Category Archives:Employment


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OWN Network Sued For Sex Discrimination

Carolyn Hommel, a former executive at OWN, has filed a lawsuit against Oprah Winfrey‘s network claiming she was a victim of sex discrimination.

In the lawsuit, filed in Los Angeles Superior Court, Hommel claims she was hired in 2010 as senior director of scheduling and acquisitions at the network. Hommel says her duties were reassigned to a temporary employee because of her pregnancy and pregnancy-related medical conditions.

OWN: Oprah Winfrey Network (Canada)

Hommel’s direct superior at the network had reportedly given the former senior director of scheduling and acquisition positive performance reviews prior to her pregnancy and negative and untruthful performance reports following. Hommel says her duties were gradually taken away from her and given to the temporary employee, and she was later excluded from numerous meetings when she returned to the office.

The complaint alleges that on March 19, 2012, a month after Hommel gave birth to her daughter, Hommel was told she was being laid off. Further, the complaint alleges her position was eliminated due to restructuring and she was passed over for a position as a vice president in favor of the temporary employee.

The former OWN employee claims her demotion and layoff are a direct result of her becoming pregnant and requiring a medical leave. She is seeking unspecified damages.

If you are an employee who has been a victim of discrimination in the workplace, contact Don Ho at (714) 748-7715. Don Ho is an experienced attorney who focuses on employment law matters who can discuss your options with you.

Published by Don Ho Law. Don Ho is a criminal defense and employment law attorney in Orange County, California.

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U.S. National Coach Sued for Wrongful Termination by Former Employee Dia Rianda

One of swimming’s most renowned coaches, Mark Schubert, is being sued for wrongful termination by a former employee, Coach Dia Rianda, in Orange County. Rianda claims she was wrongfully terminated by the former U.S. national coach after she became aware of abuse allegations in his Southern California club, Golden West Swimming Club (GWSC).

Schubert became the U.S. national coach after the 2004 Athens Olympics, leading the team through the Beijing Games, where Michael Phelps set an Olympic record with eight gold medals, but was mysteriously fired by USA swimming two years ago. No reason has been given for his dismissal, though Rianda said she was told by Schubert that he was let go because he knew of a two-decades-old abuse case and wanted to go public. Currently, Schubert is being accused of committing the same act, and turning his back on abuse cases closer to home.

Filed on Monday in Orange County Superior Court, the lawsuit claims Rianda began work at the GWSC last year after being hired by Schubert. The lawsuit alleges that Rianda became aware of sexual abuse allegation’s against a close friend of Schubert’s, Bill Jewell, and strongly objected to Jewel working at the club. The lawsuit further alleges Rianda was fired on July 11 because she continually alerted Schubert to “inappropriate behavior” by Jewell, a “volunteer assistant” at GWSC.

The lawsuit claims that an investigation began in January into Jewell’s action’s after Rianda passed on complaints she received about Jewell to Chuck Wielgus, the executive director of USA Swimming, and Susan Woessner, the organization’s director of safe sport. The lawsuit does not openly name a dollar amount Rianda is seeking, but Rianda stresses the purpose of the suit is to “change the culture of the sport”.

If you are an employee who believes they have been wrongfully terminated by their employer, the attorneys at Don Ho, LLP, can assist you. By representing both employers and employees in numerous cases, the attorneys at Don Ho, LLP, have retained a unique perspective in employment law matters and are able to successfully represent clients from both sides.

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Please Don't Fire Me!

In California, employees are presumed to be “at will.”  At-will employees may be terminated for any reason, so long as it’s not illegal.  Generally, employees that work under an employment contract can only be terminated for reasons specified in the contract.  In California, the at-will presumption can be overcome by evidence that despite the absence of a specified term of employment, the parties agreed who the employer’s power to terminate would be limited in some way.

Fired red stamp
Fired red stamp (Photo credit: Wikipedia)

You may be surprised that you can be fired by your boss because she

  1. does not like you
  2. thinks you are too tall or short
  3. thinks you talk too much or too little
  4. is upset you did not say “Good Morning” to her in the right way
  5. is mad you made the coffee too strong and forgot the cream
  6. dislikes your shirt
  7. thinks you are too fat or thin
  8. thinks you are too ugly or good-looking
  9. mistakenly thinks you did something that you did not
  10. is in a bad mood and you happen to be the closest one to her
  11. and on and on.

