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Published by the Law Offices of Manbir S. Chowdhary, APC Newport Beach, CA - (949) 260-2025

My Employer Calls Me An Intern, But I Perform the Same Work As Other Employees

April 28, 2017

There has been a recent increase in successful lawsuits brought by unpaid interns in which unpaid interns claimed they were performing the work of regular employees without being compensated.

Analysis & Risk of Unpaid Internships:

The legality of any proposed unpaid internship is highly fact-intensive.  If an intern is doing meaningful work on behalf of a Company, for which others would otherwise be paid at least minimum wage, then the intern should be paid.  Work tasks should be merely incidental to the “learning” purpose for which internships were intended.

Depending on the particular set of facts, individuals classified by companies as “interns” may be entitled to unpaid wages and related penalties under the Labor Code. Why?  Because, if interns are sorting incoming and processing outgoing mail, then they are a mailroom clerk, not an intern.    If interns are answering phones and routing incoming phone calls, they are a receptionist.  If the majority of the intern’s time is spent in a mix of those tasks, and not in observing, asking questions, and learning how to perform a task or function, then they are an employee, no questions further.

Department of Labor Requirements:

Here is a link to the Department of Labor’s Wage & Hour Division’s (“DOL”) Opinion Letter on unpaid interns:  http://www.dol.gov/whd/regs/compliance/whdfs71.htm

The 6-point test set forth by the DOL is instructive to determine if a proposed intern relationship can legally be classified as unpaid.  In order for a worker to qualify for an unpaid internship, the following criteria must be met: (1) the internship has to provide training similar to what would be provided in an educational environment; (2) the experience has to be for the benefit of the intern; (3) the intern cannot displace regular employees and work under the close supervision of existing staff; (4) the employer can derive no immediate advantage from the activities of the intern and, on occasion, its operations may actually be impeded; (5) the intern is not necessarily entitled to a job at the conclusion of the internship; and (6) the employer and the intern must have an understanding that the intern is not entitled to wages.

Don’t hesitate to call our office at 949.260.2025 with any further questions you may have.

Employment Offers, Relocation, and CA Labor Code § 970

March 15, 2016

You live in San Francisco, and have just been offered a great job in Los Angeles. You relocate, and begin work. Shortly thereafter, you discover that your new job was not what the employer originally represented to you.

If the employer induced your relocation through knowingly false misrepresentations regarding the nature, duration, or compensation of the work to be performed, you may be entitled to relief under California law.

Pursuant to California Labor Code § 970, employers are prohibited from inducing employees to change their residence to, from or within California, by making ‘knowingly false representations’ concerning, in part:

(1) the kind, character, or existence of the work; or,

(2) the length of the time the work will last; or,

(3) the compensation of the work; or,

(4) the sanitary or housing conditions relating to or surrounding the work.

The Labor Code entitles an employee to double damages against the employer for a violation of § 970. In addition, Cal. Lab. Code § 971 imposes criminal liability and possible imprisonment.

The Legislature originally enacted these statutes to protect migrant farm workers from exploitation by unscrupulous employers. However, the Courts now apply them to any employment in which the employee has been induced to move to a new locale based on fraudulent misrepresentations as to the nature, duration, or conditions of the employment.

Employer’s counsel will argue that being given different work assignments is an expected part of the workplace. However, if an employee can demonstrate they relocated based on an employer’s representation(s) of being given a certain role within the company, and instead, were given a different, or lesser position, and/or designated a different set of duties than originally discussed – there may be a violation of § 970.

A § 970 violation may also arise where an employee relocates after being promised a certain salary amount, and shortly into their new job, are informed by their supervisor that they’ll need to take a reduction in salary.

Similarly, if an employee was promised that she would be hired for the “long term”, and then subsequently finds out that the company’s intention was to bring her on for a single project and then terminate her employment, this may also constitute a § 970 violation.

In Finch v. Brenda Raceway Corp., 22 Cal. App. 4th 547 (1994), the court found substantial evidence that the employer had violated § 970 by making knowingly false representations regarding the potential length of employment. The employee in this case was terminated within 5 months of employment, after repeated assurances, during the interview process, that the company had a “long range commitment to employees”, and that the job would be “permanent”.

On a practical note, a § 970 cause of action should clearly state the nature and exact type of damages an employee has sustained as a result of the employer’s misrepresentations that induced the employee’s acceptance of the job offer. The employee’s damages must be causally related to the employer’s misrepresentations. If an employee asserts that they were given different work assignments from the ones that were originally represented to them during the interview process, or that they were denied adequate support/training to perform their duties – what damages did they sustain as a result of being given different assignments, or being denied support to carry out their duties?

