California Employment Attorney Blog

Employer contends that employee was terminated for failure to report to or call work for three consecutive days, which is in violation of its Punctuality and Attendance policy. Employer does not contend that there were any performance issues with employee.

Employee was hospitalized because of her chronic asthma on the following days:

Tuesday, July 2006 - Employee was hospitalized and did not report to work. However, her mother contacted her employer to advise of her condition.

Wednesday, July 2006 - Employee was hospitalized and did not report to work. However, her mother contacted her employer to advise of her condition.

Thursday, July 2006 - Employee was hospitalized and did not report to work. Employee did not contact her employer and no one from her employer attempted to contact her.

Friday, July 2006 - Employee was discharged from the hospital. Employee did not report to work. Employee's mother contacted her employer and advised them that employee was being discharged from the hospital and that employee would contact her employer after her follow-up doctor's appointment to advise as to her return date.

Monday, July 2006 - Employee did not report to work. Employee spoke with Human Resources personnel, who requested that employee obtain a doctor's note covering her for the dates that she missed work, a return to work date with the doctor's signature. Employee agreed to do so and told the Human Resources personnel that she would advise her Supervisor of her return to work after her follow-up doctor's visit.

Tuesday, August 2006 - Employee did not report to work. Employee did not contact her employer and no one from her employer attempted to contact her.

Continue reading "California Disability Laws Cover Chronic Asthma" »

Employee was hired directly by employer in July 2006 to work as a Service Order Writer at its El Segundo, California office. In July 2006, employee was hospitalized because of her chronic asthma. Employee's mother contacted her Supervisor, and informer her that employee had been hospitalized because of her asthma. Supervisor asked employee's mother to keep her updated with employee's condition. Employee's mother called Supervisor the next day and informed her that employee was still in the hospital, nothing had changed, however, if something did, she would let her know. A couple days past and employee's mother called Supervisor and let her know that employee was being discharged from the hospital. Supervisor asked employee's mother for a return date for employee. Employee's mother indicated to supervisor that employee had a follow-up appointment with her doctor and after the appointment employee would advise Supervisor of her return date. Supervisor also asked employee's mother to let employee know that she will require a doctor's note in order to return to work.

A few days thereafter, employee spoke with employers Human Resources Department. The Human Resources personnel asked employee to obtain a doctor's note to cover her for the days that she missed, provide a return to work date, with the doctor's signature. Employee responded by telling the Human Resources personnel that she should get the doctor's note at her follow-up visit and would let Supervisor know of her return to work date.

Continue reading "Chronic Asthma is a Covered Disability in California " »

February 2009 - The day employee reported back to work after serving on jury
duty, the Store Manager informed her that defendant had decided to terminate her employment.

February 2009 - Employee filed a grievance with her Union.

February 2009 - A meeting with employee, her union representative and defendant's representative was held. At the meeting, the company representative took down some handwritten notes regarding employee's version of what had occurred. According to the company representative's handwritten notes, employee had called Assistant Store Manager to let him know that she would be out the following week for jury duty. At the time of her telephone conversation with Assistant Store Manager she was aware that she did not have to appear to court on Monday. Employee was not aware that she was scheduled to work. Assistant Store Manger did not say to employee that Monday is a holiday, will you be in? Employee did not tell anyone that she was on jury duty on that Monday. In fact, when Store Manager asked her if she was on jury duty on that Monday, she told the Store Manager "no". On Tuesday, when employee called Assistant Store Manager with a status of her jury duty he did ask her "you didn't go on jury duty on Monday, did you?", she said "yes" meaning "no".

February 2009 - Assistant Store Manager provided a second statement regarding his version of the telephone conversation.

March 2009 - The company representative sent employee's union representative a letter indicating that employee was terminated for violating Company Policies and Procedures relative to integrity, fraud, theft and grazing. The company representative further indicated in the letter that at the meeting, employee was unable to provide any information that might mitigate her termination. As such, defendant maintains its position that employee's termination was just and will therefore stand.

