After you sustain an injury at work, it is crucial that you promptly take action to take care of yourself and your claim of injury. Once the injury is reported to your employer, their workers’ compensation insurance company has up to 90 days to investigate if the injury genuinely occurred due to your job. This investigation period is called the delay period (delay phase above). Navigating the delay period is important because if the injury is accepted at the end of the delay period, you should receive medical and financial benefits from the insurance company. If the injury is denied however, it will take months or longer before you receive any benefits from the insurer. This article provides some general advice for taking care of yourself, and your case, during the delay period.
 
If You Need Immediate Medical Attention: Seek Medical Attention Immediately

If you need to go to the Emergency Department (ED), go there immediately. The ED is equipped to treat life-threatening injuries and conditions, and you should call an ambulance or take yourself to the ED if you believe your life is at risk. Taking care of your life should be your primary concern, and workers’ compensation can be addressed later.  

Most workplace injuries are fortunately not life-threatening and are treated at urgent care clinics. Urgent care treats medical issues that need immediate attention but are not life-threatening. Urgent cares commonly treat simple fractures, cuts that need stiches, sprains, strains, ect. The benefit of urgent care is that appointments are not needed for the initial visit, and they provide immediate medical treatment. Urgent cares are also usually the first point of contact for injured workers seeking treatment before the injury is formally reported and know how to handle those cases.  Major Northern California urgent care facilities include Concentra, Carbon Health, and Kaiser Permanente On-the-Job.
 
Report Your Injury to Your Employer ASAP

You should report your injury to your employer as soon as possible. Once you do, your employer is generally required to provide you a DWC-1 claim form. The claim form is important because it provides proof that you reported the injury to your employer, including when it occurred, what body parts were affected, how the injury happened, and the date that the injury was formally reported. The claim form will almost always also prompt your employer to send you out for medical treatment if you have not already begun treatment.  

Reporting the injury immediately also helps you avoid the claim of injury being barred by the statute of limitations and starts the clock on the delay period. If for some reason your employer does not give you a claim form, make sure to follow up your verbal reporting with an email or text message to document reporting the injury to them.
 
Ensure That You Are Seeing a Workers’ Compensation Physician

Seeing a workers compensation physician for your injury is generally helpful during the delay period. One of the primary benefits you receive for seeing a workers’ compensation physician is that you are entitled to $10,000 of medical treatment from the insurance company during the delay period. Treatment requested by your workers’ compensation physician and approved by insurance will be paid for by the insurer without you receiving a bill. You are also not charged for treatment provided during the delay period if the case is later denied.

Treating with a workers’ compensation physician also helps ensure their billing complies with California Labor Code sec. 3751(b), which prohibits medical providers from billing you for services after a claim form has been filed and until they are given notice that liability for the injury has been denied.

Verifying that you are seeing a physician through workers compensation is usually done by your physician. At any initial medical appointment, you should be ask if the injury happened at work. Once told the injury is work related, the clinic will direct your medical care to workers compensation if they cannot provide that treatment. However, if there is ever any doubt about treating through workers’ compensation, you can check your physician’s reports to see if your insurance claim number or employer’s name is on them. If the workers’ compensation claim number or employer name is not on any of your physician’s medical reports, then you should double check with their office to make sure you are actually treating through workers’ compensation.
 
Do Not Be Afraid to Advocate for Yourself

Your employer may not volunteer help with having your injury addressed through workers’ compensation. If your injury qualifies as a “first aid” injury, your employer does not need to provide a claim form and begin the workers’ compensation process. A first aid injury is an injury that results in no time lost from work beyond the shift you were injured on and requires one-time medical treatment, if any. For this reason, employers sometimes steer an injury towards being considered a first aid injury to avoid workers compensation. This is often done by offering extra rest breaks or letting an injured worker go home for the day, hoping they can recover without medical treatment.