Common types of damages involving § 970 violations, include damage to an employee’s professional reputation and career path. If the employee was terminated, they may be unable to find comparable work due to damage to their professional reputation. The employee may also have turned down other job offers to accept the position that involved relocation. They may have sold their home to relocate, incurred other moving costs, and entered into a fixed-term lease in their new city. Again, the damages should arise directly from reliance on the employer’s knowingly false representations that induced the employee’s acceptance of the job offer.

California’s Fair Employment & Housing Act (“FEHA”) – What does it protect you against?

February 3, 2016

California’s Fair Employment & Housing Act (“FEHA”) protects employees from illegal discrimination and harassment in employment based on race, color, religion, sex (pregnancy or gender), sexual orientation, marital status, national origin, ancestry, mental and physical disability (including HIV/AIDS), medical condition (cancer/genetic characteristics), age (40 and above), denial of family and medical care leave, and denial of pregnancy disability leave.

FEHA protects employees that are perceived to have any of the above protected characteristics. Physical and mental impairment includes conditions that are disabling, potentially disabling, or perceived as disabling.

Photo credit: mkrigsman

FEHA also requires employers to 1) reasonably accommodate an employee or job applicant’s religious beliefs and practices, 2) reasonably accommodate employees or job applicants, with a disability, in order to enable them to perform the essential functions of a job, 3) provide up to four months leave to employees due to pregnancy, childbirth, or a related medical condition, and 4) provide reasonable accommodations requested by an employee, on the advice of her health care provider, related to her pregnancy, childbirth, or related medical conditions.

FEHA’s protection against harassment extends to independent contractors in addition to employees. California courts have held that harassment is unwelcome conduct that must be severe or pervasive. This severe or pervasive conduct must relate to one or more of the protected categories listed above i.e. race, gender, sexual orientation etc. Forms of harassment can include, but are not limited to, verbal or written comments, drawings, photos, emails, physical touching, intimidation, or gestures.

It is important to note that under FEHA, supervisors or other co-employees cannot be sued individually for discrimination. Supervisors or other co-employees are, however, personally liable for any type of prohibited harassment under FEHA. [Government Code section 12940 (j)(3)].

FEHA further prohibits retaliation against a person who opposes, reports, or assists another person in opposing unlawful discrimination.

Does FEHA apply to my employer and am I protected?

FEHA typically applies to any employer regularly employing five or more persons. Labor organizations, employment agencies, and apprenticeship programs are also subject to FEHA’s provisions.

There is an important exception to FEHA’s five-employee requirement: The prohibition against harassment applies to anyone who regularly employees at least one person or regularly receives the services of at least one independent contractor.

In addition, all governmental employers are covered under the FEHA regardless of size.

How do I enforce my rights under FEHA?

To enforce your rights under FEHA, the law requires that you first exhaust all administrative remedies. In order to exhaust your administrative remedies there are two options:

1) File a complaint with the Department of Fair Employment and Housing (“DFEH”). The DFEH will then proceed to investigate your claim, and attempt to mediate your case; or

2) Request an immediate “right to sue” notice that allows you to proceed with a lawsuit in civil court.

We strongly suggest you talk to an attorney about your specific situation, and request an immediate right to sue notice from DFEH’s website. You can request a “right to sue” notice by clicking HERE.

The DFEH receives a multitude of complaints on a weekly basis. As a government agency, they are hindered by backlog issues, resources, time, and manpower in aggressively pursuing each case they investigate. Accordingly, their findings often yield unsatisfactory results for aggrieved employees.

Filing a civil complaint in California Superior Court offers additional advantages that are not available if the DFEH litigates your case in a public hearing before the Fair Employment and Housing Commission (FEHC). These advantages include 1) no limit on emotional distress damages, 2) possible punitive damages against the employer, and 3) the prevailing party may recover their reasonable attorney’s fees, expert witness fees and costs.

EDD Denial of Unemployment Insurance Benefits Due to Misconduct

November 25, 2015

You’ve been dismissed for alleged misconduct arising from a violation of company policy/procedures. Your former employer is now challenging your right to receive Unemployment Benefits, and you receive a Notice from the EDD stating that you’ve been denied benefits.

Please note that you have 20 days (including weekends and holidays) from the EDD’s Notice of Determination to request a hearing before an Administrative Law Judge (ALJ) who is employed by the California Unemployment Insurance Appeals Board (CUIAB).

What happens at the Hearing?

