Understand Reasonable Accommodation and Religious Discrimination in the Workplace

Federal law provides few protections for workers. However, a candidate cannot be excluded from consideration for a job nor can an employee be discriminated against in their job for religious reasons. Title VII of the Civil Rights Act of 1964 protects you as a job application or a current employee to be free of religious discrimination during the hiring process or during your employment. 

Not only does this law promise you that you will not be discriminated against for your religion, it also provides for reasonable accommodation that your employer must take. Because of this, religious discrimination and reasonable accommodation claims often go hand in hand. If you think you may have been discriminated against because of your religion, you need to speak with an experienced Sacramento employment law attorney today who can help you right this wrong.

Religious Discrimination

Unfortunately for many people, religious discrimination in the workplace happens often and goes unreported. The United States Equal Employment Opportunity Commission (EEOC) manages religious discrimination complaints. The EEOC fields over 3000 complaints each year. 

Religious discrimination can take many forms. The most common examples include:

  • Refusing to hire an applicant because of their religion
  • Terminating an employee because of their religion
  • Paying an employee less because of their religion
  • Refusing to promote an employee because of their religion

Religious discrimination may come to light at any point during the hiring process or during your employment with a company. If you have been denied employment or a promotion because of your religion, you may have a claim against the company for religious discrimination. To find out for sure, you need to speak with a skilled employment lawyer in Sacramento today who can help you understand and protect your rights.

Reasonable Accommodation

Religious discrimination is pretty clear cut. Reasonable accommodation, however, is less transparent. Based on an employee’s legitimate religious beliefs, an employer must make reasonable accommodation to protect your right to practice your religion. Many religions require certain practices, dress, or grooming.

Employers often violate employee’s rights and fail to make reasonable accommodation by:

  • Requiring employees to work on religious holidays
  • Not allowing prayer breaks
  • Banning certain head wear
  • Prohibiting facial hair or hairstyles
  • Not allowing schedule changes or time off for religious holidays

When a business fails to take certain steps to reasonably accommodate employees with religious beliefs, the business may violate Title VII. This could give rise to your religious beliefs being discriminated against, leaving you feeling harassed and embarrassed by your employer. 

You do not have to stand for this. You have a protected right to practice your religion and your employer must make reasonable accommodation for you to do so. When they do not, you need to partner with a trusted employment lawyer who can help you right this wrong.

Cause of Action

When you have suffered religious discrimination in the workplace, you may file a discrimination claim against the company. To be successful in your cause of action, you must show:

  • You have a bona fide religious belief that conflicts with an employment requirement
  • You have told your employer about your belief
  • You suffered adverse employment action as a result

Part of your cause of action must show that the employer did not provide reasonable accommodation. This is where things can get murky. When you alert your employer to your religious belief and how it conflicts with a job requirement, you may also suggest how your employer can accommodate you. 

Your employer does not have to provide you with the exact accommodation you have requested. But the accommodation they offer must be reasonable and not provide undue hardship to the employer. 

Not every employer is covered under Title VII. Employers with more than 15 employees, including private companies, are subject to Title VII. If your employer has fewer than 15 employees, you may still have a valid claim if you can show your employer was acting with a parent company or subsidiary that would have put them over the minimum employee requirement. The best way to know for sure is to speak with a knowledgeable employment lawyer as soon as you have suffered religious discrimination in the workplace.

Possible Remedies

With many legal claims, the remedies are clear. In a car accident, you want to have your medical bills covered. But religious discrimination claims may create some confusion. 

Your employment lawyer may attempt to remedy your situation by asking for:

  • Getting your job back, if you lost it
  • Compelling the company to hire you or promote you
  • Back pay
  • Retroactive benefits
  • Monetary damages for your suffering and embarrassment 

As with all legal claims, your case is unique and your remedies will be unique. Working with your employment lawyer, you can determine what you want out of your cause of action against the company who discriminated against you. It’s important to remember that you do not have to go through this alone.

Religious Discrimination Lawyers Fight for You

The lawyer you choose can make a difference in the outcome of your religious discrimination claim. You need a lawyer who has proven experience fighting for religious discrimination victims like you. Companies too frequently get away with this type of behavior. We can help you hold your employer liable for your suffering.

A company can ask you about the sincerity of your religious beliefs when you ask for reasonable accommodation. These questions may seem intrusive but your employer has a right to determine your sincerity. Asking other questions or getting too personal may cross the line. If you have been denied a promotion, terminated, or turned down for employment because of your religious beliefs, you may be entitled to legal remedies through a discrimination claim against the company. 

If you think you may have been discriminated against by your employer, speak with an experienced employment law attorney in Sacramento today. Contact us online or at 916-446-2000. We look forward to speaking with you and helping you resolve your workplace discrimination matter. 

What You Need to Know about Sexual Discrimination and Retaliation Claims

No employee should have to deal with workplace sexual discrimination. In truth, every worker has a right to a safe working environment, free of sexual harassment, discrimination, and retaliation claims. Unfortunately, sexual discrimination is a difficult topic that causes many employee victims not to want to come forward in fear of what can happen to them. Instead, they decide to stay silent and endure the overwhelming stress, anxiety, and worry on their own.

However, we are here to tell you that you do not have to go through this traumatizing ordeal by yourself. As an employee, you have both state and federal rights, and in this blog post, we will discuss these rights. Specifically, going over the different types of sexual discrimination and retaliation claims you need to know about, the sexual discrimination remedies you can pursue, and how an experienced employment law attorney can help you go after the justice you deserve. 

What is Sexual Discrimination

Sexual discrimination involves treating another person, whether an employee or an applicant, unfavorably because of their sex. According to Title VII, discrimination against a person because of their gender identity, including their transgender status or sexual orientation, is against the law. 

This law also forbids sexual discrimination when it comes to any aspect of employment, such as hiring, firing, job assignments, pay, promotions, training, layoffs, fringe benefits, or any other conditions of the employment. 

