Commercial Tenancies 101: Five Things to Know

California law treats commercial tenancies very differently from residential tenancies. Here are five important differences that should be taken into account by commercial landlords and also by any business owner who rents their commercial space.

1. The Rental Contract Often Controls, Not Public Policy    

The California Legislature enacts new protections for residential tenants every single year. These protections must be followed by all residential landlords, despite whatever contract or Landlord-Tenant Agreement exists between the parties. In other words, the public policy will control even if a written landlord-tenant agreement conflicts with California public policy.

However, far fewer public policies apply to commercial tenancies. For example, while California law mandates that all residential landlords must provide provide a rental home with the basic necessities like plumbing, locking doors, and electricity, no such requirement exists for commercial landlords and tenants. Commercial landlords and commercial tenants are free to agree by contract on far more aspects of their business relationship.

As a result of this difference, it is very important for commercial landlords and commercial tenants to have a comprehensive written, commercial tenancy agreement that covers all the frequent areas of disagreement and tension between landlords and tenants.

2. No 60-Day Notice Required

In residential tenancies, a month-to-month tenant who has lived at a rental property for one year or longer must be provided with at least 60 days written notice before their tenancy is terminated. However, no such protection exists for commercial tenants. Month-to-month commercial tenants (meaning a tenant who does not have a fixed term lease) must only be provided with 30-Days Notice, regardless of how long they have rented.

As a consequence, even long-established businesses that have rented at a particular spot for decades can be asked to leave in just 30-Days. This result is devastating for retail businesses who have a customer base familiar with a particular store location and who may have to relocate hundreds of thousands of dollars in inventory within just a few weeks. Read about this real life eviction of multiple Watsonville businesses who were threatened with eviction in just 30-Days. 

3. No “Exact Amount of Rent” Rule

Unlike residential landlords who must precisely state the exact amount of unpaid rent in a 3-Day Notice to Pay Rent or Quit, commercial landlords may reasonably estimate the amount of unpaid rent when issuing a pre-eviction notice. Commercial landlords may overestimate the unpaid rent by 20% and still prevail at an eviction lawsuit (called an “unlawful detainer”).

4. Partial Rent Payments Are Allowed

In a residential tenancy, a landlord will often lose their legal standing to evict a tenant if they accept a partial payment of delinquent rent. This unfortunate result typically means that a landlord receives no rent from a tenant during an eviction (which may  be a 35 day process).

However there is no rule for commercial tenancies. Landlords may accept partial payments in rent after service of a 3-Day Notice and even after filing a lawsuit without waiving their right to evict the tenant. (See California Code of Civil Procedure Section 1161.1, subd. (b)(c)).

To illustrate this rule, take the following example. Mike the residential tenant leases a house in Aptos from his landlord, Jared. When Mike fails to pay Jared his $2,000 rent on the first of the month, Jared serves Mike with a 3-Day Notice to Pay Rent or Quit. Within the three days, Mike offers Jared a partial payment of $1,950.00, $50.00 short of the amount due. Jared would lose his right to evict Mike if he accepts the partial payment. If he accepts the partial payment, he would have to re-issue a new 3-Day Notice and start the process all over again. However, this would not be the case if Mike was a commercial tenant. Jared could accept the partial payment and still evict Mike for failing to pay the full $2,000 rent.

5. No Security Deposit Limits

Residential landlords in California are legally limited in how much they may charge as a security deposit. Landlords may demand a security deposit of up to twice the monthly rent for for an unfurnished property (for example, $4,000 if rent is $2,000) and up to three-times the monthly rent for a furnished property ($6,000 if rent is $2,000).  However, no such agreement applies in the commercial context. Landlords and Tenants are free to agree by contract to whatever amount they want.

Are you a Santa Cruz County commercial landlord or commercial tenant? Call the Law Office of Brian Mathias for a free consultation. 831.531.7141

Read to stand up for your rights?

Eat At Your Desk! All About On-Duty Lunch Breaks

California requires employers to provide the opportunity for certain employees (called “non-exempt employees”) to take a lunch break.

Lunch breaks (legally called “meal periods”) must be provided after five working hours and must be at least one half-hour in length. Importantly, lunch breaks must be “duty-free”. A duty-free lunch break means that the employee is not required to perform any work. Employers who require employees to eat at their desk or do not allow the employee to leave the business premises do not provide “duty-free” breaks and are in violation of California law.

