San Francisco Employment Law Firm Blog

December 15, 2012

Your Wrongful Termination and Union Grievance Arbitration

There is a number of benefits to pursuing both, the arbitration of your union grievance and a wrongful termination lawsuit (if there are grounds to bring such a claim). One of the main such benefits is the fact that losing one does not really affect the other, so in a way you get to have two shots of handling the same problem. This is because the two proceedings are fundamentally different.

First, a union arbitration takes place before an arbitrator and outside of court, while a wrongful termination lawsuit is pursued in court (State or Federal). More importantly, the standard of proof in both proceedings is very different. Generally, at a union grievance arbitration, the issue will be whether there was just cause for a discipline imposed against the aggrieved employee, and whether the discipline imposed was proportional to the alleged violation. In court, however, whether there was just cause for employee’s termination has no legal relevance, because a wrongful termination plaintiff needs to present evidence of discrimination or retaliation – to prove that he/she was either (1) treated differented due to being a member of protected class (i.e. age, religion, disability, familial status, gender, sexual orientation) or (2) suffered an adverse employment action due to engaging in a protected activity (i.e. complaining about unlawful discrimination or harassment, complaining about safety violations, engaging in political activities, reporting embezzlement of public funds, etc…)

Thus, if an employee loses at arbitration and fails to prove that there wasn’t just cause of discipline imposed, he can still be able to prove in court that the true reason for the discipline was discrimination or retaliation. Or, if an employee loses his case in court and fails to prove discrimination or retaliation, he still has an opportunity to prove that there was no just cause for discipline or tetermination.

November 9, 2012

Disciplinary Actions against a Chiropractor’s License in California

by Arkady Itkin

The Board of Chiropractic Examiners may impose discipline against a licensee-chiropractor in California only when that chiropractor’s misconduct is substantially related to the qualification, functions or duties of such a license. It has been held that sexual misconduct with a patient and a conviction involving use of dangerous drug alcohol, such as DUI, are events that can lead to a discipline against a chiropractor’s license. Further, certain types of advertising are forbidden and constitute ground for discipline.

Like in disciplinary actions against other types of professional licenses, a chiropractor may and should present evidence of mitigating circumstances during the license defense proceedings.

Hiring the right attorney, experienced in professional license defense, who can present the case and the mitigating circumstances in the most favorable light without overreaching can be critical in reducing the discipline from revocation to probation with or without suspension, or reducing the penalty from suspension to a letter of admonishment, which letter can also be appealed subsequently.

September 20, 2012

Legal Issues in Disciplinary Actions Against Registered Nurses

by Arkady Itkin

The California Board of Registered Nursing is charged with investigating licensed nurses and taking disciplinary actions when appropriate. These kinds of actions are brought under the Administrative Procedure Act. The Board’s executive officer files the disciplinary action against, but the board itself is the ultimate decision maker in any such action. The board may only impose discipline against a licensed nurse only when the licensee’s misconduct or violation is substantially related to qualifications, functions, or duties of the nursing license. The criteria for determining whether such substantial relationship exists is outlined in the board’s regulations. The typical disciplinary actions involve penalties ranging from a citation to license suspension or revocation.

The most common charges leading to disciplinary actions against registered nurses are “incompetence” and “gross negligence” as well as “substance abuse” and “charting errors.”

disciplinary action against registered nurses in California One of the very important elements of making the case for reducing the discipline imposed is showing either rehabilitation or other mitigating evidence. This is especially important in substance abuse cases, where showing active rehabilitation can be critical to maintaining a license or at least not having it revoked. Usually, simply attending AA meetings or similar meetings is not enough to show rehabilitation at a disciplinary hearing, and being involved in a more formal rehabilitation program is required in order to demonstrate to the board that the nurse is on the right track toward recovery from addiction.

September 2, 2012

Disability Discrimination in Public and Government Agencies

by Arkady Itkin

My experience suggest that one of the reason for disability discrimination and failure to comply with disability laws in public / government agencies is the ignorance of disability laws and not understanding the obligations of the employer toward disabled workers among the managers and human resources personnel in these agencies.

