Employment Archives - Adishian Law

This blog post is the latest in our running series covering the ongoing battle over Mandatory Arbitration Agreements in Employment.

To recap, On October 10, 2019, California Assembly Bill 51 (“AB 51”) was signed into law, adding Section 432.6 to the California Labor Code. It prohibits California employers from requiring applicants to sign mandatory arbitration agreements as a condition of employment or in exchange for any employment-related benefit. AB 51 also prohibits employers from retaliating against applicants or employees who refuse to sign mandatory arbitration agreements by terminating their employment or taking other retaliatory actions. Under the law, even and an opt out process is still considered a mandatory arbitration agreement. AB 51 does not apply to agreements that have already been signed before January 1, 2020, and only applies to those dated January 1, 2020, or after. Employers who violate the law as drafted could be subject to injunctive relief, lost wages, attorney’s fees, and a violation is considered a misdemeanor under California Labore Code section 433.

AB51’s Ban on Mandatory Arbitration Agreements was immediately challenged in court

In February 2020, Judge Mueller of the Eastern District of California issued a preliminary injunction (as a result of litigation brought by the Chamber of Commerce of the United States and other business groups. The injunction effectively prevented AB51’s ban on mandatory arbitration from taking effect. This is where our last article left off.

Between our last article and this article, California appealed……and there was the Covid-19 pandemic.

On September 15, 2021, a three judge Ninth Circuit panel held in a split decision that AB 51 is not fully preempted by the Federal Arbitration Act. In the panel’s decision in U.S. Chamber of Commerce et al. v. Rob Bonta et al., case number 20-15291, Judge Fletcher joined Judge Lucero’s majority opinion which concluded that the Federal Arbitration Act (“FAA”) doesn’t preclude arbitration agreements, but merely requires that arbitration agreements between workers and their employers be entered into voluntarily and consensually. Additionally, the panel ruled that the civil and criminal penalties associated with AB 51 “stand as an obstacle to the purpose of the FAA” and declared those aspects of AB 51 preempted by the FAA — in other words not enforceable.

What happened next?

On October 20, 2021, the Chamber of Commerce filed a petition for en banc review by the Ninth Circuit. As a result of this petition being granted, the Ninth Circuit panel’s September 15, 2021, decision to vacate the district court’s preliminary injunction is stayed, and therefore AB 51’s ban on mandatory arbitration agreements is still enjoined pending the outcome of future rulings.

On February 14, 2022, the same three judge Ninth Circuit panel announced that the rehearing en banc will be deferred until the U.S. Supreme Court decides relevant issues in Viking River Cruises Inc. v. Moriana. This decision was also split with Judges Lucero and Fletcher making the majority, and Judge Ikuta dissenting.

In Viking, the U.S. Supreme Court will decide whether claims brought under California’s Private Attorneys General Act, which allows workers to sue on behalf of the state of California for labor law violations, can survive federal arbitration requirements. Viking is scheduled for oral arguments on March 30, 2022.

With all this litigation activity at the federal and state level, for the moment, the court’s injunction prohibiting enforcement on AB 51’s ban on mandatory arbitration agreements remains in effect.

Employers with mandatory arbitration provisions in their handbooks should examine their options with the aid of experienced employment counsel.

For additional reading on arbitration agreements, visit Federal Judge Extends Restraining Order Preventing Ban on Employment Arbitration Agreements (AB51) – Adishian Law; California 2020: Employee v. Independent Contractors, Wage and Hour, Arbitration, Discrimination and more – Adishian Law; Arbitration Clauses in Employment Agreements, California Lawyers (adishianlaw.com) and Legal Update: California 2020 – Adishian Law

Up next in our blog: President Joe Biden signed the “Ending of Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFASASHA).”

Sexual harassment law has changed significantly in California. For employers or employees needing more information, contact us.