Employers who fail to provide a duty-free meal period are required to pay a penalty to the employee called a “meal period premium” of one additional hour of pay for every missed meal break. (For example, a non-exempt employee paid $10.00 per hour would be owed a $10.00 meal premium for each missed break).  

Employers who systematically do not provide employee  lunch breaks, especially those with many employees, face potentially enormous exposure in premiums, interest, penalties, and attorney fees.

There are only a few exceptions to California’s otherwise stringent lunch break requirement. One such exception is the “on-duty meal period”. Under the on-duty meal break exception, an employer may require an employee to work during their lunch break, provided that the employee is paid their normal wage during their lunch. Since it can be burdensome for employers to schedule and provide regularly occurring meal breaks, employers frequently attempt to use this exception.

However, on-duty meal breaks come with a huge catch. The exception is so narrow that only a tiny fraction of all employers could ever successfully use it to defend against a meal break lawsuit.

To apply the on-duty meal break exception, the employer must prove that the nature of the work makes it “virtually impossible” for the employee to take a duty-free half hour meal break. In other words, there is literally nothing the employer could reasonably do to create the circumstances that would allow a proper, duty-free lunch break.

Legally enforceable and valid on-duty meal periods also require the employer and the employee to enter into a revocable, written agreement stating that both parties agree to the on-duty meal period. This requirement is often overlooked by employers.

To illustrate these concepts, Mike works at Hot Dog on a Stick in Watsonville and is paid $15.00 per hour. Because Mike is the only manager during the night shift, Jared  the owner requires him to be on-duty at all times to answer employee questions and deal with difficult customers. Jared verbally tells Mike that he must take “on-duty meal breaks” and forbids Mike from leaving the restaurant for longer than 10 minutes. Mike works for many years under these circumstances, and then is abruptly fired after he is wrongfully accused of stealing a corn dog.

Mike has a great case for unpaid meal breaks because the narrow on-duty meal break exception does not apply.

Even though Mike is the only manager at Hot Dog on a Stick, it is not “virtually impossible” for him to take a thirty minute, duty-free meal break. Other employees could have simply been trained to handle employee questions and customer complaints. Jared could have re-scheduled other employees to assure coverage during Mike’s half hour lunch break. Additionally, Jared failed to ever enter into a written On-Duty Meal Period Agreement with Mike, as is required by the narrow exception.

Rental Agreements: Five Things to Know and Mistakes to Avoid

All landlords and tenants should have a written contract that controls their relationship called a “rental agreement,” “rental contract,” or a “landlord-tenant agreement”. This especially includes landlords who provide free rent to friends or family members or landlords who have unorthodox landlord-tenant relationships.

For landlords, having a well drafted, written agreement in place makes it easier and less expensive to evict a tenant in the event of a failure to pay rent or if the tenant refuses to leave. For tenants, a rental agreement can protect you from greedy or pushy landlords.

Here are the top five things to know about rental agreement provisions in California.

1) Anti-Marijuana Clauses

Many residential landlords in Santa Cruz and Monterey Counties fall victim to renters who convert homes into illegal marijuana grow operations. We are not talking about a recreational puff or two, but the indoor and outdoor production of marijuana as a cottage industry. This is very prevalent in the Santa Cruz mountain communities of Boulder Creek, Bonny Doon, and Ben Lomond. Marijuana grow operations were the alleged source of recent house fires in Felton and a house explosion in Aptos.

Santa Cruz landlords are encouraged to include language in their rental agreements that expressly forbid the cultivation of marijuana indoors or outdoors. Landlords may also include a no-smoking clause in their rental agreements or language that forbids renters from committing crimes on the property. The breach of any of these agreements could support evicting a tenant by a 3-Day Notice to Terminate Tenancy.

2. No-Subletting Provisions

Subletting occurs when a tenant rents the property to a new tenant who temporarily takes over the rental space. The original tenant then becomes a quasi-landlord. From a landlord’s perspective, subletting is generally a bad idea because the tenant, rather than the property owner, will usually be in charge of the critical tenant selection process. Tenants have different priorities than landlords and should not be in charge of selecting tenants. Subletting is very prevalent in Santa Cruz among UCSC students and in Monterey among CSUMB students.

