Litigation is a cornerstone of the firm’s practice, and a number of firm members have extensive experience in litigating a wide variety of matters in state and federal courts and in various arbitration forums and administrative agencies. It is of particular source of pride to us that our members have had magnificent results in both civil and criminal courts. Whether involved in prosecuting or defending lawsuits, Fakhimi & Associates, can tap into a wealth of experience gained as a result of handling litigation cases in complicated areas of law, i.e. insurance bad faith, unfair competition, patent litigation, breach of contracts.
While the firm has a deserved reputation for aggressive strategies and forceful implementation of them, successful litigation in this context requires an understanding of both power force and power of persuasion, and an ability to know where to draw the line. We pride ourselves in always keeping in mind the interest of our clients, and making sure that they receive a “fair shake.” Our sister firm also advises those looking for a competent and experienced Orange County bankruptcy attorney.
The firm has particular expertise in managing “high profile” litigation, where public, and governmental, perceptions can affect the conduct of an opponent or the jury pool, and the prospects for a successful outcome. This experience assists us in being able to be counselors and advisors as well as advocates to our clients.
Labor & Employment Issues
Our unique position as both a plaintiff and defense law firm allows us to provide top quality representation to both employers and employees faced with labor law issues. Mr. Fakhimi, the founding member of Fakhimi & Associates, has a wealth of experience in dealing with California Labor Code, regulations of DLSE, and federal laws and regulations. Following is a short list of our services in the field of labor law:
Business Clients:
As a full service litigation law firm, Fakhimi & Associates, represents businesses in lawsuits alleging employment discrimination based on race, sex and age. We represent clients before the Equal Employment Opportunity Commission and the Labor Commission. We also regularly defend federal and state lawsuits alleging discrimination. We also offer preventive advice and supervisory training in preventing discrimination and harassment claims as a part of our General Counsel Program (see above.)
Fakhimi & Associates, also assists clients in achieving compliance with the minimum wage, overtime and record keeping requirements of all federal and state wage and hour laws, including the Fair Labor Standards Act and the California Labor Code. We also assist clients in complying with state wage payment laws involving vacation pay, deductions, commissions, etc. We also defend wage and hour lawsuits in both state and federal courts.
We recommend that small to mid-size businesses consider our General Counsel Program which would give them access to our services at a reduced cost and on their demand. Our approach to successful litigation is prevention first. That is why we recommend that our clients allow us to thoroughly evaluate their hiring practices, review employment agreements and advise them on their employee classifications on quarterly basis. Remember, one small mistake by the HR department could have devastating results for the entire company.
Employees Seeking Advice:
As a full service law firm Fakhimi & Associates provides legal services not only to employers but also employees whose rights have been violated. Following a quick review of the current state of law applying to California employees. Please note that this information does not include all of your legal rights. This information furnished is to advise you of the most common issues which are involved in employee-employer disputes:
Exceptions to Employment at Will:
Although California is an “at will” employment state and most employers retain the right to terminate an employees employment (except for unlawful reasons as discussed below) the state does grant certain protections to even “at will” employees who are not victim of discrimination. These protection come into play when there is a breach of “Implied Contract for Continuing Employment Except for Good Cause.” Many employees are confused by this theory, as they do not have an express written or verbal contract promising that they will be fired only for good cause. However, the inherent unfairness in firing long term, loyal and competent employees without cause led courts to rely on the “implied contract” theory. The theory is based on the conduct between the employer and employee, and the “contract” is implied from that conduct. In effect, the courts ask if the employee has a “reasonable expectation” of fairness in his employment. Courts examine the length of the employment, the company’s policies, assurances made to the employee, the rate of turnover in the industry, and any other information showing employees were generally treated according to some due process before fired. An experienced attorney will be able to inform you as to whether the facts of your employment could lead to a claim for “implied contract” theory.
Discrimination:
If you or a loved one feel that you were fired, laid off, harassed or otherwise treated differently from other employees because of your race, religion, sex, disability, national origin, pregnancy, or age you may be able to file a lawsuit to get your job back under Title VII of the Civil Rights Act. Before you can go to Court on a discrimination claim, you must file a complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC office must receive your complaint within 180 days after the alleged discrimination occurred. It is quite possible that the matter can be resolved at this stage without further litigation.
