San Francisco Employment Law Firm Blog

October 2, 2015

Section 1102.5 Anti-Retaliation Protection Explained

Section 1102.5(b) protects an employee from retaliation by his or her employer for disclosing information to a law enforcement agency where the employee has reasonable cause to believe that the information discloses a violation of state or federal law. Hager v. County of Los Angeles (2014). Section 1102.5(b) has been broadly construed to protect an employee from retaliation by the employer even where the report to law enforcement concerned a violation of law committed by a fellow employee or contractor, and not by the employer. McVeigh v. Recology San Francisco (2013) . Where an employee is harmed by retaliation in violation of section 1102.5, he is entitled to maintain a damage claim against the employer.

To establish a prima facie case of retaliation under section 1102.5(b), a plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two. (McVeigh). An employee engages in protected activity under section 1102.5(b) when he or she discloses to a governmental agency reasonably based suspicion of illegal activity. If the plaintiff meets his initial burden when making a claim, the defendant has the burden to prove a legitimate, non-retaliatory explanation for its actions. To prevail on this type of claim then, the plaintiff has to show that the explanation is a pretext for the retaliation and not the actual, true reason for the action against that complaining employee.

Where the plaintiff succeeds in proving a violation of section 1102.5(b), compensatory damages are recoverable, including economic damages for past and future wage loss as well as emotional distress damages.

August 13, 2015

Adobe Is Expanding Its Child / Parent Leave Policy

by Arkady Itkin

On Monday, Adobe Systems became the latest tech giant to sweeten its parental leave policy for its employees. The San Jose-based company is now offering new moms 26 weeks of paid time off through a combination of medical and parental leave. This is up from the nine weeks leave with 100% pay it previously guaranteed.

The policy update provides for 10 weeks of medical leave for surgery, childbirth, or a medical emergency—up from seven weeks—and 16 weeks of paternal leave that’s available to any primary caregiver who becomes a parent through childbirth, surrogacy, adoption, or foster care. Fathers who aren’t the primary caregivers have access to four weeks of paid paternal leave—up from the two weeks they received before.

This move to expend leave policy for new parents comes one week after Netflix announced its own groundbreaking parental leave policy, which gives new moms and dads unlimited time off in the year following the birth or adoption of a child. Microsoft followed this trend by announcing a new 20-week leave offering for new mothers.

July 29, 2015

When Depression is Not a Protected Disability Under ADA

by Arkady Itkin

A disgruntled employee who repeatedly threatened to shoot and kill his managers can’t sue his employer for disability discrimination even with a depression diagnosis, the Ninth Circuit ruled Tuesday. Timothy Mayo, a welder at PCC Structurals, told at least three of his co-workers that he wanted to bring a shotgun to work and “blow off” the heads of a supervisor and another manager, according to the three-judge panel’s opinion (9th Circuit).

The employee did not sound like he was joking. He went on to discuss the logistics of such an attack, explaining that he would plan to come to the office at 1:30 p.m. because “that’s when all the supervisors would have their walk-through.” Mayo’s co-workers reported the threats, and when the company’s human resources manager asked Mayo whether he actually planned to carry the threats out, Mayo said that “he couldn’t guarantee he wouldn’t do that,” according to the court’s decision. The manager suspended Mayo, barred him from company property, and the company called the police. When a police officer visited Mayo at his home that night to discuss the threats, Mayo admitted to making them and mentioned the people he had in mind. He also admitted to owning several guns, though he had not decided which one to use, according to the opinion. When the officer asked Mayo if he planned to go to the company and shoot people, Mayo reportedly said, “Not tonight.” Mayo was then consensually hospitalized, where he remained in custody for six days before a psychologist cleared him to return to work because he was not a “violent person.” The psychologist did, however, recommend a new supervisor to be assigned to Mayo. Shortly afterward, PCC fired Mayo.

Mayo sued the company in state court, claiming that his firing violated the Americans with Disabilities Act because his threats were symptoms of his depression – a qualifying disability, according to the lawsuit. The case was removed to Federal Court, which ruled that Mayo did not meet the ADA requirement of a “qualified individual” and dismissed the man’s suit. The court stated “an essential function of almost every job is the ability to appropriately handle stress and interact with others.” “And while an employee can be qualified despite adverse reactions to stress, he is not qualified when that stress leads him to threaten to kill his coworkers in chilling detail and on multiple occasions.”

