Author Archives: Branigan Robertson

by | April 9, 2012 · 3:10 pm

A Texas Hospital Bans Obese Workers. What about California?

Obesity discrimination is a hot topic in employment law. CNN recently ran an article covering a hospital in Texas that has a policy of denying job applications solely because the potential employee is obese.  Applicants for a job at Citizens Medical Center in Texas must have a Body Mass Index of less than 35 (185 lbs for someone who is 5-1; or 265 lbs for someone who is 6-1). I’ve blogged about this topic before. It isn’t new and it isn’t going away. If you want to know more about CA’s laws regarding obesity in the workplace, see my previous post.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Filed under Disabling Injury and Illness, Discrimination

by | October 5, 2011 · 5:45 pm

Can I be fired for being fat? Is obesity a ‘disability’ in California?

Let’s be honest, obesity is an epidemic. According to California Health and Human Services, approximately three in five adults are overweight or obese in California. Although recent trends suggest leveling growth rates of obesity in the state, overall obesity rates remain extremely high.

Not surprisingly, some bosses view their obese employees as limited, incapable, slow, unhealthy, or expendable. More likely than not, an obese employee is granted fewer mistakes, fewer promotions, and fewer raises than a skinny employee. It is not uncommon for someone to get fired explicitly because of their weight.

There is no law in California that states that an employer cannot fire or discriminate against an employee because of their weight. However, there is law in CA that states than an employer cannot discriminate against an employee because of a disability.  That begs the question — is obesity a disability?

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Filed under ADA, Disability Discrimination, Disabling Injury and Illness, FEHA – Fair Employment & Housing Act

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by | October 4, 2011 · 10:29 am

I just got fired! I think it’s because I’m disabled…. Is that legal?

Discrimination is subtle. It’s never goes like: “We’re terminating your position because you can’t walk/have diabetes/have cancer/can’t hear….” No, no, no. Even stupid bosses usually aren’t that stupid.

It usually goes like this: “We’re letting you go.” That’s it.  Smart employers don’t give you a reason, they just fire. But it gets interesting when someone gets fired two months after being diagnosed with cancer, or after breaking major bones on their hand, after telling their boss that they’re depressed, get a serious back injury, or after major surgery.

The law in California prohibits disability discrimination. But what happens when you are fired, demoted, or refused a promotion for reasons seemingly unrelated to your disability? Do you just suck it up and try to find a new job? Well, yes, you should try to find a new job; but no, you shouldn’t put your tail between your legs and let your boss do that, especially if you suspect you were fired because of your disability.

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Filed under Disability Discrimination, FEHA – Fair Employment & Housing Act

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by | September 23, 2011 · 8:38 pm

Do I get a rest break at work?

I’m an hourly employee.  Doesn’t my jerk boss have to give me a rest break?  What if he doesn’t?

Yes, you’re entitled to a break! That jerk is in for some serious suits if he doesn’t! And I don’t mean clothing. I mean lawsuits. California law states that any hourly employees that have not been provided at least a 10 minute rest period for every 4 hours of work, that employee is entitled to one hour of pay.  And my boss can’t require me to work during my break, obviously.  He can, however, require me to stay on the premises. CA Labor Code § 226.7.

For example: If I make $30/hr and my boss doesn’t let me take a 10 minute break within a 3.5 – 4hr period, my boss is supposed to compensate me with one hour of pay ($30) on top of the hours I worked that day.

I know what you’re telling yourself right now. “I’m not going to sue my boss for $30 bucks, you idiot.”

True. However, you might want to sue your boss if I let you in on a little secret. That $30 penalty applies per day. And if you add them all up, that could be a lot of money. Let say you’ve been denied a rest break every day for the past three years.  You could be owed $22,500.

That might be worth suing over…. If you add that to a few other wage and hour violations, that number could hit $100,000 with ease. That might motivate you to talk to an employment attorney.

A few more details on rest breaks:

The break must be a paid break. Your boss can’t deduct 10 minutes from your hours every time you go for a smoke, stretch, or stroll.  Also, to the extent possible, you have to take the break near the middle of each work period. This is flexible, though. Lastly, you don’t have to take the break if you don’t want (provided your boss isn’t ‘encouraging’ or forcing you not too).

With that said…keep up the good work.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Filed under Rest Breaks, Wages and Hours

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by | August 30, 2011 · 7:24 am

My Boss Fired Me Because I’m Ugly. Can I Sue?

Were you fired because you’re ugly? Did your boss hire a beautiful replacement? Shouldn’t you be able to sue for that?  The NYT makes the case:

[W]hy not offer legal protections to the ugly, as we do with racial, ethnic and religious minorities, women and handicapped individuals?

The article has an interesting take on why ‘ugly’ people should be protected from discrimination in the workplace. It addresses the major problem, “what is ugly?”, in sheepish way.

For purposes of administering a law, we surely could agree on who is truly ugly, perhaps the worst-looking 1 or 2 percent of the population. The difficulties in classification are little greater than those faced in deciding who qualifies for protection on grounds of disabilities that limit the activities of daily life, as shown by conflicting decisions in numerous legal cases involving obesity.

Um. I’m pretty sure it would be harder than that. Beauty is extremely subjective. Not only that but picture the court proceedings. “Ladies and Gentlemen of the jury, my client is ugly.  Just look at her. She is simply not attractive. I’m here to prove that, not only is she terribly ugly, but her boss decided to fire her because of her looks, and proceeded to hire a attractive replacement. Please award my client $1,000,000.”