What Are Retaliation Claims

Retaliation claims occur when an employer treats current employees, former employees, applicants, or individuals closely associated with these people less favorably for:

  • Participating in a discrimination lawsuit
  • Participating in a discrimination investigation
  • Reporting discrimination
  • Opposing discrimination

As an employer, it is illegal to fire an employee because they filed a discrimination charge with the EEOC even if the EEOC finds that the discrimination charge does not have any merit. 

Common Types of Sexual Discriminations at Work

There are numerous forms of sexual discrimination that can occur in the workplace. However, some of the more common types include:

  • Quid Pro Quo: This Latin term translated means “something for something,” or more specifically, an advantage granted in return for something else. When this term is applied to sexual discrimination, it means that an employer conditions terms of employment based on an employee’s willingness to perform sexual favors. These terms of employment can include increased pay, benefits, position, title, or other advancement opportunities. However, before the employee can receive these benefits, they need to agree to submit to unwelcome sexual advances.
  • Same Sex Discriminations: Many people typically think that sexual discrimination involves women employees launching allegations against male managers. However, this is not always the case. In fact, any employee can experience sexual discrimination, regardless of sex, and this discrimination can even happen between individuals of the same sex. Additionally, it is not only managers or supervisors that can sexually discriminate against others. These sexual discrimination claims can be brought up against co-workers or even the company’s clients. 
  • Hostile Work Environment: Generally, hostile work environments are a form of discriminatory harassment. This discrimination can be based on sex, protected characteristics, race, or retaliation for protected activities. When the courts look into whether a work environment is hostile, they will examine the specific circumstances of the case. Meaning they will look into whether the sexual advances on an employee were unwelcome and severe. They will also assess whether the work environment includes unpleasant chatter and teasing, or did individuals make it difficult for the employee to carry out their job.
  • Sexual Orientation Discrimination: This type of discrimination involves an employer discriminating an individual based on their sexual orientation or their perceived sexual orientation, whether lesbian, gay, bisexual, or heterosexual. 
  • Gender-Based Discrimination: Gender discrimination is the unequal treatment of an individual or group based on their gender. This discrimination often involves an individual treating an employee differently or less favorably because of their gender or sex or affiliation with a group associated with a particular gender.

Sexual Discrimination Remedies

When an employee has experienced sexual discrimination, they deserve to seek remedies for the harm they endured. Typically, this relief can come in the form of:

  • Back pay
  • Front Pay
  • Reinstatement
  • Compelled Hiring
  • Compelled Promotion
  • Attorney Fees
  • Compensatory Damages
  • Punitive Damages in some cases

When you work with a skilled employment law attorney, these lawyers can go over these different remedies with you, help you understand which ones you may pursue, and prepare the best case to fight for these remedies.

Which Employees Are Protected From Sexual Discrimination

According to the EEOC, current employees, former employees, and applicants are all protected from employment discrimination based on color, religion, race, sex, sexual orientation, pregnancy, gender identity, disability, national origin, age, and genetic information. These employees, former employees, and applicants are also protected from retaliation or punishment for filing a complaint of discrimination against their employer, opposing discrimination, or participating in a discrimination lawsuit or investigation. 

How Can an Employment Law Attorney Help You With Your Sexual Discrimination Claim?

Many sexual discrimination victims fail to realize that if they face any discrimination or harassment at work, they need to take specific steps to protect their rights. Often these victims make the mistake of first talking to a coworker, their boss, or even the HR department before looking into what actions they need to take, which can end up hindering their claim. That is why discussing your case with an experienced employment law lawyer first can be a significant asset in your case.

These attorneys can not only go over your case in detail and answer any questions you may have. But they can also walk you through the EEOC charge filing process. Helping you prepare the necessary documents and ensuring they are filed accurately and on time. That is why do not wait any longer. If you have endured sexual discrimination at your workplace, contact a skilled employment law attorney today or call our office at 916-446-2000. Let us help you navigate these complex legal proceedings and fight for the remedies you deserve. 

How Will Posting on Social Media Affect Your Employment Law Claim?

Today, everyone uses social media- from employer to employee. In many instances, businesses, professional offices, retail stores, and even restaurants use social media to promote their services and products. Yet, whether it is in a professional or personal setting, many individuals do not even think twice before posting anything on social media platforms. However, this lack of understanding can end up hurting them professionally. 

Generally, during the workday, employers have the right to monitor their employees’ use of the internet (including checking emails and visiting social networking sites) on computers owned by the employer. However, federal laws prohibit an employer from discriminating against a current or prospective employee based on information on the employee’s social media site relating to their color, race, national origin, age, gender, immigration or citizenship status, and disability. Yet, even with these regulations, what you post on social media can still affect your job and your employment law claim. 

Social Media and Social Networking- What Does it Consist of?

Generally, social media is any form of electronic communication through which users create communities online in order to share ideas, messages, information, and other content. These social media sites include social blogs, wikis, microblogging (Twitter), internet forums, and social networks (Facebook and Instagram). On the other hand, social networking is using these social media sites to communicate with other individuals. 

The Employee’s Rights

According to the Equal Employment Opportunity Council’s position, the use of personal information from social media accounts to discriminate against an employee is illegal. In fact, employers may be liable for creating a hostile work environment if they allow other employees to post negative information or negative comments about another employee or if they learn about the negative social media posts and do not take any steps to have it removed. 

However, not every social media post is protected, and an employee needs to consider the below factors to see if their post can affect their employment:

  • Social Media Posts During Working Hours: Typically, an employer has a stronger claim to review social media posts while the employee is supposed to be “on the clock” and working for the employer.
  • Social Media Posts Relating to Workplace Conditions: Workers usually have a right to speak honestly about their workplace issues, such as harassment by coworkers or their employers, unsafe conditions, pay disparity, and supporting the right of other workers. 
  • Social Media Posts and Employment Termination: If you are fired because of a social media post, it is crucial to speak with an experienced employment lawyer who can decipher if you were truly fired for your post. Or was the firing hiding an illegal reason for letting you go? 
  • Social Media Posts and the Employee Conduct Handbook: You also need to review your employee conduct handbook. Many times it will indicate what a company’s policy is regarding social media posts.

