Caietti Law Group News Feed Apr 2021 00:00:00 -0800firmwise of Common Employment Discrimination & Harassment Terms Apr 2021 | Blog<h2>Glossary of Common Employment Discrimination &amp; Harassment Terms</h2> <p>As with many other legal topics, the realm of discrimination and harassment seems to have its own language. The following is a glossary of some of the common terms that are used in discrimination and harassment litigation.</p> <p><strong>ADA</strong>: Short for the Americans with Disabilities Act, a federal law which protects persons with disabilities from discrimination in many aspects of life, including employment, education, and access to public accommodations.</p> <p><strong>ADEA</strong>: Short for the Age Discrimination in Employment Act, a federal law that prohibits discrimination on the basis of age for workers over the age of forty. Only employers with more than twenty employees are required to comply with the ADEA.</p> <p><strong>Adverse Employment Action</strong>: Any action taken by an employer that negatively affects an employee's job, for example, demotion, firing, discipline, or failure to promote. In most employment discrimination cases, the employee will have to prove that the employer took some sort of adverse employment action in order to win.</p> <p><strong>At-will</strong>: A term used to describe many employment relationships. In a nutshell, at-will means that an employee can be fired for any reason or for no reason at all. However, even at-will employees are entitled to the protection of anti-discrimination laws. If such employees are terminated in violation of one of these laws, they may be able to bring an action against their former employer successfully.</p> <p><strong>BFOQ</strong>: Short for the phrase bona fide occupational qualification. A BFOQ may absolve an employer from liability for discrimination when there is a legitimate reason to require, for example, that all of the employees working a particular job be of the same sex or age. The successful use of a BFOQ defense is rare.</p> <p><strong>EEOC</strong>: The Equal Employment Opportunity Commission, a part of the federal government that may investigate or handle claims of workplace discrimination or harassment.</p> <p><strong>EPA</strong>: Short for the Equal Pay Act, which is a federal law that requires employers to pay male and female employees the same wages for performing the same work.</p> <p><strong>FMLA</strong>: Short for the federal Family and Medical Leave Act, which applies to employers who have more than fifty employees on their payroll. The FMLA guarantees employees up to twelve weeks unpaid time off from work to care for their own serious medical needs or those of their family members, or to bond with a newborn or newly adopted child, and prohibits employers from retaliating against those employees who ask about or take protected leave.</p> <p><strong>Hostile work environment</strong>: The basis for a type of harassment claim. Although most hostile work environment claims involve allegations of sexual harassment, a hostile work environment may be based on other protected characteristics, such as an employee's race or religion. A hostile work is created where the presence of harassing behavior (in the case of sexual harassment this could include demeaning or sexual photographs, jokes, threats or overall workplace atmosphere) is so severe and pervasive that it creates an intimidating and offensive work environment, and actually alters the terms and conditions of employment.</p> <p><strong>Quid pro quo</strong>: A Latin phrase meaning something for something. Quid pro quo is a type of sexual harassment in which the harasser asks for a sexual favor in return for providing an employment benefit, such as a raise, continued employment, or other favorable treatment.</p> <p><strong>Same-sex harassment</strong>: The type of harassment that occurs when a male sexually harasses a male, or a female sexually harasses a female.</p> <p><strong>Sexual harassment</strong>: See Hostile work environment.</p> <p><strong>Title VII</strong>: Short for Title VII of the federal Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of race, color, national origin, religion and sex.</p> <p><strong>Whistleblower</strong>: An employee who discloses the wrongdoing or potential wrongdoing of his or her employer. Whistleblowers, and others who speak out against violations of the law, are protected under several federal statutes, including OSHA (which protects employees who report workplace safety violations), Title VII (which prohibits retaliation for filing a charge of discrimination or for testifying on someone else's behalf in a discrimination case) and the Sarbanes-Oxley Act (which protects employees who report their employers' financial fraud).</p> <p>Copyright &copy; 2012 Caietti Law Group</p> <p>DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.