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Employment Law Survey: Master Outline

I. Employee/Employer A. Employee 1. Defining Employee Status a) Employees or Independent Contractors?

(1) Rule No. 1: Employees vs. Independentt Contractors; Right-of- Control Test

(a)

Generally

i)

Independent contractors are not employees.

 

(1) The principal distinction between an employee and an independent contractor is the right-of-control.

(b)

Right-of-Control Test

i)

When the hiring party reserves the right to control the manner and means by which the sought ends are achieved the relationship will be employment.

 

(1) An independent contractor typically has a distinct place of business while an employee does not.

(c)

Right-to-Control Factors

i) Manner and means; Skills required; Source of instrumentalities and tools; Location of the work; Duration of the relationship; Right to assign additional projects; Discretion over schedule; Method of payment; Hiring and paying assistants; Regular business of hiring party; Employee benefits; Tax treatment. (1) All of the incidents of the relationship must be assessed and weighed with no one factor being decisive.

(2) Rule No.2: Social Welfare Legislation; Economic Reality Test

(a) Generally

i) For purposes of social welfare (legislation), employees are

those who as a matter of economic reality are dependent upon the business to which they render service.

(b)

Economic Reality Test/Factors

i) Control (1) The nature and degree of the alleged employer’s control as to the manner in which the work is to be prepared;

ii) Profit and Loss (1) The alleged employee’s opportunity for profit or loss depending upon his managerial skill(s);

iii) Capital Investment (1) The alleged employee’s investment in equipment or materials required for his task, or his employment of workers;

iv) Degree of Skill Required (1) Whether the service requires a special skill;

v) Permanency (1) The degree of permanency and duration of the working relationship;

vi) *Economic Dependence

Employment Law Survey: Master Outline

(1) Dependence to which migrant workers and families depend on the defendants.

(a) This is the focus of all the other considerations.

B. Employer

1.Employees or Employers?

a) Rule: Employer Coverage - Basic Definition (1) Employer coverage depends upon the number of its employees, and therefore it is necessary to determine whether the individuals performing services are doing so as employees.

(a)As the statutes provide no meaningful definition, the courts utilize common law guidlines:

i) Right-of-Control Test (1) When the hiring party reserves the right to control the manner and means by which the sought ends are achieved the relationship will be employment. ii)Right-to-Control Factors (1)Manner and means; Skills required; Source of instrumentalities and tools; Location of the work; Duration of the relationship; Right to assign additional projects; Discretion over schedule; Method of payment; Hiring and paying assistants; Regular business of hiring party; Employee benefits; Tax treatment.

(a) All of the incidents of the relationship must be assessed and weighed with no one factor being decisive.

b) Rule: Shareholder-Director-Employee (1) Shareholder-Director-Employee Factors

(a)Whether the organization can hire or fire the individual or set the rules and regulations of the individuals work;

(b) Whether, and, if so, to what extent the organization supervises the individual’s work;

(c) Whether the individual reports to someone higher in the organization;

(d) Whether and, if so, to what extent the individual is able to influence the organization;

(e) Whether the parties intended that the individual be an employee, as expressed in written agreements or contracts.

(2) Shareholder-Director-Employee Test and Application

(a) If the shareholder-directors operate independently and manage the business, they are proprietors and not employees; but

(b) If they are subject to the firm’s control, they are employees.

2. Joint Employers

a) Rule: Joint Employers and the Right-of-Control Test (1) Generally

Employment Law Survey: Master Outline

(a) An individual may be employed by two or more employers;

Where responsibilities are shared, both employers may be liable for violations. (2) Right-of-Control Test (Factors to be Considered and Balanced):

(a)

Shared Use of Premises and Equipment

i)

Whether a putative joint employer’s premises and equipment are being used by its putative joint employees;

(b)

Suncontractor & Variety of Contractors or Single Client

i)

Whether the joint employees are part of a business

 

organization that shifts as a unit from one joint employer to another;

(c)

Integral Part of Production

i)

Extent to which plaintiffs performed a line-job that is integral to the joint employer’s process of production;

(d)

Responsibility

i)

Whether responsibility under the contracts could pass from one subcontractor to another without material changes;

(e)

