Medical Leaves of Absence 

When we, or a family member, get sick or hurt it can be an extremely stressful time.    These situations are often made worse when we are afraid that we might lose our job by taking off time to recover or care for a sick family member. 

In California, some types of medical leave are protected under the federal Family and Medical Leave Act (FMLA) and/or the analogous California Family Rights Act (CFRA).

The first thing to know is “am I eligible?”

The FMLA/CFRA does not protect all workers.  These leave provisions only apply to those employees who meet the following: (1) have worked at least one year for their employer; (2) have worked at least 1,250 hours in the past year; and (3) whose employer has at least 50 employees working within 75 miles of the employee’s worksite.

According to U.S. Department of Labor, approximately 53% of the US workforce, are eligible for FMLA protection (the other 47% have to rely on their employer’s leave policies). Employees who work for an employer who does not meet the three guidelines above may still qualify for medical leave.  Contact Gienapp Law, APC (619) 234-3054 for a free consultation concerning your medical leave rights. 

How much medical leave is allowed under FMLA/CFRA?

Under FMLA/CFRA, employees are entitled to take a maximum of 12 weeks of unpaid medical leave to care for a newborn, newly adopted child, seriously ill family member or for their own serious illness (under FMLA this includes incapacity due to pregnancy, childbirth or related medical conditions). You may be entitled to an extension of leave past the 12 week maximum if you have a mental or physical disability that requires a leave extension as an accommodation of that disability.

What if I’m pregnant?

If you are unable to work due to pregnancy, childbirth, or related medical conditions, you generally qualify for 4 months of leave under the California Pregnancy Disability Leave Law (PDLL) – (see my other Blog post on Pregnancy Leave)  A pregnant employee is eligible for PDLL as long as the employer has at least five employees. After the initial 4 months, eligible employees can then take an additional 12 weeks of CFRA leave “for reason of the birth of her child, if the child has been born by this date.”

Procedure for seeking medical leave

Virtually all employees who are required to offer their employees FMLA/CFRA leave have forms for an employee and/or the employee’s medical provider to fill out.   It is important to follow the procedures your employer has for taking medical leave, including submitting the required information from a doctor or medical provider.   In some circumstances, an employer may even ask an employee to go to a doctor or medical provider of their choosing for a second opinion. 

Illegal Activity

It is illegal for an employer to treat you differently or punish you for asking about or taking medical leave. Under most circumstances, you also have a right to be reinstated to the same or a comparable position upon return from your medical leave. 

If you believe your employer has interfered with or retaliated against you for using medical leave, or you have questions or concerns about getting full access to your medical leave, contact Gienapp Law,APC (619) 234-3054 for a free consultation.  

Non Compete Agreements

Many times an employer will have an employee sign a non-compete agreement (sometimes called a “covenant not to compete” or a “do not compete”) when the employee is hired.   These agreements are contracts between an employer and an employee whereby the employee agrees not to directly compete with the ex-employer when the employee leaves the company, even if the employee is fired. 

In other words, the employer tries to prevent the employee from going to work for a direct competitor, or from contacting customers of the former employer to solicit business. The sole purpose of these contracts is to protect the employer.  The employer tries to stop the former employee from using his or her knowledge, skills and abilities to compete against their former employer, and make a living.

In most cases non-compete agreement are not enforceable in California.  The California Business and Professions Code provides that "every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void." To read the full text of the relevant Code sections (Cal. Business and Professional Code  16600 et seq.) go here.

In most cases California Courts have relied on this code section to invalidate any agreement that seek to prevent an employee from accepting work from any of her former employer's clients or competitors.  This is good news for California Employees. 

There are some areas of concern for employees.  Generally a former employee cannot use information taken from their past employer which is proprietary or is a trade secret.  The issue that comes up most frequently is whether or not a company’s client lists or pricing schemes are “trade secrets.”  Additionally business owners who sell their stock to another for valuable consideration cannot directly compete against the person who purchased the business.  This is an area of law that can be confusing.  If you have a question about using information you have from your former employer please call Gienapp Law, APC at (619) 234-3054 to discuss. 

Although non-compete agreements are generally not legal, many companies require their employees to sign them in order to deter an employee from competing or using his or her knowledge, skills, and abilities after leaving. If you have been asked to sign a non-compete it is most likely not enforceable, or at least much more limited than it appears.

