Employment Law 101: Unemployment Benefits and What You Need to Know

What are Unemployment Benefits?

Unemployment benefits are offered through California’s Employment Development Department (called the “EDD”). Employers pay a tax to the EDD for every one of their employees.  That tax covers, in part, unemployment insurance benefits paid to eligible terminated employees. The purpose of the tax is to provide the employee with some compensation while unemployed.

How much do benefits pay?

Benefits do not pay as much as you earned at your old job. Benefits range from $50.00 per week to $1,129.00 per week. It all depends on the amount paid while employed. High-wage earners get paid more than minimum wage earners. Benefits last up to one year. Benefits are now paid to the employee through an individual debit card at Bank of America, not by check.

Can I get benefits if I was fired “for cause”?

In most cases, yes. Unemployment benefits are not paid to employees fired for “misconduct.” However, the legal definition of “misconduct” is narrow. Misconduct is more similar to deliberate and obvious wrongdoing. Examples may include drinking on the job, falsifying records, stealing from an employer, fighting with other employees, and insubordination. Ordinary poor performance, employee mistakes, and most “for cause” terminations do not justify a denial ofbenefits.

As an illustration, Arnie is a construction worker for Wave City Construction in Santa Cruz. Arnie is assigned the job of digging post holes for a residential fencing job. Arnie is clearly and repeatedly told by his boss, Gilbert, to not break any underground water and gas pipes. Arnie is even provided a metal detector to locate the pipes in advance. Unfortunately, Arnie ruptures a water line. The customer is very upset and terminates its large contract with Wave City Construction. Arnie truthfully admits to his mistake, but Gilbert fires Arnie on the spot.

Was Arnie fired for cause? You bet. Did Arnie make a very expensive mistake? Sure. Did Arnie deserve to get fired? Probably. However, Arnie would still be eligible for unemployment benefits because his poor performance does not sink to the level of misconduct.

What does the employee need to do to receive and keep getting benefits?

First, an employee must apply for benefits, which can be done online. Then an employee must actively look for a new job and be “able and available” to accept work. An employee’s job search efforts are tracked by the EDD through a form provided by the EDD that needs to be completed and signed every week.

It is critical that employees honestly and accurately document their efforts to find a new job and that they timely return any information to the EDD.

If an employee locates “suitable employment” in his or her customary line of work, the employment benefits cease.

What should I do if my benefits are denied?

Even though most employees are eligible to receive benefits, benefits are sometimes denied by EDD. There are typically three reasons behind the denial of benefits. First, the EDD is the perhaps the largest, busiest, and most unruly bureaucracy in California. The first line employees at EDD will often spend just a few minutes on a case before deciding to approve or deny benefits. The employees at EDD can make mistakes leading to a denial of benefits.

Second, vindictive or cheap employers will often contest an employee’s right to benefits. Some employers will provide false information to the EDD about poor performance or misconduct to cause a denial of benefits.  Employers also have a financial incentive to contest your benefits.

Third, the denial could have been legitimate. For example, benefits could be properly denied if an employee voluntarily quits their job.

If benefits are denied, you should immediately contact an employment law attorney to help you. In the process of answering your questions about unemployment benefits, an employment law attorney may be able to identify valuable claims for wrongful termination or unpaid overtime that you never knew you had.

Employees have thirty days to appeal a denial of benefits. Employees will then have an opportunity to present their case in-person to an administrative law judge in a mini-trial. The trial is held in an office-like environment at one of the many EDD facilities, including one in Salinas (for Monterey-based employees) and one in San Jose (for Santa Cruz-based employees).  

Are you a Monterey, Salinas, San Benito, or Santa Cruz County employee who has been terminated? Contact the Law Office of Brian Mathias for a consultation.

Landlord-Tenant Law 101: Common Eviction Questions

The basic facts behind an eviction lawsuit are simple. A landlord and a tenant enter into an agreement. The landlord promises to provide a habitable property. In exchange, the tenant agrees to pay timely rent. But what happens if a tenant stops paying rent and refuses to leave?

The answer is that the landlord must file a lawsuit to evict the tenant, called an “Unlawful Detainer”.