Degree of Supervision

i)

The degree to which the defendants supervise the plaintiff’s work;

(f)

Exclusivity

i) Whether the purported joint employees worked exclusively or predominantly for the putative joint employer. II. At-Will Employment

A. Rule No. 1: At-Will Employment - The Traditional

1. Generally

a) Historically, the law that governs the employment relationship is the at-will doctrine. (1) American common law generally contrues employment for an indefinite or unstated term as a relationship which may be terminated “at-will” by either party.

b) The general (at-will) rule is that absent a statutory or contractual restriction, an employee or employer can terminate the employment relationship at any time, for any reason, with or without notice. (1) The At-Will rule is the court’s starting point presumption.

B. Rule No. 2: California Labor Code § 2922

1. Employement for Unspecified Term; Termination; Meaning of Employment for Specified Term

a) An employment, having no specified term, may be terminated at the will of

either party on notice to the other; Employment for a specified term means an employment for a period greater than one month. III. Wrongful Termination: Contract Theories of Recovery

A. Written Contracts

1. Rule: Written Contracts; Personnel Manuals; Employee Handbooks

a) Employer written assurances, such as those found in personnel manuals and employee handbooks, will be enforced as contracts when they utilize

Employment Law Survey: Master Outline

language that a reasonable person would perceive as creating a binding contractual obligation.

b) Employment handbooks and policies may create binding commitments on the employer.

B. Oral Contracts

1. Rule: Oral Contracts; Employer Oral Assurances

a) Oral promises or agreements for employment are valid and enforceable. (1) You do not need a writing for an employment contract to be valid.

C. Implied-in-Fact Contracts

1. Rule No. 1: Implied-in-Fact Contracts

a) In the absence of an expressed limitation, based on a pattern of the

employer’s conduct, some courts recognize implied-in-fact promises not to dismiss employees for arbitrary reasons.

b) The absence of an express written or oral contract does not necessarily indicate that employment was intended to be at-will. (1) The presumption of at-will employment may be overcome by evidence of contrary intent. (a) Foley Factors i) Personnel policies; ii) Practices of the employer;

iii) Employee’s longevity of service;

iv) Actions or communications by the employer reflecting assurances of continued employment.

2. Rule: No. 2: Implied-in-Fact Contracts: Foley Factors: Long, Successful Employment

a) An employee’s long and successful employment alone does not constitute an implied contract.

D. Implied Covenant of Good Faith and Fair Dealing

1. Rule No. 1: Good Faith and Fair Dealing

a) The covenant of good faith and fair dealing is implied in every contract. (1) It is the general presumption of contracts.

2. Rule No. 2: Commissions

a) Where commissions are to be paid for work performed by the employee,

the employer’s decision to terminate its at-will employee should be made in good faith.

b) Where the principal attempts to deprive the agent of any portion of a commission due the agent, the principal has acted in bad faith.

3. Rule No. 3: Bad Faith

a) Where the principal seeks to deprive the agent of all compensation by

terminating the contractual relationship when the agent is on the brink of successfully completing the sale, the principal has acted in bad faith.

E. What Constitutes “Good Cause”?

1. Rule No. 1: Termination for Good Cause

a) A termination for good cause is a:

(1) Reasoned conclusion; (2) Supported by substantial evidence;

Employment Law Survey: Master Outline

(3) Gathered through an adequate investigation that includes; (4) Notice of the claimed misconduct; and (5) A chance for the employee to respond. IV. Wrongful Discharge: Tort Theories of Recovery

A. Bad-Faith Breach

1. Rule: Tortious Claim of Bad-Faith; Punitive Damages

a) A bad-faith breach of the implied covenant of good faith and fair dealing will not provide a basis for an action in tort.

(1) Thus, a bad-faith breach of the implied covenant of good faith and fair dealing is, and is to remain, a contract claim.

B. Fraud or Deceit

1. Rule No. 1: Misrepresentation Effects Termination

a) Employer misrepresentations that effect an employee’s termination cannot form the basis of a tort recovery because the misrepresentation is indistinguishable from any other ordinary constructive wrongful termination.

