Orange County Employment Lawyers Blog

Pregnant and Nursing People Now Have Added Workplace Protections

March 21, 2023 | by Nassiri Law

New protections are now in place for workers who are pregnant or nursing. These federal protections were signed into law as the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). As our Los Angeles employment attorneys can explain, these statutes expand previously-established federal laws that protect both pregnant and nursing employees.

Let’s start with the PWFA, which technically goes into effect in June 2023. The law says that employers with 15+ employees must provide reasonable accommodations to qualified workers/applicants who have temporary physical and/or mental limitations as a result of conditions like pregnancy or childbirth.

As our Los Angeles pregnancy discrimination lawyers can explain, existing federal law does not consider pregnancy a “disability” that entitles a worker to reasonable accommodations. Employers are only required to extend reasonable accommodations for pregnancy, childbirth, or related conditions when similar accommodations are extended to other workers too. The PWFA changes that.

An employee is deemed “qualified” under the PWFA if they have the ability to perform the core functions of the job with those reasonable accommodations. Even if they can’t form a key function of the job for a temporary period of time due to pregnancy, childbirth, or related condition, they may still be qualified if they’ll be able to perform it at some point in the near future AND their current inability to do so isn’t an undue hardship on the employer (similar to the Americans With Disabilities Act).

Also similar to the ADA is the fact that the PWFA compels an interactive process of good faith between all parties in order to identify which accommodations are “reasonable” given the job and the company. Employers aren’t allowed to require workers to take-it-or-leave-it with an accommodation that wasn’t agreed to as a result of that good faith interactive process. Employers also can’t force workers to take leave (paid or unpaid) if some other reasonable accommodation is possible. Asking for a reasonable accommodation on this basis is not a lawful basis for employer retaliation.

Some examples of what may be considered a “reasonable accommodation” under the new law: Continue Reading ›

9th Circuit Sides With Employers on California Forced Arbitration Law

March 16, 2023 | by Nassiri Law

A California law that prohibits employers from forcing workers to resolve major workplace disputes in private arbitration is a violation of federal statute – according to a recent ruling by the U.S. Court of Appeals for the Ninth Circuit.

The 2-1 ruling addresses conflict over California’s AB51, which criminalizes the act of an employer forcing an employee to sign an arbitration agreement that would compel them to resolve serious job conflicts before a private arbiter rather than in court.

As our Los Angeles employment lawyers can explain, this outcome is considered a big win for employers and big businesses – and a serious blow to the average worker.

These so-called “mandatory arbitration agreements” require workers to settle their complaints about things like sexual harassment, discrimination, and retaliation in a closed-door, private session – with an arbitration company paid by the employer – rather than in an open, public court proceeding. Arbitrators don’t even necessarily have to follow the law or due process, the way courts are bound. Such agreements had become extremely common in California and throughout the country in recent years, with many companies forcing workers to sign them as a condition of employment.

Those who support mandatory arbitration to resolve workplace disputes say it’s faster and cheaper than court, and makes the most sense when trying to settle routine points of contention. However, labor advocates say such agreements help to hide systemic abuses and discrimination. Arbitration agreements were shown to be particularly problematic in the midst of the #MeToo movement because workers weren’t able to identify their unfair or unlawful treatment as part of a bigger problem as opposed to an isolated incident that impacted only them.

AB51, which went into effect in 2019, attempted to address these concerns. It was passed along with a clutch of several other bills intended to protect workers from sexual harassment, unlawful wage gaps, and inadequate workplace health and safety protections. Continue Reading ›

Nonbinary Workers More Likely to Face California Employment Discrimination

March 11, 2023 | by Nassiri Law

It’s been nearly three years since the U.S. Supreme Court ruled in Bostock v. Clayton County, Georgia that firing someone on the basis of their sexual orientation or transgender status is a breach of Title VII – specifically, its prohibition against discrimination on the basis of sex. And yet, data continues to show that people who are nonbinary (about 1.2 million adults in the U.S.) are facing clear discrimination – both on-the-job and while searching for work.

A market analysis by Business.com (a business resource platform) revealed that nearly 80 percent of nonbinary workers believe that to identify themselves according to their gender would hinder their job search. More than half say their gender identity has actively impacted their work life in a negative way.

To test this theory, researchers sent out 180 “phantom” resumes to various job postings – identical (with gender-ambiguous names like, “Taylor Williams”) except for the fact that some indicated they/them pronouns while others indicated typical cisgender pronouns. Perhaps unsurprisingly, those resumes that contained nonbinary pronouns received fewer interview requests. Resumes with they/them pronouns received 8 percent fewer responses from employers. Nearly 65 percent of these companies are designated “Equal Opportunity Employees,” so the fact that there’s a noticeable disparity even among them is troubling.