Can landlords lock out tenants who are not paying rent?

Absolutely not. California has very clear laws that prohibit landlords from locking out their tenants if they fail to pay rent. Otherprohibited “self-help” remedies include shutting off utilities or other actions short of an actual lockout that essentially require the tenants to move.

The law is clear: if a landlord wants to evict a tenant, they must use the unlawful detainer process. The landlord needs to go to court and get a judgment ordering the tenants to leave.

How long does an unlawful detainer process take?

An unlawful detainer typically takes between 20 and 30 days to complete. The total amount of time depends on the case’s complexity and how quickly the court schedules a trial. To a landlord, this can be an excruciatingly long time because the tenant will have typically already been in default of rent a week or more before the legal process is initiated.

As an illustration, take the case of Linda the landlord and her tenant, Tim. Tim fails to pay Linda $2,000.00 in rent on the first of May (the due date). Linda repeatedly asks Tim when he will pay, but two weeks go by and Tim still doesn’t pay rent.

Linda must initiate an eviction by serving a legally compliant “3-Day Notice to Pay Rent or Quit”. Tim the tenant will have three days to pay rent, or move out of the property. If Tim fails to pay $2,000 or move out, Linda may file a lawsuit. Tim will have five days after being served with the lawsuit to respond or “answer.” The court is then required to set a trial in 20 days or less. A part-day trial will then take place. Assuming Linda wins the trial, the Court Clerk will issue a Writ of Possession. The Writ of Possession is then served on Tim who will have another five days to move out. At the end of the fifth day, the Sheriff will forcibly remove Tim from the property. Only then does Linda get the property back.

That’s 33-days total. Delays in service of process, court holidays, or other complications will extend the timeline even further.

How much does an eviction cost?

Evictions can cost several hundred to thousands of dollars. It completely depends on the complexity of the underlying facts of the case.

There are two components to the cost of an eviction. The first component of costs are fixed fees charged by the court system, process servers, and the Sheriff’s Office. Those fees will typically cost around $550, including $245 to file the underlying lawsuit.

The next component of costs is attorney-fees. The total attorney fees in any eviction are entirely dependent on the complexity of the case and how much work needs to be done.

Do I need an attorney to file an Unlawful Detainer?

Yes. Landlords are not legally required to have an attorney represent them in court or file legal documents. However, they should be discouraged from doing so. Unlawful detainers are highly technical and it’s often better in the long run to get advice through an attorney from the outset to avoid long delays.

For legal context, a judge will only evict a tenant if the landlord can demonstrate strict legal compliance with all procedural requirements. In other words, one slip up can result in the landlord having to re-start the entire process.

The laws and rules surrounding unlawful detainers are very technical. As an example, what if your tenant owed $2,000 in back rent, $150 in late fees, and $200 in utilities? Would you know to serve two separate notices, a 3-Day to Pay Rent or Quit and a 3-Day to Perform a Covenant or Quit? Would you know the difference between the notices? The rules can be complicated. It’s often better to talk to an attorney rather than face a delay.

Are you a Monterey, Salinas, or Santa Cruz County landlord with additionalquestions about an unlawful detainer? Contact the Law Office of Brian Mathias for a consultation.

Employment Law 101: What's a Severance Agreement?

Terminated employees in California are often handed multiple documents from their employer upon termination. These papers will commonly include a three to ten-page “Severance Agreement”. Understanding the ramifications of a Severance Agreement, especially in the emotional blur of a termination, is very difficult without help.

So what is a Severance Agreement?

In plain English a Severance Agreement is a contract between an employer and a soon-to-be terminated or an already terminated employee. In the contract, the employer agrees to pay the employee money in exchange for a promise from the employee never to sue the employer. That’s the basic idea.

The amount of money offered—or negotiated—between the employer and the employee may range from several thousand dollars to tens of thousands of dollars. The amount offered depends on the employer’s actual or perceived exposure to a lawsuit from the employee, the employee’s salary, their length of employment, as well as other factors.

For legal background, no California law requires private employers to offer a Severance Agreement. Unless previously obligated under contract, employers are legally permitted to fire employees and offer them $0.00 in Severance.