</p> Duty to Engage in the Interactive Process Apr 2021 | Blog<p>Both California law (Fair Employment and Housing Act (FEHA) &ndash; Government Code &sect;12940 et seq.) and Federal law (Americans with Disabilities Act (ADA)) require the employer&nbsp;<em>and&nbsp;</em>the employee to engage or participate in a timely, good faith interactive process in determining what, if any, reasonable accommodations exist that would enable a disabled employee to remain employed.</p> <p>What triggers the interactive process is knowledge on the part of the employer that the employee may have a condition that might qualify as a disability resulting in some limitations that may require an accommodation.&nbsp;&nbsp;No formal request or notice is required and, more importantly, the employee need not use any magic words such as &ldquo;accommodation,&rdquo; or &ldquo;ADA.&rdquo;&nbsp;&nbsp;When the disability/restrictions and potential need for an accommodation are apparent, a request from an employee is required.</p> <p>The interactive process is designed to analyze the purpose and essential functions of the job at issue.&nbsp;&nbsp;The next step is for the employer to consult with the employee to find out what job-related limits are created by the employee&rsquo;s disability.&nbsp;&nbsp;The process then requires the employer and employee to identify and assess potential accommodations that would enable the employee to perform the essential functions of the position.&nbsp;</p> <p>The process is an ongoing one which may require continual reassessment of previously provided accommodations especially if the initial accommodation is not working.&nbsp;&nbsp;In other words, the interactive process is not a &ldquo;one and done&rdquo; process.&nbsp;&nbsp;If the initial accommodation is failing, the employer is obligated to continue with the interactive process to determine if any other accommodations exist that will permit the employee to perform the essential functions of the job.&nbsp;</p> <p>Input or clarification should be sought from the health care provider placing the restrictions on an employee when the limitations are unclear or to obtain input on whether a particular accommodation will violate the restrictions.&nbsp;&nbsp;Other experts in the area of vocational rehabilitation can also be consulted in order to capitalize on their experience and expertise at accommodating employees with disability related restrictions.</p> <p>In sum, under California law, legal liability can be imposed on an employer who fails to engage in a timely, good faith interactive process.&nbsp;&nbsp;Although a split in legal authority exists on the issue, the trend is to impose liability on an employer for failing to engage in the interactive process when a reasonable accommodation existed that would have enabled the employee to perform the essential functions of the job.&nbsp;&nbsp;Thus, it is important for employers to recognize the need to actively participate with an open mind in the interactive process with the employee.</p> the Employee with a Disability Apr 2021 | Blog<p>California law under the Fair Employment and Housing Act (FEHA), as well as the federal Americans With Disabilities Act (ADA), requires employers, with 5 or more employees, provide reasonable accommodations that will allow an employee with a disability to perform the essential functions of his or her job.&nbsp; Government Code Sec.12940 (m).&nbsp; Failure to do so may subject the employer to liability.&nbsp; The duty to reasonably accommodate applies not only to employees with actual disabilities, but employees who are mistakenly regarded or perceived as disabled.</p> <p>Interrelated with the duty to reasonably accommodate the disabled employee is the employer's duty to engage in the interactive process timely and in good faith with the employee, who has the same duty.&nbsp; Government Code Sec. 12940(n).&nbsp; What is the interactive process?&nbsp; The interactive process is simply a dialogue or exchange of information between the employer and employee necessary to determine what type of accommodation, if any, will enable the employee to perform the essential functions of his or her job.&nbsp; The interactive process is designed to identify the precise limitations resulting from the disability (generally restrictions imposed by a doctor due to a physical or mental disability) and what potential reasonable accommodations could overcome those limitations to enable the employee to remain employed.</p> <p>What constitutes a reasonable accommodation?&nbsp; Although not exhaustive, the following are some of the more common accommodations:</p> <ol> <li>Leaves of absence - courts recognize finite or definite leaves of absence as a reasonable accommodation.&nbsp; Indefinite or open-ended leaves, for the most part, continue to be routinely rejected as reasonable accommodations. A leave of absence can be a reasonable accommodation even if the employer is not governed by the Federal Family and Medical Leave Act and California Family Rights Act.&nbsp; In other words, the employer may not be obligated to provide a leave of absence under federal or state leave of absence laws, but may be required to do so as a reasonable accommodation so long as it does not create an undue hardship.