It is also essential to understand the differences between a private company employer versus a public entity. Generally, you do not have First Amendment rights in the workplace. Only government employees have a right to free speech protections, and even those are very limited. In comparison, as a private employee, you may be fired for your speech. No matter if it is in the workplace or outside of it. 

The Employer’s Rights

If an employee files a legal claim against their employer for creating a hostile workplace, sexual harassment, discrimination, or the assertion of any of their employee rights. The legal team for the employer is allowed to review all the social media accounts of the employee. As a result, an employee’s posts can be used to question their credibility. 

  • What Can The Employer Monitor? An employer can monitor an employee’s internet usage, software downloads, anything displayed on their computer screen, files stored on their computer, how long their computer has been idle, and any outgoing emails or those sent within the office. A simple rule to follow is that if the employee can do it on their work computer or a device provided for their work, they should expect their employer to monitor it. 
  • Can Social Media Posts Affect Your Job? An employer can fire you for having social media posts that they feel are inappropriate. This means that even if you do not have access to these sites while working or did not post anything during working hours, your employer can still fire you. Especially if they feel that any of your content is offensive to them, their potential clients, or reflects poorly on the company. 

What it boils down to is the more offensive your social media posts are, the higher the chance that your employer will have a right to take some disciplinary action against you for them. 

What You Need to Do If An Employment Law Claim Has Been Filed

Remember, your social media will be reviewed if a lawsuit against your employer has been filed. Consequently, you need to be on high-alert of your social media usage, including your specific posts, emails, pictures, tweets, and videos. These social media postings can be used against you. As a result, make sure you exercise caution by taking the following measures: 

  • Do not accept any friend requests from anyone you do not know.
  • Make sure to limit your privacy settings.
  • Make sure to limit your electronic communications to people that you know and can verify who they are. 
  • Let your attorney know of any information or posts on your social media accounts that can hurt you. However, before you delete anything, make sure you check with your attorney. Many times the court may impose restrictions once a case is filed. 

If you are an employee who is facing disciplinary action or was fired due to your social media posts, you need legal help that you can trust. At the law offices of Perkins Asbill, we can figure out if your employee rights were violated and help you take action if they were. Do not wait any longer. Contact us today or call our office at 916-446-2000. 

Can Private Employers Regulate Employees’ Off-Duty Conduct in California?

More than ever, an employee’s activism and social media posts can prove quite challenging for employers. Their reasons often ranging from an employer not wanting to be lumped with a particular viewpoint or because the employee’s stance goes against the employer’s public image or ethics. In today’s society, employers are increasingly concerned about their employee’s actions. Mainly due to our current “cancel culture,” where it is a common practice to withdraw support for a company that has done something that may be considered objectionable.

Even if the employer did not authorize the employee’s actions, companies can still feel the negative repercussions. And unfortunately, there is no explicit solution to this dilemma. So, what is an employer to do in these situations? In this blog post, we will discuss some of the issues employers face when dealing with off-duty conduct and what rights employers and employees have in California?

Can Employers Lawfully Monitor Off-Duty Conduct?

In California, like many other states, there are specific laws that protect an employee’s right to engage in off-duty conduct that is lawful. These laws also provide monetary relief to those employees whose employment is adversely affected in violation of these regulations. However, even though it seems these laws are meant to protect an employee’s actions, it is crucial to understand that these laws do not protect all types of employee’s off-duty conduct.

If an employee’s off-duty conduction is harmful or potentially hurts an employer’s business interests or involves some crime, it can result in a valid basis for terminating the employment. Even so, this is often decided on a case by case basis, and specific facts need to be considered before making a final decision, including legal interests and business decisions.

Take, for example, a recent viral video that showed a Franklin Templeton employee, Amy Cooper, reporting to local law enforcement that an “African American man” was frightening her. Yet, all the video showed was Christian Cooper, a bird watcher asking Amy Cooper to put her dog on a leash per the rules of Central Park. This video resulted in an uproar on many social media platforms, accusing Amy Cooper of lying to the police because of racial discrimination. And even though Amy Cooper’s action had nothing to do with her job duties or work performance, Franklin Templeton quickly terminated her employment, citing their company’s “zero tolerance for racism.”

Can Employers Lawfully Discipline Decisions Based on Off-Duty Conduct?

One popular misconception that many individuals have is they feel that because the First Amendment protects their free speech, it is illegal for an employer or company to fire an employee based on something they said. Unfortunately, this is not how this Amendment works. As the First Amendment, typically, does not apply to private employers.

However, some laws that do apply to California’s private employers, include the following:

  • California Labor Code section 96(k): This law protects employees who are terminated for “lawful conduct” that occurs during hours away from the employer’s premises and not working. Generally, this law applies to lawful off-duty political pursuits.
  • Labor Code Section 1101 bars an employer from adopting, making, or enforcing any regulation that prevents an employee from taking part in politics or becoming candidates for public office. In addition, it prevents the employer from controlling the political activities of their workers.
  • Labor Code Section 1102 bans an employer from influencing or attempting to coerce their employees through the threat of discharge to refrain from following any particular course of political action or activity.

Taken together, these provisions prevent an employer from directing the political activities of its employees. However, these regulations do not stop employers from limiting political and other non-work-related activities in their workplace. Additionally, employers can also prevent employees from posting content that makes viewers believe that the employee is speaking on behalf of the company. In these situations, an employer can take action against the employee, even if their conduct happens off-duty.

