Month: May 2014

What Is Constructive Discharge and Why Is It Important?

Image

Constructive discharge is when an employee is forced to quit because the employer has made working conditions unbearable. Unbearable conditions include harassment or discrimination, or receiving a negative change in pay or work for reasons that are not work-related. An example is when Bob believes he was constructively discharged when he felt compelled to quit after his supervisor decreased his pay and benefits for no performance-related reason.

While employees who voluntarily quit are typically not expected to receive unemployment benefits and lose the right to sue the company for wrongful termination, constructive discharge is an exception. If an employee feels he or she was forced to leave a job because the employer made the job so unbearable, he or she can file a wrongful termination suit against the former employer. In this case, being compelled to quit is legally similar to being unfairly discharged.

If you believe your termination was wrongful and you have been constructively discharged or you have not been treated according to the law or company policy, you can get help.

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Are you or anyone you know working in an unbearable working condition? Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://employmentlawyersla.com/ if you have any questions regarding your rights at the workplace.

Advertisements

How Does the Reasonable Accommodation Process Work?

Image

In the second part of a two-part series, we will explain how the Reasonable Accommodation process works.

In general, the reasonable accommodation requirement starts when the employer learns of the employee’s need for a change and that the need is related to a medical condition. The employee does not have to expressly say the words “I need a reasonable accommodation for my disability.” The employee simply needs to make a request for a change that will allow him or her to perform the essential job functions, and it needs to be noted that the request is due to a medical condition.

After an employer gets a request for a reasonable accommodation, the next step is to use an interactive process to determine whether the request will be granted. This process requires an interaction between the employer and employee to determine what reasonable accommodations the employer may be able to provide. This process does not have to be formal or even in writing. However, it may be best for the employer to document the interactions. The interactive process should clarify the individual’s needs and assess what accommodations might meet those needs.

The employer and employee may discuss possibilities of reasonable accommodations. Then the employer assesses which alternative might work best. Of course the employee should have input. However, the employee’s first choice of accommodation does not have to be the final selection if the employer can offer an alternative that still allows the employee to perform the essential functions of the job.

Note, the only reason an employer can deny a reasonable accommodation request is if it would present an undue hardship on the employer. An undue hardship could be financial, or it could mean that it is too disruptive to implement. However, the undue hardship standard is a very high threshold to cross. It takes into account the finances and performance of the company. That said, an employer is not obligated to remove essential job functions either. If the employee is unable to perform essential job functions and no reasonable accommodation exists, that employee may no longer be qualified to perform the job.

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Are you or anyone you know been discriminated at work? Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://employmentlawyersla.com/ if you have any questions regarding your rights at the workplace.

What is Reasonable Accommodation and How Does the Process Work?

Image

In a two-part series, we will explain what Reasonable Accommodation is and how the process works.

Part I – What is Reasonable Accommodation?

The Americans with Disabilities Act (ADA) requires employers to not discriminate against qualified individuals with disabilities. It also requires that those individuals should be given reasonable accommodations to allow them to perform the essential functions of the job, as long as doing so does not create an undue hardship for the employer.

Reasonable accommodation could be any change in the work environment or in the way things are customarily done that allows an individual with a disability to enjoy equal employment opportunities. This includes changes to: the job application process, the work environment, the manner or circumstances under which the job is performed, or other areas that allow an employee with a disability to have equal benefits and privileges as other employees.

In practice, this can mean any number of things and is dependent on the specific situation for each employee. It is up to the employer to discuss options with the applicant or employee to determine what options might work.

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in disability discrimination cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, disability discrimination, wage and labor disputes, and retaliation cases.
Are you or anyone you know been discriminated at work based on your disability? Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://employmentlawyersla.com/ if you have any questions regarding your rights at the workplace.

Which type of employees are not required to be paid overtime?

Image

There are entire classes of employees who are not required to be paid overtime. The most common exemption is the administrative exemption.

Administrative exemption is commonly referred to as the “white collar” exemption. To qualify for the administrative exemption, the employee must meet both the salary requirements and the duty requirements.

Salary requirements:
(a) The employee must be paid on a salaried basis.
(b) That salary must be equal to or greater than $455 per week. Note: this amount may be higher based on state laws.

Duty requirements:
(a) Have primary duties—not merely occasional duties—that are related to the management or general operations of the business. Typically this includes roles in finance, accounting, marketing, purchasing, legal, HR, and other such roles.
(b) Use discretion and independent judgment. This means the employee has a level of responsibility that requires him or her to make judgments independently, not merely to follow standards or take direction. The discretion and independent judgment must be related to matters of significance within the organization.

