For Employers

November 12, 2023

On Asking Your Remote Workers To Return To The Office

Just like making all of your workers remote is often not a great idea for a business, asking every remote employee to come back to the office just because that’s your new policy can also be a bad decision. It is in your best interest as an employer to consider the individual circumstances of every employee and ask yourself certain questions about each one of them: do you really want them to be in the office or is that some type of power move on your part? How well is each specific employee doing performance wise while being remote? Is thgat worker likely to be doing better in the office given their job duties, their own preferences, the length of their commute, and their other personal circumstances? How much harder will you make that employee’s life by having them come to the office, and finally – how much are you willing to risk losing that employee as a result of your new policy? These are important types of questions to ask and the answers will be different each time.

Speaking of talking to your employees, perhaps the first step toward deciding whether to require any employee to return to the office should be testing the waters with them and asking them a hypothetical question – “hey, what do you think about returning to work in the office # days a week?” You can then factor their response into your overall decision making.Some of the most unfortunate stories are where workers, in reliance on their company’s remote work policy, move away to another city with their family, buy a house, put their kids in new schools, do very well at their job, but then their employer all of a sudden announces that they have to come back to the office for no other reason than “it’s our new policy”. In these types of situations, most workers don’t move back because they already have a new life set up, and they just decide to quit and look for a new job at their new location instead. In many of these cases, the employer loses a good worker for no good reason.

If you run a private business, you have all the authority and all the reasons to be flexible and make individual decisions about each employee’s returning or not returning to the office that would work best for you and for them. You can make your own rules as a private business, so why not take advantage of it? And, as long as there is no evidence that you make these decisions on a discriminatory basis, i.e. due to age, race, disability, sexual orientation, etc… you shouldn’t be facing any legal issue assessing each employee’s returning or not returning to the office individually.

June 8, 2023

Avoid This “Shifty Eyes” Habit During Your Video Deposition

by Arkady Itkin

You may have heard before that when it comes to testifying, whether you are the plaintiff or the defendant in a case, your credibility is of critical importance. This is because so many cases inevitably involve “he said / she said” situation, where the fact finder (a judge or a jury) has to decide who to believe. If they find that you appeared dishonest on one issue during your testimony, then they will be doubting everything else you say.

Video depositions tend to significantly amplify gestures and body language of a witness because the camera is zoomed in and focused on the testifying witness’ face. In many ways, these gestures are way more obvious on a video than in person. A smirk or an eye roll that a jury might overlook during a live testimony in a courtroom when they are 30 feet or more away from the testifying witness is hard to miss on a video, when played in front of a jury.

Having your eyes race and shift side to side is one common behavior you should avoid during your video deposition, especially when it comes to answering simple questions, because it strongly suggests that your mind is racing to find the answer that serves you best, instead of simply stating the truth as it is.

October 3, 2020

Stealing At-Will Employees And Claims For Interference With Prospective Economic Advantage

by Arkady Itkin

To prevail on a claim for intentional interference with prospective economic advantage in California, a plaintiff must plead and prove (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) the defendant’s intentional acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff caused by the defendant’s acts. Youst v. Longo

(1987) 43 Cal.3d 64, 71, fn. 6.

Does company “A” have a claim for intentional interference with economic advantage under California law, when company “B” induces Company “A” at-will employee to leave them and switch to work for Company “B”?

June 13, 2020

Medical Leave Without A Promise of Reinstatement Is Not An Accomodation

by Arkady Itkin

Both California employees and employers must know that an unprotected medical leave without a promise of reinstatement is not an accommodate under California disability laws. An accommodation by definition is a change or adjustment which allows disabled individuals to perform their job. A leave of absence without a corresponding right to return to work is not an accommodation but rather a delayed termination. Burnett v US Air, Inc., 228 F.3d 1105, 1114-5 (9th Cir. 2000). After all, it has been expressly held that requesting an accommodation to a qualifying disability as a protected activity. Head v Glacier Northwest, Inc. (9th Cir. 2005).

All too often, employers “accommodate” an employee by allowing him to go on medical leave and then, upon return, try to get rehired by searching for open, available positions within the company at the time of his return. In many cases, this practice unlawful, as it’s tantamount to terminating an employee and then allowing him the opportunity to apply for an open position, just like any other candidate. On the other hand, offering a vacant position may be a reasonable accommodation, even if the position pays less than the disabled employee’s former job, if he or she can no longer perform the former job’s duties. Gov. Code 12926(p).