June 20, 2015

Will Complaints on Facebook be Protected from Retaliation?

by Arkady Itkin

It is important to remember that the anti-retaliation provisions of Title VII and the similar California laws go far beyond protecting those employee who complain to the employer or a government agency about discrimination or harassment at workplace. The range of activities for which firing an employee would be considered retaliatory and unlawful extends far beyond those complaints.

For instance, in Sumner v US Postal Service (1990) the court specifically pointed out that “protected activities” under the law include informal complaints, complaints or letters to customers about discrimination and expressing support for co-workers who filed formal charges. Grant v Hazelett Strip-Casting Corp. (2d Cir. 1989).

The more difficult question, that will surely arise in the near future at a modern workplace, is whether complaining or sharing beliefs about discrimination and harassment at workplace through Facebook, Twitter and other social media channels will be considered a protected activity. Specific legislation to address and include social media will likely be necessary in order to clarify this point, as the way the anti-retaliation laws are written today does not account for social media communication of discrimination and harassment concerns by employees. This legislation will have to take into account such factors as what is posted, where it is posted exactly, and how many people have access to viewing that posting in question, as well as whether the content reasonably identifies who the employee is complaining about.

June 15, 2015

Proving Your Retaliation Case Through Employer’s Lies

by Arkady Itkin

One of the important elements of proving a retaliation claim in an wrongful termination case is showing that the employer’s given reasons for termination are either inconsistent or plainly not true, which makes it look like the employer is trying to cover up the true reason for retaliating against you and/or your termination with lies.

In one case we recently handled an employer shot himself in the foot by telling me during the deposition testimony about how bad my client was as a worker, he would go on and on about every little thing that my client did wrong while working for the company over the period of 8 years. That, however, was hardly helpful to the employer, because my client never received a single warning or counseling letter. Not only was my client one of the higher ranked employees, but he even received a very flattering reference letter when he was “laid off.” The fact that my client was replaced about a month after being “laid off” was yet another sign that this was not a lay-off but a firing. The employer tried to hide the fact that my client was replaced by changing the title of the new employee. The duties of the positions remained the same, however, which counts much more than the label that the company gave to any given job.

It’s the attorney’s job to uncover the lies and inconsistencies to make the wrongful termination case stronger. As a client, you can do a lot to help your attorney make your case stronger by directing him/her into the direction where these lies and inconsistencies in the employer’s policies and the reasons for your termination can be found. Typically, wrongful termination cases require proving discriminatory/retaliatory mindset on the part of the employer. Direct evidence of discrimination/retaliation is hardly ever available, and from the courts’ point of view, the employer’s misrepresentations about the employee’s performance, policies and procedures, and reasons for termination are critical in helping an employee to survive a motion to dismiss in court (or motion for summary judgment) and/or achieve a better result through settlement negotiations or in trial.

June 3, 2015

Nurse Wins a Retaliation Case After Reporting Unlicensed Social Worker

by Arkady Itkin

On April 28, 2015, the Los Angeles Superior Court jury returned a verdict for a plaintiff-nurse in the amount of $299,000 in a retaliation and wrongful termination case against her employers – a hospice and a home health agency. The plaintiff, Vanessa Manuel, worked part time as a registered nurse for both companies for three months. On May 2, 2013, she was offered a full time position and working shifts at both companies. On the same day she reported to the Director of Nursing that the social worker at the hospice was unlicensed in violation of state law. Just was fired from both companies just 5 days later. Shortly after the plaintiff was fired, she reported the violating to the Department of Public Health, who investigated the complaint and issued a deficiency to the hospice.

During trial, a few important documents that the employer presented turned out to be false and fabricated, which obviously discredited the defendants testimony and made the jury doubt just about anything the employer was presenting at trial. Plaintiff’s damages were enhanced by the fact that she had a seizure disorder that prevented her from taking many kinds of nursing jobs and therefore made her job search harder than for other nurses.

This case is an example how the timing of events, i.e. a protected activity of reporting unlawful conduct and subsequent termination and fraudulent document can enhance damages and jury award in a wrongful termination case.

May 20, 2015

Inability to Work With a Particular Supervisor is Not a Disability

by Arkady Itkin

Generally, an employee who suffers from anxiety / stress depression as a result of working for a particular supervisor is not entitled to having a different manager as a reasonable accommodation to that disability. This is because inability to work with a specific supervisor is not a disability and does not require accommodation. See Byrnes v Lockheed-Martin (N.D. Cal. 2005).