June 2009 - The California Unemployment Insurance Appeal Board, after a hearing, issued its decision in favor of employee. In the decision, the Administrative Judge held: "Because the claimant believed that she had properly notified the employer regarding her jury service, and her absence from work, the claimant's termination was for reasons other than misconduct connected with her most recent work. The claimant's failure to report to work or properly notify the employer of her whereabouts [on that Monday], was more a good faith error in judgment or discretion than a willful or wanton breach of an important obligation that the claimant owed to the employer. This is particularly true given the claimant's 19 years of service to the employer without any similar incidents. Therefore, the claimant was terminated for reasons other than misconduct connected with her most recent work."

An employer is prohibited from discharging, discriminating or retaliating against an employee "for taking time off to serve as required by law on an inquest jury or trial jury, if the employee, prior to taking time off, gives reasonable notice to the employer that he or she is required to serve." California Labor Code §230(a).

If an employer fired an employee for exercising California Labor Code §230 leave rights, the employee might well be able to state a cause of action for wrongful discharge in violation of public policy. Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 300 - termination in retaliation for protesting hazardous working conditions which violated Labor Code.

Statutory remedies for violation of California Labor Code §230 include reinstatement, and reimbursement for lost wages and work benefits caused by the act of the employer. California Labor Code §230(e). Under wrongful termination in violation of public policy, Plaintiff can also recover emotional distress and punitive damages.

Employee properly informed defendant of her summons for jury duty. Upon completion of her jury service, after 19 years of service, defendant discriminated against her and terminated her employment because she took time off to serve on jury duty.

January 2009 - Employee is issued a disciplinary memo for taking a rest break over the allowed period of time. Employee testified at her deposition that the reason she went over her break on that day was because an employee from the another department approached her to discuss his father who was terminally ill. Employee was trained that as a manager if an employee approached her with any issues, she should listen and try to assist the employee.

January 2009 - Employee reminded the Store Manager and the Assistant Store Manager that she had to report for jury duty in January 2009.

January 2009 - Employee called the Assistant Store Manager and told him that she was selected as a juror for a criminal case. Assistant Store Manager, requested that employee keep him posted.

January 2009 - Employee called Assistant Store Manager and told him that she was to return to jury duty the next week. Assistant Store Manager never asked employee during that telephone conversation if she had to report to jury duty on Monday or that she was scheduled to work on that Monday. In fact, employee was not scheduled to work on that Monday.

First, this was the first time in employee's 19 years of employment with defendant that the was summoned for jury duty, therefore, this is not a standard incident or circumstance of a "failure to work posted shift". Second, employee was not scheduled to work on that Monday. The schedule clearly provided "Jury Duty" for employee for that Monday. Third, it is not clear why a human resources representative would accept the Assistant Store Manager's version of the telephone conversation with employee and not hers. Especially in light of the fact that the Store Manager indicated that employee told her that she did not have jury duty on that Monday. Fourth, the Jury Duty policy contained in the CBA does not support termination, the form of "discipline" that the CBA provides for a circumstance similar to employee's circumstances, is not to pay her for that day. Lastly, defendant failed to follow its own policy regarding "disciplinary approach", which provides: "Sometimes people make mistakes. The objective of our disciplinary policy is usually deterrence and rehabilitation through counseling and positive reinforcement. We also recognize, however, that when and if counseling fails, more formal and progressively stern measures become necessary. In those instances, the approach generally taken, based on length of services and offense(s), will be written warning, followed by suspension or termination."

January 2009 - Employee provided Assistant Store Manager with proof of juror service.

Blog Post to Be Continued . . .

After 19 years of employment, employee was terminated for attending jury service. Throughout her 19 years of working for defendant, prior to December 2008, employee only received 7 disciplinary actions taken against her. Throughout her employment with defendant, employee continuously, year after year, received positive performance evaluations. As of January 1, 2007, effective date of her promotion to Manager to February 2, 2009, date of her termination, employee received a total of three disciplinary actions, two of which were issued by the Store Manager where she worked out of.