After the EEOC is done with its process, or after 180 days from the filing of your complaint has run, the EEOC will send you a “right-to sue” letter. Normally, you will have only 90 days after the date of this letter in which to file a lawsuit in Court. See an attorney right after you’ve received your “right to sue” letter.
Harassment:
Harassment by an employer or manager can occur in many different forms. The most common form of harassment is sexual harassment, which could be result of actual sexual touching, making sexual remarks or creating a hostile work environment by engaging in unprofessional and sexual discussions. Harassment can also occur as a result of prolonged racial or ethnic derogatory comments made by those in position of power or with their knowledge and consent.
Retaliatory Action for “Whistleblowing” or Exercise of Legal Rights:
You may have a claim against your employer if you are terminated or discriminated against for reporting violations of the law or actions which could subject employer to disciplinary action. If your employer took an action against you for making reports to the Occupational Safety and Health Administration (OSHA) contact the Department of Labor and/or Labor Commission. If you were terminated for filing for workers compensation or giving written notice of a safety rule violation, it may be a violation of this state’s Workers’ Compensation law. Also if you have been fired or laid off as a result of your reporting or communicating your concerns that there might be violations of state or federal laws at work you may be entitled to action.
Back Wages/Severance Pay/Vaction Pay:
If you feel you former employer still owes you back wages, severance pay, vacation pay, etc, ask an attorney for guidance. Your employee handbook may state what you are entitled to. Employers are not required to provide vacation pay or health care by law, however, if they contract to do so they must adhere to strict rules and if you feel that those rules have been violated, such as not receiving vacation time after dismissal contact an attorney for advice.
Wage and Hour Laws:
One of the most complicated areas of labor law if the wage and hour requirements. The Fair Labor Standards Act of 1938, 29 USC 201 et seq. (“FLSA”) is a federal law governing wages and hours of employees, and in California, overtime compensation is governed by the California Labor Code (see §§201-202, 1194) and the Division of Labor Standards Enforcement (“DLSE”) which adjudicates wage claims, investigates discrimination and public work complaints, and enforces Labor Code statutes and Industrial Welfare Commission orders. Wage Orders of the Industrial Welfare Commission (I.W.C.) Under both California and federal law an employee can’t be designated as “exempt” and hence not entitle to overtime pay, meal periods, and rest periods unless her or his position meets certain requirements. Many large and small employers misclassify their employees as exempt when they actually are not. For a better understanding of wage and labor laws contact Department of Industrial relations, or the State Labor Commissioners office.
Medical Leave Issues:
I. Introduction
A. FMLA : United States’ Congress passed the federal family and medical leave act (“FMLA”) on February 5, 1993. FMLA was meant to balance work and family life of employees by allowing employees to take leave (unpaid) for certain periods of time for certain medical and family related reasons. 29 U.S.C. § 2601(b).
B. CFRA: In 1991 California passed its family leave statute by enacting the California Family Rights Act (“CFRA”). Upon passage of FMLA, California amended its CFRA in 1993 to make the statute more closely resemble FMLA, with a few distinctions (i.e. the treatment of pregnancy leave. Govt. Code § 12945.2, Cal. Code Regs. § 7279.)
C. Pregnancy Disability Leave: CFRA does not cover pregnancy related issues (California’s Pregnancy Disability Leave Act (“PDL” as codified in Govt. Code § 12945, Cal. Code Regs. § 7291, addresses those issues.) Under federal law, pregnancy cases are addresses by Title VII of the Civil Rights of 1964 (i.e. discrimination claims based on pregnancy) and by FMLA (i.e., leave requests due to pregnancies). PDL applies to employers of 5 or more employees. For further discussion on this topic please refer to California State law section.
D. PDA: The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII, which covers employers with 15 or more employees, including state and local governments. Title VII also applies to employment agencies and to labor organizations, as well as to the federal government. Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.
Orange and Riverside pregnancy and medical leave attorneys of Employment Law Team have handled many high profile cases on behalf of their clients and can assist you in determining your right as an employee. You can contact us at (877) 529-4545, or visitwww.employmentlawteam.com.
II. Who does the law apply to:
A. Employers Covered: For FMLA or CFRA to cover an employer, all of the following must be met:
1. Employer must employ at least 50 full time and/or part time employees during 20 weeks of the prior or current year.
2. To qualify for FMLA, the e employer must have the 50 employees within a 75 mile radius of any single covered work site (location), under CFRA, the employer simply needs to have at least 50 employees residing within California.