So then, why would employers want to pay more money to an employee that they have already decided to fire? Well, because it requires employees to give up something very valuable in return: the right to sue.

Employees have a host of legal rights in California. These rights include the right to not be terminated for an illegal reason, such as a discriminatory or retaliatory reason. It also includes the right to be paid overtime in many situations. Employers who violate employment laws face expensive and drawn out lawsuits. But not if the employer can get the employee to sign a Severance Agreement. That’s why an employer wants you to sign the Severance Agreement.

If offered a Severance Agreement, employees should not sign the agreement without knowing if they have a legal claim against their employer and the value of those claims. The only way to do that is to contact an employment law attorney. Plaintiffs’ employment law attorneys often provide a  discounted initial consultation to review Severance Agreements.

As a hypothetical but common example, let’s take the case of Ryan. Ryan works at a bustling restaurant in Monterey as a waiter. Ryan is given the job “Front House Manager”. Ryan regularly arrives at work at 10:00 a.m. and does not leave until 11:00 p.m. Despite Ryan’s title, Ryan spends just 10% of his time managing other employees. 90% of Ryan’s time is spent cleaning and waiting tables. Ryan is never paid overtime, despite working 13 hours per shift. Nor is Ryan provided the opportunity to take duty-free rest and meal breaks.

After a particularly long shift, Ryan asks the hotel owner about getting overtime pay. In response, the employer angrily tells Ryan, “You should be thankful to have a job at all! I’m not paying you overtime.” When Ryan shows up the next day, he is fired and is handed a Severance Agreement offering $2,500.

Luckily, Ryan immediately calls an employment law attorney. During a free initial phone consultation, Ryan is surprised to learn that he has three potentially large claims against his former employer: an overtime claim worth $45,000; a meal and rest break case worth $6,000; and a retaliation case for firing him in response to asking for overtime. After Ryan learns that he has a case worth $75,000, he refuses to sign the Severance Agreement.

Ryan may now negotiate for a greater amount of money in the Severance Agreement, or proceed with a lawsuit against his employer.

Are you a Monterey, Salinas, or Santa Cruz County employee who has been offered a Severance Agreement?  Contact the Law Office of Brian Mathias for a consultation.

Employment Law Myths--BUSTED!! Myth: If I’m paid a salary, I’m not entitled to overtime.

Employers and employees frequently believe that if the employee is paid a salary, the employee is automatically disqualified from overtime. This is not the legal case at all.

For legal background, there are two methods of paying an employee. One is by salary, typically paid every two weeks, resulting in a set amount paid per year (ex: $60,000). The other is “hourly” where the employee is paid a wage for every hour worked (ex: $15.00 per hour).

Next, employees are placed into two legal categories or “classifications”. The first classification is called “non-exempt”.  A non-exempt employee is entitled to time-and-a-half for any hours worked in excess of eight per day or forty per week and other protections. The second employee classification is called “exempt”. Exempt employees are not entitled to overtime. If a properly classified exempt employee works 60 hours per week, they are not entitled to an additional twenty hours of overtime pay.

The process of properly classifying employees as “exempt” or “non-exempt” can be legally and factually intensive. It depends on a variety of factors. Most important is the employee’s actual job duties and what the employee spent 51% or more of their time at work doing. Other factors include the employee’s level of responsibility, the amount of discretion given to the employee to perform their job, whether the employee performs manual labor, and whether the employee manages others. One factor is whether the employee is paid hourly or by salary.

Employers often oversimplify the process and only look at the salary requirement, and ignore the other factors when classifying employees.

As an illustration, let’s take the case of Ann. Ann is 5-year assistant manager at the Santa Cruz grocery store, Veggies-R-Us. Ann makes a salary of $45,000. Even though Ann averages 12 hours per day and 60 hours per week, she is not paid any overtime.

Ann spends the majority of her day stocking the shelves at Veggies-R-Us and working as a cashier. Ann’s job as an assistant manager requires her to supervise lower-level employees, which takes about 20% of her overall time. However, Ann has no authority or input in the hiring and firing process of the employees she supervises. One day, Ann is fired on the mistaken belief that she stole a box of broccoli.  Ann then calls a lawyer complaining of wrongful termination.

