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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7520
Experience:  Significant experience in all areas of employment law.
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This is a follow-up question for Mary M Esquire who gave me

Resolved Question:

This is a follow-up question for Mary M Esquire who gave me very good advice on my last questions.

In furtherance to the on-call situation with my law firm, I have been given a laptop and firm Blackberry and am supposed to be able to be contacted on a "24/7" basis. My firm does not consider this restrictive. We have a rotation schedule, but if that on-call person is not available, someone MUST respond to the request for assistance, day or evening, "24/7." No advance notice is required by the attorneys. As it turns out, I was supposed to be on-call all of Thanksgiving week. I was not available because I went out on disability leave on November 14, and am still on disability, for a non-malignant lump on my neck. This third lump was turned out to be scar tissue (giving me a stiff neck), as opposed to the other two that were operated on. My hours are 4 pm to Midnight, I work alone in the L.A. office, on the 39th floor of a highrise, Downtown building. The air conditioning goes off at 10:00 pm or 10:30 pm, at which time the cleaning crew mechine polishes the railings and clean the floors as well. On some nights, the polutants are so strong, I can barely breathe. On another night, there was an evacution given over the intercom for my floor at 11:30 p.m. and I had to run down 39 flights of stairs - I was alone and very frightened and not certain I should wait around should there be a large fire. As it turned out, the evacuation was called off, but since the intercom does not sound in the stairwell (for some strange reason), I kept running down the stairs. I can go on and on, but the pressure regarding these new on-call procedures, plus the isolation of working completely alone at night, came to a head on November 14. I received an Excel request right before I was to leave, around Midnight, and all of a sudden, my mind went completely blank. I didn't know how to do it (it was VERY simple, as I reflect upon it), and I had to request asssitance from another operator in the Chicago office. Suffice it to say, and unlike me in every way, I packed up all of my things, all seven boxes of my personal belongings, brought them down to my car, and have been on disability ever since - first for the new lump (which has since been declared scar tissue) and now for the stress working at that job has caused me, up to and including the point where my mind completely went blank. Prior to 2008, the layoffs, and where my partner was laid off, I had received excellent evaluations from Human Resources. After that time, four new administrators later, I have received two (unfair) write-ups and my response to each was not requested. When I received a warning on my second write-up (the first ever I received in my enteire 40 years of being a word processor/legal secretary), I felt disgraced and humiliated in every way.

The botXXXXX XXXXXne is, I am severely injured, both in body and mind, and I never want to go back to this firm. I do want to file a Complaint against this firm and am not sure if the Labor Board is the correct vehicle for this. I am still on disability (going on the third week) and my family doctor is so concerned about my state of mind, he is behind me on this and believes I have to "get better," before I can move forward.

I would like your opinion on whether this is a "grin-and-bare-it" situation or am I simply one employee without recourse? Can you recommend an attorney in California, or do you believe I have no case? Were I younger, I would simply move on, but at 63, I don't have that much time to recover from all of this - though I appear much young than my stated age and have a strong personality.

Thank you,

Reba Tessel XXX@XXXXXX.XXX
XXX-XXX-XXXX
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for choosing JustAnswer. Since your question pertains to California employment law, it has been transferred to the California employment law section of JA rather than the "general" employment law section where you asked your last question. Only California licensed attorneys are permitted to assist you with these questions, and so your previous expert will be unable to answer.

I am happy to answer this question for you if that is okay with you. Please advise.
Customer: replied 2 years ago.

If you are an attorney, you may answer my question. If not, I will await a further reply.

 

Thank you,

 

Reba Tessel

Expert:  Patrick, Esq. replied 2 years ago.
Thanks for the response. I am an attorney licensed in the state of California.

First, let me tell you that as a former attorney at a relatively large law firm, I can completely sympathize as to how crazy the hours and demands can be.

Despite this fact, employers are typically free to demand unreasonable "on-call" hours, or to request an employee to work late through the night, provided the employer is otherwise complying with state and federal wage and overtime requirements. For this reason, a cause of action would be unlikely to exist simply on the ground that your hours were unreasonable/unbearable.

The most concerning issue is in regard to your disability. The California Fair Employment and Housing Act prohibits employers from discriminating on the basis of physical disabilities, and certain mental disabilities. (Govt. Code 12926.1) Pursuant to FEHA, your employer must provide you with a reasonable accommodation for a qualifying disability. Basically, this means that your employer must be reasonably flexible in its demands of you in light of your disability.

However, section 12940(a)(1) is clear that "this does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability...where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations."

A modification or adjustment is "reasonable" if it "seems reasonable on its face, i.e., ordinarily or in the run of cases. This means it is "reasonable" if it appears to be "feasible" or "plausible. "Undue hardship" means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.

If your employer has failed to provide you with a "reasonable accommodation" for a qualifying disability, a cause of action may exist for discrimination. Furthermore, a cause of action for discrimination may exist if you believe that your employer has treated you adversely because of your disability. Such may be the case in the type of situation that you describe.

To be completely honest, this will be a tough case, but that doesn't mean it is one not worth pursuing. I understand what it is like to feel "wronged," and I am sure you want vindication.

If you want to file a lawsuit, you must first file a formal complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC) or California's Department of Fair Employment and Housing. Either the EEOC or the DFEH will issue you an authorization to sue after they investigate your claim. You don't need to file with both agencies. Finally, if you decide to sue, don't miss your deadline. Under federal law in California, you have 300 days from an act of discrimination to file a complaint.

For information on how to bring a claim through California's DFEH, visit this link: http://www.dfeh.ca.gov/Complaints.htm For information on how to brig a claim through the EEOC, visit this link: http://www.eeoc.gov/employees/charge.cfm

I sincerely XXXXX XXXXX this information helps you and I wish you the very best of luck. Bear in mind that non of the above constitutes legal advice nor is any attorney client relationship created between us.

Please abide by the honor code of this website by kindly clicking on the GREEN ACCEPT button if my answer has been helpful to you. Thank you very much.
Patrick, Esq., Lawyer
Satisfied Customers: 7520
Experience: Significant experience in all areas of employment law.
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Patrick, Esq.
Patrick, Esq.
California Employment Lawyer
7520 Satisfied Customers
Significant experience in all areas of employment law.