B. Who Is Protected: To be entitled to protection under FMLA or CFRA an employee must meet all of the following requirements:
1. Have worked for the employer who is covered for at least one year.
2. Have worked for at least 1250 hours during the past one year.
C. Reasons for Leave: Employees may the time off (leave) for the birth or adoption of a child, or to care for a serious health condition that affects the employee himself or herself, a child, either parent, or a spouse. Under the FMLA one may request leave for one’s own pregnancy.
Serious Health Condition is generally defined as any illness, injury or physical or mental condition that involves in-patient care or requires continuing medical treatment by a health care provider, i.e. heart attacks, most cancers, back conditions requiring surgery or therapy, severe arthritis, complications from other medical procedures.
D. Pregnancy Discrimination: For federal PDL (Title VII) protection, and affected employee must work for an employer having at least fifteen (15) or more employees, California employees (Govt. Code) are protected from pregnancy discrimination when they work for employers with at least five (5) employees.
III. General Requirements:
A. FMLA / CFRA Leave Time Available: Employers must provide qualified employees with 12 weeks of unpaid leave per “year.” Year can be defined as:
1. Calendar year
2. Fiscal year
3. Employee annual tenure year
4. Annual year starting on date employee takes first leave (“rolling year”.)
B. What Qualifies for Leave: Employees may use their leave for up to 12 weeks for the following purposes: :
1. To care for a new born child.
2. Adoption, placement, or foster care of a child
3. To care for a parent, spouse or child with a serious medical condition
4. To care for own serious health condition
NOTE:
a. FMLA also provides leave for an employee’s pregnancy (not CFRA)
b. An employers may restrict leave to 12 weeks combined for husband/wife employees when they seek leave for birth, adoption, care of their common child and work for same employer.
c. Health Insurance: During the 12 weeks of leave the employer is required to maintain health insurance for the employee at the same level as when the employee was at work. An employee’s failure to return to work after 12 weeks would open the door for the employer to require that the employee pay back premiums paid by the employer. The exception would be if the employee fails to return due to factors beyond his control.
d. Employee’s Right to Be Reinstated: An employee returning to work within 12 weeks has the right to return to the “same” or “equivalent” position she held prior to her leave.
Orange and Los Angeles medical leave and pregnancy discrimination attorneys of Employment Law Team have years of experience in representing major corporations and can provide you invaluable insight into the rules and regulations related to pregnancy and medical leave in California.
IV. What Types of Leaves Are Allowed:
A. An employees may take intermittent leaves and/or reduced schedule of hours leave instead of a continuous leave.
B. Employees are entitled to leave for medical appointments.
C. In cases involving birth or adoption employers are not required to provide intermittent leave.
D. Employers may transfer an employee taking intermittent leaves to a job that fits his/her leave schedule.
NOTE:
1. Employers are not required to pay for leave, unless such policy is applied discriminatorily.
2. Employers may require their employees to use their available sick leave and vacation leave time for either FMLA or CFRA leave.
V. Notices Required:
A. Leave that may be Anticipated:
1. An Employer may require that employees provide a 30 day advance notice for birth, placement, adoption or other forms of foreseeable or anticipated leave.
2. An Employer may even require employees to schedule medical appointments at times which will not interfere with employer’s operations.
B. Leave which is not Anticipated or Foreseeable: An Employer may not require that an employee provide prior notice of leave which was not anticipated.
C. Certifications: An Employer may require that the employee requesting leave provide a certification or affidavit stating:
1. Date that the condition requiring leave started.
2. Anticipated amount of time needed.
3. If care of family member is the reason for the leave more information may be needed.
D. Second Opinions: Employers that require a a second must pay for the it.
E. Notices Required to be provided by Employer:
1. If an annual period other than the calendar year is used then the employer must explain that in writing to the employees.
2. Employers must provide notices to employees explaining their rights under FMLA, CFRA.
3. Explanation via a notice as to how health insurance premiums will be handled.
VI. Remedies Available in Case of Violation:
1. Any employee who may feel that her rights under FMLA may have been violated may either file a complaint with the United States Department of Labor OR file a private lawsuit directly in a Federal Court. Any action (lawsuit) must be filed within two years of the date of the violation of FMLA. Contact our Orange and San Bernardino medical leave and pregnancy rights attorneys at (877) 529-4545 or visit www.employmentlawteam.com
2. Any employee who may feel that her rights under the CFRA must first file a timely (i.e., within one year) complaint with the Calif. Dept of Fair Employment & Housing, await her right to sue letter, and then file a complaint with the proper court within one year of the right to sue letter and incident.
a. Both FMLA and CFRA provide for a full range of damages such as :l oss of earnings (wages), lost benefits, emotional distress, attorneys’ fees, and court and litigation costs.
b. FMLA also allows for the recovery of damages in an amount equal to other losses as a penalty.