Employee’s Social Media Conduct

According to Article 1, Section 1 of the California Constitution, each citizen has an “inalienable right” to obtain and pursue “privacy.” When combined with Section 980 of the Labor Code, these laws are meant to protect an employee’s privacy on their personal social media platforms. While also prohibiting employers from asking employees for their log-in information and passwords. Yet, even though these laws provide some sort of privacy protection for employees and their use of social media, it does not mean that an employee’s public social media posts are protected. If an employee begins posting content beyond their private followers, they waive their right to privacy. As a result, they can be disciplined for their posts, especially when these posts are not deemed to be related to their workplace issues, which are often protected by the National Labor Relations Act (NLRB). 

What Employers Need to Ask Themselves Before Making Any Decisions About Off-Duty Conduct

If an employer has an issue with their employee’s off-duty conduct, they need to consider California’s applicable laws, the effects on the business, and the litigation exposure they may have to face. Looking into their past conduct and reviewing whether they have consistently applied these company protocols can also help them determine the likelihood of the employee succeeding in their legal actions.

During these “polarizing times” that we are experiencing, it should come as no surprise that disciplining off-duty conduct has become incredibly challenging and complex. Not only does the business have to heavily weigh the legal problems that can result in pursuing these actions against their employee, but they also have to take into account the potential loss of sales and customers if this issue becomes common knowledge. In some cases, companies can even suffer when they decide not to take any action against the employee for their conduct.

For these reasons, if you are considering your employee’s off-duty conduct, you need to contact an experienced employment law office today. These lawyers can provide you with the information you need to be able to carefully explore your options while helping you understand all the issues and problems you may have to face. Do not wait any longer; call our office at 916-446-2000.



 Can My Employer Enforce a Non-Compete Agreement if I Work in California but the Business is Headquartered in Another State?

Most companies go out of their way to protect their data. Data typically includes trade secrets which is often found in internal communications, customer lists, and other information which they do not wish to have “leaked” to other businesses. However, in some cases, a business attempts to discourage their employees from taking information they learn while an employee and starting a competing business.

Employers often demand an employee sign a non-compete or non-solicitation agreement to ensure they do not have to be concerned about the employee later becoming their competitor or working for a competitor. However, under California laws passed in 1985, these agreements are not enforceable because they contain restrictive covenants — that is they restrict the employees ability once they are no longer working for the firm to secure similar employment with another firm, or start their own business which is of a similar nature.

Out of State Business Doing Business in California

California, like most other states, allows businesses which are incorporated or set up in other states to do business within its borders assuming they follow the regulations published by the Secretary of State. In some cases where this occurs, a business owner will draw up a non-compete agreement and specify the agreement was made in another state. This is known as a choice of law provision, which may mean the restrictions, or covenants are enforceable.

However, this does not always mean your employer has the right to enforce a non-compete agreement, even if it contains a choice of law provision. For example, an employee who works in California, for a company who has headquarters in Arizona may be asked to sign a non-compete agreement which states the “choice of law” is Arizona. This is when California courts will review the rules as they pertain to conflict of law.

How Conflict of Law Applies to California Employees

If you are working in California, in a company which maintains an office in California, you may be unaware the company is actually headquartered in Arizona. To complicate matters further, oftentimes a non-compete clause is inserted into other employment documents and is only pointed out should your employer feel they are threatened by your competing with them after you have left the company.

An employer may opt to have you “sign” your documents in Arizona — in this case, then chances are the document could be enforceable under Arizona laws. However, it is also worth noting in most cases, a choice of law provision which violates public policy of the other state could be determined to not apply in such cases.

Since 2018, when these changes went into effect, the goal was to protect employees from being bound to agreements which violated their right to pursue employment with competitors or to start a competing business after leaving one employer. Keep in mind, these documents are often signed as part of the paperwork you sign when you are initially hired. In rare circumstances, an employee may be told they cannot be hired unless they sign a non-compete agreement. This is unlawful in California because they are not enforceable within the state.

The code which makes these unenforceable is  found in California Business and Professions Code Section 1660specifically states “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.

Not Limited to Key Figures or Managers

Many employees believe they have nothing to be concerned about with such clauses in their employment contracts because they are “lower level” employees. However, according to the U.S. Department of the Treasury Office of Economic Policy, across the United States, 20 percent of those who are bound by non-compete agreements, including 14 percent of those earning less than $40,000 per year. Therefore, it is not safe to assume you have no need for concern.

Because employers were routinely attempting to skirt the statutes regarding non-compete agreements, the California Labor Code (Section 925) was modified to specify that any agreement which was entered into between an employer and employee after January 1, 2017 would not be allowed to include non-compete agreements a provision as a condition of employment.

This portion of the Labor Code also went a step further and specified that the employee who lives in and primarily worked in California could not, without the guidance of an attorney, agree to have any future disputes heard in a court outside of California law or agree to such provisions under any state’s laws except California.

There are exceptions to when something may be enforced, even if it is part of an overall unenforceable agreement. For example, if an employee were to leave a company and begin soliciting clients to their business from their prior employer, or if the employee were to begin sharing internal trade secrets with a competitor. In the event your former employer filed a lawsuit, the general provisions may be upheld in court.

When Employers Retaliate Against Former Employees

When your employer attempts to stop you from accepting a job because they claim it is in violation of a non-compete or a non-disclosure agreement, one of two things will occur. You may receive a cease and desist order, or you may be notified a lawsuit has been filed against you by a former employer. In either case, you should immediately contact an attorney to learn about your rights and protect yourself from missing an opportunity to further your career.

If you are starting a new position and being asked to sign a non-compete agreement, you should seek legal help immediately before you sign the agreement. It is important for you to know whether the agreement is enforceable before you sign any documents. Whether you need help negotiating a contract, reviewing an employment contract, or you are in receipt of notification of a pending civil lawsuit, or a cease and desist order, contact Perkins Asbill, A Professional Law Corporation at 916-446-2000. We have more than three decades of labor and employment law experience representing clients in central and northern California.

