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"My employer is violating California laws, but I am too afraid that I will lose my job to complain about it."

7/9/2015

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"My employer is violating California laws, but I am too afraid that I will lose my job to complain about it."  As an attorney who frequently consults with and represents California employees with regards to labor and employment matters, I often hear this statement from employees who fear losing their jobs would result from a legitimate complaint as to California Labor Code, IWC Wage Order, and/or Fair Employment and Housing Act (FEHA) violations.

Regardless of the severity of the violations (whether physical sexual harassment, discrimination, or the failure to pay wages or provide proper meal and rest periods, for instance), it is a very common thing for employees to allow their fear of losing their job to prevent them from doing what is right by complaining about unlawful conduct.

I respond to these and similar fear driven statements with a question: "What do you want to do about it?"  This is something the employee must carefully consider, as doing something about labor and/or employment law violations carries a very real risk that the employer will retaliate.  If the employee wants to do something about it, then they must come to terms with the fact that their employer may terminate them.  However, if the employer does terminate the employee after the employee has made a legitimate complaint regarding unlawful conduct by the employer or the employee's supervisors, then the employee will have available a claim for wrongful termination in violation of public policy.  Damages for such a claim can be extremely costly for the employer.  

On the other hand, if the employee is too scared to do anything about it, then they will remain powerless in a miserable disposition at work.  After all, doing nothing will achieve just that ... NOTHING.

When an employee chooses to do something about it, the first question is always "What should I do?"  The answer to that is always going to depend on the particular circumstances facing the employee, so consulting with an attorney well versed in labor and employment law is crucial.  Nevertheless, in all cases, it is very important to create a paper trail that will place the employer on notice of the unlawful conduct and limit "he said/she said" arguments to a minimum.  It cannot be emphasized enough how important it is to submit all workplace complaints in writing.  The complaints should be provided to the employees Human Resources department or supervisors, even if the person receiving the complaint is the subject of the complaint.

Placing the employer on notice of the unlawful conduct triggers a duty for the employer to correct the conduct.  What the employer does at this moment is extremely important with respect to creating liability or not.  For instance, in a sexual harassment case, if the employer does nothing and allows the sexual harassment to continue, then the harasser and the employer could be held liable for FEHA violations and negligent supervision.  If the employer takes reasonable action and corrects the violations, then no harm no foul and the employee has nothing left to complain about.

Once on notice, if the employer takes retaliatory action against the employee (such as disciplinary action, termination of employment, cutting work hours on the next schedule, decreasing wage rates, etc.), then it will be incredibly difficult for the employer to later claim that their subsequent retaliatory acts were based on anything other than retaliating as a consequence of a legitimate workplace grievance. 

The power to change unlawful workplace actions lays with the employees who endure such conditions.  No employee should have to deal with being treated unlawfully by their employer or supervisor, and no employer or supervisor should get away with treating their employees unlawfully.

Paschall Law has assisted many employees in making things lawful and right at their workplace.  Sometimes, just a strong demand letter will cure the problem.  Other times, litigation is necessary to achieve justice.  Regardless of the route, Paschall Law will fight tooth and nail to ensure an employee's rights and interests are protected and enforced as much as possible.  If you or anyone you know is faced with unlawful conditions at work, please do not hesitate to contact Paschall Law for a free consultation.

This blog entry is an advertisement for Paschall Law.
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Paschall Law Represents Aggrieved Wendy's Employee

3/14/2015

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A Wendy’s restaurant employee in Southern California has filed a claim as a precursor to a lawsuit against the restaurant franchise, claiming her managers implemented a “no bathroom breaks” policy during the lunch rush, aggravating a medical condition.

In her claim, the woman, Maria Rivas, says she was denied access to the bathroom at a Wendy's in Sanee between the hours of 11 a.m. and 2 p.m. in October 2014. Rivas — who is on medication that makes bladder control difficult — she repeatedly asked her supervisor to leave her work station to use the restroom, but was told she could not. 

Rivas said she accidentally urinated on herself and the supervisor forced her to work in soiled clothes for the remainder of her shift, despite potential health code concerns.

In Spanish, Rivas told NBC 7: “He didn’t care and none of the other managers cared to tell me, ‘Mari, go to your house and change.’”

