Example Pregnancy Discrimination Case

• • In Sanchez v. Swissport, a California employee fired soon after announcing her pregnancy defeated summary judgment on her FEHA claims. Key evidence included a supervisor’s comments expressing annoyance about her pregnancy-related absences. The timing and shifting rationales for the termination suggested pretext.

Practice Tips for Sex/Pregnancy Discrimination Claims

• • Employees: Document any offensive comments about your sex or pregnancy. Note dates you disclose your status and any negative reactions or adverse actions close in time.
  • Employers: Train managers not to make decisions based on protected characteristics. Have clear, well-documented legitimate reasons for any adverse actions. Avoid making them right after a pregnancy disclosure.

FAQs on FEHA Pregnancy Discrimination

• • Is it illegal to ask about pregnancy in a job interview? Yes, employers should not inquire about pregnancy or plans to have children, as it suggests intent to discriminate.
  • Can I be fired for needing pregnancy accommodations? No, employers must provide reasonable accommodations and engage in a good-faith interactive process to determine them.
  • What if my boss makes offensive comments about my pregnancy? Inappropriate remarks can be evidence of discriminatory motive and a hostile work environment. Document the comments in detail.
  • How soon after my pregnancy disclosure am I protected? FEHA protections kick in as soon as your employer is aware you are pregnant. Adverse actions close in time to disclosure are particularly suspect.
  • Can I sue for pregnancy discrimination? Yes, you can file a FEHA claim with the DFEH or a lawsuit, but strict deadlines apply so consult an attorney ASAP.

Example Retaliation Cases

• • Tomco v. Prada USA Corp.: A retail employee complained HR did nothing after reporting sexual harassment. She was fired under suspicious circumstances two days later. Her temporal proximity evidence defeated summary judgment on retaliation.
  • Joaquin v. City of Los Angeles: An LAPD officer’s negative performance review and denied promotion after he reported alleged misconduct raised triable issues on retaliation. Employers cannot punish employees for reporting reasonably suspected violations.

Practice Tips on Retaliation Claims

• • Employees: Clearly communicate your reasonable good faith belief that unlawful conduct occurred. Put complaints in writing. Document adverse actions close in time.
  • Employers: Implement non-retaliation policies. Train managers to avoid knee-jerk adverse actions after complaints. Document legitimate non-retaliatory reasons for actions.

FAQs on Workplace Retaliation

• • What counts as an “adverse employment action”? Any materially negative change to the terms and conditions of employment – termination, demotion, pay cut, etc.
  • Is a complaint in writing required to trigger protections? No, but it’s best to document complaints to decision-makers about unlawful conduct when possible.
    
  • Can I sue if I was retaliated against for reporting a coworker’s harassment? Yes, protections extend to reporting violations against others too, not just conduct directed at you.
  • Do I have to oppose an actual legal violation or is suspecting one enough? A reasonable good faith belief that unlawful conduct occurred is sufficient, even if it’s ultimately unsubstantiated.
  • How close in time must retaliatory acts be to my complaint? The closer the better, but passage of time alone won’t doom a claim if the surrounding circumstances establish causation.

Examples of Reasonable Accommodations

• • Modified work schedule or granting medical leave
  • Altering non-essential job functions
  • Modifying workplace policies (e.g. allowing an assistive animal)
  • Providing specialized equipment or ergonomic furniture
  • Restructuring job duties or reassignment to vacant position

Practice Tips on Disability Accommodation Claims

• • Employees: Clearly request accommodations. Engage in interactive process. Provide medical certification of limitations/restrictions.
  • Employers: Recognize accommodation requests. Promptly engage in interactive dialogue. Document undue hardship. Don’t require employees to be 100% healed to return to work.

FAQs on Accommodating Disabilities

• • What medical conditions qualify for reasonable accommodations? Both physical and mental impairments that substantially limit a major life activity, as broadly construed by FEHA.
  • How do I document a disability and need for accommodation? Provide a doctor’s note specifying your functional limitations and any recommended accommodations.
  • Can my employer ask for my complete medical records? No, only for information necessary to evaluate the accommodation request and your ability to safely perform essential duties.
  • What if my employer claims an accommodation is an “undue hardship”? They must prove it would be significantly difficult or expensive in light of their overall financial resources.
  • Can my employer reject my proposed accommodation if a cheaper alternative exists? Yes, they can choose among effective accommodations and aren’t obligated to provide the exact one requested.