California has prohibited employment discrimination on the basis of sex since 1992 – and broadened that law in 2000 to protect transgender, nonbinary, and homosexual workers. And yet, a recent report from the California Civil Rights Department revealed that among private employers in the state with 100+ workers, more than half of those who identified as non-binary were in positions with below-average pay (less than $31,000 annually). By comparison, 32 percent of cisgender men fell beneath this pay grade, as did 43 percent of cisgender women. Continue Reading ›

How Hiring Technology Can Lead to Los Angeles Employment Discrimination Lawsuit

March 6, 2023 | by Nassiri Law

Artificial Intelligence (better known as AI) has piqued employer interest for its potential in streamlining the hiring process. However, there’s legitimate concern that it can systematically engage in unlawful discriminatory practices in hiring.

At this point, most large employers (about 83 percent – including 99 percent of Fortune 500 firms) use some type of AI automation in facilitating hiring procedures. However, the U.S. Equal Employment Opportunity Commission has raised pointed questions about what these technology platforms and employers are doing to ensure these programs don’t have discriminatory practices baked in.

Just recently, a man filed a California employment discrimination lawsuit against a company who alleges artificial intelligence technology used by many employers have caused him to be systematically discriminated against. According to court records filed in Northern California, the plaintiff – a Black man over 40 who has been diagnosed with both anxiety and depression – has worked in the financial services industry for several years.

The plaintiff says that since 2018, he’s used the technology produced by a company called Workday to apply at somewhere between 80 and 100 jobs in his field. Despite having adequate qualifications and experience for those positions, he’s been outright rejected for all of them. His attorney says that based on his client’s experience and qualifications, he should not be outright rejected for that many positions. The accusation is that this technology has been discriminating against him on the basis of race, age, and disability – all illegal under state and federal employment laws.

As our Los Angeles employment lawyers can explain, artificial intelligence job screening tools are reliant on inputs and algorithms that are created by humans. Whether they realize it or not, human beings have built-in biases. For a qualified candidate to be denied 80 to 100 times does raise some alarm bells about whether the screening practices are discriminatory.

The case raises questions about how heavily companies should be relying on this type of potentially flawed technology when the stakes are so high.

Types of AI Hiring Technology

Among the types of artificial intelligence employers are using as part of the recruiting and hiring process are chat bots, resume scanners, and video interviewing platforms. Recognizing the potential for problems, the EEOC last year issued some guidance with respect to use of these technologies as it applies to the Americans With Disabilities Act. Some of these programs actually evaluate the facial expressions and speech patterns of a candidate and assign value to these – factors that can create discrimination or perpetuate bias. Continue Reading ›

How California Employers Can Avoid Employee Misclassification

February 27, 2023 | by Nassiri Law

As Los Angeles employment lawyers, our focus is advocating for workers whose legal rights as employees have been violated by their employer. Most people immediately think of workplace issues with discrimination, harassment, wrongful termination, etc. But it often involves classifying employees improperly – categorizing them as independent contractors as opposed to employees, in turn denying workers the employment protection and benefits that the title of “employee” confers by law.

An estimated one-third of all employers in the U.S. have misclassified at least one worker at some point.

Sometimes, this “mix-up” is willful and intentional, with the employer aware of exactly what they were doing with the specific (if not express) goal to deprive workers of the rights and compensation to which they’d otherwise be entitled. But in a lot of cases, the employer may simply not understand how the law applies.

Lack of intent on the part of the employer isn’t a full-proof defense. If an issue is discovered, employers still have a responsibility to come correct once they’re made aware. That might mean back pay, tax contributions, and liquidated damages for however long the misclassification lasted. However, those whose employee misclassification was intentional are likely to face more significant fines and other penalties from the government and courts.

While our Los Angeles employment lawyers represent the workers in these scenarios, we’ve handled enough of these cases to be able to provide employers with a few tips on making sure employees are appropriate classified in your operation. Yes, this helps mitigate the organization’s liability, but also to make sure workers are treated fairly – and that’s always been our ultimate goal.

What is an Independent Contractor, Exactly?

Workers in the U.S. can typically be classified as either employees or independent contractors. (There are also other contingent employment arrangements, such as on-call, on-retainer, or temp agency workers.) Continue Reading ›

“Can They Fire Me on Parental Leave?” L.A. Employment Lawyer Answers

February 23, 2023 | by Nassiri Law

As an L.A. employment lawyer, we’ve fielded a fair number of questions about the legality of lay-offs or termination of an employee who is on maternity leave or parental leave.