Rivas said her medical problems — diabetes, high cholesterol and thyroid disorder — make frequent bathroom breaks necessary.

Reached for comment, the Wendy’s manager told NBC 7 he was unable to speak on camera, but confirmed a written version of events that he drafted for the restaurant’s attorneys.

In it, he stated that Wendy’s policy is that no one can move from their positions unless an operation leader approves it during the three-hour lunch rush.

In the email, the manager wrote he was unaware of Rivas’ accident until she told him about it at the end of her shift.

NBC 7 also reached out to Wendy’s corporate offices and the HR director sent a statement, and said because it was a personnel matter, the company couldn’t comment on the specifics.

“This is an isolated situation involving one employee at one restaurant,” said Donna Townsend “Our franchise strives to provide a positive working environment for all employees. We promptly investigated complaints arising out of this situation and believe that is was handled appropriately. When an employee request to go to the bathroom, permission is granted, as it is here.”

Rivas’ attorney has filed a claim to the Department of Fair Employment and Housing, alleging that the restaurant denied Rivas a reasonable accommodation for her medical condition.

The attorney told NBC 7 that Wendy’s has offered several settlement offers, but Rivas has refused the offers because they were not satisfactory amounts. She remains employed at the restaurant.

Asked why she couldn’t just go to the bathroom anyway or quit, Rivas said she simply cannot afford to be fired or unemployed.

“I depend on this job,” she said. “I don’t have another one.”
Source: http://www.nbcsandiego.com/news/local/Wendys-Employee-Forced-to-Work-in-Soiled-Clothes-Claim-296120311.html#ixzz3UNecbveF 
Follow us: @nbcsandiego on Twitter | NBCSanDiego on Facebook

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Cleaning Your Criminal Record Can Allow You To Move On

1/20/2015

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It is a common story.  A person gets arrested, charged, and convicted of a misdemeanor or felony.  They complete their probation and think that their mistake is in the past and that they can move on with life, but they can't.  They can't get a job.  They can't get that promotion they deserve.  They are ineligible to obtain a license for career advancement.  They cannot move forward.

Misdemeanors and felonies that appear on a person's record can have devastating effects on that person's ability to succeed in life.  It is a sad truth that many employers will turn away those job candidates whose criminal background check reveals a conviction, regardless of the circumstances.  Likewise, a conviction on one's record can make them ineligible to obtain a license to do what they love for a career.

It can feel hopeless to those who have been convicted of a crime and are struggling to move on as a result, but there is a solution.  Under Penal Code Section 1203.4, a person convicted of certain misdemeanors and felonies may petition the court for a dismissal (also known as expungement).  If successful, the conviction is deleted and a dismissal is entered in its place.  As a result, that person's conviction will no longer appear on their record.  All of a sudden, the future looks more bright.

Paschall Law can assist San Diego and Orange County residents who want to clean their record or seek early termination of their probation.  While there are no guarantees and every case is different, our success rate is 100%.  If you want to clean your record and move on with your life, then do not hesitate to contact Paschall Law for a free consultation at (619) 977-7099.  It is never too late to turn things around.  Get started today!
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California Court of Appeals for the Second District finds that on-call rest breaks comply with California Labor Code Section 226.7 and the applicable IWC Wage Order

1/12/2015

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In a ruling that may appear to be at odds with the California Labor Code and IWC Wage Orders, the California Court of Appeals for the Second District ruled that a security company did not violate the applicable labor laws with respect to rest periods by forcing its security guards to remain “on call” during their required rest breaks.  Augustus v. Abm Sec. Servs., 2014 Cal. App. Unpub. LEXIS 9287 (Cal. App. 2d Dist. Dec. 31, 2014).

In Augustus, the security firm defendant admitted to requiring its security guard employees "to keep their radios and pagers on during rest breaks, to remain vigilant, and to respond when needs arise."  California Labor Code Section 226.7 provides, in pertinent part, that "an employer shall not require an employee to work during a meal or rest or recovery period."  It would seem that the security firm's policy would violate Section 226.7.  However, the Court of Appeals reversed the trial court’s finding that the rest breaks violated the employees' rights, noting that the guards were able to and in fact did engage in personal activities, and were relieved of many duties that an active duty security guard was required to actively pursue.  