However, you can be assured that there still are many restrictions on your boss’s power to fire you at will. As the California Supreme Court said in a landmark decision, “”Even where employment is at will, numerous federal and state statutes already impose express limitations on the right of an employer to discharge at will.” [Foley v. Interactive Data Corp., 47 Cal.3d 654, 665, fn. 4.]

Contract. If you and your employer signed a contract regarding your employment, you should examine it carefully.  Be on the look out for a paragraph entitled “Termination.” Such a section should spell out your boss’s right to fire you.  With luck, your contract might say that your boss can only fire you “for cause” (a good reason).

Employee Handbook/Policies. If your employer has employee handbooks, manuals or policies, you should examine such documents very carefully.  Courts have held that these documents are to be treated as contracts between you and your employer.  Look for a section called “Termination” and see what your rights are.

Union Agreements. If you are in a union, they may have entered into a collective bargaining agreement with your employer that lays out the circumstances under which your boss can fire you.  Such an agreement may be binding on your boss.

Illegal Reasons. Your boss cannot fire you (or force you to resign) for any illegal reasons.  Following are some illegal reasons:

  1. in harassment based on or discrimination against your “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation” [California Fair Employment & Housing Act; Title VII of the Civil Rights Act of 1964]
  2. in retaliation for your blowing the whistle on illegal or improper conduct [California Labor Code 1102.5; California Health & Safety Code 1278.5; etc.]
  3. in retaliation for your taking family medical leave [California Family Rights Act; U.S. Family Medical Leave Act]
  4. in retaliation for your applying for workers’ compensation for a work-related injury [California Labor Code 132a]
  5. in retaliation for your union activity or participating in union investigations [National Labor Relations Act]
  6. for participating in an investigation for discrimination or harassment [California Fair Employment & Housing Act; Title VII of the Civil Rights Act of 1964]

If you have been fired “at will,” there are several things you can do about it.  You can educate yourself on employment law websites.  Keep in mind that your termination may have been unlawful under some provision of the California Labor Code or federal or state statute that was not discussed above.

If you think any of the above applies to your situation, talk to a qualified employment attorney right away.

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Help! I've Signed an Arbitration Agreement