What You Need to Know About COBRA and Job Loss Amid the COVID-19 Pandemic 

The arrival of COVID-19 has dramatically changed the lives of many in the United States and around the world. Job loss has been one of the unfortunate consequences of the pandemic. More than 30, 000 people in the United States have lost jobs due to business closures and cutbacks. In the United States, job loss also translates to a loss of health insurance for many.

Even without the global pandemic, U.S. workers have some protection of health insurance under COBRA, but current times make it more important that you understand your rights to employer-sponsored health insurance. For many, job loss because of COVID-19 is the first time they have had to deal with involuntarily leaving a role. We’ve developed this guide so you can learn more about COBRA and the ways in which it applies to you if you’ve lost your job during the coronavirus pandemic.

What Is COBRA?

COBRA is an acronym for the Consolidated Omnibus Budget Reconciliation Act, which provides workers and their families the choice to continue employer-sponsored health benefits after job loss, a reduction in hours, job transition, death, divorce, and other qualifying life events. You can think of COBRA as ‘gap insurance,’ because it fills the gap in your health insurance coverage that you or your family would experience after losing employee benefits.

You should know that if your employer paid for your benefits, COBRA does not require employees pay for your continued coverage. Instead, separated employees must pay for their temporary coverage, which can be the entire premium. The law requires that businesses with more than 20 employees who sponsor a group health plan give employees and their families continuation coverage in situations where coverage would end.

Health Plans that Fall Under COBRA

Under federal law, all private-sector employers with more than 20 employees must provide continuation coverage. COBRA does not apply to the federal government, but state and local governments must comply. Other groups exempt from complying with COBRA include churches and some religious organizations.

Qualifying Events to Receive Continuation Coverage Under COBRA

Beyond your employer’s requirement to comply with COBRA, you must also have been enrolled in your employer’s group health insurance plan and experience a qualifying event, which is an event that causes someone to lose their health insurance coverage. The type of event determines who receives benefits and for how long.

Covered employees are eligible for coverage in all situations of job loss except if they were terminated for gross misconduct. Cobra does not cover employees who lose coverage because of a reduction in hours. The same caveats apply for coverage to spouses and dependent children, but other situations also exempt family members from continued coverage under COBRA. They include:

  • The covered employee becomes eligible for Medicare.
  • A spouse is not covered in the case of divorce or legal separation.
  • The covered employee dies.
  • Once children are no longer dependent, they lose coverage. The Affordable Care ACT requires plans to make coverage available until a child reaches age 26.

Employer Responsibilities Under COBRA

The employer’s group health plan must give the covered employee and any other beneficiaries notice when a qualifying event occurs. The notice should describe their rights to continuing their health coverage and how to make that choice. The plan must provide notice within 14 days. Once you receive notice of your right to COBRA coverage, the law requires you have 60 days to make a decision on whether to continue your coverage.

Even though the law requires notification, many large companies have failed to comply. Employees have accused Citigroup, Lowe’s, and Starbucks of failing to comply, just to name a few. In the most recent lawsuit against Starbucks, a former employee claimed that Starbucks sent out confusing notices with regard to COBRA that did not explain how to enroll in continuation coverage. Instead, the notice instructed the former employee to call Starbucks human resources to visit a website. Starbucks COBRA notices also left out other important information about the conditions in which the employee could lose covers, the plan administrator, and where to make payments.

New Department of Labor Guidelines for Job Loss During COVID-19 Pandemic

In April 2020, the Department of Labor, in conjunction with a few other federal agencies, issued a joint statementspecifically addressing multiple programs and benefits. COBRA was included in this statement. The previous information is law, but until further notice, the following applies:

  • If your employer temporarily closes due to COVID-19, you should remain covered under your current healthcare plan. Yet, if you aren’t being paid, your premiums are not getting deducted from your check. If your employer is not paying your premiums, you might have to make payments on your own to make sure your coverage doesn’t lapse.
  • If you elect COBRA coverage, you cannot be forced to make payments on your premium more than 45 days from your election.
  • You have 30 days to pay your premium before the insurance carrier can consider it late.
  • The federal government considers the COVID-19 outbreak period lasting until June 29, 2020. Any time requirements under COBRA can disregard the Outbreak Period. For example, if you lost your job due to COVID-19 and want to elect coverage, your employer had 14 days from June 29 to send you a notice. Similarly, if you received notice in the middle of the outbreak, your 60-day election window did not begin until June 29

Consult with a Workplace Attorney About Your Health Benefits During the Pandemic

It’s a difficult time for many Americans right now, especially for those who have lost their jobs and health insurance benefits. Even after separating from a job, you have rights. If your employer has failed to provide you notice of your rights under COBRA or failed to provide you with enough time to make your choice, you may be eligible to take legal action. Contact the experienced attorneys at Perkins Asbill, A Professional Law Corporation online or at 916-446-2000 to discuss your circumstances and determine your next steps.


Know Your Rights During COVID-19 in the Workplace in California

The arrival of the COVID-19 pandemic has changed the workplace for those in California, across the nation, and across the world. Under the guise of disaster, some employers have taken actions that violate federal, state, and local laws. Others have unknowingly violated employee rights as a result of uncertainty during the pandemic. During this difficult time of transition, it’s crucial that you know your rights and have the information you need to protect your job and your income. Below we’ve provided a broad overview of additional rights you have as a result of the coronavirus pandemic.

Families First Coronavirus Response Act (FFCRA)

The Families First Coronavirus Response Act (FFCRA) is a key piece of federal legislation that protects your rights to take emergency sick leave if you work for an organization with less than 500 employees. FFCRA allows you to take 80 hours of PAID sick leave in the following circumstances:

  • You must quarantine or you are caring for someone who must quarantine as a result of COVID-19 exposure.
  • A healthcare provider has advised you or someone you care for to self-quarantine.
  • You are seeking medical treatment or diagnosis because you have experienced coronavirus symptoms.
  • The school, daycare, or childcare provider you use is unavailable as a result of COVID-19, so you must care for your child(ren).