Considering the guards must "keep their radios and pager on" "remain vigilant," and "respond when needs arise", the ruling seems arbitrary and specious to suggest that the guards were not performing all duties required of the position.  It could be argued that observation is the most important job duty, and that is not being relieved by the rest period pursuant to the policy at issue.

Nevertheless, the Court of Appeals noted that the rest period rules of the applicable IWC Wage Order did not mirror the meal period rules (meal periods require being relieved of all duty, whereas rest periods do not) and rejected plaintiffs’ argument that the meal break standard should apply.

This is a win for those California employers whose industries require their employees to remain on-call during rest periods.  However, applying this decision to other industries and work policies will require an analysis of the particular facts and circumstances.

It is very important that San Diego employers and employees are aware of their rights and responsibilities with regards to meal and rest periods so as to remain in compliance with the law.  If you are an employer who would like to ensure that your policies are lawful, or an employee who suspects that your rights are being denied, then do not hesitate to contact Paschall Law for a free consultation.
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California Employers Must Reimburse Employees Who Use Personal Cell Phones For Work Purposes

12/10/2014

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The California Supreme Court denied a petition for review of a lower court's ruling that employers must reimburse their employees who use their personal cell phones for work purposes, rendering the lower court's ruling the law of the land.

In Cochran v. Schwan's Home Service, Inc., the California Court of Appeal for the Second District ruled that employers must reimburse employees who use their personal cell phones for work purposes:
"We hold that when employees must use their personal cell phones for work-related calls, Labor Code section 28021 requires the employer to reimburse them. Whether the employees have cell phone plans with unlimited minutes or limited minutes, the reimbursement owed is a reasonable percentage of their cell phone bills."
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California Labor Code section 2802(a) provides that “[a]n employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer[.]”  The purpose of section 2802 is “‘to prevent employers from passing their operating expenses on to their employees.’”  Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 562 (citations omitted).  “In calculating the reimbursement amount due under section 2802, the employer may consider not only the actual expenses that the employee incurred, but also whether each of those expenses was ‘necessary,’ which in turn depends on the reasonableness of the employee’s choices.”  Gattuso, 42 Cal.4th at 568 (citations omitted).

The Cochran court delineated the rule with respect to cell phone plans as follows: 

"Thus, to be in compliance with section 2802, the employer must pay some reasonable percentage of the employee’s cell phone bill. Because of the differences in cell phone plans and worked-related scenarios, the calculation of reimbursement must be left to the trial court and parties in each particular case."
San Diego employers should carefully assess whether their employees utilize their personal cell phones in carrying out their work duties.  If so, employers are legally mandated to pay a reasonable percentage of the cell phone bill based on the particular circumstances of the cell phone plan and work usage.
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Will The California Supreme Court Rule On The Constitutionality Of MICRA, California's $250,000 Cap On Noneconomic Damages In A Medical Malpractice Case?

12/10/2014

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On November 25, 2014, the California Supreme Court granted the petition for review in the medical malpractice case Hughes v. Pham.  In Hughes, the plaintiff was injured while off-roading.  Due to a physician's delay in treatment, the plaintiff's injured spinal cord became much worse.  At trial, the jury determined that the physician was negligent and awarded the plaintiff $2,750,000 in noneconomic damages (pain and suffering).  Pursuant to California's statutory cap on medical malpractice noneconomic damages (California Civil Code section 3333.2), that award was reduced to $250,000.  

Hughes is a "grant and hold" case, meaning that no action will be taken on the case by the Supreme Court until another case is decided.  That other case is Rashidi v. Moser, and a decision is expected to be handed down in January 2015.

However, the issue granted for review in Rashidi, which will be applied to Hughes, is not whether the $250,000 cap violates the California Constitution's “inviolate” right to jury trial or the United States Constitution's Equal Protection Clause.  Rather, the issue granted for review is whether a settlement amount between the plaintiff and one of the defendants can offset the noneconomic damages against defendants who remain in the case, thus making the noneconomic damages "joint and several".  

Nevertheless, the California Supreme Court may open Hughes for briefing as to the constitutionality of California's medical malpractice damages cap before everything is said and done.  Despite several denials for review in the past, many legal commentators believe that the current makeup of the California Supreme Court, crafted by Governor Jerry Brown, opens the door to reevaluate MICRA against constitutional challenge.  

