Los Angeles employment lawyer

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?

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 ›

Rampant Racism, Sexism in Fitness Industry Led to $11.25 Million Employment Law Verdict

June 1, 2023 | by Nassiri Law

A former professional body builder and personal trainer manager won her $11.25 million employment lawsuit after a jury agreed that she had been the target of rampant racism and sexism. While the case is out of New York City, NY, our Los Angeles employment lawyers recognize that such problems are pervasive throughout the fitness industry.

It’s no secret that the racial and gender diversity in many elite health clubs becomes slimmer the higher up the ladder you go. Although harmful stereotypes of the “Black athletic archetype” are deeply rooted in the U.S., it’s also given rise to the racist presumption that the only “acceptable” place for these displays is on a sports playing field. (Even then, we were well into the 20th Century before most sporting events were open to Black competitors.)

Private gyms started to gain popularity in the 1970s and 1980s – largely in the suburbs. But even if technically open to all people, those of color were underrepresented thanks to systemic redlining; they simply weren’t living in the areas where the gyms were opening. We started to see some expansion of diversity with the introduction of more ethnic fitness programs, such as Zumba, Yoga, Tae Bo, and Hip Hop dancing. But those programs still skew heavily white in many areas – both in terms of membership and employment.

Does California Law Protect Against Workplace Harassment by Customers?

May 31, 2023 | by Nassiri Law

“The customer is always right.” That’s the longtime adage, anyway. But it’s dead wrong when it comes to workplace harassment. Both California and federal laws protect employees against workplace harassment by customers, as well as colleagues and supervisors.

This is true whether your clients are high-level investors, bar patrons, retail shoppers, or patients.

You have the right to work in a harassment-free environment. That goes not just for sexual harassment, but harassment on the basis of any protected class – disability, age, religion, race, ethnicity, nationality, military or veteran status, gender, sexual orientation, gender identity, pregnancy or related condition, etc. In California, this right also extends to independent contractors, not just employees. A harassment-free workplace is not a privilege. It’s not up for debate. It is your right.

If your employer has failed to protect you from workplace harassment by customers, you need to get on the phone with a Los Angeles employment lawyer as soon as possible. The company/employer could be held liable for failure to protect you from harassment perpetrated by non-employees, so long as there is evidence they knew or should have known about it and failed to take swift and reasonable steps to stop it.

Depending on the nature of the harassment, you might have only 180 days from the date of the last incident to initiate your complaint (if it’s a federal-level complaint filed with the Equal Employment Opportunity Commission). You probably have longer for state-level claims, but these aren’t “wait and see” situations. Fast action is recommended.

Laws that Protect Employees from Customer Harassment

Both federal and state laws protect against workers being subjected to a hostile work environment as a result of harassment. Continue Reading ›

California Racial Discrimination Alleged by Black Doctor at Large Healthcare System

May 21, 2023 | by Nassiri Law

The implicit bias and racial disparities in health care are well-documented. In America, Black people are likely to get sicker and die earlier than other racial groups – largely because they receive lower quality (and quantity) health care than white counterparts. But according to a recent California racial discrimination employment lawsuit, the patients aren’t the only ones treated disparately.

According to recent court filings, the case in question involves an internationally renowned eye doctor for children – the first and only Black doctor to chair a department in the Palo Alto Medical Foundation area of Sutter Health, one of the largest hospital systems in California. A longtime employee, he alleges that racism in the workplace resulted in his being the subject of repeated derogatory comments, as well as reductions in salary and demotions.

He referred to the racism he suffered as “they type that hits you in the back of the head when you don’t see it coming.” Continue Reading ›

Filing Your Own California Employment Lawsuit vs. a CRD Investigation/Remedy

May 10, 2023 | by Nassiri Law

If believe you have been subject to employment discrimination, harassment, wrongful termination, or retaliation at work, your path to justice can go one of two ways: Filing your own lawsuit or handing the case over the California Civil Rights Department. Sometimes, you opt for the latter and might still end up suing, but you could also skip the state’s involvement and go straight to court.

How do you decide which route to go?

You might be best served by scheduling a free consultation with at least one or possibly a couple of Los Angeles employment attorneys. Have the basic facts of your case ready to run through. They can’t give you legal advice unless/until they are hired, but they can probably provide you with information to help you make an informed choice about which option makes the most sense in your case. And these conversations are confidential.

Do I Have to File a Complaint With Human Resources?

In some situations, yes.

Doing so may not be necessary if the company refused to hire you. It also may not be necessary if you were discriminated against based on your position in a protected class (race, ethnicity, nationality, religion, disability, gender/gender identity, sexual orientation, age over 40, pregnancy or related condition, etc.).

However, it may depend on the particulars of your situation and whether part of your claim involves harassment and/or retaliation. Continue Reading ›

Feds Push for National Non-Compete Clause Ban – Similar to California’s Existing Protections

April 11, 2023 | by Nassiri Law

Non-compete clauses (also called California non-compete agreements) affect roughly 25 percent of the U.S. working population – but they aren’t enforceable in California. Meanwhile, they’re a major issue for workers throughout the rest of the country. But that could soon change.

For those who may be unfamiliar, a non-compete clause is a type of employment contract that prohibits employees from accepting new job opportunities for a period of time after leaving the employer with whom they have the contract. They’re usually limited to similar lines of work and/or competing businesses within a certain geographic area.

While this is less of an issue for workers whose jobs are highly technical and well-paid, these same provisions can be very tough on lower-paid workers. One analysis showed that more than half of workers who sign non-compete clauses are non-salaried, hourly wage workers – about 15 percent of them earning less than $40,000 annually.

Non-compete clauses can also ban workers from:

Launching their own company in the same or similar industry.
Reaching out to former customers.
Using the skillsets you acquired on the job.
Publicly discussing whistleblower actions.
Revealing or making money from the employer’s trade secrets.

While some of these are more reasonable than others (ex-employees revealing trade secrets would be a problem for any employer), others risk stifling free markets.

Recently, the U.S. Federal Trade Commission proposed a new rule that would ban employers from imposing non-compete clauses on workers, calling the practice exploitative. If the rule goes into effect, it could potentially expand job opportunities for some 30 million Americans and increase wages by as much as $300 billion annually. 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 ›