Tuesday, July 28, 2015

It Doesn’t Hurt to Ask: New CA Law Protects Right to Ask for Reasonable Accommodation Under California’s Anti-Discrimination Law

Governor Brow­­­­n recently signed into law Assembly Bill 987, overturning the wrong result in Rope v. Auto-Chlor System of Washington, Inc., 220 Cal. App. 4th 635 (2013), review denied (Jan. 29, 2014), and thereby ensuring that all Californians need not fear retaliation should they request a reasonable accommodation from their employer.

In Rope, the plaintiff sought to donate his kidney to his sister. Accordingly, he requested leave from his employer to undergo the transplant surgery and recover from the operation. After repeatedly ignoring Mr. Rope’s requests for leave, the employer eventually approved an unspecified amount of leave. However, only two months before the operation date, Mr. Rope’s employer fired him for allegedly poor performance. Importantly, Mr. Rope had received only positive performance reviews during his employment and had no disciplinary problems prior to his termination.

Mr. Rope filed suit asserting multiple claims including retaliation for requesting a reasonable accommodation under the Fair Employment and Housing Act (FEHA). The trial court dismissed his lawsuit on demurrer, including the retaliation claim. Mr. Rope appealed.

To the dismay of worker advocates statewide, the Court of Appeal affirmed the trial court’s dismissal of Mr. Rope’s retaliation claim. The appellate court interpreted the retaliation provision under the FEHA to require that 1) an employee “engaged in activities in opposition to the employer at the time of the alleged retaliation,” and 2) the employer knew about it. Id. at 653. While the Court of Appeal acknowledged that the FEHA “encompasses a broad range of protected activity,” does not require that an employee “file a formal charge,” and that “[t]he determination as to what constitutes a protected activity is inherently fact driven,” the court nevertheless held that requesting a reasonable accommodation categorically is not “protected activity” under the FEHA. Id. at 652-653. The court did not interpret an employee’s request for reasonable accommodation as “opposition” to an employer. Id. at 652-53.

Other courts have reached different results in similar circumstances, noting that “[i]t would seem anomalous … to think Congress intended no retaliation protection for employees who request a reasonable accommodation unless they also file a formal charge. This would leave employees unprotected if an employer granted the accommodation and shortly thereafter terminated the employee in retaliation.” Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 191 (3d Cir. 2003) (in the context of a lawsuit brought under the Americans with Disabilities Act). The Third Circuit’s concern was warranted, given the outcome in Rope.

Assembly Bill 987 corrects the anomalous result in Rope by ensuring that employees can request reasonable accommodations in the workplace without fear of retaliation. Employers should take notice that, separate from their duty to engage in the interactive process, they may not retaliate against an employee for requesting a reasonable accommodation.

If you believe your employer retaliated against you because you requested a reasonable accommodation, please contact Bryan Schwartz Law.

Monday, July 13, 2015

“Sharing Economy” is Not Sharing the Wealth: Independent Contractor Misclassification a Growing Problem

An increasing number of workers are classified as freelancers and independent contractors in the new “sharing” economy, according to an article in today’s New York Times. Indeed, the Times reports that the number of part-time independent contractors and freelancers has increased by more than fifty percent since 2001. The abuse of independent contractor status is directly connected to the income gap and the shrinking middle class in America
The Times article describes that, in recent years, companies have increasingly relied on independent contractors, freelancers, temps, and outsourcing to complete work that at one time would have been done by full time employees. As a result, workers have gained more flexibility in setting their own schedule, but lose out on the steady income stream they could once depend on.
            The corporate motivation for these new models dates back to the 1970s when companies where encouraged to focus on their “core competencies.” This led to companies outsourcing more and more tasks to non-employees and cutting back heavily on their payroll expenditures.
As these practices have become more popular, wages have dropped. According to a study by Michael Greenstone and Adam Looney, men were making substantially less in 2009 than men of the same age and education level were making in 1969, adjusted for inflation.
With these changing practices come new legal challenges. The article cites to a California Labor Commissioner decision regarding Uber, the well-known tech company that employs nearly 200,000 drivers, labeling them “independent contractors.” The Labor Commissioner ruled that an Uber driver had been misclassified and was in fact Uber’s employee. It remains to be seen how this decision, which is under appeal, will affect other Uber drivers. Bryan Schwartz Law’s co-counsel, Goldstein Borgen Dardarian & Ho, has a class action along the same lines pending in the United States District Court for the Northern District of California (Gillette v. Uber Technologies Inc.) and a similar action is pending against Lyft in the same court (Cotter v. Lyft Inc.).
The distinction between being an independent contractor and being an employee can be vast for workers. For example, nonexempt employees are guaranteed meal and rest breaks and overtime pay, while independent contractors are not. Independent contractors are often paid by the task, rather than by the hour, which can lead to workers being compensated below the minimum wage for uncompensated work. Independent contractors receive no Social Security, Medicare, unemployment, and other benefit contributions from the places they work, while employees receive all these protections.
The end result is that when workers are misclassified as independent contractors rather than employees, their employers often illegally under compensate them. Bryan Schwartz Law has represented many workers in misclassification cases nationwide, negotiating millions of dollars in back wages and penalties for them.

            In you have concerns that you may have been misclassified in your job please contact Bryan Schwartz Law.