San Francisco Employment Law Firm Blog

March 20, 2014

Negative or False Performance Reviews -To Sign or Not To Sign

A dispute often arises between an employee and his manager over a particular aspect of the issued performance review. As an employee, it’s important that you keep in mind the your employer has a wide discretion in expressing his opinions about your performance. The fact that you feel that your performance review is unfair or too harsh generally does not give rise to any legal issues or claims, unless there is actual evidence that the reason for that bad is discriminatory or retaliatory (i.e. based on your being a member of a protected class, or due to you engaging in a protected activity, as defined by law).

Should you sign that bad performance review that was issued to you? There is no reason not to. In most cases, by signing your review, whether it’s positive or negative, you only acknowledge that you have received it and read it. It doesn’t mean that you agree with its contents. Of course, before you sign you should read the fine print below or above the space for your signature that says what the meaning of your signature will be exactly. Signing your performance review has no legal significance.

On the other hand, if you refuse to sign your performance review because you disagree with it, you can be accused of insubordination and disciplined as a result, which would be perfectly legal. Moreover, one court recently held that an employee who was fired for refusing to sign acknowledging receipt of a document was disqualified from unemployment benefits.

February 19, 2014

Overtime and Professional Exemption for Computer/Software Engineers in California

by Arkady Itkin

In California, whether a computer/software professional is properly exempt from overtime compensation or whether he should be entitled to overtime is governed in large part by California Labor Code 515.5:

According to California Labor Code section 515.5, employees in the computer software field are not entitled to an overtime rate of compensation only if all four requirements are met:

(1) The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment.

February 1, 2014

Witness Statements Can Be Critical in Proving (Age) Discrimination Case

by Arkady Itkin

A witness statement can be critical in proving any discrimination case. This is especially in true with regard to age discrimination cases which are known for being some of the more difficult cases to prove, because evidence of animus toward an employee because of his age and not for some other reason is so rarely available. However, the good news for older workers who consider bringing a claim against their former employer for (age) discrimination, is that even one single piece of evidence, such as one incriminating statement by a supervisor about older workers can make a case.

The recently published case Cheal v El Camino Hospital out of Santa Clara (2014)is a classic example of a situation where the whole case rested one witness statement. In the case the plaintiff a 61 year-old female who worked at a hospital for over 30 years as a Dietetic Technician was fired for the number of alleged violations and performance deficiencies. Ms. Cheal and her attorney were able to show that most of her alleged violations and performance issues were either not her violations at all, or not nearly as serious as the employer claimed and should not have lead to Plaintiff’s termination. However, as it has been long established, that alone does not prove discrimination, as the employer has sound discretion in evaluating employees’ performance and being too harsh or wrong in evaluating employees is not the same as discriminating.

However, Ms. Cheal present additional evidence that proved to be critical in overturning the dismissal of her case and allowing her to go to trial. She introduced a witness statement of a friend who stated in her sworn affidavit that when she had dinner with Plaintiff’s manager, the manager stated “people at work start noticing that I favor the younger and the pregnant employees” The court found this kind of admission by the manager in an outside-of-workplace environment to be an extremely compelling evidence of age discrimination.

January 20, 2014

Your Wrongful Termination Lawsuit and Your Social Media Activity

by Arkady Itkin

When you file a wrongful termination lawsuit, it is a common practice for the defense attorneys, who represent your former employer, to look you up on the various social media websites, including Facebook, Twitter, and Linked In, among others. The are several reasons why they do this. First, they want to learn more about who you are and who they are dealing with on the other side. More importantly, they are looking for any information that you post that might be used against you as some kind of impeachment evidence – the kind of evidence that would suggest that you are not honest or that your case is not as good as you say it is. Some of the common examples of such evidence are –

* A disabled employee who claims that he is unable to walk, who posts his skiing or tennis playing pictures on Facebook or Instagram.

* An employee who posts messages on his Facebook timeline stating that he is so happy that he is fired. This will of course make it much harder for that employee and his attorney to argue that the employee suffered emotional distress, as it would appear on the contrary – that the claimant is better off now, since he got what he wanted.

January 10, 2014

San Francisco Ordinance Protecting Care Givers’ Working Conditions

by Arkady Itkin

Workers at businesses as small as 20 employees may soon snag certain perks after Tuesday night’s final vote on an amendment to San Francisco’s family-friendly workplace law.

The city-county’s Family Friendly Workplace Ordinance – sponsored by eight of 11 supervisors last July – passed on the second reading and was signed into law by Mayor Lee in October 2013. This law allows San Francisco-based employees to request flexible hours, predictable working arrangements or work from home to better handle their care-giving responsibilities.

According to the text of the ordinance, cultural and demographic shifts since the 1970s have brought a spike in both two-parent, full-time working households and single parents juggling demanding jobs and family obligations. In 2010, 80 percent of the city’s parents with children under the age of 5 were working, while the number of single parent households has more than doubled in 50 years. Meanwhile, San Francisco lawmakers say that employers stigmatize caregivers by creating “workplace and pay inequalities,” while the current business climate “idealizes the employee who works full-time and long hours, is available for extra hours on short notice, and has few if any commitments outside of work.”