Area of Law: Employment Law
General Background: The California legislature and courts have continued their tradition of showing a willingness to “lead” the country in many areas of law, this time with sexual harassment in the workplace. In 2018, California passed new employment related and labor-related laws. In this newsletter, we will highlight the key changes under the new law. In summary, the pendulum has swung.
“Severe and Pervasive” becomes “Single incident”.
Prior law required the plaintiff (usually a woman) to establish that the conduct was “severe and pervasive.” In practice, this became a high hurdle as courts have held that an employee “must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex, and harassment that is “occasional, isolated, sporadic, or trivial” generally fails to meet this standard.” McCoy v. Pacific Maritime Association (App, 2 Dist. 2013)

Now California SB 1300 provides that a “single incident of harassment” may be sufficient to establish a triable claim for hostile work environment.

Previously “Stray Remarks” were not enough for Plaintiffs, now Courts may consider “Stray Remarks.”
Under prior law, the “stray remarks doctrine” empowered a court to grant summary judgment. For example, “[u]nder the stray remarks doctrine, on summary judgment on a Fair Employment and Housing Act (FEHA) claim, a “stray” discriminatory remark that a court determines is unconnected to the adverse employment action is insufficient evidence of a discriminatory motive, as a matter of law, and may be wholly disregarded by the court. Serri v. Santa Clara University (App. 6 Dist. 2014). “Coworker’s stray remarks, while in poor taste, did not amount to discrimination, as required to support employee’s Fair Employment and Housing Act (FEHA) action against employer alleging race discrimination, where employee conceded that she did not believe coworker was acting out of his own personal racial animus.” Patterson v. Apple Computer, Inc. C.A. 9 (Cal.) 2007.

California SB 1300 now provides that “a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.” Cal. Gov’t Code. 12923(c).

Previously Summary Judgment was a credible option for Employers, now Summary Judgment is “rarely appropriate.”
Under prior law, an attorney defending a company could look to the “severe and pervasive” standard, and the “stray remarks doctrine” to drive discovery. If the facts developed showed that the conduct did not meet the “severe and pervasive” (or some say “severe or pervasive”) standard, or the facts showed that there was just a “stray remark(s)”, summary judgment in the Company’s favor was a viable goal.

California SB 1300 now makes it clear that these cases should go to trial. “Harassment cases are rarely appropriate for disposition on summary judgment…..hostile working environment cases involve issues “not determinable on paper.” Cal. Gov’t Code 12923(e).

What You Need to Know.
Even some attorneys who represent only plaintiffs think that this new law may have gone too far. Yet this is the law as it currently stands.

For plaintiffs and potential plaintiffs. In our opinion, if you are an employee, and you believe that you have suffered sexual harassment, by all appearances your path to trial just became much easier. What does that mean? In practice, typically a more credible chance of going to trial means higher settlements. However, none of these changes mean that all plaintiffs will win their cases, nor do these changes make a clearly bad case a good case. If you or someone you know has a harassment claim, please contact us via this link: Contact Adishian Law

For employers. In our opinion, if you are an employer, simply put you’ve lost two good arguments to defeat the claims, and by extension, your chances of winning at summary judgment on a harassment claim are not nearly as good as they were prior to the law change. Again, what does that mean? In practice, typically a more credible chance of going to trial means higher settlements. However, it is not all bad news, as employers can still mount a credible defense by meeting their training obligation and by taking “immediate and appropriate corrective action” once on notice of the complaint. Employers can take additional steps to reduce their risk, improve their defenses and mitigate the cost of litigation.

This case is focused on the battle regarding employment arbitration agreements in California.

Quoting from the Federal Docket:

“MINUTE ORDER issued by Courtroom Deputy C. Schultz for Chief District Judge Kimberly J. Mueller: On January 10, 2020, the court heard oral argument on plaintiffs’ motion to preliminarily enjoin enforcement of California Assembly Bill 51 (“AB 51”). ECF No. 5. At hearing, the court granted each party opportunity to file a supplemental brief addressing the issues of jurisdiction and severability. See ECF Nos. 37 , 40 . The court also ordered the temporary restraining order previously imposed, ECF No. 24 , remain in effect until January 31, 2020.

