Frequently Asked Questions
Find answers to your questions about the Jones Act, DBA, California workers’ compensation, or employment law. If you have more questions, contact us.
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What constitutes discrimination in a maritime injury claim?
Federal maritime laws provide many protections for workers who spend the majority of their time on the water. While the Longshore and Harbor Workers' Compensation Act (LHWCA) and Jones Act are primarily known for providing payment for maritime injuries, these laws also protect the employment of any worker who legally asserts a claim.
Discriminatory Actions in Longshore Act Injury Claims
Maritime employees cannot be fired, removed from duty, or otherwise discriminated against for exercising their rights under the law. Discrimination may take many forms, including disparate treatment (treating the worker differently from other employees in similar circumstances) or disparate impact (adhering to employment practices that have a discriminatory or adverse effect for some workers and not others).
Under federal maritime statutes, is illegal to discriminate against a worker for:
Claiming injury compensation:
Workers cannot be demoted or fired because they claimed or are attempting to claim compensation for maintenance and cure under the Jones Act.
Testifying in court:
Employees are protected when testifying in a proceeding under the Jones Act.
Reporting safety violations:
Maritime employees are required to report violations of maritime safety laws to the appropriate federal agency. As a result, any worker who has notified the employer of an unsafe condition that has gone uncorrected is protected when notifying the Coast Guard (or federal government) of the violation.
Refusal to work due to safety concerns:
If a worker notifies an employer of unsafe workplace conditions and the conditions are not corrected, the worker may legally refuse to perform duties that may cause injury related to the hazard.
Becoming injured or disabled:
Employees who are injured or disabled in the course of employment cannot be discriminated against.
An injured worker who can successfully prove that the employer discriminated against him—even if the discrimination was only partially motivated by a protected action—could be owed compensation under the Longshore Act. Section 48 gives terminated employees the right to seek reinstatement of former employment, including payment of back wages. In addition, employers who violate discrimination laws may be ordered to pay fines up to $5,000, as well as the worker’s reasonable attorney fees.
What is a “good-faith” dispute in a wage and hour case?
A “good faith” dispute removes an employer’s liability to pay waiting time penalties to an employee.
By law, employers are required to pay all outstanding wages owed to a worker within 72 hours of the employee’s last shift. If this is not done, the employee can collect waiting time, which is an additional day of pay at the employee’s regular rate for each day the worker is kept waiting for his or her final wages.
However, the worker is not eligible for waiting time penalties in California if the employer shows that there was a good reason the wages were not paid.
When Can an Employer Claim a Good Faith Dispute?
The good news is that, even by making a good-faith defense, the employer agrees that the employee’s claim is valid. However, the defense allows an employer to state the reason why the wages were not paid on time—and if the reason is valid, the employer can get out of paying some or all of the waiting time penalties.
Depending on which good faith dispute is made, an employer may be able to escape liability for:
Waiting Time Penalties:
Employers can be excused for a violation of state and federal pay requirements if the employer can prove that his actions conformed with an applicable written order, ruling, or interpretation of the Wage and Hour Division of the U.S. Department of Labor. Even if the written rule that was applied is later overturned or rescinded, the employer can claim a good faith dispute as long as the order was in effect at the time of the dispute. If successful, the defense allows employers to avoid liability altogether.
Under some circumstances, an employer can admit that the company owes you back pay while also reducing the number of liquidated damages you are owed. Liquidated damages are an additional amount equal to the amount of back pay owed, and are intended to punish the employer for wrongdoing. If the employer had reason to believe that he or she was doing the right thing—for example, listening to the advice of a lawyer who gave misinformation—then the company may not be liable for liquidated damages.
For more information on your wage and hour case, read through our free book, California Truck & Delivery Driver Wage Theft: The Ultimate Straight Talk Guide to Getting Your Hard Earned Wages Back.
How far could I travel for a Defense Base Act medical exam?
Injured employees shouldn’t be asked to go out of their way to see the insurance company doctor.
Unfortunately, insurers routinely ask employees to do just that by scheduling a Defense Base Act medical examination a long distance from the employee’s home.
By law, the employee must attend a special medical examination in a place designated by the employer. The law does provide that the place of examination be a “reasonable” distance for the employee to travel, but the definition of “reasonable” can vary widely.
Factors That Can Affect Traveling to a Defense Medical Exam
Employers and insurers know that making a long trek to a medical exam will be difficult for the employee, and often use this to their advantage. If the employee does not attend the exam, he will be barred from receiving benefits, saving the company money. If the employee is able to make the trip outside his geographic area to the doctor’s office, the insurance company can argue that the employee’s injuries must not have been that bad.