Due to employers’ incentives for injuries to be first aid claims, you may need to clearly and unequivocable advocate for yourself to receive medical care if you feel your workplace injury needs it and your employer disagrees. Specifically asking for a claim form and where to receive medical treatment is often enough to tell your employer that your injury is not a first aid claim and the workers’ compensation process must begin.
 
In Closing (TL;DR)

If you seek medical treatment for your work place injury as soon as you know you need it, report the injury to your employer promptly, and make sure you treat with a workers’ compensation physician, you give yourself the best chance of having your injury accepted at the end of the delay period. Making it through the delay period is just the first step of the workers compensation process, and we can work with you through the rest of those steps to help you reach the best possible outcome. Contact us if you have any questions. 

Imagine you've diligently worked to meet or exceed your sales targets and are counting on the commission you've earned according to your signed agreement. Then suddenly, your employer says there's a "mistake" in the agreement, or that you’re misinterpreting it, and you're going to be paid less. Can they really do that?

Like most questions, the answer is that it depends. But keep in mind that California law strongly favors employees in situations like these. Here's what you need to know:

Your Commission Agreement Must Be in Writing

California requires employers to have written commission agreements clearly explaining how commissions will be calculated and paid. You must receive and sign a copy acknowledging this agreement. (Cal. Labor Code § 2751.)

Employers Cannot Refuse to Pay Earned Commissions

Under California Labor Code § 200, commissions are considered wages once they are earned. Under various other Labor Code sections, employers are prohibited from failing to pay commissions when they are due and may not take back wages that are earned. Simply put, your employer can't retroactively reduce or take back your commission after you've performed your part of the deal.

Mistakes Don't Automatically Excuse Payment Obligations

Absent unconscionability, unless the mistake in your commission agreement is obvious or you have reason to know of the error, California law provides at least two clear legal theories supporting your entitlement to receive the agreed-upon commission:

1. Binding Contract: If your employer communicated a commission structure and you performed according to that structure, you've created a binding contract. (DiGiacinto v. Ameriko-Omserv Corp. (1997) 59 Cal.App.4th 629; Mar v. Perkins (2024) 102 Cal.App.5th 201.)
2. Promissory Estoppel: If your employer promised you a certain commission structure, and you reasonably and foreseeably relied on that commission structure, promissory estoppel will likely require that your employer honors its promise. (US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887.)

Ambiguities Favor the Employee

Employers may try and claim that you are misinterpreting your agreement, or that you don’t understand certain terms or phrases. While terms or phrases may have common or industry specific meanings, sometimes your employer’s poor choice of words causes there to be what courts refer to as an “ambiguity”— a term, phrase, or provision that is unclear, vague, or open to multiple reasonable interpretations.  In those cases, California has long held that those ambiguities will be interpreted against the drafter of the agreement, which in most cases will be the employer. (Cal. Civ. Code § 1654; Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233.)

Attorney's Fees and Costs

If you're forced to sue for unpaid commissions and win, California law requires your employer to pay your reasonable attorney’s fees and costs. (Cal. Lab. Code § 218.5.)

Bottom Line

If you've performed your job based on a commission agreement, California law protects your right to be paid as promised—even if your employer claims there was a mistake. Employers cannot retroactively change terms after you've performed your work.

If you're facing this issue, NorCal Advocates is here to help.  We are dedicated to fighting for employees to ensure they recover the compensation they’re owed.

A recent Ninth Circuit decision, Lui v. DeJoy, sheds important light on the oft-confusing application of the McDonnell Douglas burden-shifting framework in Title VII discrimination cases. In a significant clarification, the court reiterated that an employee can satisfy the fourth element of the prima facie case under McDonnell Douglas simply by showing that they were replaced by someone outside their protected class—dispelling the notion that they must also demonstrate that the replacement was "similarly situated."