Ann would not have a case for wrongful termination. (See my other article “What is Wrongful Termination?”). However, Ann would have a great case for employee misclassification and for unpaid overtime.

Ann spent more than 51% of her time stocking shelves and working as a cashier, both non-exempt activities under the California Labor Code. Only a fraction of her overall time was spent supervising other employees. Additionally, Ann did not have any true discretion or “independent judgment” over how lower-level employees were hired or fired.

While it’s true that Ann’s job title is that of “assistant store manager”, job titles are irrelevant in determining employee-classification and whether overtime is owed. Ann was not a true manager.

Veggies-R-Us will correctly argue that Ann was a “salaried employee”. However, paying Ann on a salaried basis is just one of many factors in determining Ann’s correct classification. Ann does not fall within any of California’s recognized exempt classifications.

Ann has a great case for overtime. She is entitled for up to three-years’ overtime (time-and-a-half) going back three years. That would be about $32.00 per hour for each hour of overtime worked, or $96,000 for the last three years. Ann is also entitled to a host of penalties, money for missed rest and meal breaks, interest on unpaid overtime. Ann has a case in excess of $125,000.

Are you a Monterey, Salinas, or Santa Cruz County employee like Ann who works long hours but receives no overtime pay? Contact the Law Office of Brian Mathias for a consultation.

What do we want?! Lettuce! When do we want it?! Now!

New Law Gives Tenants the Right to Grow Food

California recently passed the California Neighborhood Food Act, codified as California Civil Code Section 1940.10. The law grants California tenants the right to grow edible plant crops for personal consumption or donation at their rented single family home or duplex. Tenants are now free to grow lettuce to their hearts’ desire...with some strings attached:

First, tenants’ edible crops must be grown in “portable containers”.  Unless a landlord-tenant agreement allows otherwise –most landlord-tenant agreements would- tenants are not given the right to plant directly into the soil. The portable containers must be outdoors; there is no right to indoor cultivation of tenant crops.  The portable containers are only permitted in the backyard area of a property.  There is no limit to the number of containers if they are regularly maintained.

Second, marijuana is expressly prohibited as an “edible plant crop” under the statute. It is clear that the legislature is not granting tenants the right to grow marijuana. Lawful and unlawful cultivation of marijuana will continue to be the source of many evictions in Santa Cruz and Monterey Counties.

Lastly, California landlords are still given a great amount of discretion under the statute. Landlords may ban pesticides, may approve the tenant’s portable containers, and may charge extra for additional water use, and may inspect the property.

As an example, the author's lettuce, pictured above, would be not protected under the new statute because it is located in a non-portable container.

In the author’s opinion, it will be unlikely that the new law will be the source of any pricey evictions or tenant lawsuits. Most landlords would probably allow their tenant to grow a container of lettuce, even if the new law were not enacted.

The law is effective in illustrating the depth and complexity of California Landlord-Tenant Law. Central Coast Landlords should be careful if they are using old, pre-printed landlord-tenant agreements, or landlord-tenant agreements pulled off the internet. Such forms can easily be in violation of California law. Freebie forms are unlikely to incorporate the many different California landlord-tenant laws and regulations.

For tenants, the law illustrates how tenant rights expand every single year in California. Tenants can legally stand-up for themselves if they have a truly unreasonable landlord.

For any landlord or tenant questions, call the Law Office of Brian Mathias. Ready to stand up for your rights?

What is a "wrongful" termination?

The term, “wrongful termination” is the most commonly misunderstood legal term in employment law after “harassment.”  (See the article "What is illegal harassment in employment?") The legal definition of “wrongful termination” is much narrower than most think.

To an employee, a termination may be “wrongful” in the employer’s reasoning for the termination did not make sense, if it was based on a mistake by the employer, favoritism, misplaced blame, or if the termination was no fault of the employee’s.

As an illustration, Sally the Salesperson, works for the national retailer K-Smart. One day on the sales floor, Sally’s coworker, Arnie, places incorrect bar codes on numerous pieces of merchandise. As a result of Arnie’s blunder, dozens of items sell for less than full retail value. Unfortunately, K-Smart management incorrectly blames Sally, and not Arnie, for the lost revenue. Sally is then fired.  