The ALJ will explain the hearing process, request documentary evidence and/or other exhibits, and question parties and witnesses under oath. The proceeding will be recorded.

The ALJ will give you, or your attorney, an opportunity to:

a) Present all necessary witnesses, exhibits, and declarations that support your case;

b) Question the opposing party (employer) and its witnesses; and,

c) Respond to testimony and evidence presented by the opposing party.

The Law

Unemployment benefits will be denied by the EDD if an employee has been discharged for misconduct connected with his or her most recent work (Unemployment Insurance Code, Section 1256).

At the hearing, the issue before the ALJ is whether the former employee’s actions rose to the level of misconduct, as required by law, to deny unemployment benefits. Employees should note that this analysis is largely fact-specific and subjective.

What Constitutes Employee Misconduct for a Denial of Unemployment Benefits?

The leading case on the definition of misconduct within Unemployment Insurance Code, Section 1256, is Maywood Glass Co. v. Stewart, 170 Cal. App. 2d 719 (1959). The Maywood case held that “misconduct”, as used in section 1256, “is a substantial breach by the employee of an important duty or obligation owed to the employer, willful or wanton in character, and tending to injure the employer”.

The test for misconduct is essentially volitional. “The conduct may be harmful to the employer’s interests and justify the employee’s discharge; nevertheless, it evokes the disqualification for unemployment insurance benefits only if it is willful, wanton or equally culpable.” Jacobs v. California Unemployment Ins. Appeals Bd., 25 Cal. App. 3d.

Actions that do NOT Constitute Misconduct

The Maywood court drew a critical distinction in its analysis of employee misconduct: “Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are NOT to be deemed “misconduct” within the meaning of the statute.”

This means that common reasons for termination such as unsatisfactory conduct, inefficiency, ordinary negligence/inadvertence, and poor work performance, are typically not construed as misconduct for purposes of denying unemployment benefits.

Cases in Which Misconduct Has Been Found

Examples of misconduct in which the denial of unemployment benefits have been upheld include: fraud against the employer, theft of company property, fraudulent time-card entry, bringing a weapon to work, excessive absenteeism/tardiness, setting fire to the employer’s premises, and physical assault against patrons or co-workers.

A comprehensive history of the CUIAB Precedent Decisions regarding misconduct can be found here.

Did the Employee have “good cause” for failure to comply with Employer’s rules/policies?

During the hearing, employers, or their representatives, often rely on the CUIAB’s Precedent Decision P-B-190, which states, “An employee’s deliberate disobedience of a lawful and reasonable instruction of the employer, related to the employer’s business, is misconduct”.

The employer will also present evidence of disciplinary actions, write-ups, and offer oral testimony (from HR, co-workers, or other personnel) to show that the employee willfully violated company protocol as delineated in written policies and/or handbooks.

However, the California Supreme Court has held that an employee’s refusal to comply with a reasonable rule or direction is NOT misconduct if the employee has good cause for his or her action(s). The employee has the burden of proving good cause exists for the refusal to comply. This is where the analysis becomes fact-specific and subjective.

An employee who fails or refuses to comply with a reasonable rule or direction, and establishes good cause for doing so, has at most made a good faith error in judgment, not amounting to misconduct.  Amador v. California Unemployment Insurance Appeals Board, 35 Cal. 3d 671 (1984).

Examples where Administrative Law Judges have accepted arguments for good cause for violating an employer’s policy include: 1) an employee’s concern for his/her health, safety, or morals, 2) transportation difficulties (to negate tardiness/absenteeism); and, 3) an employee’s good faith error in judgment by using lewd language where there was a history of “dark humor” between co-workers.

Due to the highly fact-based and subjective nature of what constitutes misconduct in order deny unemployment benefits, it is prudent to seek competent legal counsel as soon as you receive the Notice of Determination from the EDD. Contact the Law Offices of Manbir S. Chowdhary, at 949.260.2025, for a free consultation regarding your rights.

California’s Fair Employment & Housing Act (“FEHA”) – Statute of Limitations

September 7, 2015

It’s important for aggrieved employees to know that there are time deadlines that affect their ability to enforce their legal rights under California’s Fair Employment & Housing Act (“FEHA”):

1) If the aggrieved employee elects to bring a lawsuit to enforce his or her rights under FEHA, then he or she must file suit within 1 year after the Department of Fair Housing & Employment (“DFEH”) issues the right-to-sue notice [this rule is subject to certain tolling provisions under Cal. Govt. Code § 12965(d)].