A well drafted rental agreement should include a clear no-subletting provision.

3. Customize the Rental Agreement for Your Property

While many landlords have written agreements in place with their tenants, very few of them actually customize those agreements for their tenant and the specific property. Customizing your rental agreement is an easy way to communicate your expectations as a landlord from the get-go.

Do you have a prized fruit tree at the rental property that needs regular water? Include a provision in your rental agreement requiring your tenant to water it. Have high-maintenance neighbors next to your rental property? Be sure to include a clause about parking and other “good neighbor” provisions.

4. Stick to Your Rental Agreement and Keep it in Writing

Landlords and tenants should stick to their rental agreements and document any changes with a written “amendment” to the rental agreement. If a landlord deviates from a rental agreement, a tenant may argue that the landlord has “waived” their right to enforce that provision of the rental agreement.

As an example, take the case of Eric the landlord. Eric’s written landlord-tenant agreement has a clear no-pet policy, which Eric’s new tenant, Justin, reads and signs. After a three months, Justin asks Eric for permission to get a “medium sized” dog. Eric agrees to the request. Unbeknownst to Eric, Justin brings home a pit bull. Many months later, neighbors start to complain that Justin’s dog is barking constantly. When Justin’s dog doesn’t stop barking, Eric attempts to evict Justin and his dog. However, Justin may successfully defeat the tenant eviction and argue that Eric voluntarily gave up any objection to Justin’s dog when he verbally agreed to him getting a dog.

Important changes, such as allowing a pet, should always be in writing.

5. No Alternative Dispute Resolutions

California landlords have very limited options when forced to evict a tenant who does not pay rent or who commits other serious breaches of the rental contract. For this reason, it is important that your rental agreement not modify or further limit the few protections left available to you as a California landlord. This includes “alternative dispute resolution” clauses that require mediation or arbitration, rather than filing an eviction or “unlawful detainer”. Freebie rental agreements available online are often times not geared for California law and will only muddy the waters if you need to evict.

Do you have a written landlord-tenant agreement in place with your tenant?

Ready to stand up for your rights? Call Brian Mathias Law for a  consultation.

Are You Working An Alternative Workweek Schedule?

With very few exceptions, overtime pay must be paid to any non-exempt employee who works longer than eight hours per day or forty hours per week. (Click here to read an article to help determine if you are a "non-exempt" or "exempt" employee.)  

One of the very few exceptions to paying overtime in California is called an Alternative Workweek Schedule.

An Alternative Workweek Schedule is a written agreement between the employer and their employees for the employee to work longer than eight hours per day without paying overtime. The most common type of Alternative Workweek Schedule is called a “Four-Ten” meaning the employee works four, ten-hour days per week instead of five, eight-hour days per week. Under a lawfully enacted Four-Ten Alternative Workweek Schedule the employee is not entitled to any overtime even though that employee worked ten hours in a single day, which under normal circumstances would entitle her to two hours of overtime pay.

Alternative Workweek Schedules are often desired by employees because they create regular three-day weekends. Similarly, employers desire alternative workweek schedules because they can work their employees  for longer stretches on any given work day without paying time-and-a half.

But Alternative Workweek Schedules come with a very big catch. In order to be valid and enforceable, the employer must strictly follow many highly technical procedure requirements to enact a lawful Alternative Workweek Schedule. These requirements can be so technical and complicated that many employers do not implement them correctly and rendering them invalid. Alternative Workweek Schedules cannot be established with a simple handshake. In fact, the requirements are so technical that an attorney is often required to establish a valid and enforceable Alternative Workweek Schedule.

As an example of some of the requirements to enact a valid and enforceable Alternative Workweek Schedule, the employer must schedule an alternative workweek election among the affected employees, draft ballots,  issue pre-election disclosures, hold an election at the worksite during regular work hours, and then report the results of that election to the California Department of Industrial Relations within 30 days.  And these are just some of the requirements.

There are potentially severe consequences for employers who do not follow all the legal requirements for a valid and enforceable Alternative Workweek Schedule. This includes paying overtime pay to every employee who worked under the invalid Alternative Workweek Schedule, as well as interest and wait time penalties on those unpaid wages going back several years.