Many employers ask employees to sign arbitration agreements, in which they give up their right to sue in court over job-related issues such as wrongful termination, breach of contract, and discrimination.  This may not seem like a big deal when you are starting a new job and do not foresee any legal disputes but if your rights are later violated at work, that arbitration agreement might come back to haunt you.
What is an arbitration agreement?
Typically, arbitration agreements are given to employees to sign when they are hired.  These agreements usually state that both parties, employee and employer, agree to resolve their legal issues before a private arbitrator instead of civil court.  Often time an arbitration agreement can require that this process take place in a specific jurisdiction and can also redefine or restrict some statutory issues.  There are many different arbitration companies to choose from, but the American Arbitration Association and JAMS are two of the larger ones that are routinely appointed in arbitration agreements.
Enforceability in California
Generally speaking, in California, an employer can require its employees to agree to arbitration as a term of employment if the agreement is drafted and implemented properly.  However, there are some protections and arbitration agreements are routinely struck down by courts if they are not properly drafted.   If an agreement has too many unfair or one sided terms, California courts may refuse to enforce the agreement or sever the unfair terms.  For example, recently a California court held in Ajamian v. CantorCO2e, that an arbitration agreement was not enforceable because it required the employee to waive statutory damages and remedies and only allowed the employer to recover its attorney’s fees if successful, not the employee.
Do not ignore these agreements if you have a dispute with your employer.  Many people think that these agreements can be ignored or that are simply a legal formality.  Under California arbitration law, if you ignore the agreement, a court could find you in breach of the agreement. Thus, no matter how strong your claims are, you will not be able to proceed though arbitration or in court, and you will be unable to get any remedy for your dispute.
Disadvantages of arbitration
You may wonder why it matters where your claims get heard, as long as they are heard somewhere.  An arbitration differs from a court case in many ways, several of which can work against employees.  With arbitration, your claims are heard and decided by an “arbitrator” who is paid by one or both sides to listen to the evidence and witnesses.  That means there will be no jury to hear your story — and juries are often sympathetic to employees.  In addition, the arbitration process limits the amount of information each side can get from the other.  In employment cases, this generally hurts the employee, because the employer is usually the one who has most of the documents and information relating to the employee’s case.  Finally, an arbitration usually cannot be appealed, which makes arbitration awards more final than court verdicts. If you think the arbitrator’s decision is unfair or wrong, you will not be able to argue your case before a higher court.
Advantages of arbitration
An arbitration does have some advantages over a court trial.  The arbitration process is more cost-effective and less time-consuming than court trials.  Cases in arbitration are heard and decided much more quickly than court cases, which can take several years from start to finish.  While arbitration is a formal process, the rules and procedures are less onerous than those of a court of law.  This can make the process easier for all involved, especially employees who are not used to litigation.  Arbitration also affords more privacy for the parties.  Unlike court actions, arbitration proceedings and arbitrators’ decisions are not normally made public.
Do I have to sign the arbitration agreement?
If your employer asks you to sign an arbitration agreement, you can refuse, however it may put your job in jeopardy.  If your employer will not let you outright refuse to sign an arbitration agreement, it may allow you to negotiate certain terms of the agreement to make it more fair to you.  Although an employer may not agree to your requests, it is unlikely you will be fired for asking.  Negotiating your agreement to arbitrate is no different from discussing your salary or benefits.  Just like the employer, you are simply negotiating for your best interest.
Here are some provisions that can help create a more balanced arbitration process. 
  • Choice of arbitrator. You should get as much say in choosing the arbitrator as the employer.  Given the power of the arbitrator you will want to have rights equal to those of your employer in the selection process.
  • Disclosure of information. A potential arbitrator should have to disclose information about his or her business and personal interests so you can make sure that the arbitrator is not biased in favor of the employer.  You and the employer should have the right to reject any arbitrator who has a conflict of interest. 
  • Costs of arbitration. Because the employer is the one who wants to use arbitration, the employer should have to pay for it. 
  • Remedies available. Make sure that you can receive all of the remedies that you would have available if you had filed your claim in a court of law.  For example, the agreement should not prohibit you from seeking punitive damages or damages for emotional distress. 
  • Attorney representation. You should have the right to be represented by an attorney throughout the arbitration process.
But I did not know I agreed to arbitration

Employees often sign arbitration agreements unintentionally.  Some employers give new employees piles of paperwork to fill out on their first day, and some employees, in turn, sign documents without reading them.  Although many employers are straightforward and present the arbitration agreement to employees openly in a separate contract, others bury arbitration agreements in other documents, such as an employment contract, a hiring letter, or an employee handbook.  Make sure that when you sign a contract, letter, handbook acknowledgment form, or any other document from your employer, you agree to all the terms of the document — even the ones that you may not have read.  Do not sign any document acknowledging you’ve read something unless you actually have read it and understood it completely. 

You can still use government agencies to help fight discrimination
If you sign an arbitration agreement and your employer discriminates against you, you can still complain to a government agency, such as the federal Equal Employment Opportunity Commission (EEOC) — and the agency can decide to sue the employer in court on your behalf. The arbitration agreement you signed applies only to you; it doesn’t apply to an agency that wants to step in and enforce the law. 
 
Arbitration is a very tricky area because the law is still developing.  You should consult a knowledgeable attorney before to trying to resolve any dispute where you have an arbitration agreement.  If you have questions before or after entering into an employment contract, contact the Orange County and Riverside Employment Law firm of Don Ho, LLP. 
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Increased Maternity Leave Protections in 2012

January 2012 will be a busy month for most California employers as they work to comply with a number of new laws affecting employers and employees alike.  One of these laws affects health coverage during maternity leave.  SB 299, effective January 1, 2012, amends Government Code Section 12945 (concerning Pregnancy Disability Discrimination and Pregnancy Disability Leave) and requires the continuation, at pre-leave levels, of health insurance benefits, for up to four months during a legally protected pregnancy disability leave.