Now, having carefully considered all relevant briefing, including supplemental briefing, the court GRANTS plaintiffs’ motion for a preliminary injunction in full. (emphasis added). In the coming days the court will explain its reasoning in a detailed, written order; however, as of this minute order, the following preliminary injunction shall take effect:

1. Defendant Xavier Becerra, in his official capacity as the Attorney General of the State of California, Lilia Garcia Brower, in her official capacity as the Labor Commissioner of the State of California, Julia A. Su, in her official capacity as the Secretary of the California Labor and Workforce Development Agency, and Kevin Kish, in his official capacity as Director of the California Department of Fair Employment and Housing are:

a. Enjoined from enforcing sections 432.6(a), (b), and (c) of the California Labor Code where the alleged “waiver of any right, forum, or procedure” is the entry into an arbitration agreement covered by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”); and

b. Enjoined from enforcing section 12953 of the California Government Code where the alleged violation of “Section 432.6 of the Labor Code” is entering into an arbitration agreement covered by the FAA.

2. There is no realistic likelihood of harm to defendants from preliminarily enjoining enforcement of AB 51, so no security bond is required. It is so ordered.

(Text Only Entry) (Schultz, C) (Entered: 01/31/2020) “

==========

At the time of this article, this was the current state of play in the ongoing battle over employment arbitration agreements in California.

So we will wait for the Court’s detailed reasoning regarding employment arbitration agreements. For now though, as of February 3, 2020, AB51 remains unenforceable.

For more information about this topic, please Contact Us.

How do businesses navigate the new California laws affecting independent contractors, wage and hour, discrimination and arbitration? Read on.

Given the many significant changes to California law affecting businesses, this newsletter is longer than usual.

Areas of Law: This newsletter touches on several intertwined areas of business and employment law that are impacted by California’s new laws: (1) Employee v. Independent Contractor plus Wage and Hour; (2) Arbitration; (3) Discrimination and (4) Other areas.
Why it Matters?: In our opinion, any business — whether it has 5, 50, 500 or 5,000 employees — should pay close attention to all of these changes as any one can be the trigger for significant financial liability. If your business needs help addressing these issues, please contact our firm.

1. Independent Contractor v. Employee (Dynamex and Borello)
AB5 codified the Dynamex ruling from the California Supreme Court, which applied the ABC test (see our August 2, 2018 update, “The ABCs of Independent Contractors“) to determine whether a worker is an independent contractor. In summary, to be an independent contractor the worker must (a) be “free from control and direction”; (b) “perform work outside the usual course of the hiring entity business” and (c) “customarily engaged in an independently established trade.” Under this ABC test, we believe it is very difficult for a business to establish that a worker is an independent contractor. There is some minor flexibility for businesses hiring licensed professionals or receiving professional services as these relationships are analyzed under another test (Borello).

Our business has always used a lot of Independent Contractors, what could go wrong?
Well, everything. Lawyers often use the phrase a “parade of horribles”, and that would be appropriate here. A single alleged independent contractor could (a) file a complaint for workers compensation, (b) file an unemployment insurance claim; (c) file a labor claim for overtime, or (d) hire an attorney to file a “wage and hour” claim (including pay stub compliance, meal break violations, rest break violations and failure to pay overtime). If a wage and hour claim is filed, the damages escalate quickly including statutory penalties and attorney’s fees…and there is no insurance.

Wage and hour claims are frequently filed as class actions.Likewise, there could be an EDD audit. In a “misclassification” based action, the Company’s only defense will be that the worker is an independent contractor, which was always hard to establish, and just became much more difficult. Bottom line, in most situations, the Company will lose the independent contractor battle in our opinion. If you are a business owner with a history of hiring a lot of independent contractors, we recommend that you consult with law firm to see what can be done to lessen your exposure. There may be lawful steps you can take before a lawsuit is filed. If you would like us to confidentially review your situation, please contact our firm.