Are you working a four-ten schedule or other Alternative Workweek Schedule?  Contact the Law Office of Brian Mathias for a free consultation.

Ready to stand up for your rights?  www.brianmathiaslaw.com

The Top 5 Things to do After an Auto Accident - Don’t Forget!

After an auto accident, thankfully, most people know to stop, check for injuries, pull safely off the roadway, and exchange insurance information. Here are the top 5 overlooked things to do after an auto accident involving non-serious injuries.

1. Call the Cops and Get a Police Report

If you are involved in a small car accident, it may be tempting to simply move on and not call the cops, even if you are slightly injured. But think twice. Not calling the cops is a big mistake if you ever want to collect monetary damages for missed work, doctors bills, and pain and suffering.

A police officer, including the Highway Patrol, will make a police report, called a “Traffic Collision Report” if called to the scene. This police report will contain important contemporaneous observations and notes about the accident, including which driver caused the accident. A favorable police report will generally be given a great amount of credibility by insurance companies and generate a more favorable settlement.

If you fail to call the police and get a report, the only other witness to the accident will be the other driver. When this occurs insurance companies will make every attempt to contest liability and argue that you caused the accident. This is can be avoided by calling the cops after an accident.

2. Take Good Photos   

You should always take high-quality photographs at the accident scene. These photos should accurately depict the damage done to both cars, the scene of the accident, and the weather and time of day. You don’t need a fancy camera; good photos taken with your iPhone/smartphone will do just fine.

Importantly, take the time to take a good quality photo that actually depicts the damage done to the cars. Adjust the zoom, hold still, use the flash if necessary. Take the time to capture a good photograph before you leave. It is difficult to capture the size of a dent—even a big dent—on a newer model car.

If you take bad photographs that downplay the level of damage done to your car, insurance companies will use them as evidence to argue the accident was minor and that you could not have possibly been injured.

3. Go to the Doctor Right Away if you are Injured

If you are injured, do not wait a long to go to the doctor. Go to a doctor, preferably your regular treating physician, if you are in pain.

Auto accident victims are often reluctant to go to the doctor even when they are in excruciating pain. This may be from a concern over cost or simply a belief that a doctor cannot fix their pain. However, if you do not go to the doctor after an auto accident, that fact will be used against you by insurance companies to argue that you were never actually injured.

Additionally, a doctor’s timely diagnosis of your pain, and linking that pain to the accident (called “causation”) is critical to obtaining a favorable personal injury settlement.

4. Be a Good Patient

Being a good patient is critical to obtaining a favorable personal injury settlement from any type of car accident or motorcycle accident. This means that you should listen to your doctors and medical providers and implement their instructions.

If you are prescribed physical therapy after a car accident, make sure you do any at-home exercises assigned by the physical therapist. If your treating physician tells you to come back for another appointment in two weeks if you are still in pain, do exactly that.

Also provide your medical providers with accurate information about your symptoms. Don’t report that you have a pain level of 4 on a scale of 1-to-10 if you actually are living in agony and actually experiencing an 8 out of 10.

Juries, judges, and insurance companies are more likely to give more money to good patients.

5. Don’t Wait Too Long to Take Action

As a general rule, personal injury cases, including car and motorcycle cases, have a legal deadline, called a “statute of limitations”, beginning from the date of the accident. (California Code of Civil Procedure 335.1.) This means that you have two years to file a lawsuit to preserve any legal claims against the responsible party.

Too often, self-represented car accident victims wait until the last minute to contact an attorney or to take legal action. Shopping for an attorney itself will take time. Additionally, most attorneys will want to conduct an informal investigation before officially signing up a client, which also takes time.

If you are at all interested in getting an attorney to help you, do so quickly after the accident.

Were you injured in an auto or motorcycle accident? Call the Law Office of Brian Mathias for a  consultation.

Do You Make Under $47,476? Read This.

If you make less than $47,476.00, you may be entitled to a substantial amount of unpaid overtime by your employer due to a change in California and federal employment law.   

For legal background, there are two employee classifications in California: exempt employees and non-exempt employees.