Example CFRA Violation Cases

• • Bareno v. San Diego Community College Dist.: An employee fired after requesting medical leave for chest pains could proceed to trial. Discouraging leave, failing to respond to requests, and negative comments all supported interference/retaliation claims.
  • Rogers v. County of Los Angeles: An employee on medical leave for a back injury was fired while on leave despite providing proper certification. The employer’s claim that he hadn’t proved he could return to work didn’t justify termination.

CFRA Claim Practice Tips

• • Employees: Clearly state leave is for an FMLA/CFRA-qualifying reason. Follow certification procedures. Report retaliation.
  • Employers: Notify employees of leave rights. Don’t discourage or reject proper requests. Run FMLA/CFRA leaves concurrently when possible. Reinstate to same/equivalent job post-leave.

CFRA FAQs for Employees

• • How long must I work to be CFRA-eligible? Generally, you need to have worked for your employer for at least 12 months and 1,250 hours in the previous year. However, recent changes to the law may affect these requirements, so it’s always best to consult with an attorney to confirm your eligibility.
  • What is a “serious health condition” under CFRA? Illness, injury or impairment requiring either inpatient care or continuing treatment by a health care provider.
  • How much notice must I give to take CFRA leave? At least 30 days if foreseeable, or as much notice as practicable in emergencies.
  • Can I take intermittent or reduced-schedule leave? Yes, when medically necessary or by agreement with the employer for baby bonding.
  • Can I be fired or demoted for requesting/taking leave? No, CFRA prohibits interference with leave rights and retaliation. Consult an attorney if you suspect violations.

Proving an Implied Contract for Termination Only for Cause

• • Oral representations of continued employment
  • Longevity of service; history of positive reviews
  • Lack of criticism; assurances of job security
  • Promotions/raises showing permanent employment
  • Company policy requiring good cause for termination

Example Implied Contract Case: Foley v. Interactive Data Corp.

• • Employee worked for 6+ years with consistent promotions, pay raises and no criticism; Repeatedly told his job was secure if he performed well.
  • Fired shortly after reporting boss for embezzlement; Company claimed no positions available after reorganization.
  • Court found triable issues based on factors like longevity, lack of criticism, assurances of continued employment, and pretextual reasons for termination.

FAQs on Implied Employment Contracts

• • Can an email message create an implied employment contract? Yes, any communication indicating job security could qualify as an “oral” agreement.
  • Will a contract clause saying I’m “at-will” doom an implied contract claim? Not necessarily – the parties’ actual conduct/relationship is key. Verbal agreements can modify writing.
  • Does an employee handbook negate an implied contract? No, disclaimers are not dispositive. The overall employment relationship is examined.
  • Can I imply a contract if I had performance issues? It’s an uphill battle, as good performance is often critical. Consulting counsel on your specific facts is advised.
  • What evidence best supports an implied contract? Promises/assurances of continued employment; lengthy service; lack of criticism; and inconsistent reasons for termination, among others.

Brinker Restaurant Corp. v. Superior Court (2012)

• • Landmark CA Supreme Court case clarifying many aspects of meal/rest break requirements.
  • Key Holdings: Meal breaks must be provided, not forced. 1st break can be waived if shift
  • Key Holdings: Meal breaks must be provided, not forced. 1st break can be waived if shift ≤6 hrs. “Rolling 5” rest break rule rejected.
  • Waivers must be employee’s free choice; Employer knowledge of missed breaks inferred from records.
  • Timing: 1st meal break before end of 5th hour (unless waived); 2nd meal break before end of 10th hour.

Meal & Rest Break Claim Practice Tips

• • Employees: Keep records of missed/interrupted breaks. Notify employer in writing of violations and request premium pay.
  • Employers: Implement compliant break policies. Train managers. Have employees sign waivers if skipping. Pay owed premiums.
  • Critical evidence: Timesheets, schedules, security footage, witness testimony about workplace practices/culture around breaks.
  • Employers should review if rounding practices properly compensate for all time worked and don’t mask short breaks.

Meal/Rest Break FAQs for Employees

• • Can my boss make me stay on-call during breaks? No – breaks must be duty-free. You can’t be required to respond to calls, texts, etc.
  • What if my employer doesn’t have break coverage? Staffing shortages don’t excuse break violations. Employers must plan and hire to cover.
  • Can my employer round my timesheet to show I took breaks? Rounding is legal but can’t consistently favor the employer. Review if rounded times reflect reality.
  • What if I choose to work through lunch – is my employer liable? Not if it’s your free choice, but they’ll be on the hook if they knew or should have known you skipped.
  • How far back can I seek unpaid premiums? Statute of limitations is 3 years on meal/rest claims, so you can go back that far.