The following time line will illustrate defendant discriminatory animus towards employee:

January 2007 - Employee is promoted to Manager.

January 2007 - Employee is issued a disciplinary memo

March 2008 - Employee received a positive performance evaluation.
In or about December 2008 or January 2009, employee received a jury summons and timely informed the Store Manager.

December 2008 - Employee receives a disciplinary memo for failure to work her
posted schedule. Employee testified at her deposition that the reason she left early on that day was because of an emergency at home and she did notify the clerk, who acts as the manager for her department when she is not there, that she was leaving because of an emergency. The Store Manager never asked employee why she had left early that day. The reason employee left early that day was because she is a single mother and her daughter had called her at work to tell her that she was stung by a bee. Employee did not know if her daughter was going to have any allergic reaction, therefore, she rushed home to care for her daughter. Something that a responsible parent would do.

Blog Post to Be Continued . . .

California Labor Code §1182.8 provides: "No employer shall be in violation of any provision of any applicable order of the Industrial Welfare Commission relating to credit or charges for lodging for charging, pursuant to a voluntary written agreement, a resident apartment manager up to two-thirds of the fair market rental value of the apartment supplied to the manager, if no credit for the apartment is used to meet the employer's minimum wage obligation to the manager." Emphasis added.

Industrial Welfare Commission Order No. 5-2001 Section 10 provides: "( C) Meals or lodging may not be credited again the minimum wage without a voluntary written agreement between the employer and the employee. When credit for meals or lodging is used to meet part of the employer's minimum wage obligation, the amount so credited may not be more than the following: Apartment - two-thirds (2/3) of the ordinary rental value, and in no event more than $423.51 (2007) and $451.89 (2008) . . . . (E) If, as a condition of employment, the employee must live at the place of employment or occupy quarters owned or under the control of the employer, then the employer may not charge rent in excess of the values listed herein." Emphasis added.

The only case that analyzed Labor Code §1182.8 and Wage Order 5-2001 was the U.S. District Court for the Eastern District of California in Brock v. Carrion, Ltd. (2004) 332 F.Supp.2d 1320. In Brock, the defendant owned and managed several apartment buildings in Northern California. For approximately two years, plaintiff worked for defendants as a resident apartment manager of a 22 unit apartment building. Plaintiff entered into a written employment contract with defendants wherein defendants agreed to pay plaintiff $550.00 per month and plaintiff agreed to pay defendants $550.00 per month as rent for an on-site apartment. Defendants provided the apartment to plaintiff as a condition of his employment. The agreement did not specifically state that the apartment was being credited towards defendants' minimum wage obligation to plaintiff. The parties filed cross-motions for summary adjudication seeking resolution of a single issue: whether an employer is legally entitled to claim an offset or credit, against wages potentially owed to employee, for all or part of the value of the apartment in which the employee resided during his employment as apartment manager. The District Court granted the employee's motion for summary adjudication and denied the employers motion. The District Court held:

"defendants credited lodging costs against plaintiff's minimum wages. Although Wage Order No. 5 permits such credits in certain circumstances, the amount that defendants credited ($550.00 per month) exceeded the permissible value ($324.70 per month from 1999-2000, and $352.95 per month from 2000-2001). Moreover, defendants have failed to establish that plaintiff entered into an appropriate 'voluntary written agreement.' Consistent with the statutory language, the DLSE requires that the written agreement 'explicitly reference that such credits are being applied toward the minimum wage obligation of the employer.' [citations omitted] The sole agreement referenced by defendants is the Employment Agreement, which does not stat that rent would be credited against minimum wages. Thus defendants cannot obtain an offset against plaintiff's potential damages under subdivision 10( C) of Wage Order No. 5. Because defendant violated Wage Order No. 5 by improperly crediting the apartment's value against minimum wages, state law precludes defendants from claiming an offset to recoup this value from plaintiff's potential damages." Brock v. Carrion, Ltd., supra, 332 F.Supp.2d at 1330-1331, emphasis added.