It’s easy to misclassify an employee. Some important notes to know:
– The employee’s job title would imply they are exempt, but their duties don’t actually qualify. Matching job titles or job descriptions is not enough; the actual work performed is what matters.
– The employee works on items that would qualify, but they’re not his or her primary duties. Each situation needs to be reviewed individually.
– The primary duties would qualify, but there is little to no discretion and independent judgment on the part of the employee. For example, if an employee primarily performs administrative duties but relies almost exclusively on either set standards or on the direction of a superior to make any decisions, then that employee may not be exercising discretion and independent judgment in the role. In these cases, it does not matter that the duties would qualify—if the “discretion and independent judgment” requirement is not met, the employee is not exempt.

Read More: http://goo.gl/oNFC0W

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Questions about your rights at the workplace? Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://employmentlawyersla.com/

Are You Entitled to Unpaid Leave?

Image

The Family and Medical Leave Act (FMLA) provides eligible employees up to 12 workweeks of unpaid leave a year, and requires health benefits to be maintained during the leave. Employees are also entitled to return to their same or an equivalent job at the end of their FMLA leave.

In order to be eligible to take leave under the FMLA, an employee must:
– have worked 1,250 hours during the 12 months prior to the start of leave
– work at a location where the employer has 50 or more employees within 75 miles, and
– have worked for the employer for 12 months. The 12 months of employment are not required to be consecutive in order for the employee to qualify for FMLA leave.

A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid, job-protected leave in a 12 month period for one or more of the following reasons:
– for the birth of a son or daughter, and to bond with the newborn child,
– for the placement with the employee of a child for adoption or foster care, and to bond with that child,
– to care for an immediate family member (spouse, child, or parent – but not a parent “in-law”) with a serious health condition,
– to take medical leave when the employee is unable to work because of a serious health condition, or
– for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces.

The FMLA also allows eligible employees to take up to 26 workweeks of unpaid, job-protected leave in a “single 12-month period” to care for a covered servicemember with a serious injury or illness.

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Questions about your rights at the workplace? Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://employmentlawyersla.com/

What Does At-Will Employment Really Mean?

Image

An “at-will employment” means that an employer has the right to terminate an employee at any time and for any or no reason. It also means that the employee has the right to terminate his or her own employment at any time and for any or no reason. This also means the termination can be done without any prior notice. In United States, an employee is considered to be an at-will employee unless there is proof otherwise, such as an employment contract.

However, there are exceptions to “at-will employment.” Other laws may be broken if a termination is made for an otherwise illegal reason, such as discrimination. Here are some of the exceptions to the at-will employment doctrine:
• An employee cannot be fired for a discriminatory reason such as race, national origin, religion, color, or sex.
• An employee cannot be fired out of retaliation for performing a legally protected action. For example, an employer cannot fire an employee for filing a discrimination or harassment suit, or being a whisteblower regarding illegal or unsafe practices, or complaining about the working environment and overtime practices.
• An employee with a contract that outlines the terms of employment cannot be fired outside of those terms. In other words, contracts supersede at-will employment assumptions.
• An employer who provides some protections in employment policies, such as firing only for just cause, must abide by those protections.

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Questions about your rights at the workplace? Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://employmentlawyersla.com/

Same-Sex Harassment: Same as Opposite-Sex Harassment

Image

In a recent case, Plaintiff was an intern at a water treatment plant. Defendant, Plaintiff’s supervisor, showed him pornographic images on his computer. Defendant also told Plaintiff vulgar sexual jokes. Defendant also suggested that Plaintiff visit his home and once said, “Why don’t you just kiss me?” Defendant claimed that the joke telling and computer images were “mere banter among male co-workers.”

The court found that sexual harassment can occur between members of the same gender as long as the employee can show that he was harassed “because of sex” or was exposed to disadvantageous conditions to which employees of the other sex weren’t exposed.

Courts have recognized many situations that show same-gender harassment is discrimination “because of sex.” Explicit or implicit proposals of sexual activity between same-sex employees are sufficient proof of harassment if there is credible evidence that the harasser is seeking a same-sex relationship. However, harassing conduct doesn’t necessarily have to be motivated by sexual desire. Sexual comments intended to humiliate an employee and challenge his sexual identity can be sufficient to show unlawful harassment because of sex.

In this case, Plaintiff presented enough evidence to support an inference that Defendant was motivated by sexual interest.

BOTTOM LINE: Same-gender sexual harassment claims are just as dangerous as claims filed by opposite-sex employees. An employee need not necessarily object at the time of the offensive conduct to later pursue a claim, so you must make certain that everyone in the workforce is trained on the do’s and don’ts of proper workplace conduct and not wait until an employee complains to be proactive.

Read More: http://goo.gl/evCh2p

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Are you or anyone you know been sexually harassed at work? Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://employmentlawyersla.com/ if you have any questions regarding your rights at the workplace.