The Family & Medical Leave Act (FMLA) continues to provide employees with 12 weeks of UNPAID leave every 12 months if they or an immediate family member needs care for a serious health condition.

Working from Home During COVID-19

The coronavirus and associated closures and stay-at-home orders have forced some businesses to have their employees work from home when possible. Rights associated with working from home during the pandemic include:

  • If you are not sick and not caring for a child because of coronavirus-related childcare issues, you are not protected if you stay home from work. There is no right to work remotely during the pandemic.
  • Your employer has the right to set the terms of your employment. They can force you to work from home even if it is not your choice. Your employer might also prohibit business travel during this time.
  • If you are forced to work from home as a result of coronavirus, your employer must pay you for your work, whether you are salary or hourly.
  • California requires employers to reimburse employees for the cost of internet access, computers, work cell phones, and other expenses required to set up a home office.

Terminations and Layoffs During COVID-19

Coronavirus has forced businesses to terminate and layoff employees on a large scale. Rights associated with layoffs and terminations during COVID-19 include:

  • FMLA and FFCRA protect you from your employer firing you if you contract COVID-19, but time limits do expire.
  • The Americans with Disability Act (ADA) also provides some protection. If the coronavirus causes an underlying condition to flare up, the condition might qualify as a disability. Employers cannot fire you for a disability.
  • The federal Worker Adjustment Retraining and Notification (WARN) Act requires employers to give a 60-day notice in the event of a mass layoff or business closing. California has similar state legislation; however, the governor suspended the 60-day notice requirement to allow businesses to take swift action to stop or curtail the spread of coronavirus.
  • If your employer sends you home or directs you not to come to work as a result of government orders or is concerned about your safety, California law does not require them to pay you. Yet, you still might qualify for paid sick leave under FFCRA

If you contracted COVID-19, and your employer terminated you, call an attorney as soon as possible. A confidential case evaluation will reveal whether your employer violated your rights. It’s also crucial to consult with an attorney before you sign a severance agreement, if applicable.

Sacramento Worker Protection, Health, and Safety Act

On June 30, 2020 Sacramento implemented the Worker Protection, Health, and Safety Act to protect employees in the workplace during COVID-19. Sacramento’s employers must adhere to the following safety protocols. You have the right to refuse to work if they violated the act:

  • Employers must ensure that any high-touch areas in the workplace are disinfected and cleaned daily per the Centers for Disease Control and Prevention (CDC) guidelines.
  • Employers must maintain cleaning protocols throughout the entire workplace.
  • Employers must create safety protocols that describe actions to take if the workplace has been exposed to a probable or confirmed case of COVID-19.
  • Employers must provide all employees access to handwashing with soap, hand sanitizer, and disinfectant wipes.
  • Employers must ensure all common areas, including break rooms, locker rooms, dining areas, bathrooms, conference rooms, and training rooms are cleaned daily and in between each shift.
  • Employers must provide face coverings for employees to wear while working and enforce usages. You can take your mask off when you can maintain social distancing guidelines and when you have a break to eat and drink.
  • Employers must establish and implement best practices ensuring proper physical distancing.
  • Employers must inform employees of all the associated protocols and practices in writing, in English, and in any other language spoken by 10 percent or more of employees.

Contact an Experienced Employment Attorney if Your Employer Has Violated Your Rights During COVID-19

The employment attorneys at Perkins Asbill, A Professional Law Corporation have the experience and the resources to advocate for employees whose employers have violated their rights during the COVID-19 pandemic. If your employer has acted unlawfully towards you during COVID-19, you need a competent and knowledgeable attorney to fight for your rights.

At Perkins Asbill, A Professional Law Corporation, we pride ourselves on professional excellence, case preparation, and seeking justice for our clients. Contact us today online at 916-446-2000 for a confidential and free case evaluation to examine the viability of your claim and find the best path forward to seek justice after your rights were violated in a California workplace during COVID-19.  

What Is the Difference Between Retaliation and Unfair Treatment in a California Workplace?

All retaliation is unfair treatment in the workplace, but not all unfair treatment is retaliation. The primary difference between retaliation and unfair treatment in the California workplace is the presence of unlawful conduct. Unfair treatment, although often morally reprehensible, is not always illegal. On the other hand, retaliation against an employee always has legal consequences for an employer.

With a clear understanding of the difference between unfair treatment and retaliation, you can protect your rights in the workplace and have a better idea of when you have recourse against your employer for unlawful conduct. Below, we delve deeper into the idea of unfair treatment in the California workplace, specifically outlining when unfair treatment crosses the line into unlawful contact. Then, we take a closer look at the different scenarios that might prompt an employer to retaliate against employees in the California workplace.

What Is Unfair Treatment in the Workplace?

At some point in your employment history, you’ve likely experienced unfair treatment at your workplace. Maybe you didn’t get the promotion you deserved because of office politics or your boss played favorites. Nepotism—privileging family members—is another common occurrence in some workplaces. Unfair treatment can also include supervisors and managers who verbally abuse employees by yelling or screaming or falsely accusing employees of violating company policies.

Although the above examples result in frustration and sometimes anger for employees, unfair treatment is not illegal. California is an ‘at-will‘ employment state. At-will employment is a legal description of the relationship between an employer and an employee. In at-will employment states, employers can terminate an employee at any time without reason and an employee can leave a job for no reason; neither party has legal consequences. Additionally, employers can also demote, transfer, and discipline an employee without legal consequences.

Yet, even in employment-at-will states, like California, employers cannot take adverse action against an employee for illegal reasons. In these cases, unfair treatment becomes unlawful conduct.

When Does Unfair Treatment in a California Workplace Become Unlawful Conduct?