Sally may describe her termination as a wrongful termination. After all, it was Arnie’s mistake, not Sally’s. Morally, Sally is correct in labeling her termination as “wrongful”. However, Sally’s termination doesn’t actually meet the legal definition of a wrongful termination.

Legally, a wrongful termination is a termination that violates the law or a government policy. The most common wrongful terminations are those based on discrimination or harassment because of a "protected characteristic". This includes terminations based on age (if over 40), ancestry, color, disability or “health” discrimination, gender, gender identity, military and veteran status, marital status, national origin, race, religion, and sexual orientation. Other policies prohibit retaliation against whistle blowers--employees who have reported illegal acts. There are dozens of government policies that may constitute a wrongful termination.

However, there is probably no policy that legally prohibits K-Smart from incorrectly firing Sally for the negligence and mistake of a co-worker. Therefore, Sally was not “wrongfully terminated” in the legal sense of the term.

As an illustration of a wrongful termination that would meet the legal definition, let’s slightly twist the illustration with Sally the Salesperson described above. Imagine that Sally the Salesperson is five-months pregnant. Even though Sally is pregnant, she is still performing the same duties and working the same number of hours at K-Smart as she did pre-pregnancy. However, upon discovery of the incorrect bar codes, Sally’s supervisor, Johnny, tells K-Smart Human Resources, “It was probably Sally’s mistake. Sally is pregnant and has baby brain. She can’t think straight and shouldn’t be working anyways.” Sally is then fired from K-Smart.

Under these facts Sally has been wrongfully terminated in the legal sense of the term. Johnny’s statements about Sally’s performance are direct evidence that Sally’s termination was motivated by her pregnancy; a legally protected characteristic. K-Smart has violated California’s Fair Employment and Housing Act’s prohibitions against pregnancy discrimination in employment. Under these facts, Sally does have a case of wrongful termination of employment.

Do you think you were wrongfully terminated? Do you know someone who was? If so, visit or call Brian Mathias Law for a phone consultation. Ready to stand up for your rights?

Woof! California dog bite law

Most Californians understand that if they are bit by a dog, some laws will apply. But what exactly does the law say?

California’s dog bite law is most clearly understood through California Jury Instruction Number 463. That jury instruction breaks down the four essential elements of dog bite law (called “prima facie” elements in legalese) into plain English.

California dog bite law is a breed of “strict liability.” Strict liability means that legal responsibility for harm does not require any showing of negligence or wrongdoing. Dog owners can be held responsible for the harm from a dog bite, no matter how carefully they guard or restrain their dogs. It does not matter if the dog was known to be dangerous. Nor does it matter if the dog was leashed.

The first element of California dog bite law is to establish that the defendant actually owned the dog that bit the plaintiff. People who are bitten by a stray dog or a dog with an unknown owner will not be able to recover under the law. If you are bitten by a dog, immediately ascertain who owns the dog. You should also immediately call animal control or the police to help you, if necessary.

Second, a plaintiff must establish that they were bitten while on public property or while lawfully on private property. Illustrated, if a dog bite occurs in the Aptos Polo Grounds Dog Park, on Its Beach in Santa Cruz, or on Alvarado Street in downtown Monterey, the plaintiff has established the second element of their case.

But what does “lawfully on private property” mean? Friends or guests who are invited into the dog owner’s home are “lawfully” on private property. There is no legal immunity for dog bites that occur within the dog owner’s home. (See California Civil Code Section 3342 (a).) UPS drivers, pizza delivery drivers, general contractors, and any others who come onto property to perform a service are also included under this definition. Burglars, trespassers, and others not “lawfully” on private property will not satisfy this statute.

The third element requires that the plaintiff was harmed by the dog bite. This does not require the dog bite to break the skin, draw blood, or cause a wound. (See the case of Johnson v. McMahan (1998) 68 Cal.App.4th 173 [Swamp cooler repairman bitten on leg through trousers by a German Shepherd named “Timber”.]). Nor is there exclusion for little dogs that could conceivably cause no permanent or lasting injury. A nip from a Chihuahua will establish liability.  