Exempt employees are not entitled to overtime for any hours worked in excess of eight hours per day or 40 hours per week, meal breaks every five hours, rest breaks every four hours, and other protections. A non-exempt employee could work 100 hours per week and not be entitled to anything but their regular salary (ie. $60,000 per year). A properly classified non-exempt employee must be paid a minimum salary of $47,476 beginning December 1, 2016, and must spend 51% of their time performing non-exempt job duties, such as supervising of other employees or perform high-level office work, like accounting or human resources.

Non-exempt employees are entitled to overtime, breaks, and many other protections. For example, a non-exempt employee would be entitled to 20 hours at 1.5 times their regularly hourly rate if they worked 60 hours per week. Statistically, most employees are non-exempt, even employees that spend some time managing other workers or who perform non-manual office work.

Employers regularly misclassify employees as “exempt” to avoid rigorous obligations to pay overtime and provide breaks. However, there is a common misperception among workers and employers that an employer simply needs to pay an employee a flat salary, rather than an hourly wage, in order to classify an employee as “exempt” from overtime. Payment of a salary rather than an hourly wage is just one of many factors in determining whether an employee is properly classified.

Moreover, beginning December 1, 2016, all exempt employees must be paid a minimum salary of $47,476 in order to be properly classified as exempt. This means that any worker paid under $47,476 must be paid overtime and be provided with rest breaks beginning December 1, 2016.

The new law means that many exempt employees will be getting a pay raise to $47,476 or more beginning December 1, 2016, or will be converted to hourly-paid employees. However, many employers may not change their policies in light of the new law.

Are you a Santa Cruz or  Monterey County salaried employee and paid less than $47,476.00? If so, call the Law Office of Brian Mathias for a free consultation.

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Five Common Mistakes for Landlords to Avoid

Each and every landlord-tenant issue will pose a unique challenge or novel issue. However, most landlords can avoid legal problems by learning from these top five most common landlord mistakes.

1. Preparing your own 3-day, 30-day, or 60-day notices

Landlords should never draft and serve their own pre-lawsuit notices. This can be a time consuming and costly mistake.

For background, a landlord is required to serve a pre-lawsuit notice on the tenant in the event of a failure to pay rent or other breach. These are commonly referred to as a “3 Day Notice to Pay Rent or Quit” or a “30-Day Notice to Quit”. The notice must meet highly technical requirements in order to survive an unlawful detainer or eviction.

The problem is that landlords often prepare these forms incorrectly. This results in the notice having to be re-served and the landlord having wait another three days, another 30 days, or even another60 days to enforce legal rights in court. Landlords should always have an attorney prepare a pre-lawsuit notice.

2. Not asking for a security deposit

Landlords should always require a security deposit of at least one-month’s rent, or even more. Legally, a landlord may require a security deposit of up to two-months’ rent for an unfurnished property and three-months’ rent for a furnished property.

Collecting a security deposit is often a landlord’s only opportunity to collect money from the tenant in the event of a failure to pay rent. As an illustration, in the event the tenant refuses to pay rent, a lawsuit called an “unlawful detainer” must be initiated. That process, if successful, can take 30 days or longer to complete. During that entire time the tenant is typically not paying any rent.

3. Not promptly objecting to late rent payments or other contract breaches

A common problem occurs when landlords fail to promptly object to late payments of rent or other breaches of the rental contract. This is problematic for landlords because the tenant may successfully argue that the landlord “consented” to the breach.

As an illustration, take the case of Jared who rents an apartment in Capitola and his landlady, Laurel.

Jared started off as a very good tenant from Laurel’s perspective and always paid his rent on the first of each month. Then Jared gradually starts paying the rent a few days late. He never pays a late fee. Secretly Laurel is highly annoyed with Jared for paying the rent late, but she never says anything to Jared about the problem. After 8 months of receiving the rent late, Laurel is fed up and wants to evict Jared for failing to pay rent on time and failing to pay a late fee.

Unfortunately for Laurel, and luckily for Jared, Jared may argue that Laurel consented to his practice of paying rent late and paying it without a late fee. He may argue that the long-standing practice of paying rent late modified the rental contract that called for rent on the first day of the month. Jared has a viable defense to an unlawful detainer.

Landlords should always promptly object to late payments of rent or other breaches of the landlord tenant agreement.

