Articles Posted in Uncategorized

Yesterday, I have been approached by a long-time employee of the local manufacturing company in the Sacramento area. The employer had a side business (running poker gaming facility) which the employee also regularly attended. When the employee decided to play poker elsewhere, his employer terminated him, telling him that “they need a loyal employee who will not take his business elsewhere.”

This was a wrongful termination in violation of California Labor Code section 450, which states that employers are prohibited from forcing their employees to purchase the employer’s or anyone else’s products or services. Besides being grounds for civil damages, violation of section 450 is a misdemeanor under section 451 of the labor code.

In other words, the employer may not condition or encourage an employee to purchase anything from anyone with very few exceptions. If the employer requires an employee to wear a certain uniform at workplace, the employer must pay for the purchase of that uniform and for its upkeep.

On January 7, 2009, the Contra Costa Superior Court issued an order in a race discrimination and whistleblower retaliation case, finding unconscionable and unenforceable the arbitration agreement that Countrywide Home Loans company requires its employees to sign as a condition of employment. The court found two unconscionable provision in the arbitration agreement: (1) a provision giving the arbitrator exclusive authority to determine the arbitrability of employment case, and (2) a provision giving Countrywide the unilateral right to modify the agreement.

Having found the binding arbitration agreement unconscionable, the court struck that agreement as void and unenforceable, thus allowing the plaintiff to proceeds with his employment discrimination and retaliation claims to jury trial.

It is a common practice for employers to condition reimbursement of expenses incurred by employees on timely submission of those expenses to the employer’s accounting department. A typical expenses reimbursement policy might state that an employee must submit his claim for expense reimbursement within 90 days of incurring that expense, or otherwise the employee will not be eligible to be reimbursed for the same expenses.

These kinds of policies however are generally unlawful. Under California Labor Code section 2802, an employer shall indemnify an employee for all qualifying expenses, which also includes any attorneys fees paid to take legal action for enforcing the right to reimbursement of expenses. Further, under section 2804 any contract or agreement between an employer and an employee to waive rights to reimbursement is null and void. This means that any express or implied policy of an employer to attach conditions to eligibility for reimbursement of expenses is likely to be illegal and void.

If you have any questions about reimbursement of expenses, contact San Francisco employment lawyer Arkady Itkin at (415) 640-6765.

Many California employees, and especially workers of the State and local government agencies experience a very stressful work environment as a result of bad relationships with their co-workers and supervisors, that can range from the typical gossip and office politics to threats by one employee do have the other fired, or even threats of violence. Often, these kinds of conflicts result in great deal of stress, leading one or more employee to take stress leave, be placed on temporary disability due to stress or even be taken to an emergency room for immediate medical attention.

However, most of the above very common and serious issues at workplace, although wrong and unfair, are not illegal. The courts are understandably reluctant to intervene every time one worker calls the other a “bitch” or slams the door or throws documents in one’s face. There is a general consensus in the judicial community that it’s not the court’s job to resolve every dispute at workplace that is based on personal animosity or alike emotions, unless such disputes escalate to something more – other imminent threats of violence of discriminatory conduct (where an employee is clearly mistreated as a result of being a member of protected class, such as race, age, religion, ethnic origin, disability, etc.)

To recover for intentional infliction of emotional distress, the employer’s action must be shown to be “so extreme and outrageous as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” as California Supreme Court noted in Alcorn v. Anbro Eng. Inc. By definition, to be actionable the employer’s conduct must be more than just mere rudeness, insults or otherwise creating a stressful environment at workplace that’s typical to many other places of work.

It is perfectly legal for an employer to implement layoffs of its workforce unless this right is limited by an express or implied contract to employ a worker for a set period of time or if the duration of employment and termination terms are protected by the collective bargaining agreement between an employee, a union member, and the employer. This makes sense as the owner of the business should have freedom to choose to reduce its workforce for legitimate business reasons.

However, workforce reduction is illegal if discriminatory criteria are applied to selecting which employees stay and which have to go. In other words, if the employer tries to disguise his desire to get rid of workers who are members of a certain protected class (gender, race, religion, disability, ethnic origin, etc…) this is unlawful discrimination.

It is not easy to determine whether the layoff is legitimate or it’s just another form of workplace discrimination, as direct evidence of the employer’s motive, such as admissions, is rarely available for obvious reasons. However, there are certain signs that should create suspicion and case doubt on the legality of a layoff. Here are four general questions that should be asked to determine whether the discrimination likely took place during your layoff:

One common issue with regard to leaves of absence between an employment and an employee arises when the employee is absent due to being sick or other health-related reason. The employer may try to avoid it’s obligations under FMLA (Family Medical Leave Act) or CFRA (California Family Rights Act) by claiming that the employee’s absence while being sick was unexcused and thus unprotected under the law, if the employee didn’t specifically request FMLA / CFRA.

This argument is without merit, however, according to California courts, which repeatedly held that an employee doesn’t have to use “magic words” such as FMLA and CFRA to be eligible for a qualified leave of absence. It is generally sufficient to place the employer on notice triggering the employers obligation under California law if the worker contacts the employer shortly before or shortly after being absent, advising the employer of the reasons of his absence and providing medical documentation or other objective proof of having the underlying health condition.