2. Changes to Arbitration: Immediately challenged
AB51 banned mandatory arbitration agreements and prohibits employers from requiring applicants or existing employees to waive any right, forum or procedure for any employer violations of FEHA, the Labor Code or other statutes governing employment as a condition of employment, continued employment or the receipt of employment related benefits. The bill also prohibits an employer from threatening, retaliating or discriminating against, or terminating any applicant for employment or any employee because of the refusal to consent to the waiver of any right, forum, or procedure for a violation of specific statutes governing employment. SB707 also requires that in an employment or consumer arbitration where the drafting party is required to pay for arbitration and fails to do so within 30 days after the due day, the drafting party will waive arbitration and face drastic monetary and non-monetary sanctions.

AB51 has been challenged in federal court, and the court issued a 10 day temporary restraining order (TRO). Stay tuned.

3. Changes to Discrimination law: Lactation Rooms, Hair Styles, Training and Time.
There are a number of important changes. SB142 requires a lactation room or location that includes prescribed features with close proximity to a refrigerator and sink. SB188 adds “hairstyles: to the list of potential basis for race discrimination. AB9 extends the time to file a discrimination complaint with FEHA from 1 to 3 years. SB788 extends the time to comply with sexual harassment training for employers with 5 or more employees. For help here, contact our firm.

4. Other updates.
California also passed the following employment related laws, which we will just list in summary form here:

AB749 prohibits No Rehire clauses in settlement agreements
AB673 and SB 688 provide additional remedies for failure to pay wages
SB83 increases the maximum wages replacement under California paid family leave
AB35 strengthens law protecting employees from toxic materials
AB203 requires Valley Fever awareness training is expected to be working near substantial dust disturbance
AB1223 requires private employers with 15 or more employees to provide leave of absence with pay for organ donation
AB1554 requires new notice requirements for Flexible Spending Accounts (FSA)
AB1804-1805 address the law regarding occupational injuries
IRS New W4

If you have a concern that touches on one of these other areas, please contact our firm.

Key Takeaways, What Should a California Business Owner Do?
If you own a business in California with a substantial pool of employees, you might be feeling overwhelmed with all these changes, the associated risks and the potential financial exposure. What should you do? Our recommendations:
1. Get an attorney involved on your side. If you don’t have a general counsel or employment attorney, or your attorney is not experienced with these issues, contact our firm.

2. Review your independent contractor / wage and hour exposure. We have helped several clients address these issues. Work with an attorney immediately (i.e. don’t wait until the lawsuit is filed), and if you receive an EDD audit have your CPA work with your attorney.

3. Improve your payroll systems and processes. You may need to redesign your compensation plans, and processes to get into compliance and minimize future risks.

4. Revise your handbooks. If you don’t have a handbook, get one. We offer a flat rate for our California 2020 handbook, and a reduced rate for annual updates, with reduced rates for multi-company engagements. Contact us for information.

General Background

The classification of an individual performing services for an operating company has long been an area of ambiguity and contention. Oftentimes, an employer may want to classify a new hire as an independent contractor. Oftentimes, an employee may want to be classified as an independent contractor. The critical hot buttons at issue with the classification are tax withholdings, tax deductions, eligibility for overtime, meal breaks, rest breaks and qualification for benefits.