&nbsp;</li> <li>Flexible schedules - modifying an employee's schedule, for example, when he or she starts or finishes their day, or allowing the employee to telecommute may be reasonable accommodations.</li> <li>Lifting assistance - lifting restrictions are some of the more common limitations imposed on employees.&nbsp; Often times, these limitations can be of short duration or of a permanent nature.&nbsp; A reoccurring issue is whether lifting is an essential function of a particular job as opposed to the means and methods of performing the essential function.&nbsp; Employers frequently mis-analyze the role of lifting and improperly characterize it as an essential function.&nbsp; A multitude of lifting devices are available to assist employees with lifting restrictions for those items which exceed the weight the employee is precluded from lifting.</li> <li>&quot;Teamwork&quot; accommodation - arises when an employee is generally part of a crew such that tasks the employee with a disability is unable to perform can be redistributed to others on the crew without creating an undue hardship.&nbsp; In one case, the court concluded the employer's failure to consider the teamwork option exposed it to liability for failing to reasonably accommodate.</li> <li>Working from a seated position - providing an employee with a chair when the restriction precludes prolonged standing can be a reasonable accommodation.</li> <li>Ergonomic keyboard and voice recognition software - employees with carpal tunnel syndrome or other upper extremity repetitive trauma injuries limiting their ability to use a computer keyboard and/or malice may need these types of accommodation.</li> <li>Reassignment to another position - this is generally considered the accommodation of last resort as the primary objective is to accommodate the employee in his or her original position.&nbsp; When no reasonable accommodation exists that enables the employee to remain in their original position, reassignment to another position can constitute a reasonable accommodation.&nbsp; While an employer is not required to create a position or promote the employee, assignment to a comparable or lesser position that is open, vacant and funded may be required.&nbsp; Reassignment does not mean allowing the employee with a disability to competitively apply for the open position, but means placing the employee in the position so long as they are qualified even if the employer prefers another candidate.&nbsp; Furthermore, the employer may be obligated to determine if, once reassigned to the new position, the employee needs an accommodation to perform the essential functions of the reassigned position.</li> </ol> <p>The foregoing list of reasonable accommodations is certainly not exhaustive.&nbsp; Employers are well advised to proceed with an open mind when they have notice an employee may need assistance in performing their job due to apparent restrictions.&nbsp; Often times employers create liability unnecessarily when they require employees with restrictions to be &quot;100% healed&quot; before returning to work.&nbsp; Courts consistently find such policies are inconsistent with the individualized accommodation obligation and violate the ADA and FEHA as a matter of law.</p> <p>The primary limit on an employer's duty to accommodate a qualified employee with a disability is whether to do so creates an undue hardship, an issue which will be addressed in a subsequent article.</p> <p>Various resources available to employers to assist with the interactive process and determination whether a reasonable accommodation exists that would enable the employee to perform the essential functions of his or&nbsp; her job are available.&nbsp; Some of these resources are free, for example, the Job Accommodation Network ( which offers a database of accommodations for various physical and mental conditions.&nbsp; Other resources, such as the utilization of a vocational rehabilitation or similar expert, will generally result in an expense to the employer.&nbsp; While some accommodations may require an employer to purchase special equipment or software, certain tax credits or other tax related breaks may be available.</p> <p>In conclusion, disability discrimination claims can be avoided if both parties timely and in good faith engage in interactive process maintaining an open mind throughout while exploring if any accommodations are available that would enable the disabled employee to remain employed.</p> <br /> are an Employee's Rights to Inspect/Copy their Personnel File? Apr 2021 | Blog<p>One of the issues addressed by the California Legislature in its most recent legislative session involved&nbsp;&nbsp;the obligations imposed on employers with respect to a current or former employee&rsquo;s written request to review their personnel file.</p> <p>In sum, the requirements imposed on the employer&rsquo;s obligation to allow the inspection of an employee&rsquo;s personnel records by the employee or his or her representative were expanded.