It is important to note that while the Ninth Circuit refers to this as the "fourth element of McDonnell Douglas," this terminology can be misleading. The element in question is actually the fourth element of the prima facie case, which is itself only the first of three steps in the McDonnell Douglas burden-shifting analysis. This distinction is crucial to understanding the framework correctly.

Background of the Case

Dawn Lui, a Chinese-American woman and longtime USPS employee, was removed from her position as Postmaster in Shelton, Washington, and demoted to a lower-paid Postmaster role in Roy, Washington. She was replaced by a white male with less experience. Lui alleged that she was subjected to discrimination based on race, sex, and national origin and filed suit under Title VII. The district court granted summary judgment for USPS, concluding that Lui failed to establish a prima facie case under McDonnell Douglas because she had not shown that a "similarly situated" individual outside her protected class was treated more favorably.
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The Ninth Circuit reversed the district court’s ruling on this issue, criticizing the lower court’s reliance on an improperly truncated version of the McDonnell Douglas test.

Clarifying the Fourth Element of the Prima Facie Case in McDonnell Douglas

The McDonnell Douglas framework, established by the U.S. Supreme Court, is a three-part test used to determine whether an employer engaged in unlawful discrimination:

1. The plaintiff must first establish a prima facie case of discrimination.
2. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action.
3. If the employer does so, the burden shifts back to the plaintiff to demonstrate that the employer’s stated reason is a pretext for discrimination.

​The prima facie case itself consists of four elements:

1. The employee belongs to a protected class.
2. The employee was qualified for the position.
3. The employee suffered an adverse employment action.
4. The position remained open, was filled by someone outside the protected class, or "similarly situated" individuals outside the protected class were treated more favorably.

​The district court, in granting summary judgment, relied on cases that required a plaintiff to show "similarly situated" employees were treated more favorably, ignoring precedent that also allows a plaintiff to meet the fourth element simply by demonstrating that their position was filled by someone outside their protected class.

The Ninth Circuit’s Key Holdings

The Ninth Circuit emphasized that the Supreme Court and previous Ninth Circuit cases have long recognized that an employee meets the fourth element of the prima facie case by showing either that they were replaced by someone outside their protected class or that similarly situated individuals outside their protected class were treated more favorably.

The court clarified that the "similarly situated" requirement is an alternative means of proving discrimination, not an additional hurdle for employees who can already show that they were replaced by someone outside their protected class. This distinction is important, as the "similarly situated" analysis often presents unnecessary barriers for plaintiffs due to subjective employer practices and differing job responsibilities among employees.

Implications for Employees and Employers

The Ninth Circuit’s decision provides much-needed clarity and ensures that employees are not unfairly burdened by an overly restrictive interpretation of McDonnell Douglas. This ruling confirms:
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• Employees who are replaced by someone outside their protected class have a viable claim under Title VII without needing to prove differential treatment of "similarly situated" colleagues.
• The "similarly situated" analysis remains an alternative means of satisfying the fourth element, but it is not a universal requirement.
• For employment attorneys handling discrimination cases, this ruling strengthens arguments that a replacement by someone outside the protected class alone can establish a prima facie case, making it more difficult for employers to win summary judgment.

If you believe you have been subjected to discrimination in the workplace, this case highlights the importance of consulting with an experienced employment attorney to assess your claims and protect your rights under Title VII.

At NorCal Advocates, we understand that seeking help for alcohol or drug addiction is a deeply personal and often difficult decision. Many individuals struggling with substance use worry about how entering treatment will impact their job, leading them to delay or avoid getting the help they need. If this sounds like you, know that California and Federal law provides certain protections to help you seek the care you need while maintaining your employment.