The 9th Circuit’s Dynamex Decision: What You Need To Know

1. Dynamex DOES apply retroactively under California law. The Appellate Court affirmed the the California Supreme Court’s interpretation that Dynamex does apply retroactively, quoting it “is basic in our legal tradition” that “judicial decisions are given retroactive effect.” Ok, that resolves California law. But what about retroactive application under federal law? 2. Dynamex also DOES apply retroactively under Federal law. The defendant-appellee argued that retroactive application was a violation of Due Process. Here, the Court distinguished between retroactive application in a civil context versus a criminal context. As this was a civil matter, the Court referenced the analysis of a legislative act, quoting “adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality” and are evaluated under a rational basis test. Here, we have a judicial rule (i.e. Dynamex) and not a legislative act. Therefore, the court reasoned, “[e]ven more deference is owed to judicial common-law developments, which by their nature must operate retroactively on the parties in the case.” 3. Where can an Employer Win on Summary Judgment (or where might there be no employer-employee relationship)? As we advise our client employers, Prong B of the ABC test provides the clearest opportunity. The example used is where a retail store hires a plumber to repair a bathroom leak, then in that situation the hiring entity (retail store) is not engaged in the same usual course of business as the putative employee (plumber). See our earlier articles regarding Dynamex for a review of the ABC test. 9th Circuit in a New York State of Mind: The 9th Circuit is frequently portrayed as populated by jurists from the West Coast or Pacific Northwest. However, this 9th Circuit decision was authored by the Honorable Frederic Block, Unted States District Judge for the Eastern District of New York, sitting by designation. ALG in the Courtroom: The Honorable William Alsup, District Judge was the Presiding Judge on the Appeal Panel. We recently appeared before Judge Alsup in a client matter. How Do You Manage the Risk?: Business and life is about risks, mitigating risks and managing risks. Litigation arising from misclassification is one of those risks. The first approach a company (or contractor) can take is to set up the work relationship as an employer-employee relationship. The second approach would be to set up the relationship as an independent contractor relationship after running through the test with your legal counsel, and with full appreciation of the risks of misclassification in financial terms. The third approach is to search for insurance to cover this risk. At the present time, we are not aware of any, but new products are being created all the time, so we recommend that employers revisit this issue with their insurance brokers periodically.

About Adishian Law Group, P.C.

Adishian Law Group (https://adishianlaw.com) is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. As of December 2018, the firm has represented corporate and individual clients located across 22 California counties, 13 States outside of California and 10 foreign countries in over 590 legal matters. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco.

For more information about this case, contact Chris Adishian:

The California Supreme Court recently ruled against Starbucks regarding its practice of not paying employees for alleged “de minimis” work performed after clocking out. Starbucks had a practice of having their employees perform certain administrative and clean up duties after “clocking out” for the day. The effect was that the employees were not paid for this time. Allegedly, Starbucks thought it was okay because this was not a lot of money at issue (i.e. “de minimis“). Quoting from the opinion, “The de minimis doctrine is an application of the maxim de minimis non curat lex, which means ‘[t]he law does not concern itself with trifles.'” Here, though, the California Supreme Court did not view this as a trifle.

The California Supreme Court held that:

(1) California statutes and wage orders have not incorporated the Federal “de minimis doctrine” and
(2) California’s general background de minimis principle is not applicable here

Quoting Justice Liu:

“What Starbucks calls de minimis is not de minimis at all to many ordinary people who work for hourly wages.”

Applying the Starbucks Decision:

Our view is that in this context, “de minimis” is probably dead, so reliance on that concept for justifying post-closing, or pre-opening work “off-the-clock” is misplaced. Perhaps it was not previously, but things change. As Justice Liu wrote in his concluding paragraph of his opinion “The relevant statutes and wage order do not allow employers to require employees to routinely work for minutes off-the clock without compensation.”

How Do You Manage the Risk?:

Business and life is about risks, mitigating risks and managing risks. Litigation from arising from failing to fully pay employees is one of those risks, and it is significant. The first approach a company can take is to have employees perform all duties on the clock, and document that requirement in your policies and procedures. If you need an up to date California employer handbook, we can do that for you.

The second approach would be to test the boundaries of the word “routinely” and permit off the clock once in while, after running through the test with your legal counsel, and with full appreciation of the risks. We don’t advise this approach, but merely recognize that some could read the opinion that way.