Lastly, the bite must be a “substantial factor” in causing the plaintiff’s harm. To be “substantial” the bite must merely be “more than remote or trivial” in causing harm. This requirement is usually easily established in the context of a dog bite. However, it can get complicated.

As an illustration, take the imaginary case of Sally. Sally has chronic arthritis in both wrists resulting in constant pain and a decreased range of wrist motion. One day, Sally is bitten on the wrist by Willi the German Shepherd at Its Beach in Santa Cruz. The long-term effects of the bite cause even more pain in Sally’s wrists and further decrease her already limited range of wrist motion.

It does not matter that Sally had a preexisting harm or condition with her wrists before the bite. Sally merely needs to establish that the bite from Willi the German Shepherd was more than a “remote or trivial” cause in aggravating her preexisting wrist condition. Sally still has a great case under California’s dog bite law.

For any questions on California dog bite law, please call Brian Mathias Law, serving both sides of the Monterey Bay. Ready to stand up for your rights?

What is illegal "harassment" in employment?

The most commonly misunderstood and misused employment-law term is “harassment.”

The legal and non-legal definitions of “harassment” differ in significant ways. Used in the ordinary or common sense of the term, harassment means to annoy, bother, or intimidate. In an employment context, one may describe many negative workplace encounters as harassment.  This could include yelling, cursing, undue criticism, and outbursts of anger or frustration by supervisors directed at employees.

However, the legal definition of harassment under the Fair Employment and Housing Act (the FEHA) adds an additional requirement. Under the FEHA, the plaintiff-employee must also be subjected to unwanted harassment because of a legally protected characteristic. Legally protected characteristics include age (if over 40), ancestry, color, disability or “health” status, gender (including pregnancy and “sexual harassment”), gender identity, military and veteran status, marital status, national origin, race, religion, and sexual orientation.

As an illustration, Donny works as a waiter at the busy Central Coast restaurant, Shade Creek. Shade Creek is a fast-paced and high-stress work environment. Donny’s manager, Jordan, takes his job at Shade Creek very seriously. Unfortunately, Jordan regularly loses his temper at work and yells at all employees who are perceived to be performing at less than 100% capacity. Jordan regularly yells at Donny multiple times per shift, more than any other employee. One night, Donny spills ice tea on a patron’s lap. Jordan swears-out Donny, calls him stupid, and terminates him. Donny then calls an attorney and says he worked in a “hostile work environment” and that he was regularly “harassed” by Donny.

Unfortunately, Donny does not have a case for harassment. Donny experienced pervasive harassing conduct at work, but not illegal harassment. Donny was harassed because of the fast-paced, high-stress nature of his work. His manager, Jordan, yells at all employees, not just Donny. Most importantly, there are no facts to show that Donny experienced harassment because of a protected characteristic. Donny simply had a very bad working environment at Shade Creek.

To illustrate an example of unlawful harassment, let’s change the facts slightly. Unfortunately, Donny the waiter was born with two left feet; a birth defect. As a result, Donny has difficulty with walking and coordination. This causes Donny to be much clumsier and slower than the other waiters at Shade Creek Restaurant. Donny’s coworkers are aware of Donny’s disability. Unfortunately, Jordan regularly yells at Donny, far more than the other employees. Jordan openly refers to Donny as “the Gimp”, “Clubfoot”, and “Leftie” in front of customers and coworkers. One day, Donny trips at work and spills ice tea on a patron. Jordan erupts at Donny, and tells him “Today’s your last day. Get out of here, Gimp!” Donny then calls a lawyer.

Under these facts, Donny has a great case for harassment under the FEHA. Donny has lots of evidence that Jordan’s unwanted name calling was directed at him because of his disability and  medical condition (his two left feet); protected characteristics under the FEHA. The same facts would also support a case of disability discrimination under the FEHA.

Are you or a friend experiencing harassment at work? Call Brian Mathias Law, serving both sides of the Monterey Bay. Ready to stand up for your rights?

What is disability discrimination?

Disability discrimination is the most common type of reported discrimination in employment, according the Department of Fair Employment and Housing. So, what exactly is disability discrimination in employment?