VI. Interaction with Other Laws:
Although FMLA and other leave statutes are separate and distinct from title VII, ADA or similar state statutes, there can be a point of conversion between the two. Just recently (2007) the Equal Employment Opportunity Commission (EEOC) issued an enforcement guidance declaring the disparate treatment of employees who care for children, parents or other family members could violate federal laws. This guidance was apparently issued to assist investigators, employees and employers in assessing whether a particular action might unlawfully discriminate against the employee. The guidance specifically refers to childcare, eldercare and caring for individuals with disabilities. The guidance declares that “women are primarily responsible for caring for society’s elderly, children, in laws and spouses.” The guidance refers o few examples of what it considers to be discrimination against a worker and one example involves a father who was denied unpaid leave to care for a new born. According to the guidance if the employer denied a leave that it would grant to a female then such denial would be in violation of the law.
For more information on your rights under FMLA, Title VII, ADA, FEHA or other laws contact labor and discrimination attorneys of Employment Law Team. We handle cases in Orange, Los Angeles, San Bernardino, and Riverside. www.employmentlawteam.com
Mandated Medical Leave (FMLA, CFRA):
California and federal law in the area of medical leave and other leaves is quite complex and any confusion should be addressed after consultation with an experienced medical leave attorney. There are different types of leaves which may be available to California employees, i.e., California Family Rights Act (CFRA), the Family Medical Leave Act (FMLA), Pregnancy Leave law, and other non-medical leaves of absence. Generally, most leaves of absence are not paid, unless an employer has voluntarily agreed to pay for it or the employee qualifies for state-paid family leave.
Whether a leave is permitted under CFRA or FMLA generally depends upon the employee’s length of service, the number of hours worked by the employee, the size of the employer, location where employees work and the reason for the leave, among other things. (please see our Pregnancy Discrimination & Pregnancy Leave for more information on issued related to an employee’s pregnancy.)
In some situations employees may be allowed to combine certain leaves to a period longer than that generally allowed. Many employees combine their pregnancy leave with CFRA which will result in a leave period much longer than that allowed for other employees on leave. Please see our CFRA and pregnancy leave discussions.
What employees and employers must remember is that when an employee takes a mandated leave certain paperwork needs to be completed and notices need to be provided to the employee. Failure to follow the guidelines can result in violation of the leave laws as well.
Returning from a Leave:
An employee who has not taken more time off than permitted, whether under CFRA, FMLA, Pregnancy Leave law, generally has the right to return to the same or a comparable position. An employer may request a doctor’s note medically authorizing the employee’s return to work ( just as a note may be requested before the leave.)
No Retaliation
An employer may not punish an employee who has exercised his/her rights under a permitted leave. This type of action, i.e. retaliation is against the law and may subject the employer to sever legal penalties.
Protections afforded to Pregnant Employees
Under California employers with at least five or more employees are prohibited from discriminating against an employee based on pregnancy, childbirth or medical conditions associated withpregnancy. See Pregnancy Leave laws.
Leave Time:
Generally, an employee who is disabled due to her pregnancy is entitled to up to four months of leave from work. However, if an employer voluntarily allows for a longer disability leave for other types of disabilities, the same amount of leave from work must be provided to pregnant employees.
It is important to note that time off needed for such routine prenatal care, such as doctor’s visits, or any time off for bed rest due to a doctor’s orders, or severe morning sickness, or other pregnancy-related condition will count against the leave time.
Right to Request a Reasonable Accommodation
An employee disabled because of her pregnancy or pregnancy-caused medical condition has the right to request a reasonable accommodation based on her medical needs, such as a request for a job with less exposure to hazardous material or less standing up. The request should be based upon the recommendation of your doctor. An employer may require a doctor’s note. The requested accommodation should not unduly burdens the employer.
Our Orange county Pregnancy discrimination attorneys at Fakhimi & Associates can help evaluate your potential case and provide you advice on steps necessary to protect your rights. You can learn more about our services by visitingwww.employmentlawteam.com