There may be a way to avoid traveling long distances to your DBA examination. It is important to consider the following before accepting an examination date:
Method of Travel:
You cannot be asked to travel long distances if doing so would aggravate your injury. If your condition prevents you from traveling in a plane or driving for long periods, the judge in your case may instruct the insurer to choose a location closer to your home.
The insurance company is responsible for paying the costs of your examination, as well as the costs of travel to and from the appointment. Sometimes this is paid in advance, but it can also be reimbursed if the employee fronts the cost. If an employee is under significant financial hardship and the insurance company will not pay travel expenses up front, the employee may be able to appeal to a judge for a closer appointment.
Hiring an attorney:
If there is not a sufficiently good reason for you to travel to the doctor that the insurer has chosen, your attorney can fight to get the appointment rescheduled for you. Your lawyer can also attend the appointment with you to make sure your rights are respected.
It is vital that claimants have as much information as possible in order to win compensation for their injuries. Click here to read through our free book on DBA claims, DBA Resource Guide.
Should I bring a lawyer to my Defense Base Act medical exam?
It is a good idea to bring someone with you to your Defense Base Act medical examination.
Although these appointments are referred to as “independent” medical exams, they are paid for by the DBA insurance company and you will be examined by a doctor of their choice—and the point of the exam is to find ways to deny your claim. While you must attend the appointment in order to have your benefits approved, taking an attorney with you can help your case a great deal.
What a Lawyer Does During Your Medical Exam
Your attorney can be helpful to your case even before you attend the exam. Your lawyer should look over any paperwork you have been asked to complete as part of the exam and advise you on what you should and should not bring to the appointment. He or she will also give you a rundown of what will happen during the exam and offer advice on each stage of the appointment.
The most helpful things an attorney can do during a DBA medical exam include:
Prevent You From Helping The Defense Case:
A Defense Base Act attorney should be familiar with common tactics DBA doctors use to get evidence that hurts your case. Your attorney should sit right next to you during the exam and answer any questions that are put to you. If the doctor asks leading questions or makes assumptions, your lawyer can ask the doctor to rephrase or clarify any statements he makes.
Take Detailed Notes:
It can be hard for claimants to remember everything that happens in an IME because they are focused on the physical aspects of the examination. Your attorney can do some behind-the-scenes work that can later shed light on your case, including timing each portion of the examination, setting up a tape recorder or taking a video of the entire exam, taking notes on the defense doctor's body language and the types of tests administered, and making notes to investigate the doctor’s claims later.
Intervene On Your Behalf:
Your attorney should know what is and is not permitted in an IME in California. For example, you cannot be asked to undergo any test or procedure that causes you pain. You also do not have to submit to any testing (such as an x-ray) that was not previously agreed to before the exam.
It is vital that claimants have as much information as possible in order to win compensation for their injuries. Click here to read through our free book on DBA claims, DBA Resource Guide.
What are whistleblower laws?
In order to encourage the reporting of illegal business practices, state and federal laws include a "whistleblower" clause that prevents retaliation against an employee who reports workplace violations to the authorities.
What Actions Are Protected Under Whistleblower Laws?
California’s Whistleblower Protection Act protects both public and private employees who report violations of law, violations of public policy, and breaches of the public trust. The state law includes employees who report a suspected violation internally (such as to a manager or supervisor), and also protects third-party and contract employees.
Employment laws prohibit discrimination or retaliation against workers who report:
Labor Law Violations:
California labor laws prevent adverse actions against workers who report wage violations, including unpaid wages, overtime, meal and rest breaks, working minors, and other violation of the labor code. In 2016, additions to the California Labor Code prevented retaliation against a whistleblower’s family members, as well as prohibiting retaliation by third parties (such as contractors).
Workplace Health and Safety Violations: Federal laws such as the Safe Drinking Water Act, Solid Waste Disposal Act, Toxic Substance Control Act, Water Pollution Control Act, and the Occupational Health and Safety Act protect workers from retaliation if they report concerns about environmental dangers, unsafe work environments, health code violations, or potential illegal dumping.
Patient Safety Concerns:
California Health and Safety Code 1278.5 prevents retaliation against patients, nurses, medical staff, and healthcare workers who report poor quality of patient care and unsafe healthcare conditions. Healthcare workers what have been terminated after reporting violations to the facility itself or to a government entity is entitled to reinstatement, reimbursement, and the payment of his or her legal costs.