2. Rule No. 2: No Termination; Detrimental Change in Position

a) Tort recovery for fraud or deceit is available only if the plaintiff can establish all the elements of a traditional fraud claim with respect to a misrepresentation that is separate from the termination of the employment contract.

b) A representation not aimed at effecting termination of employment, but instead designed to induce the employee to alter detrimentally his or her

position in some other respect, might form the basis for a valid fraud claim. (1) Traditional Elements of Fraud:

(a)

Misrepresentation of material fact;

(b)

Defendant’s knowledge of the statements falsity;

(c) Intent to defraud or to induce action in reliance on the misrepresentation;

(d)

Justifiable reliance; and

(e)

Resulting damage.

C. Tort of Fraudulent Inducement

1. Rule No. 1: Fraudulent Inducement

a) California Labor Code Section 970 (1) Prohibits employers from inducing employees to move to, from, or

within California by misrepresentations to the nature, length or physical conditions of employment.

b) California Labor Code Section 971 (1) Allows for criminal charges against fraudulent inducement.

2. Rule No. 2: Damages for Fraudulent Inducement

a) CLC 970 allows for double damages for fraudulent inducement.

D. Intentional Infliction of Emotional Distress/Negligent Infliction of Emotional Distress

1. Rule: Intentional Infliction of Emotional Distress

a) Outrageous conduct;

Employment Law Survey: Master Outline

b) Intent to cause severe, emotional distress or reckless disregard to cause severe emotional distress;

c) Actual emotional distress.

2. Rule: Negligent Infliction of Emotional Distress

a) Outrageous conduct;

b) Negligent cause of severe emotional distress;

c) Actual emotional distress.

3. Employer’s Defense: Exception to the Rule: Workers’ Compensation

a) Intentional and Negligent Infliction of Emotional Distress claims may be

precluded by the exclusivity of the workers’ compensation scheme, at least to the extent they are based on conduct normally occurring in the workplace.

E. Defamation

1. Rule: Defamatory Statements In General

a) Defamation Claim: Publication

(1) In order for a statement to be considered defamatory:

(a) The statement must be communicated to someone other than the plaintiff; and

(b) The statement must be false; and

(c) The statement must tend to harm the plaintiff’s reputation and to lower him or her in the estimation of the community.

2. Rule: Self-Publication Defamation

a) An employer-defendant can be held liable for defamation if a defamed person was in some way:

(1) Compelled to communicate; (2) The defamatory statement to; (3) A third party; and if it was (4) Foreseeable to the defendant that the defamed person would be so compelled.

3. Employer’s Defense: Exception to the Rule: Qualified Privilege

a) Employment Recommendations

(1) In the context of employment recommendations, the law generally recognizes a qualified privilege between former and prospective employers as long as the statements are made in:

(a)

Good faith; and

(b)

For a legitimate purpose.

(2) Abuse of Qualified Privilege

(a) However, a qualified privilege may be lost if it is abused.

4. Damages for Defamation

a) California Rule

(1) Under California law, a plaintiff can get punitive damages for self- publication defamation.

F. Wrongful Termination in Violation of Public Policy (WTVPP)

1. Rule: Wrongful Termination in Violation of Public Policy

a) Under California law, employers cannot terminate an otherwise at-will employee if the termination would violate public policy.

Employment Law Survey: Master Outline

(1) To qualify as a public policy, the violation must:

(a)

Inure to the public interest;

(b)

Must come from a statute or the constitution;

(c)

Must be fundamental;

(d)

Well established;

(e)

Must be applicable.

(2) Adverse employment action; (3) Show damages.

b) Attorney Fees are Denied.

(1) There are no attorney fees for wrongful termination in violation of public policy.

G. Punitive Damages

1. California Code § 3294(a)

a) In General

(1) Breach of an obligation or claim not arising from a contract; (2) Clear and convincing evidence; (3) Opression, fraud, or malice; Real bad conduct.

2. Californis Code § 3294(b)

a) Employment Context

(1) Advance knowledge, authorized, or ratified wrongful conduct:

(a) By the highest levels of the company; a decision maker.

(2) Company is personally liable.