Common Wage Statement Violations

• • Failing to show all applicable hourly rates in effect (regular time, OT, double time, etc.)
  • Not listing employer’s full legal name and address
  • Omitting deductions or showing incorrect deduction amounts
  • Inaccurate reporting of total hours worked, gross or net wages earned
  • Using payroll company name instead of legal entity name

Wage Statement Violation Practice Pointers

• • Employers must retain copies of wage statements for at least 3 years – failure to do so raises presumption of violation.
  • Electronic wage statements are allowed if employees retain ability to easily access/print.
  • Paystub violations often a “tag-along” claim to more substantive wage/hour issues like unpaid overtime or off-the-clock work.
  • “Injury” is inferred if statement missing key info; don’t need actual confusion or monetary loss.
  • Penalties apply per employee, so can add up fast in class actions/PAGA suits.

Wage Statement FAQs

• • How detailed must paystubs be on hours worked? Statement must show total hours worked in pay period, but not daily subtotals.
  • Can penalties be recovered without proving actual harm? Yes – statutory penalties are owed for non-compliant statements even without specific economic loss.
  • Do I have to complain internally before suing? No, the Labor Code doesn’t require employees to exhaust internal remedies before filing suit.
  • How far back can an employee go in seeking penalties? One year from the date you discovered the violation to file a PAGA claim, but in some cases, a longer 3-year limit might apply if it relates to other wage and hour issues.
  • If the paystub lists an outside payroll company, is that an automatic violation? Yes, the employer’s name and address must be included, not just the payroll processor’s info.

IIED in Employment Examples

• • Alcorn v. Anbro Engineering (1970): Boss shouting racial epithets and firing employee in outrageous manner.
  • Melorich Builders v. Superior Court (1984): Employer threatening to blackball worker from industry if he didn’t lie on stand.
  • Landucci v. State Farm (1998): Manager threatening and humiliating employee, interfering with FMLA rights.
  • Beaulieu v. SVT LLC (2019): Supervisor groping, assault, outrageous sexual comments toward subordinate.
  • Yau v. Santa Margarita Ford (2014): Ongoing discrimination, mocking Chinese accent, shaming for using bathroom, etc.

Practice Pointers for IIED Claims

• • IIED is a high bar – more than just rude, annoying or mean conduct needed. Pattern of mistreatment helps show “outrageous” behavior.
  • Focus on power dynamic and abuse of authority by higher-ups. Threats, insults, shaming behavior support claim.
  • Document how conduct has impacted your life (inability to work, eat, sleep, carry on relationships, etc.) Medical evidence of distress helps.
  • Understand workers’ comp exclusivity rule – IIED claim may be preempted if conduct is a “normal part of employment relationship.” Discrimination/harassment usually fall outside scope.

IIED FAQs

• • Will one instance of offensive conduct support an IIED claim? Unlikely, unless extremely egregious (e.g., sexual assault). Usually need pattern of misbehavior.
  • Can IIED be brought with other claims? Yes, it’s often paired with discrimination, retaliation, assault and battery, among others.
  • Do I need a therapist to diagnose me with PTSD or similar for my emotional distress to be “severe”? No, but evidence of medical/psychological treatment helps prove your distress.
  • Can I bring an IIED claim if I had a pre-existing mental health condition? Yes, if the employer’s conduct aggravated it. Eggshell plaintiff rule applies.
  • Does IIED require physical injury too or is emotional harm enough? Emotional distress alone is sufficient if it’s serious. No need to prove physical symptoms.

Examples of NIED in the Workplace

• • Failing to promptly investigate reports of sexual harassment, allowing hostile environment to persist
  • Neglecting to provide safety equipment or maintain safe working conditions, leading to employee’s anxiety and fear
  • Ignoring signs of workplace bullying and verbal abuse, causing employee to experience panic attacks and depression
  • Poor recordkeeping and payroll practices resulting in employee being wrongly accused of timecard fraud, inducing extreme stress
  • Mishandling employee’s medical information, violating privacy rights and causing embarrassment and loss of trust

NIED Claim Tips for Employees

• • Report problems early and often, in writing. Establish employer was on notice and failed to take appropriate corrective measures.
  • If it’s a safety issue, be specific about equipment or procedures needed to do job without risk of injury/distress.
  • Preserve all communications (texts, emails, etc.) reflecting your concerns and employer’s response (or lack thereof).
  • Document how workplace stress has seriously impacted your emotional and mental well-being. Counseling records, journal entries help.
  • Understand that workers’ comp preemption is broad for NIED – many workplace stressors will fall within “normal” scope of employment.

