuits involving discrimination or unfair wages. These are compensatory and punitive.

Compensatory damages will cover workplace discrimination victims for out-of-pocket expenses and actual losses. These involve both tangible losses like the amount of wages lost, medical expenses required or job search costs incurred. It may also involve intangible losses like mental anguish or loss of life enjoyment. Punitive damages, on the other hand, are intended to penalize the employer whose actions are deemed reckless and malicious.

Some examples of compensatory damages awarded in California employment lawsuits (including discrimination and wage-and-hour) include:

Lost wages/benefits
Costs for retraining/job search
Compensation for physical pain, emotional distress, loss of professional reputation, etc.
Attorney’s fees

What is a “Protected Class” in Los Angeles Employment Discrimination Lawsuit?

February 20, 2019 | by Nassiri Law

In order to be successful in claiming employment discrimination in California, employees must first assert they are part of a protected class that received unfair treatment. The U.S. Equal Employment Opportunity Commission (EEOC) explains that to discriminate means to treat someone less favorably and disparately, with federal protections extending to individuals on the basis of gender, religion, color, race, national origin, disability or age (over 40). In California, unlawful practices spelled out by the Fair Employment and Housing Act 12940 outlines protections for these classes, but also for:

Genetic information
Marital status
Gender identity/gender expression
Sexual orientation
Military or veteran status

Part of the reason California’s additional protected classes matter is they go farther than federal law, giving unfairly-treated employees more options to pursue action.

As Los Angeles employment discrimination attorneys can explain, “protected classes” aren’t merely limited to minorities. But employment discrimination is often subtle – and doesn’t necessarily need to actually be a part of a protected class in order to be protected. Discrimination based on the perception of belonging or association with others in these classes can be actionable in California employment discrimination cases too.

Perceived Protected Class Employment Discrimination Continue Reading ›

How Do I File an Employment Discrimination Lawsuit in California?

February 17, 2019 | by Nassiri Law

Employment discrimination can be subtle, but it is described as unequal treatment or attitudes toward one group of employees or against another resulting in unfair, adverse impacts to a protected class of employees or prospective employees. Among the most common questions our Riverside employment discrimination attorneys receive is, “How do I file an employment discrimination lawsuit in California?” One of the first things we need to determine is whether you belong to a protected class, and if so, whether they suffered disparate and negative treatment as at least partially a result of being in that class.

The California Fair Employment Practices Act marks its 60th anniversary in 2019. The law prohibits discrimination against employees and/or applicants on the basis of one’s actual or perceived belonging or association with one of the following protected classes:

Gender (this provision also bars sexual harassment);

Race and Color
Ethnicity
Marital Status
National Origin or Ancestry
Religious Creed
Pregnancy, Childbirth or Related Conditions (including lactation)
Disability
Age (pertains to individuals over the age of 40)

Once our Riverside employment discrimination attorneys examine the facts of the case to determine whether sufficient evidence exists to file a claim, we’ll give you a detailed rundown of your legal options. Unlike other types of civil claims, the process of filing an employment discrimination claim doesn’t always go straight to court. Continue Reading ›

California Law Enforcement Officers Say LGBT Discrimination Rampant

February 15, 2019 | by Nassiri Law

The Los Angeles Police Department was one of the first in the nation actively hiring LGBT law enforcement officers in the late 90s. Yet a recent report by USA Today detailed the ways in which law enforcement officers in California who are lesbian, gay, bisexual and transgender were allegedly discriminated against for their sexual orientation and/or gender identity.

In one case, plaintiff, a gay black man, said his fellow officers at the state highway patrol said that not only was the harassment demeaning (tying hangers in the shape of penises around the area of his locker, lobbing homophobic slurs at him, carving his name off an award plaque), it put his life at risk. When he called for backup during tense vehicle impoundments, high-speed stolen car pursuits or investigations into hit-and-run accidents, his fellow officers wouldn’t even respond. This led to a workplace environment that was not only hostile, but dangerous. And it’s been going on for years. Even as a cadet at the state highway patrol, a fellow cadet put a gun to his head, saying he knew he was a homosexual and threatening to pull the trigger.

Plaintiff filed one complaint after another internally. Supervisors, he alleges, did nothing. So three years ago, he sued the California State Highway Patrol for LGBT workplace discrimination. He cited 20 years of discrimination and harassment. His was one in a wave of lawsuits asserting anti-gay discrimination by law enforcement agents. Many of them describe workplace environments that were abusive and hostile. Some said they were subjected cruel taunts – on top of limitations on career opportunities. Their work standards were starkly different compared to other officers. They were passed over for key promotions. They were denied protection on-the-job. All of it, our LGBT discrimination attorneys understand, came down to their sexual orientation. Continue Reading ›

“Historic” Transgender Employee Rights Case Finds Employer Discriminated

February 13, 2019 | by Nassiri Law

Transgender worker rights have come under attack in recent years, with President Donald Trump’s recent ban on transgender military members upheld by the U.S. Supreme Court and a memo issued last year by the Department of Health and Human Services urging key agencies to adopt definitions of gender that are uniform, explicit, unchangeable and determined by the genitals with which a person was born.

But Los Angeles transgender discrimination attorneys took note of a recent bright spot.

Jurors in Iowa ruled in a transgender discrimination civil lawsuit that the warden of a prison discriminated against a transgender employee by denying him access to men’s locker rooms and bathrooms. The jury also determined the executive branch of the state discriminated by refusing to cover benefits for the worker’s gender reassignment surgery. Plaintiff was awarded $120,000 in damages for emotional distress.

The former nurse was the first to file a lawsuit following a state civil rights law that passed in 2007 prohibiting discrimination on the basis of sexual orientation or gender identity. Continue Reading ›

Judges Increasingly Side With Medical Marijuana Patient Employees in Wrongful Termination Disputes

February 6, 2019 | by Nassiri Law

Medical marijuana worker protections aren’t guaranteed in California – but they are growing nationally, and workplaces should take note. California became the first state to permit use of the drug for medicinal purposes and 33 states plus Washington D.C. have followed suit, with 10 (including California, plus D.C.) have permitted use of the drug recreationally. However, as Los Angeles employment attorneys can explain, none of that guarantees a worker’s job will be safe if they use marijuana – even if it’s done recreationally and off-the-job.

Companies need to start paying close attention to these cases, as there is an increased likelihood California employees with medical marijuana cards will enjoy increasing workplace protections. This amid a 2018 Pew Research Center Poll finding 62 percent of Americans favor legalization of marijuana, double the number who answered in the affirmative in 2000.

It used to be that courts largely rejected California wrongful termination lawsuits relating to medical marijuana use by employees. But then two years ago, a state court in Rhode Island ruled that a manufacturing company was not allowed to refuse hiring of a paid intern who used medical marijuana in accordance with state law just because she would test positive for the drug. Continue Reading ›