July 20, 2019

Criticizing An Employee’s Foreign Accent May Be Evidence of Discrimination

by Arkady Itkin

Discrimination on the basis of an employee’s foreign accent is a sufficient basis for finding national origin discrimination. Fragante v. Honolulu (9th Cir. 1989) Indeed, the Equal Employment Opportunity Commission Guidelines currently define national origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group. 29 C.F.R. § 1606.1 (2019). Thus, in Ortiz v Dameron Hospital Association (2019), the court referred to a manager’s statements with regard to Filipino workers that she “could not understand what they were saying’ and “did not know how they got their jobs speaking the way they do”, and that they “did not speak English” as significant evidence of national origin discrimination in violation of California FEHA. In Ortiz, this type of egregious evidence was also as sufficient basis for claims for constructive discharge, as well as hostile work environment.

On a practical level, it is a good idea for managers to avoid a situation where they lose patience with an employee’s accent an make derogatory comments about it, as this alone can lead to a lawsuit. And, if an employee with an accent complains that his co-worker/s mock his accent, the employer has the same obligation under the law to address and remedy that situation, as he would in any other situation where allegations of discrimination or harassment are made.

January 21, 2018

Two Antitrust Violations HR Professionals and Recruiters Should Avoid

by Arkady Itkin

There are two main hiring and recruiting practices that companies and their HR professional and recruiters should avoid, because they are prohibited by law and lead to severe penalties, including fines and even criminal prosecution, enforced by Department of Justice:

1. Agreements Not To Recruit Certain Employees

An HR professional should avoid entering into agreements regarding terms of employment with other companies that compete to hire the same employees. It does not matter whether the agreement is formal or informal, written or oral, or even spoken or unspoken. This is because anti-trust violation can often be established through evidence of discussions and hiring patterns of companies.

October 7, 2017

At-Will Employment And Misclassifying Employees As Contractors

by Arkady Itkin

Misclassifying an employee as an independent contractor is an easier mistake to make than many employers believe. The recent case Linton v DeSoto Cab Company, Inc., illustrates this very well. In that case, the first appellate district found that the plaintiff cab-driver was an employee despite having lots of control over how he performed his work, and despite signing the agreement expressing stating that there was no employment relationship of any kind between DeSoto and their drivers. There are a few key, critical, and often overlooked points in the court’s analysis in that case:

First, the court noted that strong evidence of employment relationship exist, when the company reserves the right to discharge at will, without cause. This means that if an “independent contractor” agreement contains language that states in so many words that the so-called contractor can be terminated at any time, for any reason or no reason, a strong presumption of employment will arise. Thus, employers who want to avoid this misclassification issue are advised to make sure that their independent contractor agreements do not contain this at-will language. Of course, not having that language has its downsides and every business should consider the unique and specific circumstances of their workforce needs before deciding whether to include the at-will language or not.

Secondly, the court noted that “liability to discharge for disobedience or misconduct is a strong evidence of control.” This means that if there is a policy that states that a “contractor” can be terminated for not following management’s directives or for some type of violation, this also creates a strong presumption of employment relationship between the parties. This presumption is especially strong if a “contractor” has no opportunity to dispute allegations against him before being terminated.

February 15, 2017

San Francisco Fair Chance Ordinance – Key Facts And Rules

by Arkady Itkin

The City of San Francisco has enacted this Ordinance to limit the employers’ ability to inquire into and consider an employee or applicant’s criminal history in hiring and employment decisions. The goal is to help individuals with past conviction to return to work force and be productive members of society, rather than suffer the consequences of prior criminal acts after they have already been convicted / served time. The full text of SF Fair Chance Ordinance can be found here. However, the key things to know about this Ordinance for both employers and employees are:

I. Covered Employers

This law covers all employers who employ 20 or more employees.

December 5, 2016

Are You An Intern Or An Employee Under California Law?

by Arkady Itkin

The distinction between an internship and employee / employer relationship has been subject to much debate and litigation all over the country during the past few years. However, in California the existing law states that a worker can be classified as an intern (and not be paid) only if all of the following six requirements are satisfied:

Factor 1: Training similar to that provided at a vocational school.

Training should be closely tied to the intern’s educational goals. This factor is more easily met if the employer’s office or facilities provide resources not necessarily available to the intern outside of an industrial or professional setting. For instance, in once case the interns – trainees learned how to operate trains in the rail yard. The DSLE’s Opinion Letter found this factor to be satisfied when “an intern’s use of the employer’s computers, network systems, and tools to perform tasks” was “directly related to training and the educational and vocational objectives of the program.”

November 17, 2016

Terminating an At-Will Employee Without Giving A Reason – Good Idea?

by Arkady Itkin