&nbsp;&nbsp;The amendments to 1198.5 of the&nbsp;<em>Labor Code</em> made the following changes of note</p> <ol> <li>Employers now must maintain an employee&rsquo;s personnel records for a minimum of 3 years from the date of termination.&nbsp;</li> <li>Personnel records must be made available to current and former employees for inspection within 30 calendar, not business, days from the date the employer receives a written request.&nbsp;</li> <li>The personnel records may be inspected by the employee or by his or her representative.&nbsp;&nbsp;(Employers can and should require a written authorization signed by the employee permitting a representative on behalf of the employee to inspect the employee&rsquo;s personnel records.&nbsp;&nbsp;The written authorization should specifically identify by name the representative which should be confirmed through the production of some type of identification at the time and before the representative reviews the personnel file.)</li> <li>Upon written request, an employer must provide the employee a copy of his or her personnel records at a charge not to exceed the actual cost of copying.&nbsp;&nbsp;An employer is able, prior to making the records available, to redact the name of any non-supervisorial employee contained in the records.</li> <li>With respect to a former employee, employers are required to comply with only one request per year to inspect or receive a copy of the former employee&rsquo;s personnel file.</li> <li>If a current or former employee files a lawsuit in a personnel matter against an employer, the right to inspect and copy personnel records ceases during the pendency of the lawsuit.&nbsp;&nbsp;(This means the current or former employee would have to formally request his or her personnel records through appropriate discovery procedures in the litigation.)</li> <li>The amendments to 1198.5 do not require an employer to produce records relating to the investigation of a possible criminal offense, letters of reference, ratings, reports or records obtained prior to the employee&rsquo;s employment, prepared by identifiable examination committee members and obtained in connection with a promotional examination.</li> <li>Violations by the employer entitle the employee or the Labor Commissioner to recover a penalty of $750 from the employer and permit the current or former employee to obtain injunctive relief as well as attorneys&rsquo; fees.</li> </ol> <p>Employers are well advised to take seriously any written request from a current or former employee, or their representative, to review and/or obtain a copy of their personnel file.&nbsp;&nbsp;It is not clear if the amendment to&nbsp;<em>Labor Code</em> &sect;1198.5 now require an employer to produce an entire copy of an employee&rsquo;s personnel file to the current or former employee whereas &sect;432 of the <em>Labor Code</em> requires an employer to provide an employee with any document the employee signed.&nbsp;&nbsp;Employers need to insure a timely and thorough response to written requests from employees to review his/her personnel file, and review carefully whether it is easier to permit an employee to obtain a complete copy of his or her personnel file as opposed to only documents he or she signed.</p> Interactive Process Under the Americans with Disabilities Act and California Fair Employment and Housing Act Apr 2021 | Blog<p align="left">The California Legislature recognizes the importance of the interactive process in determining a reasonable accommodation for an individual with a disability. The interactive process is triggered when the employer has knowledge the employee may have a condition that may qualify as a disability in results in some limitations that could require an accommodation. Actual knowledge of the diagnosis that limits the employee in a major life activity is not required.</p> <p align="left">If the employer has knowledge the employee may have a condition that may qualify as a disability, it has an affirmative duty to initiate the interactive process to determine the need for a reasonable accommodation whether the employee requests an accommodation or not. The employee is not required to request a reasonable accommodation before the employer's obligation to engage in a timely, good faith interactive process is triggered. The employee need not use &quot;magic words&quot; such as accommodation or reference the Americans with Disabilities Act or the Fair Employment and Housing Act. Thus, where the employer knows of an employee's disability and need for possible accommodation, the employer must initiate the interactive process even absent a request from the employee.</p> <p align="left">While California law prohibits disability-related inquiries, such inquiries are permitted upon a showing they are job-related and consistent with business necessity. If an employer has information suggesting the employee cannot perform the essential functions of his/her job or may need an accommodation to do so, it is job-related and consistent with business necessity for the employer to ask the employee about the issue.