December 23, 2013

Equal Treatment Can Be Discrimination at Workplace

by Arkady Itkin

Although this sounds counter-intuitive, equal treatment of all employees can be discriminatory and in violation of disability and other laws. The seminal case on this issues is US Airways, Inc. v Barnett (2002), decided by the US Supreme Court. In that case, the high court considered whether leave and other policies equally applied to all employees, regardless of their disabilities and limitations can still be discriminatory. The answer is yes. The Court said that an employer who treats all employees equally might still be in violation of the law, since preferences sometimes prove necessary to achieve the basic equal opportunity goal envisioned by law. The law requires preferences in the form of reasonable accommodations that are needed for those with disabilities to obtain the same workplace opportunities that those without disabilities automatically enjoy.

The Court further noted that by definition any special “accommodation” requires the employer to treat an employee with a disability differently, i.e. preferentially. Otherwise, neutral office assignment rules would automatically prevent the accommodation of an employee whose disability-imposed limitations require him to work on the ground floor. Neutral “break-from-work” rules would automatically prevent the accommodation of an individual who needs additional breaks from work, perhaps to permit medical visits. Likewise, neutral furniture budget rules would automatically prevent the accommodation of an individual who needs a different kind of chair or desk.

November 17, 2013

Employee or Independent Contractor Test (California)

by Arkady Itkin

The main test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired. S.G. Borello & Sons, Inc. v Dept. of Industrial Relations (1989). The process of distinguishing employees from independent contractors is fact specific. The right to control retains significance, but is no longer determinative. State Compensation Ins. Fund v Brown (1995). While the right to control work details is the most important consideration, the authorities also endorse several “secondary” factors of the employment relationship. The courts also noted that the “control” test, applied rigidly and in isolation is often of little use in evaluating the large variety of service and employment arrangements that can potentially exist.

The secondary factors usually considered by courts are (1) whether there is a right to fire at will without case; (2) whether the one performing services is engaged in a distinct occupation or business; (3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (4) the skill required in the particular occupation; (5) whether the principal or the worker supplies the instrumentalities, tools, and and the place of work for the person doing the work; (6) the length of time for which the services are to be performed; (7) the method of payment, whether by the time or by the job; (8) whether or not the work is a party of the regular business of the principal; (9) whether the parties believe they are creating an employer-employee relationship; (10) whether the classification of independent contractor is bona fide and not an obvious attempt by the employer to avoid employee status; (11) the hiree’s degree of investment other than personal service in his or her own business and whether the hiree holds himself out to be in business with an independent busienss license; (12) whether the hiree has managerial skill; and (14) whether the service rendered is an integral part of the alleged employer’s business. Sotelo v Medianews Group, Inc. (2012).

The label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced. Antelope Valley Press v Poizner (2008). Thus, signing an independent contractor agreement is not dispositive and is often of little significance to determining whether a worker is an employee or independent contractor.

November 8, 2013

Employers’ Favorite Ways to Get Rid of Older Workers

by Arkady Itkin

In a recent Forbes article, a Florida attorney Donna Ballman discusses the employers’ favorite sneaky ways of getting rid of older employees, which are described below. This very much applies to California and the checklist below can be a good start for any older employee who suspects that he is or might be a victim of age discrimination to determine whether in fact the employer is trying to get rid of him for unlawful reasons.

1. Job elimination.

One of the most common excuses used to get rid of older employees is “job elimination.” However, that may just be an excuse for what is really age discrimination. If the company is not really eliminating the job, just changing the title and putting someone younger is your former position, you may have an age discrimination claim.

November 3, 2013

When You Receive a PIP (Performance Improvement Plan)

by Arkady Itkin

As much as I didn’t want to believe in this for a while after I started practicing employment law, my experience suggests over and over and in the vast majority of cases, when an employer issues a PIP (performance improvement plan) to an employee, this means that the employee will be fired shortly after. The PIP might make it sound like the employer is interested in having you improve your performance and address the issues outlined in that disciplinary documents, and they are even offering you various resources to help you along the way, such as employment assistance program (EAP), etc.

However, the reality is that most likely your management has already made the decision to terminate you, and now they are just creating paperwork to create “history” of performance issues to make the termination look more legitimate and less likely to be challenged by that employee in court, or at an administrative hearing, if applicable, and to also make it look like they gave you a chance to improve before terminating you.

If you have a received one of those 30-day or 60-day or 90-day PIP’s, you should consult with an experienced employment attorney about the various options of dealing with the PIP. First, the attorney should analyze your potential termination and determine whether there likely to be a potential evidence of discrimination, retaliation and wrongful termination. If it appears that the employer might be trying to get rid of you for unlawful reasons, you can work with your attorney on gathering evidence to support your future case, and take steps on enhancing any potential wrongful termination and discrimination case before you have been fired, so that once you are terminated – you have a stronger case against your employer.

October 17, 2013

New California Law Protects Victims of Domestic Violence against Workplace Discrimination

by Arkady Itkin

After Carie Charlesworth was terminated from her teaching job due to security concerns about her estranged husband, the California mother championed legislation to make sure no one would ever have the same experience of being fired. This past Friday, Charlesworth got her wish when Governor Brown signed a measure into law to protect victims of domestic violence from losing their jobs and workplace discrimination. The new legislation will go into effect on Jan. 1, 2014.

Charlesworth said she was put on leave from her position as a second-grade teacher at Holy Trinity School in El Cajon, California in January 2013, after her ex-husband, Martin Charlesworth, 41, showed up that month in the school parking lot, prompting a campus lockdown until the police arrived. The couple divorced two years ago and Charlesworth said she got a restraining order against her ex-husband because he had been physically abusive. She said she also made her principal aware of the situation.

In April 2013, she received a notice that said the “unfortunate and challenging situation” created by her ex-husband would result in her contract not being renewed for the upcoming school year.