4. Allowing “tenant swapping” and “subletting”

It’s a bad idea for landlords to permit to “tenant swapping”. Tenant swapping occurs in multiple-occupant rentals when one tenant moves out, and the remaining tenants select a new tenant to take the old tenant’s place. Tenant swapping is prevalent in student-occupied housing at UCSC and CSUMB.

“Subletting” occurs when an existing tenant rents out the rental premises for a short period time. The original tenant then becomes a quasi-landlord. Subletting is common during the summer when college students leave Santa Cruz and Monterey at the end of the school year.

Tenant swapping and subletting are problematic for two reasons. First, much of the time tenant swapping and subletting results in the new tenant not signing a written landlord-tenant agreement with the landlord. Failing to have a written landlord-tenant agreement with each tenant creates complications with the security deposit and in the event of an eviction.

Second, tenancies that result from tenant swapping and subletting typically do not go through any basic screening and application process by the landlord. A basic screening process will disclose if the potential tenant has a history of evictions and not paying rent. Would you want a career squatter living in your property? Absolutely not!

5. Using free landlord-tenant agreements

Landlords also encounter problems by using free landlord-tenant agreements and leases from the internet. While some free landlord-tenant agreements may be fine, many are not tailored for California law. Free landlord-tenant agreements may also require the landlord to utilize an expensive arbitration or mediation process in the event of a failure to pay rent. Landlords should always use a landlord-tenant agreement from a trusted source that is based on California law.

Are you a residential landlord in Santa Cruz or Monterey County? Call the Law Office of Brian Mathias for a free consultation.

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I'm Gonna Get You!! What is “Retaliation” in Employment?

Retaliation is a very misunderstood concept in employment law. Much like the terms “wrongful termination” and “harassment”, the legal definition of “retaliation” is narrower than the common definition.

As commonly understood, retaliation in employment means any form of employer-revenge as a result of the employee speaking out over any workplace issue.

Legally speaking, retaliation is only illegal if the employee engaged in “protected activity”. Not all activities are protected against retaliation. There are dozens of types of protected activities in employment law. The most common forms of protected activity are good faith complaints of unlawful discrimination based on the employee’s disability or health condition, requests for health accommodation, pregnancy, gender, race, religion, sexual orientation and other legally protected characteristics.

As an example of un-protected activity, take the case of Julia. Julia has worked as a nurse for five years for Franciscan Hospital in Santa Cruz, California on it’s prestigious cancer treatment ward. Julia is passionate about treating patients with cancer. Unfortunately, Julia gets a new manager, Bob, who abruptly reassigns Julia to the hospital’s incredibly boring podiatry unit. Julia is miserable in the podiatry unit. She repeatedly complains to management and says that her work is “boring”, that it “doesn’t effectively use her skill set” and that “the job stinks”. Eventually, Bob gets tired of Julia’s complaints, and at the end of the year recommends that the hospital terminate Julia’s employment.

Unfortunately nurse Julia does not have a case for retaliation against the hospital. Did Bob the supervisor act morally and ethically in taking away her beloved job on the cancer ward? Probably not. Did Bob most efficiently apply Julia’s skill set at work? Nope. Was it vengeful, mean, and immature for Bob fire Julia after she complained? Absolutely. However, Julia still does not have a case for retaliation because she did not engage in protected activity.

As an example of activity that is protected against retaliation, let’s change the facts and imagine that nurse Julia suffers from diabetes. Nurse Julia has to take daily ten-minute breaks during work to take insulin and test her blood sugar to manage her diabetes. She must also regularly take time during the workweek to attend doctor appointments. Unfortunately, Julia’s new manager, Bob cannot stand Julia’s time away from work and issues her a poor performance review. Bob specifically gives Julia a one-star ranking in the categories of “attendance” and “teamwork” and writes “Julia should manage her health condition on her own personal time, not at work.”

After receiving the poor performance review, Julia submits a written complaint to Bob and the hospital’s CEO about Bob’s comments and states, “I’m being discriminated against because of my diabetes…” and “I will need periodic breaks from work to manage my diabetes.” After receiving the complaint, the hospital CEO fires Julia because he does not want a “complainer” working for him.