V. Statutory

A. Disparate Treatment

1. Rule: Intentional Discrimination - In General

a) Burden-Shifting Analysis

(1) Plaintiff’s Initial Burden: Prima Facie Case: Creating Presumption of Intentional Discrimination:

(a)

Member of protected class;

(b)

Adverse employment action;

(c) Plaintiff treated differently than similarly situated employees; Other employees like you; Other rank and file employees;

(d) Causal connection between 1 and 3; Between being a member of a

protected class and being treated differently than similarly situated employees. (2) Employer’s Intermediate Burden

(a) Proffer a legitimate, non-discriminatory reason for its treatment of the plaintiff.

(3) Plaintiff’s Reply: Pretext

(a) Plaintiff presents evidence that defendant’s proffered reason was a pretext, a lie.

(4) Plaintiff’s Ultimate Burden: Persuasion

(a) Plaintiff has the ultimate burden of persusion and must convince

the fact finder, based on a preponderance of the evidence, that it was more probable than not that defendant was motivated by factors made illegal by the statutes.

Employment Law Survey: Master Outline

2. Rule: Intentional Discrimination - Hiring Case

a) Burden-Shifting Analysis

(1) Plaintiff’s Initial Burden: Prima Facie Case: Creating Presumption of Intentional Discrimination:

(a)

Belong to a racial minority;

(b)

Applied and was qualified for a job for which employer was

seeking applicants;

(c)

Despite qualifications, they were rejected;

(d)

After rejection, position remained open and employer continued

to seek applicants from persons of complainant’s qualifications, or the position is filled by someone outside protected class. (2) Defendant-Employer’s Intermediate Burden:

(a) Articulate some legitimate, nondiscriminatory reason for the employee’s rejection.

(3) Plaintiff’s Reply: Pretext

(a) Show that employer’s stated reasons for rejection was in fact pretext, a lie.

B. Mixed Motive Cases

1. Rule: Mixed Motive - Legitimate and Illegitimate

a) 1991 Amendment to Title VII Altering the Liability Aspects of Price Waterhouse (1) An unlawful employment practice is established when the complaining

party demonstrates that race, color, religion, sex or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

(a) Amendment defines “demonstrate” to mean “meets the burden of production and persuasion.”

b) Amended Remedies: No Compensatory Damages (1) Court may grant

(a)

Declaratory relief;

(b)

Injunctive relief; and

(c)

Attorney fees and costs.

(2) Court shall not

(a) Award damages; or

(b) Issue order requiring any admission, reinstatemnet, hiring, promotion or payment of back wages.

C. Disparate Impact

1. Rule: Unjustified Disparate Impact

a) Burden-Shifting Analysis

(1) Plaintiff’s Initial Burden: Prima Facie Case

(a)

Facially neutral policy or practice;

(b)

Significant adverse affect/impact on protected class;

(c)

Effect on terms and conditions of employment;

(d) General employee population is not so effected by the policy or practice.

(2) Defendant-Employer’s Intermediate Burden

Employment Law Survey: Master Outline

(a) Employer must show that facially nuetral policy or practice is:

i) Job related; and

ii) Justified by business necessity.

(3) Plaintiff’s Last Bite at the Apple

(a) Plaintiff may then show existence of alternative means of satisfying interest with less disparate impact.

D. Sex Discrimination

1. Rule: Bona Fide Occupational Qualification (BFOQ) Defense

a) It is permissible to hire on the basis of age, religion, sex, or national origin in those certain instances where age, religion, sex, or nationa origin is a:

(1) Actual and necessary qualification for performing the job; and (2) Reasonably necessaryto the operations of the business of the employer.

b) Race and color are not included in the BFOQ defense.

E. Sex-Based Stereotyping

1. Rule: Sex-Based Sterotyping

a) Women

(1) Discrimination that relies on sterotypes such as treating a woman in a particular way because she is not seen as sufficiently “ladylike” and “feminine” is discrimination because of her sex.

b) Men (1) Treating a man in a particular way, either by denying him a promotion, discharging him, or harassing him because he was “too effeminate” would be because of his sex.