Some of the managers that make critical decision of how to reasonably accommodate and employee and what constitutes an effective, reasonable accommodations have very little or no background or training in either human resources or disability laws. Many supervisors lack basic understanding of what qualifies as disability at workplace under ADA or FEHA. Some of the managers in state, county and municipal agencies get very high up in the ranks due to good performance and length of service alone, as usually there is no requirement to get high education in the public sector employment in order to continue to be promoted. While allowing employees from all backgrounds and all walks of life to have opportunities in high management, not requiring additional education or training when it comes to human resources and basic laws that govern employee’s right and duties leads to many employment and wrongful termination lawsuits against these agencies. Most often we hear about lawsuits against Department of Corrections and Department of Health and Human Services.

July 24, 2012

How To Tell If It’s A Layoff or Retaliation / Discrimination?

by Arkady Itkin

It appears that employers become progressively more creative at trying to cover up unlawful retaliation and wrongful termination as a layoff. Because the employer’s motive for terminating an employee is inherently hard to prove, this is a temptingly easy way for companies to retaliate and also discriminate, including replacing older workers with younger ones, females with men, workers of color with white employees, or doing the opposite – replaced white employees with minorities to achieve a certain quota, which is just as unlawful.

Here is a common situation, especially in the tech industry: a high-level employee, who happens to be an Asian female with a distinct accent, is being demoted to a lower position due to the alleged elimination from that higher position. A few months later, due to the alleged restructuring in the company, the above-mentioned eliminated position becomes open again, and a white male who is less qualified in every way, is being hired to fill that position. Shortly after, the demoted female is being advised of the company’s cuts in workforce, and is handed layoff notice with bigger or smaller severance offer.

Whether this kind of lay-off is discriminatory depends on many facts, but it surely is worth considering all the evidence available relating to that termination. An experienced employment attorney can evaluate the totality of the evidence to determine whether a discrimination or retaliation case can be made. This would be useful not only in taking legal action against the employer, but it can be just as useful in negotiating a higher severance than the one originally offered.

May 2, 2012

Unemployment Appeals Hearings in California

by Arkady Itkin

An unemployment appeals hearing is a fairly simple and straightforward process. If you have been denied unemployment benefits, it is certainly worth appealing the denial and having that hearing. After all, it doesn’t cost anything (except if you are represented by an attorney at that hearing), and since the employer has the burden of proving that the employee is not entitled benefits in cases where the issue is whether the employee was terminated for “misconduct”, you have an advantage as generally the employer is the one who has to prove their case; not you.

When it comes to your testimony, less is definitely more. You want to stick to the most relevant facts surrounding your termination and remember at all times that the hearing officer does not care about your relationships with co-workers or any workplace drama that does not have an immediate connection to your termination. The hearing only concerns one matter: whether you are entitled to unemployment benefits. It is not a wrongful termination or discrimination or a harassment trial. The more brief and the more specific you are in your testimony the more likely you are to gain credibility in the eyes of the hearing officer and prevail at that hearing.

Do you need an attorney? I believe that meeting with an experience unemployment appeals attorney to prepare for your hearing, to make sure that you put your best foot forward during that hearing and to avoid the common mistakes that other claimants make, it will be well worth your time to do that. Most attorneys just charge their one-hour fee for this kind of preparation.

March 24, 2012

Your Cellphone Records and Proving Disability Discriimination

by Arkady Itkin

One of the common challenges in proving violation of disability rights in a wrongful termination case is showing that the employer knew that the employee had a qualifying condition or suffered an injury shortly before being terminated, and thus his or her termination was discriminatory or retaliatory.

In the absence of e-mails or faxes where the employee puts the employer on notice of his condition and the need for medical leave or accommodations to the medical condition, phone records may be a persuasive evidence in proving that the employee was likely retaliated after suffering an injury and successfully negotiating a settlement.

Suppose you suffer an on the job injury while operating an industrial equipment. You call your boss and/or human resources manager to let them know that you were injured, that you need to leave to seek medical attention, and you might need time off. They agree with you and informally allow you to leave work to take care of your injury. A few days later you are terminated for insubordination, poor performance, or some other abstract reason. When you argue in a legal action in court or in front of EEOC/DFEH that you were terminated because of your injury, your supervisor says that he never heard from you and did not know you suffered an injury before deciding to terminate you or that he didn’t even speak with you after you were injured. This is where your phone records reflecting at least that you made those calls after your injury can be extremely helpful. If you can, get them right away. If it has been a while since the subject day of when these important phone calls took place, subpoena those records from your phone provider or encourage your attorney to do the same.