More specifically, SB 299 requires all public agencies and private employers with five or more employees to continue to maintain and pay for health coverage under a group health plan for an eligible female employee who takes Pregnancy Disability Leave (PDL) up to a maximum of four months in a 12-month period.   The coverage must be at the level and under the conditions that coverage would have been provided if the employee had continued in employment continuously for the duration of the leave.

Under the current pregnancy disability provisions of the California Fair Employment and Housing Act (FEHA), employers were only required to provide benefits for pregnancy leave to the same extent and for the same length of time as they would for other temporary disability leaves.  Employers covered by the federal Family and Medical Leave Act (FMLA), meaning the employee had been employed for at least one year and had worked 1250 hours in the past 12 months and the employer employed 50 or more employees within a 75 mile radius, had to provide continuing coverage during the twelve weeks of FMLA leave.  The new law requires group health insurance continuation coverage for all employers with five or more employees regardless of how they treat other temporary disability leaves and regardless of FMLA coverage.  Even recently hired employees at smaller employers will be entitled to paid health benefits for up to four months of the leave provided the employee is otherwise eligible for the health benefits or becomes eligible during the leave.

Additionally, the law provides for the employer to be able to recover the premium amounts paid if:
 (1) The employee fails to return from leave after expiration of the leave; and
 (2) The reason for the employee not returning is not one of the following:
         a. The employee is taking CFRA leave; or
        b. The continuation, recurrence or onset of a health condition that entitles the employee to leave under PDL (such as the employee having medical complications relating to child birth) or other circumstances beyond the employee’s control.
This new law will have a significant impact on employers because employees who are ineligible for FMLA leave are eligible for pregnancy disability leave.  Further, continued insurance coverage provided for pregnancy disability leave will not count against an employee’s right to continued benefits under the FMLA if she subsequently becomes FMLA eligible.  It is important to note that it is unclear at this time what effect the federal Health Reform Law will have on the new law.
 
The Orange County and Riverside Employment Law firm of Don Ho, LLP suggests that all employers review and revise their policies, procedures and forms relating to Pregnancy Disability Leave, and FMLA/CFRA in order to incorporate the new law.  Training of personnel responsible for implementation of these leaves will also be necessary.
The full text of SB 299 can be found here.
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New Law Imposes Penalties for Classifying Employees as Independent Contractors

In an attempt to crack down on the misclassification of employees as independent contractors, earlier in the month, California Governor Jerry Brown signed into law SB 459.  SB 459, which becomes law January 1, 2012, adding Sections 226.8 and 2753 to the Labor Code, prohibits willful misclassification of individuals as independent contractors.

The new law provides for penalties for a “willful misclassification”:

“Willful misclassification” means avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.
The bill also prohibits employers from charging a misclassified worker a fee or deducting from his pay for any costs related to his employment i.e., equipment, services, repairs, or fines.  Employers who violate the new law will be fined between $5,000-$15,000 for each violation, in addition to any other penalties or fines.  Employers engaged in a “pattern or practice” of violations are subject to fines up to $25,000 for each violation.

For more information about that factors considered in determining whether a worker qualifies as an independent contractor click here.

In addition to the substantial civil penalties, employers who violate the law are also required to post a notice on their website, or if the employer does not have a website they must post it in an area available to employees and the general public, for one year about the violation.  The notice must contain the following information:

(1) That the Labor and Workforce Development Agency or a court, as applicable, has found that the person or employer has committed a serious violation of the law by engaging in the willful misclassification of employees.
(2) That the person or employer has changed its business practices in order to avoid committing further violations of this section.
(3) That any employee who believes that he or she is being misclassified as an independent contractor may contact the Labor and Workforce Development Agency. The notice shall include the mailing address, e-mail address, and telephone number of the agency.
(4) That the notice is being posted pursuant to a state order.

SB 459 reinforces the importance of appropriately classifying independent contractors under California and federal employment laws.
If you or someone you know owns or manages a California company, make sure your employees are properly classified in accordance with the most recent applicable laws.  The Orange County Employment Law firm of Don Ho, LLP can assist business owners in determining whether employees are properly classified as independent contractors.

For the full text of SB 459 please click here.

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