2) If the aggrieved employee elects to file a complaint with the DFEH, it must be filed within 1 year after the employer’s alleged unlawful conduct took place. However, this 1 year rule may be extended by an additional 90 days, if the employee finds out about the employer’s unlawful conduct after the 1 year period.

3) For continuing acts of discrimination in the workplace, the last day to file the DFEH complaint is 1 year after the most recent discriminatory act by the employer. If the employee files the DFEH complaint within 1 year of the most recent discriminatory act, relief may be possible for the entire course of the employer’s unlawful conduct.

4) In 2008, the California Supreme Court held that if an employee elects to seek an internal administrative remedy with their employer, the running of the limitations period is tolled automatically during the time consumed by the administrative proceeding.

Coworker Discussion of Salaries & Bonuses in the Workplace

July 4, 2015

Our firm received a recent question regarding whether an employer could discipline or terminate an employee for discussing the amount of their wages with other coworkers.

No. California law states that an employer may not discharge, formally discipline, or discriminate against an employee who discloses the amount of his or her wages. [Cal. Lab. Code § 232].

§ 232 further provides that an employer must not, “a) Require, as a condition of employment, that an employee refrain from disclosing the amount of his or her wages, or b) Require an employee to sign a waiver or other document that purports to deny the employee the right to disclose the amount of his or her wages.”

In Grant-Burton v. Covenant Care, Inc., 99 Cal. App. 4th 1361, 122 Cal. Rptr. 2d 204 (2002), the California Court of Appeals held that an employee had “a fundamental right rooted in public policy to join in discussion with other employees about whether she were being equitably compensated.”

The court went on to state that an employer could not terminate an employee for discussing the amount of their bonus with other coworkers.

EEOC Sues Guardsmark For Co-Worker Harassment

June 28, 2011

Source: U.S. Equal Employment Opportunity Commission

SAN JOSE, Calif. — One of the world’s largest security firms violated federal law when it failed to stop co-worker harassment of a guard concerning his national origin and age, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today. According to the EEOC, Guardsmark not only ignored the employee’s reports of harassment, but retaliated against him with an involuntary transfer.

The EEOC’s investigation determined that Inderpal Nayyar, who worked as a security guard for Guardsmark in San Jose, faced constant harassment regarding his East Indian national origin and his age (66 years old at the time). For example, his co-worker repeatedly ridiculed Nayyar’s turban and accent and told Nayyar “you’re too old” and “you need to retire.” Nayyar made numerous complaints to supervisors, but Guardsmark took no action to address the harassment, the EEOC said. Instead, Nayyar was involuntarily transferred, which ultimately led to a reduction of his hours and lost benefits. Nayyar ultimately resigned from Guardsmark.

Under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA), employers have a legal obligation to stop discrimination based on national origin and age. Both laws also strictly prohibit retaliation against workers who report discrimination. The EEOC filed suit (Civil Action No. 11-03190PSG in U.S. District Court for the Northern District of California – San Jose) after first attempting to reach a voluntary settlement. The suit seeks back pay and other monetary losses, compensatory and punitive damages for Nayyar and appropriate injunctive relief to prevent any future discrimination.

“The law is very clear: all employees have the right to work in an environment free from hostility, intimidation and ridicule,” said EEOC Regional Attorney William R. Tamayo. “Employers have a duty to respond promptly and adequately to reports of discrimination. Those who choose to ignore harassment or respond with retaliation will be held accountable in court by the EEOC.”

Nayyar, a naturalized U.S. citizen of East Indian descent, said, “When I told my managers about the harassment, nothing happened, and then, worse yet, I suffered retaliation for speaking out. All I wanted was to be able to do my job in peace. I am thankful that the EEOC has taken my case.”

EEOC District Director Michael Baldonado noted, “Punishing the employee who speaks out will only multiply your problems. First, you are failing in your legal obligation to investigate and stop harassment. Second, you add the new offense of illegal retaliation. Third, you send a message to your entire work force that an employee complains at his or her own peril. A workplace where employees are afraid to speak out against harassment can evolve into a toxic environment where harassment becomes the norm.”

Baldonado noted that retaliation cases represent one of the fastest growing types of charges filed with the EEOC. In fiscal year 2010, retaliation charge filings across the country increased 6 percent over the last five years to a record 30,948 cases.

Guardsmark provides uniformed security personnel to businesses worldwide, with more than 150 offices throughout the United States, Canada, Puerto Rico, United Kingdom, France and Singapore. Its headquarters and principal place of business is in New York City, and its administrative service center is based in Memphis, Tenn.

The EEOC enforces federal laws prohibiting employment discrimination. Additional information about the EEOC is available on its web site at http://www.eeoc.gov.