Courts have routinely found claims of “selective disability” based on a desire not to work for certain people inadequate to demonstrate a limitation on the ability to work. Lancaster v County of Yolo (E.D. Cal. 2007). A disability is a part of someone and goes with her to her next job. A personality conflict, on the other hand, is specific to that individual. Palmer v Circuit Court, Social Serv. Dep’t. (N.D. ILL. 1995). The major life activity of working is not “substantially limited” if a plaintiff merely cannot work under a certain supervisor because of anxiety and stress related issues, such as unfavorable review of job performance. Weiler v Household Finance Corp (1996). Claimant must allege that the particular disability limited a major life activity. Sandell v Taylor-Listug, Inc. (2010).

May 3, 2015

When ADHD Qualifies as a Disability under ADA / FEHA

by Arkady Itkin

In Weaving v City of Hillsboro, the Ninth Circuit Court of Appeal made an important distinction of when ADHD symptoms make the condition a qualifying disability under ADA, and when they don’t. In dismissing Weaving’s case, the court reiterated that as per the Court’s decision in McAlindin v City of San Diego – interacting with others is a major life activity within the meaning of ADA protections, while simply getting along with others isn’t.

The Court noted that ADHD is a qualifying disabilty in those severe ADHD cases, where the condition renders the employee incapable or almost incapable of communicating with the outside world, such as in the case of recurring panic attacks or debilitating anxiety that makes it impossible for an employee to interact (i.e. to even talk to his fellow employees or management). Therefore, in these kinds of severe cases, the employee will be considered disabled under the law and therefore entitled to interactive process and reasonable accommodations within ADA / FEHA.

On the other hand, being disciplined or terminated for simply not being able to get along with co-workers and management but otherwise being able to generally communicate with others in a reasonable, even if not perfect, manner, would not give rise to a disabilitly discrimination claim.

April 9, 2015

Non-Compete Agreements and Limitations on Future Employment in California

by Arkady Itkin

Section 16600 of the California Business and Professions Code provides that “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind of to that extent void”. The law is not limited to employment contracts and does not mention competition. Rather, this section voids “every contract”.

There are a few narrow exceptions to the above rule. Section 16601 permits a business owner selling hits interest in the company, under certain circumstances, to “agree with the buyer to refrain from carrying on a similar business within a specific geographic area.” Thus, if an owner of a neighborhood hair salon sells his business, the buyer will likely be able to have a valid agreement with the seller, prohibiting the seller from opening a new salon for a period of time within a certain area in that neighborhood. Likewise, section 16602 allows for an agreement among partners, upon disassociation or dissolution of a business partnership, “not to carry on a similar business within a specific geographic area”.

The California Supreme Court has explained long ago what constitutes a void contract under section 16600. In Chamberlain v Augustine (1916), the Court invalided a provision in a contract that required one of the parties to pay liquidated damages to the other party if he takes up employment within a certain geographic area. The court rejected the argument that the contract was valid because it didn’t “restrict” employment but rather imposed a sort of penalty. The Court concluded that imposing monetary liability is tantamount to restraint from engaging in lawful business and therefore makes the contract void. In Edwards v Arthur Anderson LLP (2008), the Cal. Supreme Court explained yet again that section 16600 evidences a settled legislative policy in favor of open competition and employee’s mobility. Most recent California decisions, including the recent 9th Circuit holding in Golden v Cal. Emergency Physicians (2015), make it clear that most non-compete agreements that not only prohibit employment but in any way limit it or discourage it with monetary penalties will be likely held unenforceable.

March 27, 2015

Waiting Time Penalties Rules Due in California

by Arkady Itkin

Under California Labor Code section 203, an employer must pay a waiting time penalty on wages owed when the employer willfully fails to pay wages due under section 201 ore 202. A waiting time penalty is equal to one day’s pay fore each day that a full payment of final wages is late, up to a maximum of 30 days. So, if for instance you are terminated from a full-time job that pays $160/day (or $20/hour), and your final wages are due immediately at termination, but your employer only issues you your final paycheck 10 days later, you are due additional $1,600 in penalties.

As noted above, the penalties only run up to 30 days, so if in the above example you had to wait for your final paycheck for two, three or more months, the maximum penalty that can be imposed under section 203 is $4,800 ($160 x 30).

If an employer leaves the employee’s final check in the employer’s office and asks the employee to pick it up in person shortly after the employment separation, the employe cannot “create” waiting time penalties by not picking that check up on purpose and just sitting and waiting for the extra days to accrue in order to demand waiting time penalties later.