</p> <p align="left">Engaging in the interactive process means the employer and employee exchange information necessary to determine what type of accommodation will assist the employee. The process should identify the precise limitations resulting from the disability and potential reasonable accommodations to overcome those limitations. While not required to implement the accommodation preferred by the employee, the employer must consider the employee&rsquo;s suggestion. Both parties must cooperate in good faith during the interactive process, and failure to do so will determine if the employer is liable under California law. If questions exist regarding the limitations of an employee and what the employee can do, employers are advised to request permission to submit questions to the employee's physician to seek the necessary clarification as opposed to relying exclusively on medical reports. While it is preferred the employee participate directly , the employer&rsquo;s failure to deal with a representative of the employee may violate the interactive process duty.&nbsp;</p> <p align="left">The interactive process is an ongoing, fluid one which may require continual reassessment. &nbsp;If a reasonable accommodation proves ineffective, the employer is obligated to reinitiate the interactive process if it has knowledge the accommodation is not working. Unless it is readily apparent to the employer, the employee must provide notice the original accommodation is no longer working before the employer is obligated to reinitiate the interactive process.&nbsp;</p> <p align="left">The objective of the interactive process is to determine whether a reasonable accommodation is available to enable the employee to perform the essential functions of his or her job. Documenting the process and information exchanged can assist the employer in establishing its good faith participation in defending any claim of disability discrimination, failure to accommodate and failure to engage in a timely, good faith interactive process.</p> Elder Abuse - Marrying into Elder Abuse May 2020 | Blog<p>Financial Elder Abuse involves any theft or embezzlement of money or other property from an elder or dependent adult.</p> <p>Examples of financial abuse include, but are not limited to, cashing checks without the elder or dependent adult&rsquo;s authorization/permission; forging an elder&rsquo;s signature; misusing or stealing an elder&rsquo;s money, credit cards or possession; coercing or deceiving an elder into signing documents such as a contract, Will or Trust; improper use of conservatorship, guardianship or Powers of Attorney; predatory lending and home sales scams and home improvement scams.</p> <p>Signs and symptoms of financial abuse include, but are not limited to, significant withdrawals from the elder&rsquo;s bank or brokerage accounts; a sudden change in the elder&rsquo;s financial condition; items or cash missing from the elder&rsquo;s home; additional names on the bank signature card or changes in how a bank account is held such as Joint Tenant or payable on death; unpaid bills despite having sufficient funds available; unapproved withdrawals of funds using an ATM card; unexplained sudden transfers of assets and appearance of a stranger who begins a new close relationship and offers to manage the elder&rsquo;s finances and assets.</p> <p>Who might be an abuser includes family members, caregivers, neighbors, and professionals such as lawyers, bankers, financial advisors and others finding ways to cheat the elderly by engaging in deceptive billing practices or embezzling funds.</p> <p>Increasingly, those who might be an abuser financially of an elder or dependent adult are those individuals marrying the elder or dependent adult in order to take their wealth. Marriage is used because it is easy to accomplish, difficult to challenge and laws provide automatic financial rewards to married couples.</p> <p>Furthermore, marriage is easy to accomplish. The mental capacity to marry is low and only requires &ldquo;one lucid moment&rdquo;. The statutory requirements to marry are quite easy to fulfill as well. Those elements include consent, a license, solemenization, witness and public recordation. California is one of two states that permit confidential marriages. Under the Family Code, the license requires a couple to declare they have lived together as spouses. A Confidential Marriage means only the parties to the marriage can see the confidential marriage license. With a confidential marriage license, the license can be obtained without appearing before the Clerk, no witnesses required and no public recordation.</p> <p>With a regular marriage license, suspicious family members can check the public record prior to the elder&rsquo;s death. However, with a confidential marriage license, no family member has the ability to discover the marriage until after death. The ability to challenge a marriage depends on if the challenge is initiated before or after death of the elder. Prior to death, the marriage can be annulled meaning it never existed and is voided, or it can end by divorce which terminates a valid marriage. Divorce is a personal right and only the parties to the marriage can file and prosecute a divorce. After death, the only option available to challenge a marriage is by annulment.