Not only must terminated whistleblowers be rehired, they are also eligible to file a claim against the employer to recover any damages that the discrimination has cost them. Compensation can include repayment of lost wages, benefits and vacation pay, and additional damages for hardship and offense caused by the retaliation. In some cases, retaliation can carry criminal charges for the employer. For more information on these types of cases, please use our website to learn more about California employment laws.
What is constructive discharge?
You may know that employees who quit or resign from their jobs are not eligible to collect unemployment benefits. But what about employees who were forced to quit due to intolerable working conditions? Will these employees be forced to continue working in a hostile workplace because they are unable to provide for their families?
California labor laws recognize that it would be unfair to punish workers whose resignations are in name only.
The laws include a provision of “constructive discharge” (also called constructive termination), allowing that any employee resignation that is brought on by an intolerable work environment is, in reality, a termination.
How to Prove a Constructive Discharge Case
A constructive discharge classification is not only vital for securing unemployment benefits, it is also necessary for employees to retain the right to file a wrongful termination lawsuit. The California Supreme Court has ruled that constructive discharge has occurred if an employer’s conduct would force any reasonable person to resign, making the resignation coerced.
There is no single measure of constructive discharge, but proving your case typically includes:
You must be able to show that your employer either created intolerable work conditions or knowingly permitted them to continue. The employer must also be aware of the impact that the adverse working conditions could have on an employee.
Nature of The Conditions:
The conditions under which you resigned must have existed beyond a single instance, and must have been sufficient to impede the motivation of a competent and reasonable employee to remain at work and earn a living. Examples may include yelling, berating, intimidating, or bullying an employee.
Conditions at The Time of Resignation:
All constructive discharge cases require that the intolerable work conditions must have been present at the time of the employee’s resignation.
Constructive discharge may be included in a discrimination lawsuit, and may allow for an employee to recover additional damages for suffering through hostile workplace conditions. If you have already quit your job under extreme duress, you should speak to an employment lawyer as soon as possible to retain your right to benefits and a wrongful termination case. Please use our website to learn more about California employment law violations.
What is employment at will?
Simply put, employment “at will” means that both parties can terminate the work contract at any time.
While this means that an employee has the right to leave a job for any reason, he or she may also be fired at any time by the employer—and neither party has to give a reason for the decision. This simple doctrine can cause big headaches for both employers and employees.
Exceptions to the California Employment At-Will Rule
Although an at-will employee can generally be fired at any time, for any reason, there are some exceptions. At-will employees are still protected by state and federal laws. Which means you can't be fired because of:
Employers are subject to strict labor laws to protect employees from discrimination and retaliation in the workplace. If you were fired because of your race, gender, nationality, religion, disability, medical condition, marital status, gender, gender identity, sexual orientation, or age, you have recourse to sue your employer for reinstatement or damages.
If you provided information about your employer’s illegal or unsafe business practices, you cannot be fired for this reason.
Employers are not permitted to terminate employees for their political activities, nor can they fire employees for engaging in legal activities during nonworking hours away from the workplace.
The National Labor Relations Act prevents employers from firing employees who exercise collective bargaining rights or seek to form a union.
Protected leaves of absence:
California law states that employees cannot be terminated during or as a result of taking certain types of permitted leave. Examples of protected leave include recovery from work-related injuries and maternity leave.
Lack of good cause:
Some employees are protected by “good cause” contracts, documents which expressly state that employees cannot be fired without a legitimate reason. The Supreme Court of California has provided that a “good cause” contract may exist even if it is not explicit. Depending on the circumstances of these cases, a court may find that the employer does need grounds to fire an employee.
Most California Workers Are At-Will Employees, But There Are Exceptions:
People who are specifically contracted to work for a specified period of one month or longer are not employed, nor are those who have specific job security provisions included in a signed employment contract.
If you are fired for a reason that violates labor laws, you could have a legal claim against your employer. For more information on these types of cases, please use our blog to learn more about California employment laws.
When does my employer have to issue my final paycheck if I am fired or laid off in California?
In the state of California, it is illegal for an employers to withhold pay from a terminated or laid off employee.
In most cases, payment must be issued to terminated workers on the last day of employment. It is illegal to make an employee wait until the end of the next regularly scheduled pay period for any portion of his or her final wages. However, some industries that rely on work done away from the employer’s administrative offices may be allowed a 24-hour grace period to issue pay.