F. Sexual Harassment

1. Quid Pro Quo

a) Rule: Quid Pro Quo: Supervisors and Tangible Job Benefits (1) Mid-level employees who have been given authority from the employer to affect tangible job benefits, such as hiring, disciplining, promoting, or setting compensation, and who use that authority to

discriminate in the allocation of such tangible benefits, will have their actions attributable to the employer notwithstanding employer policies forbiding such behavior.

2. The Hostile or Abusive Work Environment

a) Rule: Hostile Work Environment (1) Rule In General

(a) When the workplace is permeated with discriminatory

intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive environment. (2) Elements of the Rule:

(a)

Permeated;

(b)

With discriminatory insult, ridicule, and insult which is;

(c)

Sufficiently severe or pervasive;

(d)

To alter the conditions of employment;

(e)

Create a hostile or abusive work environment:

i) Must be shown to be objective and subjective.

Employment Law Survey: Master Outline

(3) Key Factors:

(a)

Objective Standard

i) Frequency of the discriminatory conduct;

ii) Severity;

iii)

Physically threatening or humiliating (as opposed to mere offensive utterences);

iv) Unreasonably intereferes with employee’s work performance;

v) Effect on employee’s psychological well-being.

(b)

Subjective Standard

i) Unwelcome (1) An individual will have their working conditions

adversely affected only if the environment created by the employer is unwelcome:

(a) An employee who willingly joins in a ribald

atomsphere is not a victim of the abusive environment.

(b) One who welcomes sexual advances cannot complain upon their delivery.

3. Liability and Affirmative Defenses

a) Rule: Employer Vicarious Liability (1) No Tangible Employment Action (a)An employer can be and is vicariously liable for actionable

discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer’s conduct as well as that of a plaintiff victim. (2) Tangible Employment Action

(a) Automatic Liability

i) When there is a tangible employment action, the employer will be held automatically liable if the employer:

(1) Is the owner or in the upper echelon of management; (2) Had actual knowledge; (3) Supervisor fires, fails to hire or promote.

b) Rule: Affirmative Defense

(1) The defense comprises two necessary elements:

(a) That the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and

(b) That the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

G. Wage and Hour Issues

1. In General

a) Meals - 30, uninterrupted, minutes for every 5 hours worked; Another 30, uninterrupted, minutes after 10 hours worked. (1) Meal times are considered unpaid wages.

b) Rest Breaks - 10 minutes of uninterrupted rest for every 4 hours of work.

c) Meals/Rest Break Violations - 1 hours pay, per day.

Employment Law Survey: Master Outline

d) Minimum Wage - Non-exempt employees must be paid applicable

minimum wages.

e) Overtime/Double Time Rules (1) 1.5x Pay for all time worked over 8 hours in a day. (2) 1.5x Pay for all time worked over 40 hours a week. (3) 2x Pay for all time worked over 12 hours a day.

f) Application - Applies only to non-exempt employees; Non-exempt only.

(1) General rules for meals, rest breaks, and overtime do not apply to exempt employees.

2. Statute of Limitations

a) Wage Claims - 3 hours.

b) Penalties - 1 year.

c) Business and Professions Code - 4 years.

3. Exemptions - Exempt (White Collar) Employees

a) In General

(1) Exempt from meals, rest breaks, and overtime. Not 203 waiting time penalties. (2) Require a salary for executive, adminstrative, and professional exemptions.

(a) Minimum salary at least 2-times minimum wage.

(3) Job titles are not a part of the analysis. (4) Hour/Salary consideration not determinative but is required. (5) Exempt employee must have autonomy and regularly exercise discretion and independent judgment in matters of consequence.

(6) In California, exempt employees must be primarily engaged in exempt duties 50% or more of their time.

b) Exemption Types (1) Executive Exemption

(a) Executive Capacity:

i) Manage enterprise or recognized department of the enterprise.

ii) Must supervise 2 or more employees.

iii) Authority to hire and fire, or make real recommendations. (2) Adminstrative Exemption (Catch all exemption)

(a) Office work/non-managerial; Related to management policies or business operations;

(b)

Support proprietor or executive;

(c)

General supervision with specific knowledge;

(d)

Have delegated powers and responsibilities;

(e)

Executive Assistants, Adminstrative Assistants.

(3) Professional Exemption

(a)

Must be licensed and/or certified by the State of California;

(b)

In a recognized profession (Lawyers, Doctors, etc.)