Legal Protections for Employees Seeking Treatment

California Labor Code § 1025

Under California Labor Code § 1025, private employers with 25 or more employees are legally required to provide reasonable accommodations for employees who voluntarily seek to enter and participate in an alcohol or drug rehabilitation program. This means that, in most cases, your employer must allow you to take a leave of absence or modify your schedule to receive treatment—so long as it does not create an undue hardship on the business.
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However, while the law protects your right to seek treatment, it explicitly does not shield employees from termination if they are unable to perform their job duties due to current alcohol or drug use. If an employer can demonstrate that your substance use is negatively impacting your performance, creating safety risks, or violating workplace policies, they may have grounds for termination.

Related Laws Providing Additional Protections

Even if your employer has fewer than 25 employees, you may still be entitled to time off for substance abuse treatment under various other laws including the California Fair Employment and Housing Act (FEHA), the Americans with Disabilities Act (ADA), the California Family Rights Act (CFRA), and the Family and Medical Leave Act (FMLA). While these laws generally do not protect employees who are disciplined or terminated because of misconduct or other issues arising from active addiction, those seeking treatment may be entitled to time off provided certain conditions are met.

Health Coverage for Alcohol and Drug Treatment

Financial concerns should not stand in the way of getting help. California Health & Safety Code § 1367.2 mandates that group health insurance plans covering hospital, medical, or surgical expenses must also provide coverage for the treatment of alcoholism. While coverage details vary by plan, many policies include inpatient and outpatient treatment services. If you’re considering treatment, check with your health insurer to understand what services are covered and what costs you may be responsible for.

Workplace Rules and Employer Rights

While California law encourages recovery, it also allows employers to enforce workplace rules related to substance use. This means that:

• Employers may prohibit alcohol and drug use during work hours and on company property.
• Employees currently under the influence at work may still be subject to termination.
• While past substance addiction may qualify as a protected disability under FEHA and ADA, current substance use that impairs job performance does not provide the same level of protection.

Confidentiality Protections

Your employer must make reasonable efforts to keep private the fact that you have enrolled in an alcohol or drug rehabilitation program. Under California Labor Code § 1026, employers cannot disclose an employee’s participation in such a program. Additionally, the Health Insurance Portability and Accountability Act (HIPAA) prohibits employers from disclosing protected health information related to leaves of absence for alcohol or drug rehabilitation programs.

Will You Be Paid While on Leave?

Employers are not required to provide paid time off for employees attending an alcohol or drug treatment program. However, in some cases employees may:

• Use accrued sick leave to offset lost wages (California Labor Code § 1027).
• Apply for State Disability Insurance (SDI) benefits, provided that their treatment was not court-ordered as an alternative to serving jail time.

Taking the First Step

If you are struggling with alcohol or drug addiction and worried about your job, here are some steps to take:

• Review Your Employee Handbook & Company Policies – Understand your company’s stance on medical leave, substance use policies, and accommodations.
• Consult Your Health Insurance Provider – Verify coverage for treatment services and determine available options.
• Consider a Confidential Consultation with an Attorney – If you have questions about treatment or believe your employer is unfairly denying your right to seek treatment, legal guidance can help protect your job and your rights.
• Speak with Your Employer (When Ready) – If you decide to enter treatment, it may help to have an open conversation with HR or your supervisor to discuss potential accommodations. But before doing so, it’s best to first talk with an attorney to understand your rights and determine what details are appropriate or necessary to disclose.

You Are Not Alone

Substance addiction is a medical condition, not a personal failure. Seeking help is a courageous step toward recovery, and California and Federal law recognizes the importance of treatment by providing employees with legal protections. If you have questions about how to balance work and recovery, NorCal Advocates is here to help. Contact us today for a free confidential consultation.

On September 15, 2022, Jennifer gave notice to U-Haul that she would be vacating her unit by the end of the month. But just a week later, U-Haul emptied the unit, threw away her possessions, and allowed its employees to take whatever they liked. The justification? An absurd claim that Jennifer had "abandoned" the unit.
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U-Haul, of course, denied that any items were actually stolen by its employees.  But this defense rang “hollow” in the face of conveniently missing evidence and conflicting and unbelievable employee testimony.  ​