The absurdity is obvious.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Filed under Discharge & Layoffs, Discrimination

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by | August 29, 2011 · 10:33 am

Firing Horror Stories

If you own a small business, then you’ve fired someone before. I’m not talking about laying someone off. I’m talking about firing someone because they are incompetent. Its never fun. Its uncomfortable (because of the confrontation), annoying (because you have to hire someone else), and a lot of work.  You have to take the necessary steps to make sure the fired employee doesn’t become disgruntled. I generally believe that ‘disgruntled’ means disaster.  Here are a few disaster stories from CNN.

The stories range from hacking into the company’s servers all the way to physical fights.  They will entertain you.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Filed under Discharge & Layoffs, Human Resources, Leaving a Job

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by | August 25, 2011 · 7:46 pm

Angel’s Union Authorizes Strike

Oh dear. Angels fans be wary! The workers who sell hot dogs and beer at Angel Stadium may strike. If you’re like me, you can’t go to an Angel game an not get a beer and a hot dog. A typical food-service cashier at Angel Stadium makes $12.88 an hour. Apparently, similar jobs pay more in other stadiums. More than 500 workers have authorized union leaders to call for a strike if contract negotiations remain stagnant. Read the full article here.

Food workers say that they are frustrated by a wage freeze and health-care takeaways suggested by concessionaire Aramark, which handles food and beverage sales at the stadium.

Angel’s owner Arte Moreno needs to fix this fast.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Filed under FLSA – Fair Labor & Standards Act, Wages and Hours

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by | · 11:35 am

Disparging Your Employer on Twitter

Disparging your employer on twitterA National Labor Relations Board report released last week attempts to explain the changing legal standards for social media usage in the workplace. It highlights a few of its administrative decisions regarding Twitter, Facebook, and other social media platforms.  One of the decisions interested me enough to re-post it here.

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Filed under Defamation, Discharge & Layoffs, Human Resources, Labor Law, Retaliation, Social Media

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by | February 14, 2011 · 2:43 pm

Update: Relationships in the Workplace – Dunder Mifflin Style

I know about a hundred people who have had relationships within their workplace.  I’m sure you know a hundred more.  Well, The Office had an entire episode about interoffice relationships.  Joshua Drexler at the ‘That’s what she said’ blog (one of my favorites) has a great post on the subject.

http://www.hulu.com/embed/C-GhMCa18lkKKGDGk49n4w

Update:

After posting the above link I found another one worth mentioning.  Apparently, the Vault does an annual ‘office romance’ survey.   Employers and employees in will find this interesting.  A few of the highlights are:

  • 41% of employees in the general population claim to have never participated in an office romance.
  • 40% of employees report “avoiding or curtailing a potential romance that they would have otherwise pursued specifically to avoid an office romance.”
  • Among those who have engaged in an office romance, 26% have dated a subordinate, and 18% have dated their boss.

These percentages were worse than I expected, but not surprising.  You may find it humorous to note that lawyers are particularly bad when it comes to romance in the office.  As opposed to 41% in the general population, 36% of lawyers have “never participated in an office romance.”  I bet that number changes when you look specifically at labor and employment attorneys.  They would know better.  But that’s just my hunch.

 

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Filed under Freedom in the Workplace, Harassment, Relationships, Sex Discrimination, Sexual Harassment

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by | February 5, 2011 · 11:05 pm

Employee Non-Compete Agreements Invalid in California

Orange County, CA – Are you an employee?  Go find your employment agreement (the contract you signed when you started work at the company) and open it up.  I would bet that 75% of the employment agreements in California have some sort of provision that reads like this:

The undersigned Employee hereby agrees not to directly or indirectly compete with the business of the Company and its successors and assigns during the period of employment and for a period of X years following termination of employment and notwithstanding the cause or reason for termination.

If you’re an employee, you’re in luck.  These “non-compete” clauses (also called “covenants not to compete” or “restrictive covenants”) are almost entirely invalid in California.  If you’re an employer, can you ever restrict your current and former employees from competing?  Find out after the jump…

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Filed under Discharge & Layoffs, Duty of Loyalty, Leaving a Job, Non-Compete Agreements, Restrictive Covenants, Retaliation

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by | February 3, 2011 · 11:51 am

Employee Duty of Loyalty

Orange County, CA – What is the duty of loyalty?  Does it apply to a employee?  Employer?  What is California’s rule regarding the duty of loyalty?

These are all extremely valuable questions for both the employer and the employee to have answers to.  First, the employee duty of loyalty basically means this: An employer has the right to the undivided loyalty of its employees. The duty of loyalty is breached and may give rise to a tort cause of action on behalf of the employer when the employee takes action hostile to the employer’s best interests.  Stokes v. Dole Nut Co. (1995) 41 CA4th 285, 295.

What on earth does that mean?  It means that an employee isn’t supposed to compete with his or her employer while he or she is employed.

Well, what does “compete” mean?  Easy answers after the jump….

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Filed under Duty of Loyalty, Leaving a Job, Non-Compete Agreements, Restrictive Covenants, Trade Secrets, Unfair Competition

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by | January 19, 2011 · 7:59 am

Can my company drop our health insurance?

The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for most voluntarily established pension and health plans in private industry to provide protection for individuals in these plans.  However, this law does not mandate companies carry health insurance for its employees.  In fact, 47% of small businesses are thinking of dropping their health insurance.  OC Register

 

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Filed under Employee Benefits, Health Benefits, Health Care