March 1, 2012

Performance Reviews are Generally Not Regulated By Law

by Arkady Itkin

Many workers don’t realize that the performance reviews that they receive from their management and their content for the most part are not regulated by law. Employers have sound discretion in determining how to review their employees’ performance, how often to do it, in what format, and whether or not to do it all. The content of performance reviews is also not subject to legal review. In other words, the fact that an employee believes that his/her performance review is unfair has very little, if any significant. The only way it can be used in a wrongful termination claims as additional, circumstantial evidence of otherwise discriminatory or retaliatory firing.

Employers have an unqualified right to use their subjective opinion in evaluating their employees’ performance. The courts do not interfere in that process. Thus, if you have a dispute with your employer over the quality of your performance, you must remember that you are hardly helping yourself by simply getting defensive and disagreeing with your employer’s opinion.

Receiving an unfavorable performance review can be a stressful and frustrating experience, especially when the employee tries his hardest to do the best job he can and truly believes that he does well. However, in the absence of evidence of unlawful discrimination or retaliation, the right way to address bad performance reviews is constructively – by both asking for the more specific feedback and criticism in your performance issues and by trying to improve at least some aspects of your work.

February 15, 2012

Why You Should Not Wait for DFEH / EEOC to Complete Its Investigation

by Arkady Itkin

Although there are sometimes strategic advantages to waiting for the Department of Fair Employment and Housing (DFEH) or EEOC to complete its investigation of a charge of discrimination instead of filing a lawsuit right away, in many cases, waiting for that might not be the best strategic move, especially if you have already been (wrongfully) terminated and you have a “good” case. This is for two main reasons:

1. DFEH / EEOC rarely issues favorable findings to an aggrieved employee. It seems that in 90% or more of the cases investigated, DFEH concludes that there is insufficient evidence of discrimination and they issues a right to sue letter. This is in large because DFEH has limited resources, and cannot possibly thoroughly investigate every case. In most cases, the investigation of discrimination allegations is limited to interviewing the aggrieved employee and the employer. The employer always denies any wrongdoing, so DFEH has to pick whose word to take. The agency must pick their fights and attend to the most urgent and egregious cases that either affect a larger group of employees or set an example out of a particularly bad employer. They will not issue findings against an employer if the evidence seems to suggest that it’s a 50/50 call. An investigation may take from several months and up to a year or more. The right to-sue-letter issued by the agency is a necessary prerequisite to filing a lawsuit, but can be obtained by an attorney online in about 10 minutes without any actual involvement of DFEH.

2. Waiting for a year or longer to file a lawsuit can also create issues of proof, and make your case harder to win or settle. Memories of events tend to fade, documents get misplaced, lost or “intentionally” lost by employers. E-mails get deleted (often a single e-mail can be of critical important to proving a discrimination or retaliation case). Witnesses tend to move away or change their mind about helping you to testify and corroborate your version of the events. Even if you decide to wait for DFEH to complete its investigation, it is important that you secure sworn statements that are written in a proper form by your witnesses. Doing your “homework” early may prove to be very helpful later in the case, especially when the employer files a motion for summary judgment, which they almost always do, if the case is litigated in court long enough.

February 1, 2012

Switching Jobs and Handling Non-Compete Agreements

by Arkady Itkin

Switching jobs and employers when you have signed a non-compete agreement with your former or present employer may present unique challenges that require careful consideration in light of the specific circumstances of your industry, the company you are working for and the company you are planning to switch to. Even though it has been well established that generally, non-compete agreements are invalid and unenforceable in California, you must take into account a number of other factors, one of the which is trade secrets and confidentiality agreements you might be bound by.

Among other things, it might be well worth making sure that the reason the new employer wants you is not in order for you to tell them all about the proprietary information or software of your previous employer, and not in order for you to actively try to recruit the your former employer’s customers to do business with your subsequent employer.

In some cases, especially when you have a close relationship with your employer, it might be worth having a candid conversation about your employment plans and trying to figure out together and collaboratively how to ensure that your former employer’s interests are protected, while your rights are not violated as well.