Title VII of the Civil Rights Act of 1964 protects all workers in the United States from discrimination based on race, color, sex, religion, or national origin. The United States Supreme Court extended the law to protect gay, lesbian, and transgender workers in June 2020. Further, the Americans with Disabilities Act (ADA) prohibits employers throughout the nation from discrimination based on disability. California employers that discriminate against employees and treat them unfairly based on the above protections are engaged in unlawful conduct.

Additionally, California employees have the right to file a complaint when their employers are breaking the law when they treat them unfairly. Federal law also protects employees who need to take time off for family or medical reasons under the Family and Medical Leave Act (FMLA). The Whistleblower Protection Act (WPA) protects federal workers in California who report illegal activities in the workplace. In some cases, employers choose to retaliate against workers whose absence falls under FMLA. Similarly, federal employers sometimes retaliate against whistleblowers.

What Is Retaliation?

On a broad level, retaliation refers to the notion of taking revenge against someone for actions that have harmed you or actions of which you don’t approve. In legal terms, retaliation specifically refers to the unlawful and unfair treatment of employees as a response to a protected action. According to the Equal Employment Opportunity Commission (EEOC), employers are engaging in unlawful conduct when they retaliate against employees for:

  • Filing an EEO complaint or lawsuit against an employer
  • Talking with management about discrimination or harassment
  • Cooperating with an investigation about harassment or discrimination
  • Refusing to follow orders that result in discrimination
  • Refusing sexual advances
  • Intervening to protect other employees from harassment
  • Requesting accommodations for religious reasons or for a disability

Whistleblowers also have protection from retaliation and employers cannot discriminate or take unlawful action against an employee who needed time away from work under FMLA.

Filing a Claim Against Your Employer for Unlawful Discrimination or Retaliation

You do not need a lawyer to file a claim against your employer; however, it’s often in your best interest. A lawyer can file a claim on your behalf, protecting your identity. This is especially important for sexual harassment claims and whistleblower claims. Employers, especially specifically targeted members of an organization, can take drastic measures when they feel desperate. An experienced attorney knows the ins and outs of the EEOC claims process and can ensure your meet required deadlines and fulfill criteria.

As a California resident, you can file a claim with the Equal Employment Opportunity Commission (EEOC) or California’s Department of Fair Employment and Housing (DFEH), the state equivalent of the EEOC. DFEH will automatically share information with the EEOC, so you need not report to both agencies. If you are a federal whistleblower or have suffered retaliation as a whistleblower, you must file with the EEOC because the State of California does not have jurisdiction over your claim. Regardless of the situation, you cannot file a lawsuit against your employer before your file a claim with the EEOC. You can begin an  EEOC claim online and make an appointment or you can file a claim with a state or local agency like DFEH.

Contact an Experienced Employment Attorney If You’ve Been a Victim of Unlawful Conduct in a California Workplace

The skilled legal team at Perkins Asbill have the knowledge and resources to advocate for employees who have been victims of unlawful conduct in a California workplace. If your employer has illegally discriminated against you, sexually harassed you, or retaliated against you for taking action against them, you need a competent and diligent lawyer in your corner.

At Perkins Asbill, A Professional Law Corporation, we take pride in client service and holding employers accountable for their illegal practices. Contact us today online or at 916-446-2000 for a confidential case evaluation to determine your eligibility for compensation and learn the best way forward for your individual circumstances.

2020 Key Employment Law Changes in California

Each year, California legislators move hundreds of bills into motion. This attempt to enact change in our laws usually results in a slew of new legislation at the beginning of every year. 2019 saw a myriad of shifts in the realm of employment law– and the ripple effect from these past few years continues to impact us now. As 2020 begins, California workers will be well-served by brushing up on some of the newest laws impacting their rights.

If you believe that your employer may be acting in violation of your rights, the most important step is to contact a seasoned employment law attorney. Only a legal professional can assist you in bringing a case and achieving compensation.

2020 Key Employment Law Changes in California

Freelancer and Contractor Laws: Tighter Restrictions (Maybe)

AB 5 approved September 18, 2019

If you or anybody you know does freelance or contract work, you’ve likely heard plenty about AB 5 already. Often referred to as “the freelancer law,” this bill presents a serious piece of work to freelancers. The details are a little muddy– and are currently being hashed out in court– but here’s what we know for a fact so far:

  • AB 5 established the “ABC test”
    • This “test” is a set of parameters to help determine whether somebody should be labeled as an independent contractor rather than an employee
    • The test essentially winds up categorizing far more workers as employees than it does as independent contractors
    • Employers tend to dislike this because they are mandated to offer employees certain rights and protections
  • Workers labeled employees gain access to improved benefits and more stable workplaces; many companies, however, are not interested in having actual employees
  • The bill was aimed at gig workers, but is currently set to disproportionately impact contract and independent workers

AB 5 is one of the most fluid shifts currently happening within California’s employment law sphere. If you are an independent worker who works within the state, the best course of action likely involves speaking with an attorney and keeping an eye on developments in legislation. Nobody can predict how AB 5 will play out in the end.

California Paid Family Benefits: Extended from Six to Eight Weeks

SB-83 approved June 27, 2019

Under SB-83, the state’s current Paid Family Leave (you may see it referred to as “PFL” in some documentation) is set to extend. Current benefits allow for six weeks of paid family benefits. This new amendment extends that timeframe to eight weeks.

Important factors to keep in mind:

  • Only applies to claims that start on or after July 1, 2020
  • Paid Family Leave is not a leave entitlement
    • Some employees are eligible to take leave through paid sick leave or FMLA/CFRA laws; some are otherwise granted leave by their employers
    • Only these employees are eligible to apply for wage replacement benefits through PFL

Expanded Lactation Accommodations

SB 142 approved October 10, 2019

California appears to be working to make the state’s workplaces more family- and parent-friendly as a whole. Much like the improved paid family benefits mentioned above, the expanded lactation accommodations offered by SB 142 offer parents another way to put their families first.