The answer isn’t always cut-and-dried, depending a fair bit on the specific circumstances of the case.

Of course, losing a job in general is never an easy prospect. But firing or laying off someone who is on parental leave is arguably all kinds of wrong from a moral perspective – especially because employees in this situation truly need both money and health care during this time. One might even consider it “emotional robbery.” Those first few days, weeks, and months bonding with a new baby are priceless. If the parent is suddenly overwhelmed with stress over finances and healthcare, they’re emotional and physical energy will be spent elsewhere – and that’s time they’ll never get back. It can also have serious health consequences, especially for employees who have just given birth.

All this makes it very risky for a company’s reputation and brand to engage in such practices. And yet, some still do. Whether that’s the basis for a successful California employment lawsuit will hinge on a few different factors.

Rights of Employees on Parental Leave

There are federal and state laws that protect the rights of employees on parental leave. California has some of the strongest state-level parental leave protections.

California (as well as a handful of other states) requires paid parental leave – up to 8 weeks of partial wage replacement to eligible workers. It can be used for new parents and/or within 1 year of a child’s birth or foster care placement or adoption. Pregnant mothers are also given up to 4 months of job-protected disability leave prior to parental leave once the child is born. The California Paid Family Leave law (available to workers at companies with 20+ employees) is not solely for new parents, but can also be used to care for a seriously ill close family member. Continue Reading ›

California Age Discrimination Laws Protect Workers 40+

February 20, 2023 | by Nassiri Law

In less than 10 years, more than a quarter of the population in California is going to be over the age of 60. Nationally by 2035, the number of people over the age of 65 will outnumber those under 18 – for the first time ever. As we speak, there are an estimated 10,000 people in America turning 65 every day. So perhaps it’s unsurprising that Los Angeles employment lawyers are getting more inquiries than ever about age discrimination at work and what constitutes a possible claim.

Age discrimination is unlawful under both California and U.S. laws – but it can be tough to prove, despite being increasingly common. It is very important if you’re considering pursuit of an age discrimination claim that you prioritize hiring an employment lawyer who knows what they’re doing – and has a proven track record of success in this particular area of law.

Why Do Employers Engage in Age Discrimination?

Older workers are defined as those 40 and older, and they may be vulnerable in landing and/or keeping a job – primarily on the basis of their age.

According to the AARP, an estimated 80 percent of older workers say they’ve experienced age discrimination at work.

Why would a workplace discriminate against older workers? Among the reasons sometimes cited (openly or not) for favoring younger workers:

They may be open to more flexible work schedules. They are less likely to have spouses, families, and other obligations that demand a reasonable work-life balance.
They tend to be more attractive. This of course is not a relevant factor for most positions, but the beauty bias is real and well-established.
They’re cheaper. Less experience means lower salaries, fewer benefits, less sick leave, less risk of injury, etc.
They’re better with technology. This is a myth – more experienced workers are just as efficient with the most up-to-date tech. But this misconception sometimes drives age discrimination in employment.

Many of these are rooted in preconceived notions and age-based stereotypes. Some of these reasons cited may be a solid basis for an age discrimination claim, depending on the particulars.

As noted by California’s Employment Development Department, some of the laws that protect older workers in this state include: Continue Reading ›

Los Angeles Sexual Harassment, Rape Lawsuit Filed by Former Bank Exec

February 7, 2023 | by Nassiri Law

A former banking executive has filed a Los Angeles sexual harassment and rape lawsuit against her previous employer, alleging failure to protect her from a hostile work environment perpetuated by a co-worker. Not only did she endure vulgar behavior and gender-based harassment, she alleges her boss raped her and then retaliated against her – and the company dragged its feet in responding.

As our Los Angeles sexual harassment lawyers recognize, this type of workplace misogyny, mistreatment, and victimization occurs in workplaces of all kinds and between individuals of all positions and paygrades.

The National Sexual Violence Resource Center notes that sexual assault, harassment, and abuse are widespread issues impacting victims across the spectrum of race, gender identity, sexual orientation, income, disability, or other factors. While 60 percent of women say they’ve experienced unwanted sexual attention, sexual coercion, crude conduct, or sexist comments at work, 85 percent of those say they never file file formal charges and 70 percent never even file internal complaints. Employees victimized by sexual harassment are very likely to suffer PTSD, depression, and anxiety as a result. They may also endure related physical problems, including sleep problems, gastric complications, weight loss/gain, headaches, etc.