</p> <p>Unfortunately, financial elder abuse often is not detected until it is too late. Thus, it is imperative one move quickly if they suspect an elder or dependent adult has been the victim of financial abuse either by caregiver or through marriage or by any of the other examples of financial abuse. Tools are available to elders and/or those prosecuting civil actions on behalf of the elders to recoup the assets, including cash, wrongfully taken from the elder or dependent adult but require proceeding quickly. Often times, financial elder abuse cases not only involve seeking the recovery of the assets and damages in civil court but can lead to criminal charges against the abuser. In economic times that exist today, incidents of financial elder abuse only increase as abusers appeal to an elder&rsquo;s desire to help those who are in economic peril. Thus, it behooves all family members to increase their interactions with elders to ensure they do not become victims.</p> at Home as Reasonable Accommodation in Disability Cases with COVID-19 May 2020 | Blog<p>Technology has made working at home/remotely more accessible. With Zoom, Microsoft Teams, and other video conferencing based software, working at home or remotely will likely become more and more popular. Over 65% of employers offer work at home options, with some even requiring it.</p> <p>The California Fair Employment and Housing Act (FEHA) along with the federal Americans with Disabilities Act (ADA) prohibit discrimination against individuals and employees based on physical and/or mental disabilities. The FEHA and ADA require employers to provide reasonable accommodations to disabled workers.</p> <p>Courts have not been as receptive to finding work at home as a reasonable accommodation. Some courts have been hostile to requests for work at home on an indefinite basis or for an entire workweek as a reasonable accommodation, as opposed to on a limited or partial basis. The issue is generally an employer&rsquo;s claim it would be an undue hardship to permit work at home as a reasonable accommodation.</p> <p>COVID-19 may likely result in more courts finding work at home accommodations for disabled workers as reasonable. Issues may arise regarding the length of the work at home accommodation. Flexibility concerning periodically and regularly assessing whether the accommodation is reasonable may be required. However, the claim work at home creates an undue hardship because physical presence at the workplace is necessary will be more difficult to sustain given the widespread use of work at home for all employees, disabled and non-disabled, for non-essential businesses under COVID-19.</p> <p>Employers will need to develop job descriptions where physical presence at the company or job site is an essential function. For example, construction workers need to be on the job site to perform his or her duties. On the other hand, customer support representatives working through a call center may not necessarily need to be physically present at the business to perform the essential functions of the job.</p> <p>Both employer and employee are required, under federal and state law, to engage in a timely, good-faith interactive process to determine what reasonable accommodations exist that enable the employee to remain in his or her original position, whether it means working on-site or remotely. Communication is key.</p> <p>Often employers are concerned about supervision and productivity. Employees with disabilities who propose work at home as an accommodation should articulate how those concerns, among others, can be adequately addressed and explain why the accommodation is reasonable.</p> Employer Toolbox - Personnel Policies and Employee Handbook Apr 2020 | Blog<p>Even the most prepared employer may not have anticipated a global pandemic reaction plan was needed as part of their business plan, policies, or employee handbook. Stay-at-home and shelter-in-place orders and the resulting reductions in business revenue, combined with new federal and state legislation, can be confusing and overwhelming, to say the least.</p> <p>Here are some policies and procedures to consider adding to your business arsenal, as well as some COVID-19-related topics to review.</p> <ul> <li>Remote work policy and authorization form</li> <li>Remote access policy</li> <li>Furlough policy</li> <li>Health and safety policies and postings</li> <li>FFCRA mandatory postings</li> <li>Updated state unemployment website information</li> <li>Federal and state sick leave requirements under COVID-19 specific legislation</li> <li>Local and state rent relief policies, for residential and commercial tenants</li> <li>Expansion of FMLA coverage for COVID-19-related leave requests and needs</li> <li>Small business relief programs, including paycheck protection, economic injury grants, and debt relief</li> </ul> <p>It is also a good idea to review your existing policies and handbooks to make sure everything is compliant with state and federal laws.