SB 142 presents a number of requirements for employers:

  • Employees must have access to lactation rooms or locations WHICH MUST…
    • …be close to employees; work areas AND
    • …be free from intrusion and shielded from view AND
    • …have certain features (i.e. electricity)
  • Employers must also provide other accommodations nearby
    • Sink with running water
    • Refrigerator
  • Employers must create and implement lactation accommodation policies that detail…
    • …employees’ rights to request lactation accommodation AND
    • …how employees can make such requests AND
    • …employees’ rights to file complaints with the Labor Commissioner in the event of a violation

Employees Now Eligible to Seek Penalty for Late Wages

AB 673 approved October 10, 2019

AB 673 amends the California Labor Code. Before AB 673’s approval, the process of seeking penalties for late wages from an employer was not possible. This amendment means that:

  • Penalties for late payment of wages may be recovered by the Labor Commissioner (as a civil penalty payable to the affected employee) OR
    • …by the employee as a statutory penalty

An initial violation warrants a penalty of $100. After this point, subsequent violations incur a penalty of:

  • $200 per failure to pay each employee PLUS
    • …25% of the amount unlawfully withheld

Minimum Wage Raise of One Dollar

SB 3 approved April 4, 2019

If you’ve worked minimum wage positions in California for some time, you’re probably already aware of the state’s increasing lower bar for pay. SB 3 raises the minimum wage throughout the state once again. Employees at companies with 25 or fewer workers will see $12 an hour; those who are employed by larger companies will make $13.

Serious Occupational Injuries Must Now be Reported Immediately

AB 1804 approved August 30, 2019

Those who work in notably dangerous industries (like the manufacturing, construction, or industrial sectors) may be most likely to be impacted by this change, but anybody can get hurt on the job.

AB 1804 mandates that employers report serious occupational injury or illness immediately through an online OSHA portal. This portal is not currently available; until its release, employers must make these reports through telephone or email. This injury or illness report does not replace any reports already legally required. It is a separate and additional report.

Perkins Asbill: A Professional Law Corporation

At Perkins Asbill, we offer Sacramento residents employment law and business litigation services. Our team of capable and experienced attorneys works diligently to ensure that each client understands the unique characteristics of their case. We tirelessly pursue our clients’ rights in an effort to protect and maintain justice.

If you have questions about upcoming changes in California employment law or if you believe you may require legal assistance with a prior or current occurrence contact our offices today at 916-446-2000. The Perkins Asbill legal team helps to enforce employee rights, help organizations navigate complex litigation issues, and more.


Employment Law 101 for Startups

Whether your startup is growing slowly or rapidly, as you begin to add team members, you are entering a whole new world of laws and regulations you must abide by as an employer. In this article, we will present a brief primer of legal considerations you should be aware of and both state and federal laws you must comply with to avoid legal liability as you grow your team.

Independent Contractors vs. Employees

With the gig economy rapidly growing in the U.S. and global markets, many startups are utilizing the services of independent contractors — virtual assistants, marketing specialists, social media managers, graphic designers, web designers, software developers, and more — to help scale their businesses before they are ready to hire part-time or full-time W-2 employees on payroll.

However, understanding the distinction between an independent contractor and employee is essential because, even if a team member is not on payroll, certain factors could cause a court to determine the team member was acting as an employee, rather than an independent contractor, and impose the legal requirements of an employer on your business.

Some of the factors a court will consider when determining whether an individual’s status is employee or independent contractor, include:

  • Telling the team member what tools and equipment to use
  • Telling the team member when and where to work
  • Telling the team member where to purchase supplies and services

This is a very fact-based assessment. The more you direct and control the details of the team member’s behavior, the more likely an employer-employee relationship will be determined to exist. This is very important because when an employer-employee relationship is found, your business is required to comply with many different regulations geared toward protecting employee rights in the workplace.

Americans with Disabilities Act (ADA)

The ADA is a federal law that prohibits employers from discriminating against prospective or current employees on the basis of their physical or mental disability. It also requires employers to provide disabled workers with reasonable accommodations to allow them to perform their job duties, so long as a reasonable accommodation can be provided without causing undue burden to the employer.

Similar requirements are imposed under California state law through the Fair Employment and Housing Act (FEHA).

Equal Employment Opportunity Commission (EEOC)

Under federal regulations enforced by the U.S. Equal Employment Opportunity Commission (EEOC), employers are prohibited from discriminating against employees or prospective employees on the basis of:

  • Race
  • Color
  • National origin
  • Religion
  • Age
  • Sex
  • Sexual orientation
  • Physical or mental disability
  • Pregnancy
  • Genetic information
  • Retaliation

Family Medical Leave Act (FMLA)

The Family and Medical Leave Act of 1993 (FMLA) is a federal law that requires non-exempt employers to provide job protection and unpaid leave to employees who must be absent from work due to a qualified medical or family reason including surgery, caring for an ill family member, or the birth or adoption of a child. FMLA provides job protection for up to 12 work weeks, during which the employee may not be terminated without a legitimate and non-discriminatory reason. The California Family Rights Act provides similar legal protections.


The Pregnancy Discrimination Act prohibits employers from discriminating against prospective or current employees due to pregnancy or a pregnancy-related condition. Employers may not make decisions about hiring, firing, pay, promotion, job assignment, benefits, or any condition of employment based on a woman’s current, past, potential, or intended pregnancy or medical condition related to pregnancy or childbirth.

If your startup is growing and you need to begin hiring team members, it is extremely beneficial to seek the advice and counsel of an experienced employment attorney who can help to ensure that you have the proper policies and procedures in place to comply with applicable federal and California employment laws.

To schedule a consultation with one of our knowledgeable employment attorneys in Sacramento, contact Perkins Asbill at (916) 520-1417 today.