NIED FAQs for Employees

• • Can I sue my employer for NIED if I never formally reported the stressful conditions? It’s much harder. Employer notice is key to proving negligence.
  • My boss yelled at me, causing anxiety. Is that grounds for an NIED claim? Probably not. Isolated instances of being berated, without more, are unlikely to meet the “serious emotional distress” standard.
  • HR investigated my safety complaints but didn’t take action. Can I still bring an NIED claim? Yes, if the investigation was unreasonable and the hazardous conditions continued to cause you verifiable distress.
  • The statute of limitations for filing my NIED claim has passed – am I out of luck? Not necessarily. If NIED is derivative of other claims (e.g. discrimination/harassment), the time limits for those claims may apply instead.
  • What if my employer has mental health benefits like EAP – does that defeat my NIED claim? No, offering psychological assistance doesn’t absolve an employer of responsibility for creating/allowing distressing conditions to persist.

Questions:

1. Which of the following is NOT a protected characteristic under the Fair Employment and Housing Act (FEHA)?
   • A) Pregnancy
   • B) Political affiliation
   • C) Disability
   • D) Sex/Gender
2. To prove a prima facie case of retaliation under FEHA, an employee must show:
   • A) They engaged in a protected activity
   • B) They suffered an adverse employment action
   • C) There was a causal link between the protected activity and adverse action
   • D) All of the above
3. Under the California Family Rights Act (CFRA), a covered employer is one that regularly employs at least how many employees?
   • A) 5
   • B) 25
   • C) 50
   • D) 100
4. What is the statute of limitations for filing most employment discrimination claims with the Department of Fair Employment and Housing (DFEH)?
   • A) 180 days
   • B) 1 year
   • C) 3 years
   • D) 5 years
5. An employee who is denied a reasonable accommodation for their disability may have a claim under:
   • A) The Americans with Disabilities Act (ADA)
   • B) The Fair Employment and Housing Act (FEHA)
   • C) Both A and B
   • D) None of the above

Answers:

1. B) Political affiliation is not a protected class under FEHA, though some local ordinances may offer protection.
2. D) All three elements must be shown to establish a prima facie case of retaliation.
3. C) CFRA applies to private employers with 50+ employees and public agencies regardless of size.
4. C) Most discrimination claims must be filed with DFEH within 3 years, with some exceptions like Equal Pay Act claims (2 years).
5. C) Disability accommodation requirements are found in both the ADA and FEHA.

Questions:

6. What is the legal standard for proving intentional infliction of emotional distress (IIED)?
   • A) The conduct was annoying or frustrating
   • B) The conduct was extreme and outrageous
   • C) The conduct would be offensive to the average person
   • D) The conduct violated company policy
7. When must a California employer provide an itemized wage statement to employees?
   • A) Every pay period
   • B) Once per month
   • C) Quarterly
   • D) Annually
8. What is the maximum civil penalty for a failure to provide accurate itemized wage statements under Labor Code section 226?
   • A) $50 per employee per pay period
   • B) $250 per employee per pay period
   • C) $4000 per employee per pay period
   • D) $4000 total per employee
9. Which of these is NOT legally required information on California itemized wage statements?
   • A) Gross wages earned
   • B) Net wages earned
   • C) Employee’s social security number
   • D) Deductions made
10. What is the statute of limitations for filing a wage statement penalty claim under PAGA?
    • A) 1 year
    • B) 2 years
    • C) 3 years
    • D) 4 years

Answers:

6. B) Extreme and outrageous conduct that exceeds all bounds of decency tolerated in a civilized community is required for IIED.
7. A) Employers must provide a compliant wage statement each and every pay period.
8. D) The maximum penalty is $4000 per employee, based on $50 for the first violation and $100 for each subsequent violation.
9. C) Social security numbers are not required and should not be included for privacy reasons. Only the last 4 digits of the SSN can be shown.
10. A) The statute of limitations for PAGA wage statement claims is 1 year, though a 3-year statute may apply if it’s derivative of other Labor Code violations.

Disclaimer

The information provided in this article is for general educational purposes only and should not be relied upon as formal legal advice. Employment laws are constantly evolving and subject to interpretation.

This overview of the Lindsay Short v. Neuralink lawsuit and related legal concepts may not reflect the most current state of the law. It is not intended to create an attorney-client relationship or serve as a substitute for consulting with a licensed attorney about your specific situation.

If you are dealing with employment issues like discrimination, harassment, retaliation, or wage and hour violations, you should speak with an experienced employment lawyer in your area to obtain tailored advice and explore your options for seeking legal relief.

Most employment attorneys offer free and confidential consultations to evaluate potential claims. Strict filing deadlines apply to most employment law cases, so prompt action is vital to preserving your rights.