&nbsp; Additionally, with the ongoing furloughs and economic impact, reviewing your files to ensure you have the required furlough, layoff, and termination paperwork is prudent.</p> <p>For example, a &ldquo;packet&rdquo; of information and forms for reference when making the difficult decision to furlough or terminate an employee might include:</p> <ul> <li>Notice to Employee as to Change in Relationship</li> <li>&ldquo;For Your Benefit&rdquo; Unemployment Pamphlet from EDD</li> <li>COBRA and Cal-COBRA notices and election forms</li> <li>Coverage continuation notices</li> <li>Federal and Cal-WARN Act notice</li> <li>Acknowledgment of final paycheck</li> </ul> <p>Now is also an appropriate time to verify contact information for your employees.&nbsp; This ensures you can contact them via email and/or phone if you need to notify them of a furlough or offer available work.&nbsp; Further, you will have a valid mailing address in the event you have to send a check, wage statement, or other information and documents.</p> Unemployment and Underemployment Claims in California Apr 2020 | Blog<p>Many California employers are hoping to make layoffs and reductions in force methods of last resort, instead opting first for furloughs, pay cuts, or changes in status from full-time to part-time for their employees. Employees who are subject to such reductions may still be eligible for partial claim benefits from the EDD and CARES Act (stimulus) Pandemic Unemployment Act benefits.</p> <p><b><i>Unemployment and Underemployment Claims</i></b></p> <p>In California, the maximum weekly benefit amount for unemployment insurance (UI) is $450.&nbsp;The weekly amount is calculated by looking at the highest-earning quarter in an applicant&rsquo;s base period and dividing the total wages from that quarter by 26.&nbsp;If the resulting number is $450 or greater, the applicant receives the maximum benefit amount.&nbsp;Anything less, the applicant receives that amount per week.</p> <p>When an employee experiences a reduction in weekly wages earned, perhaps, for example, a furlough resulting in the employee&rsquo;s regularly scheduled weekly hours decreasing from 40 to 32, the employee can apply for an underemployment or partial unemployment insurance claim.</p> <p>Partial claims are calculated by first finding the UI weekly benefit amount if an employee was totally unemployed.&nbsp;In California, the benefit amount can range from $40 to $450.&nbsp;Then, the employee&rsquo;s new weekly amount must be calculated.&nbsp;The new weekly amount is what the partial claim is based on, so it can change if employees work more hours or fewer hours in a given week.</p> <p>The EDD subtracts 75% of the new weekly amount from the maximum benefit to find the partial claim amount.&nbsp;A pay reduction itself does not guarantee that an employee will receive partial claim benefits.&nbsp;It is the amount of the pay reduction that is critical in determining eligibility.&nbsp;For example, if an applicant&rsquo;s maximum benefit is $450 and a pay cut or reduction in work hours results in earning only $320 per week, the partial claim amount is: 450-(320 x 75%) = 210.&nbsp;The employee would receive $210 as the partial claim benefit amount.</p> <p>This is an approximation and will differ from employee to employee, but it is a little-known unemployment insurance benefit that could provide critical benefits to employees facing pay cuts or changes in status during this time.</p> <p>Additionally, the CARES Act provides for an additional $600 week in federal benefits, routed through and distributed by state unemployment agencies.&nbsp;This means eligible employees must apply for unemployment insurance claims through the California EDD in order to receive the federal funds.&nbsp;The $600 additional weekly benefit is added to any state benefit an employee receives, as long as the employee is eligible to receive at least $1 in state benefits.&nbsp;Thus, an employee in California could receive $640 to $1,050 per week in unemployment benefits after the CARES Act funds are distributed.&nbsp;</p> <p>This illustrates the importance of partial unemployment claims &ndash; employees who experience partial unemployment could be eligible for $600 in federal stimulus funds, even if not totally unemployed.&nbsp;</p> <p><b><i>Pandemic Unemployment Assistance</i></b></p> <p>As part of the CARES Act, the Pandemic Unemployment Assistance (PUA) program helps Californians who may not be eligible for regular state UI benefits and are unemployed or underemployed for COVID-19 related reasons.&nbsp;Business owners, self-employed individuals, independent contractors, and applicants with limited work histories are the main focus of PUA in California.</p> <p>PUA offers up to 39 weeks of UI benefits starting with weeks of unemployment beginning February 2, 2020, through the week ending December 26, 2020, depending on when an applicant became impacted by the pandemic.