Post-Disaster Employment Law Issues

Post-Disaster Employment Law Issues


dear Hernandez and I’m an attorney with
legal aid at work I am from Napa I grew up there and so
this issue about closes after law issues is really close to me and close to my
heart as I have many family members who are going through a lot of these effects
right now gently with the Northern California fires. So today I want to talk
a little bit about some of the employment law issues that workers can
face in post disaster so I want to begin with talking about
the how a disaster can affect the employer and some of the issues that
might come up during that time one issue would be unemployment insurance so can
an employer shut down due to a disaster and can an employer and employee collect
unemployment insurance now the answer is yes if you otherwise qualify for
benefits because you lost your job through no fault of your own and now
we’ll go through a little bit about how the purpose of unemployment and the
benefits that you can receive. So unemployment insurance is meant to
provide temporary and partial wage replacement for persons unemployed
through, no fault of their own the benefits is usually a duration of 26
weeks to receive those benefits and the amount can range anywhere between $40
and 450 dollars per week depending on the workers previous earnings and so
eligibility who qualified and how would you qualify to receive it so initial
eligibility requires sufficient previous earnings generally that means the prior
calendar year and there also must be a no-fault separation so someone’s laid
off they would be eligible for example if they’re laid off due to temporary or
permanent business closure due to that disaster or if they resign but they have
to be eligible if they quit only with good cause so an example of that would
be because a house was destroyed and they had no choice but to move to
another County to live with relatives under those two examples there be a
no-fault separation and then there’s ongoing eligibility so
to be able to continue to receive benefits you have to be able you have to
have to be able available and seeking work to continue to receive an
employment insurance benefits time to file a claim so you will file a
claim with the EDD the California Employment Development Department and
you’ll file online or you can file by some through phone and here are some of the numbers for
English is 100 350 616 and then for Spanish its 1-800 3 2 6 8 9 3 7 an
important thing to remember is that undocumented workers are prohibited from
filing unemployment insurance claim so the second thing I want to talk about is
disaster unemployment assistance so if an employer lays off a workers due to
the disaster and they don’t qualify for regular unemployment insurance because
they’re self-employed there are some options available and so an employee can
apply for disaster unemployment insurance for workers including
self-employed workers now this actually is a federal program that provides
financial assistance for workers including those are self-employed who
become unemployed as a direct result of a disaster the benefits arm usually
begins on the first day of the week following
a disaster and ends 26 weeks after the date the disaster was declared so for
the North Bay fire the disaster was declared on October 10th 2017
and then the amount will range between forty dollars and four hundred and fifty
dollars per week depending on previous earnings and eligibility so to be eligible you
have to be a workers who’s not eligible for normal unemployment insurance that
would include workers who are self-employed or who have exhausted
previous unemployment benefits so it’s really important some workers might have
been on regular unemployment insurance before and I’ve exhausted their benefits
so they would qualify for this program and they must either no longer have a
job or a place to work cannot reach their place of work cannot
work you to damage the place of work cannot work because of an injury caused
by the disaster which could include mental stress if it is documented by a
doctor or have become the breadwinner of a four major support for a household
after the head of household either as a result of the disaster Morgan must accept any suitable job and
must conduct a job search while receiving assistance so very similar to
traditional unemployment insurance to file a claim you would file a claim
online or telephonically also with the California Employment Development
Department to EDD and again the numbers for English and Spanish the claim must
be filed is really important must be filed within 30 days of the announcement
of the disaster declaration and again for the North Bay Syrus the declaration
was made in October 10th 2017 wrongful termination so for example my
employer limited my job after the disaster is that legal
even though I was always a good worker and the answer is probably and this is
important to note because in California we have what’s called at-will employment
what that means is there’s a presumption that workers are employed out will and
they can be disciplined or discharged or they can quit at any time for any legal
reason there are some exceptions to that that are important to know for some
workers if they’re part of a union for example most union contracts will
require that there be good cause for termination and also disaster-related jock formation
is almost always going to be considered good cause
um so the illegal discipline and discharge even if the employees that
well so just assign a discharge is illegal under
the statute and one example would be an employer reduce the workforce after the
disaster targeting workers over 40 for a layoff so a lot of the issues with
illegal disciplined discharge and discrimination are still going to be in
effect so targeting workers over 40 basically means that there are targeting
workers who are older in violation of age discrimination and that’s going to
be illegal and also discipline or discharge because of a violation of
public policy so one example would be an employer who fired a worker after the
worker brought a good-faith complaint that’s the workplace with unsafe after
the disaster this is something that you will likely see in terms of the air
conditions the air quality being forced to work outside I’m bringing those
concerns up to an employer wait an hour so my employer stopped
paying me because the table records were lost because of the disaster is this
legal and I’ll let you know this is something I’ve already heard happening
in the North Bay so no it is not legal your employer must continue to pay you
their normal wages for all hours worth during the disaster not having access to
payroll records is not about it Grievous minimum wage and overtime issues so
minimum wage you had know is based on federal state or local law whichever is
higher for example campus code minimum wage is
