Category Archives: Disabling Injury and Illness

This category examines California’s Workers Compensation laws. It identifies who is an “employee” as well as when someone is working in the “course of employment.” It also examines occupational disease and the burden of proof. Additionally, it attempts to help the reader determine benefit levels and employer obligations when an accident occurs.

Harris v. Bingham McCutchen – Victory on Arbitration Issue

Robert Odell Arbitration Harris v. Bingham McCutchenEarlier this month, the California Court of Appeal denied mega law firm Bingham McCutchen’s attempt to have a wrongful termination lawsuit (filed against them by a former associate, Hartwell Harris) thrown out of court and into binding arbitration. (Click here read the court’s decision).

All all three justices in Division Five of California’s Second Appellate District unanimously agreed that Bingham’s arbitration agreement (which forces all of its employees to arbitrate their claims against the company rather than file lawsuits in court) was invalid under Massachusetts law, which was also Bingham’s own choice in drafting their agreements.

Law Firm Fails to Enforce its Own Arbitration Clause

Ms. Harris worked for Bingham in their Santa Monica, CA office as a litigation associate from May 2007 until February 2011 when she was fired after developing a rare sleep disorder called Delayed Sleep-Phase Syndrome. She later filed a lawsuit against Bingham in November 2011, claiming that, despite her positive reviews, Bingham terminated her once they learned of her disability and need for accommodation while she returned to a normal sleep cycle.

After the lawsuit was filed in Los Angeles Superior Court, Bingham moved to compel the case to binding arbitration, citing the arbitration clause in Harris’ employment contract.  Presiding Judge Mel Red Recana, however, agreed with Harris’s attorney, Tamara S. Freeze, and denied Bingham’s arbitration petition on the grounds that the provision was not enforceable under Massachusetts law, which Bingham had decided would control the contract.

Bingham then appealed the trial court’s decision, however, the California Court of Appeal affirmed the lower court’s denial in a strong 3-0 decision – both ordering their opinion to be published in the appellate records and ordering Bingham to pay Harris her costs on appeal.

Attorney Reaction

Regarding the appeal, the Law Offices of Tamara S. Freeze has stated on their blog:

“Ironically, Bingham McCutchen knew their arbitration agreement, as originally drafted, was invalid in light of a 2009 Massachusetts Supreme Court opinion: Warfield v. Beth Israel Deaconess Medical Center, Inc. but apparently forgot to update it. Indeed, Bingham’s own attorneys published a press release on their website warning their clients about this new law and how it would affect arbitration agreements . . . a warning that Bingham apparently failed to heed itself. For obvious reasons, the publication has since disappeared from Bingham’s website (but we still have a copy HERE).”

Hartwell Harris was represented by Tamara Freeze, Robert Odell, Allison Lin and law clerk Harrison Brown.

 

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Filed under Disability Discrimination, Disabling Injury and Illness, Discrimination

Pregnancy Series #4 – Pregnancy Disability Leave in California – 10 Things You Should Know

Pregnancy Disability Leave, PDL, FMLA, CFRA, reasonable accomodationIn a previous post we covered what you need to know about maternity leave. But that is only useful if you have a typical pregnancy. What if it’s a hard pregnancy, and you need more than the usual amount of maternity leave? You are probably wondering:

  • What if I get put on bed rest and can’t work?
  • What if my labor is horrible and I need more than 12 weeks to recover?
  • How much disability leave can I take?
  • Can my boss refuse to let me take disability leave beyond my maternity leave?
  • Do I have the right to return to the same position afterwards? Same pay?
  • What else do I need to know?

Click through for ten critical pieces of information that you need to know about pregnancy disability leave….  Continue reading

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Filed under CFRA - California Family Rights Act, Disabling Injury and Illness, Discrimination, Family & Medical Leave, FEHA – Fair Employment & Housing Act, FMLA - Family & Medical Leave Act, Maternity Leave, Pregnancy, Pregnancy Disability Leave, Sex Discrimination

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

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