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Discrimination or Just Bad Business Judgment?

It is almost inevitable that, as an employee, you will feel that you have been treated unfairly at some point during your employment.  If you are a member of a legally protected class (i.e., racial minority, women, physically disabled), you may feel that this treatment was discriminatory.  However, while some of these situations will be based on pre-textual motives to conceal actual discrimination, some seemingly discriminatory decisions made by an employer or supervisor may just be poor business judgment.  A recent California Court of Appeals decision centered on the distinction between workplace discrimination and bad business judgment, and offers insight into what distinguishes the two. Determining Employer or Supervisor Intent In discrimination cases, the fact-finder has the task of determining the subjective intent of the party that made the allegedly discriminating decision.  This is often a difficult task because it is impossible to know exactly what a person is or was thinking when making a decision.  Therefore, a fact-finder must make inferences from all available information relating to the decision.  However, all relevant information may not be admissible in court; and even admissible evidence may not lead the fact-finder to determine that there was actual discrimination.  To assist juries in determining whether evidence tends to support a finding of discriminatory motive, judges often issue judicial instructions to clarify what would render a defendant liable for discrimination. Veronese v. Lucasfilm and the Business Judgment Instruction In Veronese v. Lucasfilm, the Court’s decision centered on the importance of a trial judge failing to give a specific jury instruction.  The Veronese case dealt with a woman who alleged that the defendant had not hired her because...

Potential Change in Employment Status for Employee of Two Companies

A recent California Court of Appeals decision demonstrates the possibility that an employee who works for two separate entities could have two separate employment contracts.  Many employees work for subsidiary companies, but also perform job related tasks for the parent company.  This decision could have far ranging implications for future litigation that centers on the scope of employment contracts with regards to multiple employers. Employment Contracts An employment contract is typically defined as a contract of service, which generally outlines the parameters of the employer-employee relationship.  Some of the rights that can be determined in the employment contract include, but are not limited to: Pay compensation Holiday pay Sick leave Fair dismissal Right to organize in union In terms of litigation, an employment contract could stipulate whether any potential conflicts would be subject to arbitration.  Therefore, in a situation where an employee performs work functions for separate companies, the employment contract could be integral in determining which company actually employs the worker. Faigin v. Signature Group Holdings, Inc. In Faigin v. Signature Group Holdings, Inc., the plaintiff worked as an executive for the defendant holding company and performed work for several of its subsidiaries.  After a change in the management group, the plaintiff was relieved of his executive position in the parent company, but continued to perform certain functions for subsidiaries of the defendant.  The plaintiff then filed suit for wrongful termination against the subsidiary company.  The Court stated that while an employment contract governed the plaintiff’s employment rights with the parent company, it would not necessarily govern the employment status with regards to the tasks performed for the subsidiary...

New CA Law Regarding Religion in the Workplace

The freedom to practice religion is a fundamental right established by our United States Constitution.  The First Amendment of the Bill of Rights establishes that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” However, forms of religious discrimination, both overt and subliminal, can occur in the workplace.   Thankfully, both federal and California law offer workers protection in exercising their rights regarding the practice of religion in the workplace. Title VII of the Civil Rights Act of 1964 Congress passed the Civil Rights Act of 1964 to address numerous forms of discrimination against minorities (i.e. racial, ethnic, national, women, etc.).  Title VII of the Act prohibits employers, except religious organizations, from discriminating against individuals because of their religion in, but not limited to: The freedom to practice religion is a fundamental right established by our United States Constitution.  The First Amendment of the Bill of Rights establishes that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” However, forms of religious discrimination, both overt and subliminal, can occur in the workplace.   Thankfully, both federal and California law offer workers protection in exercising their rights regarding the practice of religion in the workplace. Title VII of the Civil Rights Act of 1964 Congress passed the Civil Rights Act of 1964 to address numerous forms of discrimination against minorities (i.e. racial, ethnic, national, women, etc.).  Title VII of the Act prohibits employers, except religious organizations, from discriminating against individuals because of their religion in, but not limited to: Hiring of an employee Termination of an employee Determining pay Assigning...

Possible Change in CA Independent Contractor Classification

A recent California Court of Appeals decision demarcates a potential change in the status   of independent contractors.  Companies hire independent contractors for many reasons, but primarily because they offer some limitation to liability as compared to regular employees. However, if you are filing a suit against an employer, it is important to know whether you are an employee or an independent contractor as most anti-discrimination and wage and hour protection laws do not apply to independent contractors. Independent Contractor vs. Employee An independent contractor is a person who is hired to undertake a specific job or task, but who is left free to do the assigned work and to choose the way in which the task is completed.  An independent contractor can be paid or work gratuitously.  An employee, on the other hand, is one who works for an employer but the employer has the right to control the manner and method in which an employee performs the job.  The major benefit of hiring an independent contractor is that the employer will not usually be held liable for the wrongdoing of the independent contractor.  Most employment contracts explicitly state whether or not you are an employee or an independent contractor; but courts may find that the employer-employee relationship is not what the employment contract states.   In additions to the terms of the contract, courts consider certain factors to determine whether one is an employee or independent contractors, including but not limited to: Whether you have a distinct business or occupation Customs regarding the supervision of the work Degree of skill necessary for the work Which party supplies tools and...

California’s New Stance on Social Media in the Workplace

On September 27, 2012, California joined Maryland and Illinois in becoming one of the first states to pass laws regarding social media usage and employment.  California Assembly Bill 1844 (“AB 1844”) prohibits employers from requiring user names and passwords of social media networks for employees and potential employees.  The law goes into effect on January 1, 2013, so here are things that employers, employees, and those seeking employment should know. AB 1844 AB 1844 prohibits an employer from requiring or requesting an employee or job applicant to disclose a user name or password for the purpose of: 1) accessing personal social media, 2) accessing personal media in the presence of the employer, or 3) to divulge any personal social media.  It is important to note that merely a request by an employer or potential employer for social media user names or passwords for any one of these reasons would be actionable in court.  However, there are three exceptions to the law: 1) employers may request an employee to divulge social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations; 2) employers may require or request user names, passwords, or other methods for the purpose of accessing an employer-issued electronic device; and 3) employers may terminate or take adverse action against employees if otherwise permitted by law.  AB 1844 also prohibits an employer for firing, disciplining, threatening to fire or discipline, or otherwise retaliating against an employee or potential employee for not complying with a request or demand by an employer that violates this law. Can You File Suit...

Medical Leave Rights in California

Although typically unplanned, there will likely be times when, as an employee, you will need to take leave from work for medically related reasons.  For certain medical conditions, you may need to miss work for extended periods of time.  However, you may worry that too much time off will lead to some form of workplace discipline or even termination of your employment.  Luckily, California and federal law both offer laws to protect employees who need to utilize medical leave for legitimate reasons. The California Family Rights Act The California Family Rights Act (“CFRA”) was established to ensure leave rights for the following:       Birth of a child for purposes of bonding       Placement of a child in the employee’s family for adoption or foster care       For the serious health condition of the employee’s child, parent or spouse       For the employee’s own serious health condition To be eligible for leave under the CFRA, an employee must: 1) must be either a full-time or part-time employee working in the state of California, 2) have more than 12 months of service with the employer, 3) have worked at least 1,250 hours in the 12 month period before the date the leave begins, and 4) work at a location in which the employer has at least 50 employees within 75 miles radius of the employee’s worksite.  The maximum leave allowed under the CFRA may total up to 12 workweeks in a 12-month period.  Leave does not need to be taken in one continuous time period.  An employee must give at least verbal notice that sufficiently makes the...
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