If you have any questions regarding a non compete agreement that you have been asked to sign, call Gienapp Law, APC to discuss.  Tel. (619) 234-3054.  

Social Media

Is freedom of speech guaranteed in the workplace? Can I be fired based on something I say on facebook or another networking site?

The short answer is probably yes, you can be fired.  Employers have very broad powers to discipline or fire employees for what they say online, whether on social networking sites, blogs, or other online forums.  As discussed below there are some limited protections for online activities, but for the most part, this is not an issue of “free speech” as protected by the First Amendment to the US Constitution.   This area of law is rapidly evolving.  This blog is only a general outline of the state of the law.  If you have a specific question please call Gienapp Law, APC at (619)-234-3054 for a free consultation.

Does the Employer Need “Grounds” To Fire You?

As I explained in an earlier post, if you’re what’s known as an “at-will” employee, then either you or your employer can terminate the relationship for any reason whatsoever.  In other words employer generally doesn’t have to justify the dismissal of an at-will employee. 

Does the First Amendment Protect Free Speech on Blogs or Facebook?

A common misconception is that employee blogging or an employee posting something about their employment on their personal facebook page is a matter of free speech under the First Amendment.  However, the First Amendment only prevents the government from restricting free expression; it does not apply to private employers.  If you work for the government you might have a First Amendment right to blog about what goes on at the office, however if you post something negative about your boss or employer and they take offense, in all likelihood than can retaliate and terminate your employment. 

Employee Protections

There may be some protections for the employee. Again the law is rapidly developing in this area. California does have a law protecting employees from “demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.”  This provision of the Cal Labor Code may give some protection for an employee who was blogging or posting about purely political opinions. 

Both Federal and California laws contains protections for “whistleblowers,” that is, employees who expose harmful or illegal activities of their employers.   Some whistleblower laws may require that you first report the problem; to the government, regulatory, or law enforcement agency.   But once that is done, you may be able to post about your discovery without fear of retaliation.

Federal labor laws generally protect employees’ rights to communicate with each other about conditions in the workplace--and to communicate about efforts to unionize the workplace.   Very recently the National Labor Relations Board heard complaints about employee terminations involving employee posts to facebook complaint about employment conditions. In some cases the termination were ruled illegal in violation of an employee's right to engage in "concerted activity" for mutual aid.  Employment attorneys around the country are watching these cases develop.  For more information on these cases click here.

As in many areas of life, a little common sense goes a long way.  I recommend avoiding posting anything relating to your employment that might be found to be offensive, hurtful, or just plain bad taste.  It is far better to talk to your manager or your HR department about problems at the office rather than broadcasting them on the Internet.  If you feel you cannot speak to your manager or HR you are always free to contact a lawyer for a confidential consultation.  If you would like a consultation please contact Gienapp Law, APC at (619)-234-3054.  

Pre-Employment Screening

What can a prospective employer ask me to do prior to being offered a job?  Can a prospective employer ask me to submit to drug screening? If so can a prospective employer look for legally prescribed drugs as well as illegal drugs?  Can a prospective employer ask me to submit a financial report? Can a prospective employer run a credit report before offering me a job?

Applying for, and hoping to get offered, new employment can be a very stressful time.  Many California employees don't know what rights they have when a prospective employer asks for sensitive and private information.  The following is a brief synopsis of what a prospective employer can and cannot do.

Credit Reports

Beginning January 2012, for the most part employers in California cannot run credit reports on prospective employees. There are some exceptions. An employer can seek a credit report for an employee who may be placed in (1) a position in the state Department of Justice, (2) a managerial position, (3) that of a sworn peace officer or other law enforcement position, (4) a position for which the information contained in the report is required by law to be disclosed or obtained, (5) a position that involves regular access to specified personal information for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment, (6) a position in which the person is or would be a named signatory on the employer’s bank or credit card account, or authorized to transfer money or enter into financial contracts on the employer’s behalf, (7) a position that involves access to confidential or proprietary information, as specified, or (8) a position that involves regular access to $10,000 or more of cash.  Other than these eight situations an employer cannot run a credit report on a job applicant.