higher than the state average and the statement of Malaysia’s hires of the
federal overtime so overtime begins to start being calculated after eight hours
work and after forty hours worked in a week that’s for most workers however
there are some exemplar kurz some employees for example white collar
workers are exempt from receiving overtime but if a business shuts down
for only part of the week due to disaster the exam to place still must be
paid for the entire week I’m payment of wages so if someone is
terminated their full and final wages are due immediately upon termination if
they quit early resigns they have the employer has 72 hours if there’s no
advance notice to pay the full and final wages to the employee and there are
penalties when this doesn’t happen so the penalty is one day of wages for
every day that an employer willfully fails to pay final wages and that is
calculated for a maximum of 30 days how to file a wage claim so wage came to
me file with the DLF see also known as the Labor Commissioner or in small
claims court workers should keep them bring a record
of hours work even if samplers records were destroyed and so now I want to
switch a little bit over to some of the disaster effects for an employee and how
that can affect their work so leaves of absence of job protections
can can I take time off to care for myself or a family member with a serious
medical condition caused by the disaster and the answer is you guess if you
qualify under FMLA or CFRA and the Family and Medical Leave Act in the
California Family Rights Act give employees up to 12 weeks continuous
or in a minute job protected time all to qualify for that there must be a serious
health condition which could include serious burns or smoke inhalation damage
due to fire the employer must also qualify based on
them having worked at least a year worked over 1,250 hours in the year
which is more than half time and work for an employer with 50 or more
employees within a 75-mile radius can an employee get paid if they take time off
to care for themselves or a family member with a medical condition caused
by the disaster the answer is probably under the page I’ll mail it back so
California’s paid family leave law provides partial wage replacement for
employees to care for close family members with serious health conditions
including those caused by a disaster the benefit is up to six weeks of partial
wage replacement and that’s administered through the EDD ability insurance so California state
disability insurance is available to qualify workers who are temporarily
employed disables from work it can receive up to 55 percent of their lost
wages for up to one year you would file the FBI claims with the EDD now just
expand vacation pay so six pay California allows employees to accrue a
new sick time for missing work due to illness the accrual is about one hour
six pay for every three hours work it’s important to note that some employers do
provide for more gender and sick time policies but this is a minimum
requirement vacation pay is not required by law but
if an employer does provide vacation time or PTO it is treated like wages and
it is something that also needs to be paid out if someone is terminated or if
they quit an employer can force an employee to use
sticker vacation pay for time off work due to disaster so disability laws what are my rights if
I am just able due to the disaster qualified workers with a disability are
normally entitled to receive a reasonable accommodation to help them
return to and thrive at the workplace hover disabilities an employee’s
physical or mental impairment additionally considered a physical or
mental impairment the limit or substantially limits a major life
activity that would be something as seeing hearing the listing thinking as
you can see under feet high which is a California law I just have to limit
under the federal laws a little bit higher standard has a substantially
limit employees with disabilities must still perform the essential functions of
the job for example a winery accountant with PTSD from the disaster can still do
calculations but might need a quarter room reasonable accommodation employers
must provide a reasonable accommodation and local would create an undue hardship
which is basically a significantly difficult or expensive for the employer
some examples include specialized equipment
of absence a transfer to a vacant position and then to bring a disability
discrimination claim the minimum employer size for under the ADA a which
is the federal law would be 15 employees and under feeha which is state law it
would be 5 employees again only one employee is required for a disability
harassment claim the employee power must first file a
charge with the EEOC or the DA pH before filing a lawsuit
workers compensation so what happens if I was injured on the job while trying to
protect my business during a disaster or disaster recovery
you are entitled to workers compensation in that situation border conversations
and benefit system for all employees injured on the job regardless of who was
at fault employers cannot sue for injuries in court and said they have to
file a claim with the employer and use orders compensation system
the benefit medical treatment unlimited reasonable treatment as well as
temporary disability benefits two-thirds of a weekly wage up to a statutory cap
and permanent disability benefits which will be based on the value of the injury
and something that I know will happen a lot going forward in the North Bay area
with the fires as cleanup takes place as well my workplace feels unsafe in the
aftermath of the disaster do I have any right yes all workers are entitled to
work in a safe and healthy workplace the workers have the right to a safe and
healthy workplace even after a disaster and I’ll codified in the labor code
protective equipment if airborne irritants are capable of
causing injury appear after a disaster employees have the right to protective
equipment for example breathing equipment master cultures smoke after a
fire and if an employer has an unsafe
workplace or refuses for an equipment the employee can file an anonymous
complaint with Paulo sure to file that complaint they would go
online at www.beautipage.ca/just 4 workers can refuse how’s this worth only
if to have a reasonable leaf that accretes a real and apparent hazard to
the worker and violate the cal/osha standard or labor code provision but
it’s important to note that the worker must first notify the employer and try
to work out a solution immigration status do I have any rights
if I am undocumented yes undocumented workers have nearly all of
the same protections under employment law except they are not able to apply
for unemployment insurance because they are not technically able to work under
the definition of the law you you

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