If so, there is a decent chance that MICRA's damages cap will be deemed unconstitutional, following in the footsteps of other States' decisions on similar caps.  

MICRA's $250,000 cap on noneconomic damages in medical malpractice cases was enacted by the California legislature in 1975, and has never been adjusted for inflation since that time.  To make matters worse, despite claims to the contrary, medical malpractice insurance premiums have continued to rise since MICRA's enactment.

As Consumer Watchdog's amicus letter to the California Supreme Court relays: "Review in this case is vitally necessary because the opinion of the appellate court will leave millions of Californians and their families who have suffered from medical negligence without fair compensation despite a jury’s verdict above an outdated cap on damages."

39 years after MICRA's enactment with no adjustments for inflation, it's about time that the California Supreme Court reevaluated the noneconomic damages cap to ensure that Californians are not being unfairly under compensated for injuries sustained as a result of negligence by medical providers.

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Equity favors the vigilant, don't sleep on your rights!

11/17/2014

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When an event that causes you harm occurs, a clock starts ticking known as a statute of limitations.  A statute of limitations is a period of time within which you must file a lawsuit or else your claim will be barred as a matter of law.  

The purpose of a statute of limitations is to require the "diligent prosecution of known claims thereby providing necessary finality and predictability in legal affairs, and ensuring that claims will be resolved while the evidence bearing on the issues is reasonably available and fresh." Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Webb) (1977) 19 Cal.3d 329, 336.  "The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them."  Gutierrez v. Mofid (1985) 39 Cal.3d 892, 898.

There are different statutes of limitations for different claims.  Accordingly, you must file your claims within the applicable statute of limitations or else you may have waived your opportunity to successfully prosecute your claim.  

Some of the more common claims and their associated statute of limitations are as follows:

Breach of Written Contract: 4 years (Cal. Civ. Proc. Code § 337)
Breach of Oral Contract: 2 years (Cal. Civ. Proc. Code § 339)
Fraud: 3 years (Cal. Civ. Proc. Code § 338)
Personal Injury: 2 years (Cal. Civ. Proc. Code § 335.1)
Defamation: 1 year (Cal. Civ. Proc. Code § 340)
Wage and hour violations: 3 years for wage based claims and 1 year for statutory penalties

It is important to understand that the statute of limitations will begin to accrue or start running upon the happening of the event or incident that causes you injury, unless an exception applies.  For instance, the statute of limitations for a fraud claim may not begin to run until you have discovered the facts underlying your claim for fraud.  The rules and exceptions for the various statutes of limitations can be confusing. That is why it is important to contact an attorney to help you determine whether your claim is viable or not if you think you might have waited too long to take action.  You never know, an exception may apply or it may be possible to bootstrap your claim to another claim to defeat the statute of limitations in question.

Bottom line: if you are harmed, damaged, or injured, do not wait to enforce your rights.  Contact an attorney right away so that all of your rights remain intact and enforceable.  If you have any questions regarding the applicable statute of limitations for your claim, do not hesitate to contact Paschall Law to discuss.

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Welcome to the Paschall Law Blog!

11/16/2014

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After 5 years as an Associate Attorney working directly with the partners of Stark & D'Ambrosio, LLP, I decided to go my own way and open Paschall Law.  My vision for Paschall Law is to separate from other full service law firms by producing exceptional work product while providing personalized customer service, all at an affordable rate.  This is all possible by utilizing state of the art case management software which allows clients to stay informed regarding every aspect of their legal matter. The resulting streamlined communications allows me to focus the vast majority of my efforts on my clients' legal matters.

I am dedicated to seeking justice and results for those that allow me to fight for them, and I am beyond appreciative to all of those people who give me the opportunity.  I also want to take this moment to thank all of those who have supported me along the way.  You know who you are and I am forever indebted. Paschall Law is here!

I will use this blog to discuss legal issues that I believe more people should know about.  Additionally, I will utilize this blog to post answers to general legal questions that I received.  To that end, feel free to send legal inquiries to me at patrick@paschalllaw.com, and I will answer the questions as soon as possible. Thank you. 

- Patrick
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    Patrick Dodger Paschall has been a practicing attorney since 2009.

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