(c)

Educated and intellectual disciplines.

(4) Computer Software Developers

(a)

Creators of software programs; development of software;

(b)

Allowed hourly pay:

Employment Law Survey: Master Outline

i) Current rate to be exempted from overtime: $37.94.

(5) Outside Sales

(a) Must spend more than 50% of their time outside of the workplace.

(6)Inside Sales

(a)

Must be paid at least 1.5x’s minimum wage; and

(b)

More than 50% of pay is commission.

4. Class Actions

a) § 2699. PAGA Claims (1) In General

(a)

No certifcations required to bring class action;

(b)

1st Step - File claim with Labor Workforce Development Office;

(c)

2nd Step - Class Action

i) Clients: Wages, Penalties, Interest, Attorney Fees.

ii) Represented Class: Penalties, Interest, Attorney Fees (1)Penalties/Interest of Represented Class:

(a) 75% go back to the state.

(d)

Penalties - 1st Offense: $50, 2nd Offense: $100

H. Age Discrimination

1. Rule No. 1: Disparate Treatment

a) Plaintiff-Employee’s Claim (1) New: Changes to the ADEA

(a)Member of Protected Class: 40+

(b) Age is “but for” reason for adverse change in terms and conditions,

i) By the Preponderance of the Evidence.

(c) No mixed motice age discrimination cases.

(2) Old: Prima Facie Case: Plaintiff must prove he/she:

(a)

Member of protected class: 40+

(b)

Suffered adversed employment action

(c)

Competent employee;

(d)

Replaced by someone of comparable qualifications.

i) Need not be replaced by someone under 40 years old; even 68- year-old replaced by 65-year-old states a claim. O’Conner v. Consolidated Coin Caterers Corp.

b) Defendant-Employer’s Defense: Age as a BFOQ

(1) Bona Fide Occupational Qualification Test, Western Air Lines v. Criswell.

(a) Age limit is reasonably necessary to the essence of the business; and

(b) All or substantially all individuals excluded from the job are in fact disqualififed; or

(c) Some excluded have disqualifying trait but it can’t be ascertained except by age.

2. Rule No. 2: Disparate Impact

a) In General Rule and Claim (1) Plaintiff’s Prima Facie Case

Employment Law Survey: Master Outline

(a)

Facially neutral policy or practice;

(b)

Significant advers affect on protected class (40 years old or older);

(c)

Affect on terms and conditions;

(d)

General population not so affected.

(2) Defendant’s Intermediate Burden: RFOA

(a) Reasonable factors other than age.

i) Plaintiff usually loses here.

(3) Plaintiff’s Final Bite at the Apple

(a) Alternative means of satisfying interests with less disparate impact.

(b) Argue: Congressional Findings and Purpose

i) Congressional Findings (1)Older workers finding themselves disadvantaged; (2) Setting of arbitrary age limits has become common place, affected older persons the most. (3) Unemployment among older persons is high and getting higher.

ii) Congressional Purpose

(1)The purpose of the ADEA is to promote employment of older persons based on their ability rather than age; (2) To prohibit arbitrary age discrimination.

b) Years of Service (1) An employer does not violate the ADEA just by interfering with an older employee’s pension benefits that would have vested by virtue of the employee’s years of service; Employment decisions based on years of service, not per se age-based. Hazen Paper Company v. Biggins.

c) Narrower Scope of Disparate-Impact Liability; Plaintiff’s Burden

(1) The employee is responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities. Smith v. City of Jackson, Mississippi. I. Discrimination and Leave 1.Under Federal Law

a) Pregnancy Discrimination Act of 1978

(1) New Definition: Pregnancy and Childbirth as “Sex”

(a) Because of sex includes prenancy, childbirth or related medical conditions. i) Thus, a change in terms and conditions to woman because she is pregnant is because of sex.

2. Under California Law

a) Fair Employment Housing Act

(1) Sections 12945.2, 12945(b)(2)

3. Leave Laws

a) Under Federal Law

(1) Governing Statute: Family and Medical Leave Act (FMCA)

(a) In General

Employment Law Survey: Master Outline

i) FMLA allows eligible employees of covered employers to claim up to 12 weeks of unpaid leave during any 12 month period for

serious health conditions, and the employee must be reinstated at the end of the leave without loss of benefits.