An employee’s final paycheck must include:
- Wages earned for all days up to and including the last day of work
- Any unpaid wages from earlier pay periods
- All accrued vacation or paid time off (PTO) that the employee has not used
If you were not issued your final pay on the last day worked or within 72 hours of the last day worked, you may be able to collect waiting time penalties in addition to your final pay.
California Penalties for Withholding Final Pay of Fired or Laid Off Employees
Waiting time penalties are calculated using the employee's regular pay rate, including overtime and commissions. For every day pay is withheld, the employee is owed an additional day’s worth of wages up to a maximum of 30 days. For example, if your employer waited a week before issuing final pay, the employer would owe you an additional seven days of pay as a penalty.
Employees may still be owed waiting time penalties if their final paycheck is timely, but does not contain all wages earned. If your final paycheck is missing your PTO balances or overtime pay, you will be owed a day’s wage for every day you are kept waiting for compensation. If your employer insists that you cannot be paid until the next regular pay period, you are entitled to two additional weeks of pay for the delay.
If your employer is withholding your final pay, you should take immediate action to protect your wage and hour claim. Please feel free to browse our articles to learn more about these kinds of cases.
When are California employees required to take meal breaks during shifts?
California has strict labor laws governing when workers can take meal breaks, when they must be paid for breaks, and whether employees can work while on break.
These laws apply to nearly all employees who are not exempt from earning overtime—and depending on how long you work, you might get more than one meal break per shift.
For most non-exempt employees, an employer must provide:
One Meal Break:
Your manager or supervisor must provide you with a meal period of at least thirty minutes any time your shift is at least five consecutive hours. However, if the total work period of the day is less than 6 hours, the meal period may be waived if both the employer and employee consent.
A Second Meal Break:
Any employee who works more than ten hours per day must take a second meal period of at least thirty minutes. If the total hours worked is less than 12, the employee may voluntarily give up his second break as long as he did not waive the first meal period of the shift.
A Place to Eat:
If employers are required to remain on the premises while eating, the employer is responsible for designating a suitable place for that purpose. Under the guidelines of the Industrial Welfare Commission (IWC), employer requirements for break rooms may include sinks, a supply of potable water, or disposable towels or hand dryers.
Access To Food:
The IWC also demands that employees whose meal period occurs on a shift during the hours of 10 p.m. and 6 a.m. must be given adequate facilities for securing hot food or drinks, or the ability to heat food or drinks they have brought from home. They must also be provided with a sheltered place that is adequate for suitable consumption of food and drink.
Not only are employers required to provide breaks, they must also ensure that employees are relieved of all duties for the entirety of their meal periods.
Can I get pain and suffering in a Defense Base Act claim?
Depending on Circumstances, Yes or No
The Defense Base Act (DBA) offers many protections for civilian contractors working overseas. One of these is that workers do not have to prove fault or negligence of their employers in order to get injury compensation. They just have to prove that their injuries were caused or worsened by their employment.
However, this guarantee of coverage comes at a price. By agreeing to pay the medical costs of a worker’s injury, employers cannot be sued for additional costs of an accident, such as lost wages and pain and suffering.
Ways to Collect Pain and Suffering in a DBA Case
Although the DBA prevents employees from getting the full costs of an injury from an employer, there are still ways to receive compensation. Depending on the circumstances of your case, the law may allow you to file a case against:
Your employer can be named in a lawsuit if you are pursuing a case against someone else implicated in your injury. For example, if your injury occurred due to the recklessness or negligence of another worker, the employer could be named as a second party to the civil lawsuit.
Employees can file civil suits involving someone other than your employer. If any or all parties are found to be at fault, you can recover pain and suffering, lost earnings, and damages for permanent disability or loss of enjoyment of life.
An Uninsured Employer:
In most cases, DBA insurance coverage prevents workers from filing injury lawsuits against their employers. But if an employer, contractor, or a subcontractor fails to secure DBA insurance coverage, employees can sue the employer for civil damages. In these cases, employers cannot defend the claim based on your negligence or your assumption of risk in taking the job.
It is important to understand how the DBA works, what coverage you are entitled to, and common ways these claims are denied in order to get fair payment. For help on gathering evidence and other ways to build your strongest case, look through our free book, DBA Resource Guide.
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Disclaimer: Please understand these discussions and/or examples are not legal advice. All legal situations are different. This testimonial, endorsement and/or discussion does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, your particular case/ situation and/or this particular case/ situation.