Julia has a great case for unlawful retaliation. Julia engaged in protected activity by complaining about Bob’s discriminatory conduct and by requesting a reasonable accommodation to manage her health condition. Julia would be entitled to reinstatement, economic, and emotional distress damages under California’s Fair Employment and Housing Act.

Are you an Aptos, Santa Cruz, Watsonville, or Monterey County employee experiencing retaliation at work? Call the Law Office of Brian Mathias before you are terminated for a free consultation.

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Give Me a Break!

Can I take breaks at work?

All “non-exempt” employees are entitled to legally protected work breaks. A non-exempt employee is typically a non-managerial level employee, an employee who performs a physical job, or any employee who earn less than $41,600 per year. In contrast, an “exempt” employee will typically work in management or will have specialized job or background. An employee may earn much more than $41,000 per year still be considered “non-exempt.”

Numerically, most employees are non-exempt and are entitled to take protected breaks. An employee’s “classification” as exempt or non-exempt is a very fact-intensive analysis that depends on what the employee spends the majority of his or her time doing.

Employers regularly misclassify their employees. Employers have a financial incentive to classify employees as “exempt” to avoid the obligation to provide legally required breaks and to avoid paying overtime. And many employers simply do not know how rigorous their obligations are under California law. For these reasons, many employees are not provided with rest and meal breaks when they should be.

What are protected rest and meal breaks?

There are three types of protected breaks in California: rest breaks, meal periods, and recovery periods.

Rest Breaks:

Rest breaks are the most common form of legally protected break. All non-exempt employees are entitled to one, paid 10-minute rest break for every four hours worked. Most importantly, the rest break must be “duty-free”. A duty-free rest break means that the employee is not doing any work for the employer.

Meal Periods and Lunch Breaks:

Meal periods or lunch breaks are the next most common type break. One unpaid, half-hour meal period must be provided for every five hours worked. Like rest breaks, the employee must be given a realistic and meaningful opportunity to take a “duty-free” meal period. This means that employees must be permitted to leave work and be completely free of any work obligations. Employees who are required to take their lunch break at their desk are not being provided with a duty-free meal period.

Recovery or Cooldown Periods:

California also requires employers to provide five minute recovery periods or “cooldown periods” or “shade breaks” to employees who work outside in high temperatures. The purpose of this type of break is to prevent heatstroke illness. Recovery periods are the least most common form of protected break because they only apply to employees who work outdoors and in the heat, such as construction workers, agricultural workers, and landscaping employees.

What happens if an employee is deprived of their breaks?

Employers owe their employees penalties if the employee is deprived of the opportunity to take legally protected breaks. One such penalty is called a meal or rest break premium—equivalent to one additional hour’s pay at the employee’s regular rate of pay for missed breaks, up to two hours per day. These penalties can add up to thousands of dollars, especially for employees who have been deprived of their breaks for a long period of time.

As an illustration, take the case of José the bartender. José works as a bartender at a popular bar in downtown Santa Cruz. José works five nights per week from 4:30 p.m. to 2:30 a.m. and is paid $15.00 per hour. José works with one other bartender, Mike. Mike and José are the only employees on site at the bar. The bar is very popular among UCSC students and patrons are lined up at the bar waiting to buy drinks all night long. José has been repeatedly told by the bar’s owner, Jared, under no circumstance should any patron wait longer than 5 minutes at the bar for a drink.

Given the bar owner’s instructions to José about customer wait times, the bar’s popularity, and the understaffing, Jose never has the opportunity to take a duty free break at work.
Unfortunately, José is abruptly terminated after he presses the wrong button on the credit card machine, resulting in a loss of hundreds of dollars to the bar.

José does not have a case for wrongful termination. However, he does have a great case for failure to provide rest and meal breaks. Since José worked ten hours per shift, he should have received two duty-free half hour meal periods and two duty-free 10-minute rest breaks. José can get the maximum penalty of two hours additional pay for every day that he was deprived two or more breaks; $30.00 per day. That totals $7,800 per year going back up to four years, or $31,200.

After unpaid overtime, interest, and state penalties are factored in, José’s damages are in excess of $100,000.

Are you a Santa Cruz, Monterey, or Salinas employee who can’t get a break at work? Contact the Brian Mathias Law. Se habla español.

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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?