</p> <p>Applicants are eligible for weekly PUA benefit amounts as well as the supplemental $600 weekly benefit allotted through the CARES Act Pandemic Additional Compensation program described above.&nbsp;The $600 supplemental weekly benefit is available for unemployment starting the week of March 29, 2020 through July 25, 2020.</p> <p>PUA has its own eligibility criteria, including:</p> <ul type="disc"> <li>You have been diagnosed with COVID-19 or are experiencing symptoms of COVID-19 and are seeking a medical diagnosis.</li> <li>You are unable to work because a health care provider advised you to self-quarantine due to concerns related to COVID-19.&nbsp;</li> <li>A member of your household has been diagnosed with COVID-19.</li> <li>You are providing care for a family member or a member of your household who has been diagnosed with COVID-19.&nbsp;</li> <li>A child or other person in the household for whom you have primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of the COVID-19&nbsp;<b>and</b>&nbsp;the school or facility care is required for you to work.</li> <li>You became the breadwinner or major support for a household because the head of the household has died as a direct result of COVID-19.</li> <li>You have to quit your job as a direct result of COVID-19.&nbsp;</li> <li>Your place of employment is closed as a direct result of COVID-19.</li> <li>You were scheduled to start a job that is now unavailable as a direct result of the COVID-19 public health emergency.</li> <li>You are unable to reach the place of employment as a direct result of the COVID-19 public health emergency.</li> <li>If you work as an independent contractor with reportable income, you may also qualify for PUA benefits if you are unemployed, partially employed, or unable or unavailable to work because the COVID-19 public health emergency has severely limited your ability to continue performing your customary work activities, and has thereby forced you to stop working.</li> </ul> <p>The California EDD will start accepting online applications for PUA benefits on April 28, 2020.&nbsp;Applicants can be eligible for benefits dating back to February 2, 2020, depending on the last day of work and PUA effective date.&nbsp;Initial benefit payments are broken down into three time periods:</p> <ul> <li>$167 per week of unemployment due to a COVID-19 related reason from February 2, 2020 through March 28, 2020</li> <li>$167 plus $600 per week of unemployment due to a COVID-19 related reason from March 29, 2020 to July 25, 2020</li> <li>$167 per week of unemployment due to a COVID-19 related reason, up to a total of 39 weeks</li> </ul> <p>Unemployment and underemployment benefits provided by new federal legislation are distributed through state unemployment insurance agencies.&nbsp;Employees and employers should be aware of the unemployment and underemployment insurance benefits and options as businesses and workers navigate these unprecedented times.&nbsp;Additional information can be found at and employees should be encouraged to regularly visit the EDD&rsquo;s COVID-19-specific pages for assistance and information.&nbsp;New resources and guidance are constantly added as the new benefits are implemented.</p> <p><i>The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.&nbsp; Information on this website may not constitute the most up-to-date legal or other information.&nbsp; This website contains links to other third-party websites. &nbsp;Such links are only for the convenience of the reader, user or browser; the author does not recommend or&nbsp;endorse the contents of the third-party sites.</i></p> <p><i>Readers of this website should contact their attorney to obtain advice with respect to any particular legal matter. &nbsp;No reader, user, or browser of this site should act or refrain from acting on the basis of information on this site without first seeking legal advice from counsel in the relevant jurisdiction. &nbsp;Only your individual attorney can provide assurances that the information contained herein &ndash; and your interpretation of it &ndash; is applicable or appropriate to your particular situation.&nbsp; Use of, and access to, this website or any of the links or resources contained within the site do not create an attorney-client relationship between the reader, user, or browser and website authors, contributors, contributing law firms, or committee members and their respective employers.&nbsp;</i></p> <p><i>The views expressed at, or through, this site are those of the individual authors writing in their individual capacities only &ndash; not those of their respective employers or this site.&nbsp; All liability with respect to actions taken or not taken based on the contents of this site are hereby expressly disclaimed.&nbsp; The content of this posting is provided &quot;as is;&quot; no representations are made that the content is error-free.</i></p> Beneficiaries May Be Able to Sue The Estate Planning Attorney for Malpractice Based on the Negligent Drafting of the Will and/or Trust Apr 2020 | Blog