About Adishian Law Group, P.C.

Adishian Law Group (https://adishianlaw.com) is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. As of December 2016, the firm has represented corporate and individual clients located across 22 California counties, 13 States outside of California and 10 foreign countries in over 520 legal matters. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco.

For more information about this case, contact Chris Adishian:

It’s as Easy as A-B-C, right?

Independent Contractors are always a point of tension. Recently, the California Supreme Court adopted the “ABC” Test to determine distinguish between employees and independent contractors. The classification of an individual performing services for an operating company has long been an area of ambiguity and contention. Oftentimes, an employer may want to classify new hires as independent contractors. Oftentimes, employees may want to be classified as independent contractors. The critical hot buttons at issue with the classification are tax withholdings, tax deductions, eligibility for overtime, meal breaks, rest breaks and qualification for benefits.

The ABCs of the Dynamex Decision:

The California Supreme Court adopted the ABC test to determine whether an employee is an independent contractor. As the Court wrote: “Under this test, a worker is properly considered an independent contractor to whom a wage order does not apply only if the hiring entity establishes:

(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and
(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring”

Applying the ABC Test:

The burden of proof is on the employer (i.e. the “hiring entity”). That means, if the classification is challenged, then the courts will start with the presumption that the individual at issue is an employee, and the employer will have to prove that the relationship passes the ABC test. Prongs “A” and “C” of the test can usually be satisfied with some planning and controls. However, we believe that “B” will prove to be very challenging for many companies or independent contractors.

How Do You Manage the Risk?:

Business and life is about risks, mitigating risks and managing risks. Litigation arising from misclassification is one of those risks. The first approach a company (or contractor) can take is to set up the work relationship as an employer-employee relationship. The second approach would be to set up the relationship as an independent contractor relationship after running through the test with your legal counsel, and with full appreciation of the risks of misclassification in financial terms. The third approach is to search for insurance to cover this risk. At the present time, we are not aware of any, but new products are being created all the time, so we recommend that employers revisit this issue with their insurance brokers periodically.

About Adishian Law Group, P.C.

Adishian Law Group (https://adishianlaw.com) is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. As of December 2016, the firm has represented corporate and individual clients located across 22 California counties, 13 States outside of California and 10 foreign countries in over 520 legal matters. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco.

For more information about this case, contact Chris Adishian:

Employment practices liability insurance (EPLI) is practically a necessity for a business of any size in California. Employment practices liability insurance can reduce the risks associated with employee lawsuits in California. It is important to understand your employment practices liability insurance policy thoroughly before buying it.

Where the law is not clear, or you are in an area with a lot of litigation, that often translates into financial risk in the form of litigation costs. One way to mitigate the risk is to obtain insurance.

For medium to larger employers, a good employment practices liability insurance (“EPLI”) should be considered with the advice of your insurance agent and legal counsel. There are a lot of provisions to reviews, some of the critical ones are:

Choice of counsel: This is very important. Do you get to pick or the insurance company?
Deductible/Retention: How much is it?
Duty to Defend: What triggers the insurance company’s obligation to defend the claim?
Costs of Defense: Is it total cost, or just a fixed dollar sum?
Liability Coverage: What is covered? What is not covered (exclusions)? What is the cap?

California employers should review their EPLI coverage on a regular basis with an experienced employment lawyer and insurance agent on a recurring basis.

About Adishian Law Group, P.C.

About Adishian Law Group, P.C. Adishian Law Group (https://adishianlaw.com) is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. As of December 2016, the firm has represented corporate and individual clients located across 22 California counties, 13 States outside of California and 10 foreign countries in over 520 legal matters. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco.

For more information about this case, contact Chris Adishian:

FOR IMMEDIATE RELEASE

Female Former Director of Client Solutions Sues Digilant: Suit Highlights Disability Discrimination, Failure to Provide Accommodation, Failure to Engage in an Interactive Process, Failure to Prevent Discrimination, Retaliation, Wrongful Discharge in Violation of Public Policy and Unfair Competition.

