Sacramento Employment Lawyer

Appealing Unemployment Compensation Benefits Denial

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It is not uncommon for an employer to fight the terminated employee's right to unemployment benefits, especially if the termination was contentious and involved personal animosity. The law is clear that the otherwise eligible employee can be only disqualified from benefits if he voluntarily quits or if he was terminated for "misconduct." There is usually no dispute over whether the employee quit on his own or was forced out. However, whether the termination was for "misconduct" has been a subject of dispute on many, if not most, appeal hearing at the unemployment appeals board. Under the unemployment insurance code, "misconduct" is a term of art that means more than an ordinary negligence or less than satisfactory performance. To be disqualified from unemployment benefits, the employee's misconduct must be somewhat severe or willful, such as substantial and intentional deviation from the company''s policy, theft, threats of violence, harassment and alike. 

Also, the termination must be causally linked to misconduct. In other words, an employer should not prevail on appeal if the employer's argument is that an employee was terminated for misconduct that took place a while before termination, as this does not establish that the employee was terminated because of misconduct (temporal proximity of misconduct and termination is an important element of the employer's case). Misconduct leads to immediate termination, and if the termination is delayed and takes place a while after "misconduct," the appeals board will rightfully suspect that the employee was terminated for reasons other than misconduct, and will award an employee the benefits.

Asthma and Other Respiratory Diseases Is a Protected Disability Under FEHA

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California employees who suffer from asthma and other respiratory diseases that make them hypersensitive to tobacco smoke might be protected by the California Fair Employment and Housing Act ("FEHA") and entitled to the same protections against discrimination based on medical conditions as other qualifying disabled workers. 

In County of Fresno v. Fair Employment and Housing Commission 226 Cal.App.3d 1541 (1991), the Fifth District reiterated that the California disability laws are to be liberally construed and include protections to workers who suffer from a wide range conditions that limit their life activities, which also includes respiratory activities - functions that affect a person's basic ability to breathe. In that case, the employer - County of Fresno - argued that an employee's hypersensitivity to smoke is merely an "environmental limitation" and not a physical handicap. The court rejected that argument, holding that the Tobacco smoke in the environment may simple be an environmental limitation to those who do not suffer from severe respiratory disorders. However, someone who suffers from respiratory disorder and whose ability to breathe is severely limited by tobacco smoke is physically handicapped within the meaning of the Act.

The above findings triggered the employer's obligations to provide reasonable accommodations as required by FEHA. These accommodations may include, according to court, having smokers use desk top air filtration machines, keeping the windows open, separating the desks for smokers and non-smokers, and alike.

Sacramento Employment Lawyer: Sexual Harassment Laws at California Workplace

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California law prohibits sexual harassment in the workplace. Originally enacted in 1980, Government Code section 12940 is part of the Fair Employment and Housing Act. The prohibited conduct ranges from expressly or impliedly conditioning employment benefits on submission to, or tolerance of, unwelcome sexual advances to the creation of work environment that is "hostile or abusive to employees because of their sex." Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462. 

It's important to note that the California courts have consistently held that the hostile work environment from sexual harassment is actionable only when the harassing behavior is pervasive or severe. This means that to prevail on a hostile work environment claim, an employee must show that the harassing conduct was "severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. There is no recovery for harassment that is occasional, isolated, sporadic, or trivial. Thus, the existence of a hostile work environment depends upon the totality of circumstances. Generally, the more severe the conduct is, the less pervasive it has to be in order to be actionable. Thus, a single harassing incident involving physical violence or a threat thereof may qualify as severe and extreme. Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 151.

Generally, however, to be actionable - a sexually objectionable environment must be both objectively and subjectively offensive. Therefore, an employee who subjectively perceives the workplace as hostile or abusive, will not prevail if a reasonable person considering all the circumstances, would not share the same perception.