Sexual harassment is against the law, and if you are targeted in your workplace, our experienced, compassionate legal team can help – protecting your civil rights, advising you on the best legal strategies, and advocating for the best possible outcome in your favor.

In this case, according to court filings in Doe v. Wells Fargo Bank Corp. et al., plaintiff was hired as a senior vice president at the firm’s Southern California branch in 2018. Almost immediately thereafter – and continuing/worsening until she says she was forced resign in 2021 – plaintiff said she endured sexual harassment.

Her allegations are as follows: Continue Reading ›

Federal Employment Discrimination Lawsuit May Require Proof of Disparate Treatment of “Similarly Situated” Co-Worker

February 3, 2023 | by Nassiri Law

When it comes to establishing discrimination and/or wrongful termination, it’s worth noting that some unique challenges can arise when trying to establish the adverse employment action was discriminatory. As our Los Angeles employment attorneys can explain, some legal arguments require plaintiffs to identify a “similarly situated” individual – someone with the same or similar job – who is outside the protected class, engaged in the same conduct, yet was treated more favorably than the plaintiff.

If the plaintiff is a manager, they may need to find evidence of other managers being given more favorable treatment. If they’re drivers, they may need to show evidence other drivers (not supervisors) were treated better. If they’re teachers, they may need to show other teachers (not principals or secretaries) being treated more favorably.

This was underscored in a recent federal employment lawsuit alleging racial discrimination and wrongful termination of a UPS supervisor.

Federal Racial Discrimination/Wrongful Termination Employment Lawsuit After Drug Test

After 20 years of employment, an on-road supervisor who is Black was fired after testing positive for cocaine in a random drug test. He filed an employment lawsuit alleging racial discrimination and wrongful termination, citing violations of both state and federal law. He indicated his direct supervisor told him that his superior had “racist tendencies” and had made racist comments about Black people to other employees.

The federal district trial court in New Jersey granted summary judgment in favor of the employer. The case, Langley v. UPS, then went to the U.S. Court of Appeals for the Third Circuit. The appellate court also affirmed the ruling in favor of the employer. In its explanation, the court detailed the factual background: Continue Reading ›

Travel Nurses Across U.S. Allege Employment Agencies Aren’t Paying Up As Promised

January 20, 2023 | by Nassiri Law

Traveling nurses have long been relied upon to help fill gaps in healthcare demands. During the pandemic, traveling nurses were a life raft to hospitals who were swimming against the tide and trying to remain afloat. But now that the worst of the pandemic has subsided, we’re seeing a growing number of California labor law violations and contract breaches involving traveling nurse agencies and the hospitals that use them. Nurses say agencies have dangled carrots of huge sign-on bonuses, substantial hourly rates, and monthly living expense stipends – only to slash these payments mid-contract due to tapering demand.

Further complicating matters is the unique way these employment arrangements are structured: It’s the travel agency that’s technically the employer, but it’s the hospital that has control over the schedule, the assignments, the uniforms, the breaks, how the work must be done, etc. As our Los Angeles employment lawyers can explain, this level of control is the basis of some employment lawsuits by traveling nurses that seek to hold both the agency and the health care facility responsible.

Over the last year or so, we’ve seen a growing chorus of travel nurses alleging a “bait-and-switch” by the agencies that hire them. The agencies say they have no control over employment demands at hospitals, and have no choice but to cut hours if the need for nurses declines during a contract. Hospitals, citing their lack of a direct contract with nurses, say they shouldn’t be a part of any employment disputes.

Our Los Angeles employment lawyers have seen a few cases coming down the pipeline – in California, as well as other states, and so far, it seems that in disputes among these nurses, staffing agencies, and hospitals, rulings have leaned in favor of the nurses.

For example, last summer, the California Supreme Court ruled in an employment lawsuit of Grande v. Eisenhower Medical Center that a hospital and a nurse staffing agency had no privity between them. We wrote about this case several months ago on our California employment lawyer blog. Privity is when two or more parties in contract with each other are bound by that contract and obligated to each other in some way. A lack of privity in employment litigation means that two entities can be considered separate employers of the same worker. In the Grande case, the nurse settled her employment lawsuit against the staffing agency, but thanks to the state high court ruling, she was also free to pursue additional remedy directly against the hospital. Although her contract technically was with the staffing agency, the hospital maintained control over shift assignments and required nurses to use its own time and attendance system. The hospital argued it should be precluded from litigation because of its contract with the staffing agency. But the California Supreme Court ruled there was no privity because the staffing agency and the hospital had two different legal interests. Continue Reading ›