This position of California courts makes sense, as it would be unreasonable to expect an employee to be familiar with the specific legal terms, such as FMLA and CFRA, and actually use them in order to receive the medical leave of absence benefits that he or she would be entitled under the law. It is sufficient that the employer is placed on reasonably clear notice of its employee’s medical condition to trigger the employer’s FMLA/CFRA obligations.

California Labor Code section 432.7 generally prohibits California employers from using as a factor in hiring, or asking an applicant to disclose, an arrest or detention that did not result in conviction or participation in pre- or post-trial diversion programs.

However, the above general rule is subject to various exceptions. For example, the rule does not apply to applicants for peace office, Department of Justice, or other criminal justice agency positions. Further, employers may ask applicants about arrests for which the applicant is currently out on bail or on his own recognizance pending trial. Employers that are health facilities may ask applicants for positions with regular access to patients to disclose information regarding arrests for sex offenses, and ask applicants for positions with access to drugs and medication to disclose information regarding arrests for controlled substance offenses.

The penalties for violating the above laws are relatively mild, and generally amount to a few hundred dollars plus costs and reasonable attorneys fees. An intentional violation of this section by the employer is also considered a misdemeanor. In addition, this section doesn’t prohibit pursuing remedies for violation of other laws, such as California Fair Employment and Housing Act (FEHA) provisions that may come into play and other prohibitions on discrimination in hiring and promoting employees.

You have been dedicating yourself to your company for years. You have been working hard, proved yourself and your efforts weren’t wasted. You have been promoted multiple times and now you are manager holding an executive/supervisory position. You are happy and proud of your achievement and are excited about the authority you will have at your company to make bigger and more critical decisions about the financial, administrative or a marketing direction that you company will be moving in.

But not everyone is as happy as you are. You former co-workers, or your new subordinates might become jealous and bitter about your success especially if their work ethic doesn’t match yours and/or if they feel that they should have been promoted and not you. There is a chance that they will conspire against you and will try to hurt your career by falsely accusing you of misconduct, harassment or even violence at workplace.

You feel upset, especially if those allegations are unfounded and if they are likely to slow down your further promotion in the company. How should you handle a situation in which your superior or a human resources manager contacts you out of the blue, informing you that an investigation has been initiated against you into certain allegations filed by your co-workers or subordinates?

Unfortunately, it is not uncommon for supervisors to use racial slur and stereotypes as references when criticizing an employee’s performance or otherwise. These comments can be very innocent or obviously degrading and offensive, clearly showing the manager’s hostility towards a given race.

To prove racial discrimination, however, it is not enough to simply show that the employer used racist slur toward a particular employee (although this can amount to racial harassment, if sufficiently severe and pervasive). To prove discrimination, there must be a link between the racists words and the adverse employment action that the manager takes against an employee, such as firing, demotion, or transfer to a least desirable position. Thus, to be evidence of discrimination, the supervisor’s comments must be contemporaneous with the termination or causally related to the termination decision making process.

This means, for example, that a manger’s racist joke six months prior to deciding to terminate an employee can be hardly considered to be evidence of racial discrimination. Neither judge nor jury will likely be convinced that just because your supervisor made a racist remark in your presence months or longer before your termination, the reason for your termination was racial hostility, if that much time has elapsed between the two events. On the other hand, using racial slur toward an employee while emphasizing his poor performance, such as “You Mexican’s/Blacks/any other ace are all lazy” and then terminating him shortly thereafter is likely to be evidence of racial discrimination.

Generally, under California law, sexual harassment hostile work environment is an unlawful conduct at work place which involves unwelcome sexual advances of a co-worker or a supervisor, which may include sexual innuendos, offensive, inappropriate and sexual touching, and alike. Although these are typical examples of a conduct which is likely to be classified as sexual harassment, the offensive words or conduct directed at an employee because of his or her gender alone may create a hostile work environment even if those words or conduct are not sexual in nature. For example, even though an isolated incident of calling an employee a “bitch” will ordinarily not amount to harassment, using the word “bitch” repetitively in the presence of both men and women but in reference to women may constitute unlawful gender harassment, especially if coupled with other harassing conduct.

On the other hand, hostile words or conduct based solely on personal animosity are not actionable as sexual harassment in California even if the victim is of the opposite gender. As the court pointed out in once case – “Unfair, overbearing, or annoying treatment of an employee, standing alone, cannot constitute a sex discrimination claim. In other words, a conduct that is based on personal agenda or anger and not on gender is not grounds to claims for sexual harassment. For instance, if a boss and a particular employee are not compatible and simply can’t get along, it would not be sexually discriminatory to harass employee on that basis. In other words, sexual/gender harassment requires showing that the employee was treated a certain way because of his or her gender. Thus, one California court noted that where the employee was the only woman on the workforce, her coworkers’ acts of insubordination, dissemination of untrue rumors about her, and aspersions on her competence may contribute to a hostile work environment based on sex.