Disability discrimination is more easily understood as “health, illness, or injury” discrimination. Disability discrimination does not require that you be “disabled” in the ordinary sense of the word. You do not need to be confined to a wheelchair or blind to be “disabled”.  A legal “disability” is much broader than the ordinary definition. Disabilities are a physical or mental impairment that makes the performance of a “major life activity”--including working--difficult.

As examples, low back pain, a diagnosis of cancer, Carpal Tunnel Syndrome, and depression could all be “disabilities”. Similarly, there is no requirement under California law that a disabled person be prevented from working. The disability merely needs to make performance of working difficult. There is no requirement that that a legal disability be caused by working or that it is an “industrial injury”. Thus, an injury received outside of work while playing soccer or hiking may also be a disability.   

Next, disability discrimination in employment may only occur in an employer-employee relationship. This means that properly classified independent contractors may not sue for disability discrimination. Similarly, a qualified employer under the Fair Employment and Housing Act (FEHA) must have five or more employees. However, the “five or more” requirement is also construed broadly, and includes certain part-time employees. This makes California’s version of disability discrimination much broader than the protections through the Americans with Disabilities Act (the ADA).

Disability discrimination next requires that the employer “knew or thought” the employee to have a disability. Therefore, to be liable for disability discrimination the employer must know that the employee is actually disabled. However, an employer’s willful ignorance of an employee’s disability may meet this requirement under the FEHA. Nevertheless, it is important for disabled employees to inform their employers that they are actually disabled, preferably in writing.

Next, California’s public policy is to keep injured or disabled persons working if they are able to perform the “essential functions” of their job. This is even the case if keeping the injured person working is expensive, time consuming, or difficult for the employer. So, if a disabled employee could perform the essential functions of their job “with or without a reasonable accommodation” the employee may still have a case for disability discrimination.

As an example, take the imaginary case Johnny the Janitor. Johnny has chronic low back pain. Johnny is in lots of pain at work at Acme Co., where Johnny works as its only janitor. As a janitor, Johnny’s “essential job” duties include prolonged mopping and lifting 60 pound trash cans into a dumpster. Johnny cannot continue to perform his job without a workplace modification, called an “accommodation”.

However, Johnny informs his manager, in writing, that he simply needs to take periodic five-minute sitting rest breaks every two hours when his back is in extreme pain. Johnny also tells Acme Co. through its Human Resources Department that his coworker, Sally the Security Guard, will assist him in lifting the 60 pound trash cans into the dumpster. This will only take 30 seconds of Sally’s time. In other words, Johnny can perform the essential functions of his job so long as Acme Co. provides him with the requested “reasonable accommodations”.

Next, disability discrimination requires an “adverse employment action”. The most common form of adverse employment action is termination of employment. However, an adverse employment action also includes the denial of a promotion, a demotion, disciplinary write-ups, a cut in hours or pay, and other negative employment actions.  

Disability discrimination next requires that the employee’s disability was a “motivating reason” for the employer’s adverse employment action.  More clearly put, the termination needs to be caused, at least in-part, by the employee’s disabled status.  However, this does not require the employee alleging disability discrimination to show that the employer hates, dislikes, or intentionally wants to harm disabled persons.  

As an example, let’s take another look at Johnny the Janitor. Instead of providing Johnny with the “reasonable accommodations” that Johnny requested, Acme Co.’s Human Resources Department terminates Johnny. Human Resources tells Johnny, “We can’t allow you to work with a bad back.” Even though Acme Co.’s motives may be pure, their statement to Johnny is evidence that his termination was motivated by his disability (the bad back).  This is all that the FEHA requires.

Johnny is now unemployed. He has suffered “special damages” caused by his termination in the form of  lost wages, his 401k plan, and lost health benefits. Significantly, Johnny has also incurred “general damages” in the form of depression, stress over finances, and embarrassment.  Special and general damages are both recoverable under the FEHA. By satisfying the element of “damages”, Johnny has established a great case for disability discrimination.

For any questions on disability discrimination, accommodations, or wrongful termination, please call Brian Mathias Law, serving both sides of the Monterey Bay.

Ready to stand up for your rights?