(b)

Eligibility

i) Employee - 1 year; 1250 hours worked within that year.

ii) Employer - 50 employees within 75 miles of where the employee works.

(c)

Reasons for Leave

i) Serious health condition - Employee;

ii) Serious health condition - Spouse, Parent, or Child;

iii) Birth, Adoption, Foster Care of Child.

(d)

Amount of Time for Leave

i)

12-Weeks

(e)

Payment During Leave: No Requirement

i)

Unpaid

(f)

Reinstatement Rights

i)

Same or substantially similar protection.

(g)

Health Benefits

i) Same health benfits must be maintained.

b) Under California Law

(1) California Family Rights Act (CFRA)

(a)

Eligibility

i) Employee - 1 year; 1250 hours worked within that year;

ii) Employor - 50 employees.

(b)

Reasons for Leave

i) Serious health condition - Employee;

ii) Serious health condition - Spouse, Parent, or Child;

iii) Adoption, Foster Care of Child.

iv) No pregnancy disabilities.

 

(1)Pregnancy disabilities is covered by the California Pregnancy Disability Leave Act (CPDL).

(c)

Amount of Time for Leave

i)

12 weeks.

(d)

Payment During Leave: No Requirement

i)

Unpaid

(e)

Reinstatement Rights

i)

Same or substantially similar protection.

(f)

Health Benefits

i)

Same health benfits must be maintained.

(g)

Additional Requirement

i) Employer must tell the employee that their job will be there when they get back; (1)And in writing if required.

(2) California Pregnancy Disability Leave (CPDL)

(a) Eligibility

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i) Employee - 1 year; 1250 hours worked within that year;

ii) Employor - 5 employees.

(b)

Reason for Leave

i)

Pregnancy Disability (1) Pregnancy; (2) Childbirth; or

 

(3) Related medical condition.

(c)

Length of Leave

i)

4 months/88 days.

(d)

Payment During Leave: No Requirement

i)

Unpaid

(e)

Reinstatement Rights

i) Exact same job.

(f) Maintenance of Health Benefits

i) No requirement.

c) Both Federal and California Law

(1) When leave is for the same reason, FMLA and CFRA run concurrently:

12 weeks.

d) Pregnant Women in California (1) Total amount of leave:

(a) 4 months CPDL and 12 weeks of CFRA for a grand total of up to 7 months of leave.

e) Leave Problems (1) In General

(a) Problems that might arise from a long leave of absence:

(2) Wrongful Constructive Termination or Discharge

(a) Constructive discharge is an aggravated case of harassment or

hostile work environment, a situation where working conditions are

so intolerabe that a reasonable person would have felt compelled to resign rather than remain on the job.

i) The employee who quits in response to the intolerable working

conditions is said to be discharged constructively, and is entitled to the remedies of an illegally discharged employee.

f) Issues: Leave (1) Were you given a proper leave?

(2) Were you retaliated against for taking a leave of absence?

(a) Wrongful discharge claim.

g) Termination and Leave

(1) Rule: Employers can still fire or terminate an employee for legitimate reasons. J. Disability Discrimination 1.Disparate Treatment

a) Plaintiff’s Prima Facie Case

(1) Member of a Protected Class: QIWD Analysis

(a) No covered entity shall discriminate against a qualified individual with a disability

Employment Law Survey: Master Outline

i) Rule: QIWD - Qualified Individual With a Disability (1)A qualified individual with a disability is an individual with a disability who with or without a reasonable

accomodation can perform the essential functions of the job.

(a) If you have this individual, you have a member of the protected class.

ii) Key Terms: QIWD

(1)Rule: Disability Defined; Legal Protections

(a) A physical or mental impairment that substantially limits one or more major life activities; or

(b)

A record of such impairment; or

(c)

Being regarded as having impairment.

(2) Rule: Reasonable Accomodation

(a) A reasonable accomodation must be provided to an individual with a known physical or mental impairment, unless you can show undue hardship.

(b) Examples: Workplace access, modified schedules, special chairs.