EL SEGUNDO, CA (August 20, 2017) — Samira Judeh filed suit this month in San Francisco Superior Court against Digilant, Inc. (Digilant), a marketing technology company that assists in programmatic media buying. The suit accuses Digilant and its employees of disability discrimination, failure to provide accommodation, failure to engage in an interactive process, failure to prevent discrimination, retaliation, wrongful discharge in violation of public policy and unfair competition.

According to the Complaint, soon after learning that Samira would have to be out of the office for doctor’s appointments on a recurring basis, “Chris Cooper, Digilant’s Vice President of Sales at Digilant began harassing Samira. He was demanding, belligerent and made sarcastic comments to Samira.” Samira informed the Chief Operating Officer that Cooper was “harassing her.”. Nothing was done. Soon thereafter, Samira heard Cooper tell Digilant’s Director of Sales Accounts, “I don’t give a shit what she has going on medically. She’ s a bitch!”

In early May, Samira informed Digilant’s Chief Operating Officer him that she had “been diagnosed with a medical condition and that she would need to go to more doctor’s appointments.” Approximately three weeks later, Digilant terminated her, allegedly for the reason that there was a reduction in work force.

The lawsuit seeks damages for lost wages (front and back pay), benefits and career opportunities, special damages, punitive damages, interest and attorneys’ fees and costs. Digilant has since removed the case to the United States Federal District Court, Northern District of California. Click here for a copy of the Complaint.

“We’re eager to commence discovery to determine what actions, if any, Digilant took once it was on notice of Samira’s medical condition to engage in a good faith interactive process with her or to provide an accommodation. We also interested to learn what steps the Company took to prevent discrimination against Samira and whether or not the Company retaliated against Samira.” says Chris Adishian.

About Adishian Law Group, P.C.

Law Group (https://adishianlaw.com) is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. As of December 2016, the firm has represented corporate and individual clients located across 22 California counties, 13 States outside of California and 10 foreign countries in over 520 legal matters. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco.

For more information about this case, contact Chris Adishian:

California leave laws are complex. California leave laws are inter-related. California leaves laws are always changing. We receive calls all the time from our clients and potential clients asking what is the correct way to handle an employee who has requested leave or is out on leave.

This is one of the most complicated areas of California Labor Law. Employers are obligated to provide an ever-changing array of leaves to employees who qualify. Some leaves come with job protection and some do not. On the employee side, it is important to understand your evolving rights as well. Many employees do not understand what leaves are legally available to them.

Disability claims appear to be on the rise. In disability cases, Employers also have an obligation to make a reasonable accommodation and engage in a good faith interactive process provided that they are on notice of the disability. However, the employer is not obligated to suffer a “hardship” as a result of the proposed accommodation — and leave itself is a form of accommodation. But how much leave is enough before you can terminate an employee? The law is not clear.

A common scenario we see is where our corporate clients find themselves in an apparent never ending “limbo” where an employee has exhausted all legally required leave, but the employee has not returned to work, and is requesting additional leave. If they fire the employee, they could face a “retaliation” lawsuit even where they provided legally required leave. One mediator (a retired Judge) summed it up humorously as: “Welcome to California, home of beautiful weather and [##%!] legislation.”

The best an employer can do here is to either (1) allow the employee to remain on leave, and consult with an attorney before terminating or (2) obtain a written note from the employee’s health care provider that he or she is not able to return to work and will not be able to do so in the future.

About Adishian Law Group, P.C.

Adishian Law Group (https://adishianlaw.com) is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. As of November 2015, the firm has represented corporate and individual clients located across 22 California counties, 13 States outside of California and 9 foreign countries in over 480 legal matters. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco.

For more information about this article, contact Chris Adishian: