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COVID-19: Can I Get Unemployment Benefits?

Published on: March 31, 2020 | Siegel LeWitter Malkani

General Eligibility Requirements For Unemployment Benefits

As a result of the ongoing COVID-19 pandemic, many employers are being forced to lay off, furlough, and/or reduce employee hours as a result of slow or nonexistent business. If you find yourself out of work, or working a reduced work schedule through no fault of your own, you may be entitled to unemployment insurance (UI) benefits and should file a claim with the California Employment Development Department (EDD) https://edd.ca.gov/ Benefits range from $40 to $450 per week depending on your earnings history within the base period, and other factors, such as whether you are receiving any wages or pay. Although there is normally a one week waiting period for unemployment benefits, the order issued by the California Governor waived that period.

To be eligible for unemployment benefits, you must meet the eligibility requirements including that you:

Court Ruling Warns Discrimination Plaintiffs to be Careful of Unintended Consequences from Workers Compensation Claims

Published on: May 7, 2018 | Siegel LeWitter Malkani

Three Laotian correctional guards were subject to racial and national origin discrimination and harassment. They filed a civil lawsuit for discrimination under the California Fair Employment and Housing Act, and also filed claims under California’s Workers’ Compensation Act. Ly v. County of Fresno (October 12, 2017).

This sounds like the beginning of a very typical workplace claim. However the Court brought the civil claims to a very atypical, and I must say, poorly reasoned and dangerous, ending.

The Workers Compensation Act claim went to a hearing first and the Administrative Law Judge found that the employer’s actions were “non-discriminatory, good faith personnel decisions.” Based on this finding in an administrative hearing, where there is no civil discovery, the impetus to put on witnesses and gather evidence is different, and, among many other differences, the legal standard is different, the Court of Appeals held that the employees’ civil claims were barred.

California Supreme Court: Under Wage Orders Workers Are Presumptively Employees, Not Independent Contractors

Published on: May 1, 2018 | Siegel LeWitter Malkani

May 1 is International Workers’ Day, or May Day, and is a day to celebrate laborers and workers. It also commemorates workers who were killed while on strike protesting for an eight-hour work day in Chicago during what is known as the Haymarket affair. Just in time for May Day, yesterday the California Supreme Court adopted a new test for determining whether a worker is an independent contract or an employee.

The distinction in being classified as an independent contractor or an employee is an important one. Numerous laws protect the rights of employees, but do not protect independent contractors. For example, California’s minimum wage, overtime, meal period, and rest break laws apply to employees, but do not apply to independent contractors. Many employers misclassify their workers as independent contractors instead of employees to avoid having to comply with the many laws and regulations that protect employees – usually to shift costs onto the worker and off of the company.

Although the employee vs. independent contractor debate has raged on for many years, it has been in the spotlight with the explosion of the so-called “gig economy.” A number of decisions have come down through the courts and through the regulatory agencies, and depending on which law applies, different tests apply for how an employee is classified. However, the California Supreme Court has now definitively adopted a new test for determining whether a worker is an employee or an independent contractor under the California Wage Orders in Dynamex Operations West, Inc. v. Superior Court (Lee).

Supreme Court Warns Parties & Courts Not to Bump Jurors Based on Race or Ethnicity

Published on: June 2, 2017 | Siegel LeWitter Malkani

In a good day for fair jury selection in the State of California, the California Supreme Court reversed a conviction in a criminal case where a prosecutor used 10 out of 16 peremptory challenges to bump Hispanics off of the jury pool. People v. Gutierrez (June 1, 2017) 17 C.D.O.S. 5040.

This case is equally important to employment cases, where we often find that defense attorneys challenge perfectly fair jurors based on their race/national origin/gender/age and other identifying information that is similar to that of the plaintiff, and thereby deny the plaintiff in employment cases a jury of their peers.

The California Supreme Court sent a message that under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson) a trial court must seriously scrutinize the rationale and motivation presented by any side using its jury challenges to challenge a legally protected and cognizable group. Here the court noted that 10 out of 16 challenges were used against Hispanics and 10 out of 12 Hispanics who took a seat in the jury box were challenged by the prosecutor. The Supreme Court warned that, “excluding by peremptory challenge even a single juror on the basis of race or ethnicity is an error of Constitutional magnate”. The Supreme Court made clear to the lower courts that it is their duty to make sure the parties do not use their peremptory challenges in a discriminatory manner, and that the court must make a “sincere and reasoned attempt to evaluate” the explanations proffered by the party bumping the jurors.

Employee’s Family Leave Claim Fails Where Employee Is on Leave Longer than Twelve Weeks, and Presented Insufficient Evidence

Published on: February 16, 2012 | Siegel LeWitter Malkani

Ms. Rogers was a long term employee of Los Angeles County, serving as a personnel officer in the Executive Office, when she took a nineteen week medical leave of absence. When she returned to work, Los Angeles County notified her that she had been transferred to another position in a different department. Ms. Rogers considered this transfer to be a demotion, so she retired and filed a lawsuit alleging that her rights were violated under the California Family Rights Act (CFRA), California’s version of the federal Family & Medical Leave Act (FMLA). Ms. Rogers alleged a claim for interference, noting that the County interfered with her right to take a medical leave by transferring her to a position that was not comparable to the position she held when she went out on her leave. She also claimed retaliation, arguing that the County retaliated against her for exercising her right to take a leave protected by CFRA. Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480.

The case went to jury, and the jury found in Ms. Rogers’s favor on both claims, awarding her $356,000. However, that wasn’t the end of the story. Unfortunately for Ms. Rogers, the Court of Appeal reversed the jury’s award on both claims. First, the Court of Appeal found that, in order for Ms. Rogers to bring a claim for interference, in which she claimed that she should have been reinstated to the same or a comparable position, she needed to have taken a leave of absence protected by CFRA. Since CFRA provides for leaves of 12 weeks or less, simply put, her 19 week leave of absence left her flat out of luck on her claim for reinstatement or interference.

Then the Court of Appeal addressed Ms. Rogers’s second claim, for retaliation. It held that the employer presented evidence that the transfer was part of an overall plan to reorganize the Executive Office. When the employer made the decision to transfer Ms. Rogers, she had only been on a leave of absence for one month, and there was no evidence that the decision maker was aware that the leave would be for an extended period of time. Although the trial court noted that the jury may have doubted the employer’s motive, the Court of Appeal found that all the evidence was undisputed and that this doubt was not enough. In other words, the Court of Appeal voted for the employer on this issue based upon a lack of evidence.