Even if a prospective employer can have you submit to a credit report, the law requires written notice to the prospective employee from the employer indicating the employer intends to seek a credit report and exactly why, under the law, the employer believes it is required.    For more information about the 2012 changes go here.

Drug Testing

Whether or not an employer can send a prospective employee for a drug test before offering employment is not as clear cut as the issue of credit reports.  Technically no employer can make any employee submit to physical or mental testing unless there is a job related reason.  As a practical matter, all employers get around this by claiming that drug testing is required to maintain a workplace free from illegal drug use.  Courts routinely uphold these drug tests as OK and employers can fire or refuse to hire employees who refuse to test or test positive for illegal drugs.  Problems can occur, however when an employee has a legitimate medical condition for which the employee takes prescription drugs that the employer believes are drugs of abuse.  If this happens to you it is best to get in touch with an attorney to find out what your rights are.

Illegal questioning in Employment Interviews


In California it is illegal for an employer to discriminate against any employee or prospective employee based on their age (over 40), race, religion, gender, medical condition, disability, sexual orientation, national origin, or family size.  Generally employers should not be asking a prospective employer questions about these areas during an employment interview.  An exception is that an employer can ask a prospective employee if they will require an accommodation of any type in order to perform the job duties.  If you believe an employer has discriminated against you please call Gienapp Law at 619-234-3054 or visit our web site.

Meal and Rest Periods

Meal and Rest Break Periods

Under California law, if you are a non-exempt worker, meaning you are paid by the hour, you are entitled to meal and rest breaks. Specifically, you are entitled to a 30 minute meal break if you work more than 5 hours in a workday, and one 10 minutes break for a shift lasting 3.5 to 6 hours and second 10 minute break if your shift lasts between 6 and 10 hours. The 10 minutes breaks are paid time, but the 30 minute meal break is unpaid as long as you are completely free of all employment related duties during the break, otherwise it should be paid time. In other words if you work a job from 8:30 a.m. until 5:00 p.m. you are entitled to a 10 minute break in the morning, a 30 minute unpaid meal break and a 10 minute break in the afternoon.

If your employer doesn’t comply with break requirements, they may be required to pay you one extra hour of regular pay for each day on which a meal period or rest break violation occurred. California Courts have held that an employer is liable for one hour of pay for missed breaks and an additional hour of pay for missed meals, that is two additional hours of paid time for every day an employer denies an employee rest breaks and a meal period in the same day. See United Parcel Service v. Superior Court (published 6/2/2011)

Important Rest Break Details

(1) A rest break is at least 10 consecutive minutes. Rest breaks are paid time.
(2) If you work at least 3.5 hours in a day, you are entitled to a rest break; you are entitled to a second rest break if you work more than six hours.
(3) Rest breaks must to the extent possible be in the middle of each work period.
(4) Your boss may require you to remain on work premises during your rest break; but you cannot be required to work during any required rest break.
(5) *** You are free to skip your rest break provided your boss isn’t encouraging or forcing you to.   The California Supreme Court has decided that employers do not have to ensure that their employees take rest periods; employer only need provide make them available to employees. See Brinker Restaurant Corp. v. Superior Court (2012) 53 C.4th 1004.


Important Meal Period Details

(1) If you work over five hours in a day, you are entitled to an unpaid meal period of at least 30 minutes the meal period must begin by the end of the fifth hour;
(2) An employee can, if they wish, agree with their employer to an "on-duty" meal break which counts as time worked and is paid. If you do agree to an on-duty meal period, it must be written down and signed by you and an employer representative.
(3) Your employer has an affirmative obligation to ensure you are free to take your meal break, including leaving the premises if you want to leave, however they do not have to "police" their employees to make sure the meal period is taken;
(4) Your boss has an affirmative obligation to ensure you are actually relieved of all duty and are not performing any work during meal breaks.

Please note that there are some exceptions to the above rules for certain industries, including drivers,  healthcare, group home, motion picture, manufacturing, and baking industries.

For questions about your meals and rest breaks call Gienapp Law, APC at (619) 234-3054 for a free consultation.

Keep on taking those breaks!

E-mail and Internet Privacy at Work

NO PRIVACY

In a nutshell, assume that you have no e-mail or internet privacy while at work.  Most employers have an "Electronic Media Policy" which gives the employer the right to monitor their employees' email and internet usage.  These Electronic Media Polices often permit employers to monitor email, including personal email (gmail or hotmail etc.) and internet surfing in real time.  Do you really want your employer to know your weekend plans or how your birthday party went?  Even if your employer does not have the written policy per se, most Courts seem to hold that an employee who uses an employer provided computer or other electronic media device does not have the same "expectation of privacy" that we as American citizens have in our personal lives. 

WHY DOES IT MATTER

The issue with electronic media really matters for two reasons.  The first reason I alluded to above, we as employees really don't want our employers looking into our personal lives uninvited.  No real good comes of it and it can lead to problems.  The second reason is more concrete and has to do with the employee who makes a claim or complaint against their employer.  The employer's electronic media policies often allow an employer to go back once they have been sued by an employee and look at the employees old emails and web surfing to find evidence to use against the employee. This can include emails from the employee to their attorney or other communications that the employee might otherwise be able to keep private.  Sometimes employers can find evidence of employee activities that had the employer known about at the time they occurred, could have been used to fire the employee.  This type of "after acquired evidence" is admissible in lawsuits and can severely limit the damages a wrongfully treated employee can receive from their employer. 

The law in this area is developing.  At some point it may swing back to be more protective of employee privacy.  However, for the time being, it is better to not conduct your personal life on company electronic devices, and certainly do not communicate with your attorney on company email.  For more information and a free consultation please call Gienapp Law, APC at 619-234-3054.

At Will Employment

AT WILL

Almost all employees in California are "at will" employees. With the exception of those few employees with employment contracts and those who are covered by union agreements, we are "at will."   What does it mean to be an employee "at will?"  I like to say that an at will employees can be hired or fired for any reason or no reason, as long as it isn't the "wrong" reason. 

ANY REASON OR NO REASON

The one idea that is consistently difficult for the California employees to accept is that an at will employee can be subject to unfair, arbitrary, and capricious treatment by the employer.  For example I have spoken with many employees who were accused of stealing from their employer.  In some cases the employee had proof that other employees were the culprits and yet the true culprits were not fired and the innocent employee is fired.  This is not an unlawful or "wrongful" termination.  The same concept applies if the employer fires an employee because they don't like the employee's personality, looks, or clothes.  The law gives employers leeway to hire and fire whomever the employer feels will do the best job.  Even if the person who will actually do the best job is someone the employer just fired. 


THE WRONG REASON

The California employee cannot, however, be fired, demoted, or etc. for the "wrong" reason.  In general terms the "wrong" reason is either because of (1) some unchangeable characteristic that is protected under the law; age over 40, race, sex, religion, national origin, and sexual orientation; or (2) because the employee engaged in some protected activity like filing a claim for workers compensation or complaining about an unsafe or unlawful working condition, AKA whistle blowing.  These are just some examples of protected activities.  If the employer takes action against an employee and it is because of either of these two reasons, the employer's action may be illegal.  If you believe that your employer has taken unlawful action against you, call Gienapp Law, APC at (619) 234-3054 for a free consultation.  You can visit our web site here.

Pregnancy Leave

Juggling a family and a job is stressful.  I frequently speak with men and women who are trying to balance job security with the demands of raising a family.  In this post I will review various regulations that relate to time away from work due to pregnancy.  Unfortunately for the well informed California Employee, the protections that exist vary depending on the type and size of your employer. 

California Pregnancy Disability Leave Law AKA “PDLL”

The PDLL requires employers who employ 5 or more employees to provide up to four months of leave to any employee who is disabled by their pregnancy.   The leave can be taken before, during, or after the birth of the child, or split into different time periods.  The employer is not required to pay any wages to the employee while out on leave; however the employer generally must hold the job open for the employee.  There is no length of service requirement for the PDLL meaning even recently hired employees are eligible for this leave. 

Paid Family Leave AKA “PFL”

Since 2004 California workers whose employer contribute to the State Disability Insurance (SDI) fund are entitled to six weeks of partial pay (usually about 55% of wages up to a maximum limit) each year while taking time off from work to: bond with a newborn baby, adopted or foster child; and care for a seriously ill parent, child, spouse or registered domestic partner.  This leave can be used in conjunction with other leave types available and is available to an employee starting day one of their employment. 

California Family Rights Act AKA “CFRA”

Leave under CFRA may be available if all of the following are true: (1) the employee has worked at least one year for their employer; (2) the employee has worked at least 1,250 hours in the past year, and (3) the employer has at least 50 employees working within 75 miles of the employee’s worksite.  If eligible as described above, an employee is able to take up to twelve weeks of leave in addition to the PDLL.  CFRA leave can be used to “care for a sick child, spouse, or parent with a serious health condition; or to care for a newborn child, newly adopted child, or foster child.”  As with PDLL this leave is without pay, however the employer is usually required to reinstate the employee to the same or similar position once the leave has ended. 

In addition to the leaves listed above, some employers have leave policies, and/or short term disability benefits that may cover some wages while a pregnant employee is out on pregnancy disability leave.  Depending on their medical condition and physician care, some pregnant employees may qualify for California State short term disability benefits (STI). For more information from the State of California on Pregnancy and employment go here.

As you see there are several leave types available for the pregnant California employee.  In addition to the basic information as described above, each leave type of a few other terms and conditions.  For information specific to your situation please call 619-234-3054 for a consultation.

Finally, it is illegal for any employer to treat you differently or punish you for taking pregnancy leave as described above. You generally have a right to be reinstated to your position upon return from your leave.  If you feel your employer is retaliating against you in any way for accessing pregnancy leave, call Gienapp Law, APC at 619-234-3054 for a free consultation. 

Hostile Work Enviornment

The Hostility Issue AKA The Hostile Work Environment

I frequently get telephone calls from disgruntled employees who believe they work in a hostile work environment.  Many times an employee tells me of their “Type A” personality boss who has worked his or her way into a position of authority in the workplace and runs his or her office with an iron fist.  I will call the person of authority the "bossy boss."  The bossy boss believes anger, fear, and outbursts are the best way to motivate and will frequently raise their voice in an effort to strike the proper tone.   To make matters worse the bossy boss is usually uneven.  One day a confusion or an error by an employee receives a simple clarification and correction, but the next day the same confusion or error receives a series of threats and insults and a vein popping display from bossy boss which leaves the employee in a state of shock.

Frequently by the time the employee is calling me he or she is about to go on stress leave and has four of the five signs of post traumatic stress disorder.  The employee calls me because he or she want to sue their employer for allowing a hostile work environment.   Before I address the bossy boss situation I will briefly describe the oft misunderstood term “hostile work environment.”

The term “hostile work environment” arises out of the body of laws which prohibit sexual harassment at work. Sexual harassment is verbal, physical, or sexual behavior directed at an individual because of his or her gender.  It consists of any unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature.   The question frequently arises, when do words alone arise to the level of sexual harassment.  The answer involves the famous “hostile work environment.” 

The “hostile work environment,” also called the “abusive working environment,” is a term created by Judges used to describe behavior that crosses the line from mere speech to illegal and actionable sexual harassment.  The California Supreme Court describes the line as follows, the harassment complained of must be “sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment.” Aguilar v. Avis Rent a Car System, Inc.   Other Judges have interchanged the words “abusive” and “hostile” in describing this sexually charged working environment.   However the elements are the same; severe or pervasive sexually oriented conduct and a working environment that is somehow changed and altered as a result of the conduct. When both are present we have the “hostile work environment.”   In recent years the same term has been used to describe harassment based on other protected characteristics including religion, race, national origin and in California, sexual orientation. To find out more information about discrimination in the work place go here.

What about our bossy boss. Is threatening your subordinate employee legal?  Can a boss yell at his or her employee until the employee has to seek stress leave? Does the stressed out employee have any legal options?  It depends.  Unfortunately California does not have civility laws.  A mean spirited, uneven bossy boss who yells threats and insults is not necessarily in violation of any employment laws; especially if the bossy boss is an equal opportunity screamer, meaning every one in the department gets the same terrible treatment.   However, if some people in the department are singled out for worse treatment than others, there may be actionable harassment.  In any case it is always a good idea to check with any employment attorney to determine what options are available.  If something is happening at work that you feel may be unlawful your best defense is to become fully informed of your rights.  Call Gienapp Law, APC for a free consultation 619.234.3054 or visit our web site.