by

A mean supervisor who uses or abuses his power and authority in obvious or more subtle ways that none of the workers like, but many have to put up with, at least until the solution to the problem is found, such as transferring to a different department, have a manager transfer or … finding a another job.

How do you deal with a mean manage who seems to be on a power trip, when everything else seems to be going well at work? – You like what you do, you like the company, the co-workers, the pay, and it seems to be that it’s just that one “bad apple” that ruins your experience at work.

Remember – there is no equality between you and your superiors. For some odd reason, many employees think that they have the same rights and privileges as their bosses. They think that if the bosses raises his/her voice, then so can they. Wrong. Why? You can’t fire the boss for yelling at you, but he can fire you for any reason due to your likely at will employment, let alone yelling at your manager. There are many other things that your superior can probably get away with that you can’t. A workplace is not a democracy and you shouldn’t treat it as such. Very few fights are worth fighting over. You have nothing to gain by proving to your boss that you are right and he/she is wrong except getting in trouble and risking being retaliated against. Standing up for yourself is important. However, you have to make sure that what you stand up for really matters to you personally and it’s not just a matter or principal. For instance, suppose your boss wrote a performance review, in which he criticizes your work ethic or attention to detail. This kind of criticism is inherently subjective and is a matter of opinion. It’s hardly worth getting into a debate with your manager and trying to prove that you are indeed extremely attentive and the hardest worker the company has.

Continue Reading

by

I almost feel like the word “harassment” is the wrong term of the legal claim entitled “harassment at workplace” in the legal world because its legal meaning is so different from the meaning of the word in the ordinary, day-to-day life. Under the law, an actionable claim for harassment / hostile work environment requires showing that you are treated differently because you are a member of protected class. The courts have repeatedly held that simple being mean and rude or unfair without a discriminatory animus is not harassment and that they are not in the business of enforcing the rules of civility and proper manners at workplace; they are in the business of enforcing civil rights. As an illustration of this critical difference, consider that if your employer uses foul language or screams at you is generally not against the law and doesn’t give a rise to any claim without more. However, the same cussing and yelling accompanied by a racial slur or statement that suggest age/disability/religious/gender/sex discrimination are likely to make a claim, especially if repeated. Plainly, “you are no good junk” is not illegal, while “you are no good peace of old junk and it’s time to retire and bring some fresh blood to the company” is a strong evidence of age discrimination, or if the manager says: “you are no good cripple, and we need strong/healthy people in here” this would be a strong evidence of disability discrimination.

Even such harsh words as a “bitch” do not give rise to a legal claim. On the other hand, statements such as “you are a bitch, and I never hire another woman” or “you are a bitch and I want to have sex with you before I promote you” is likely to be evidence gender discrimination and sexual harassment respectively.

by

Generally, a claimant is not qualified to receive unemployment benefits if she voluntarily resigns from her employment, unless there is “good cause” for quitting. Good cause must be a significant and compelling circumstance that makes is increasingly difficult or impracticable for an employee to continue working.

In a recent case I handled, which I did not hope to win, the claimant was awarded benefits even though she quit. The circumstances of her resignation were unique and interesting. She resigned on the same day that she was placed on a performance improvement plan. The disciplinary action outlined her 30-day goals that she knew she could not completely. The warning made it clear that she is likely to be terminated if she doesn’t complete all the outlined goals. Interestingly enough, the claimant was given an option to take severance and resign during the same meeting she was given the warning. The claimant elected to take the offered severance and resign.

The Unemployment Appeals Board found in my client’s favor, specifically focusing on the fact that the employer refused to give the claimant additional time to complete the tasks in the PIP.

by

Some Employers seem to conveniently believe that replacing an older worker with a younger woman who has less seniority and therefore can be paid less is not against the law and is not considered age discrimination, since they believe they have a valid reason for that kind of replacement – saving money. In drafting the Fair Employment and Housing Act, the California legislature addressed that specific situation, enacting Gov. Code 12941, which states that the use of salary as the basis for differentiating between employees when terminating employment may be found to constitute age discrimination. It is thus likely that any employment decision based on salary differentials between older and younger workers, such as hiring, promotions, pension benefits, etc., can be challenged as age discrimination if it has a great impact on older workers as a group.
elderlyworker0302.jpg
I believe that as the well known and expected trend of aging of the local San Francisco Bay Area population and the population of its workers, age discrimination and age discrimination claims at workplace will be on the rise in the next several decades. As usually, proving liability of the wrongdoer in court will be challenging, as direct evidence of discrimination such as calling an employee names suggesting age related animus is unlikely to be available, and thorough discovery of circumstantial evidence will be necessary to win such cases, such as the timing of events, replacing older workers with younger workers, and inconsistencies in the employer’s formally given reasons for terminating older workforce.

by

On March 22, 2011, the United States Supreme Court published an important opinion on retaliation law, holding that oral as well as written complaints about wage and labor law violations are protected activities as far as retaliatory discipline or firing go. In Kasten v. Saint-Gobain Performance Plastics Corp. the plaintiff complained that the location of the time clock prevented workers from receiving credit for putting on and taking off their work clothes. Specifically, plaintiff raised this concern with his shift supervisor and he also discussed the issue with one of the human resources managers. Naturally, the employer denied that that was the reason for plaintiff termination and argued that he was fired for not clocking in and out when he was taking breaks.

In this favorable to employees decision, the court makes an interesting observation that “filing” a complaint within the meaning of at least the FLSA (Federal Labor Standards Act) also mean “oral filing” or complaining verbally. The defendant argued that the employer should have a fair warning of a protected activity and therefore to be protected it has to be reduced to writing. The court agreed with the fair warning part, but rejected the notion that a complaint has to be in writing in order to be a “fair warning” to the employer. The court has articulated a fair warning standard that makes a lot of sense: “to fall within the score of the anti-retaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection. This standard can be met by oral complaints as well as by written ones.”

by

Despite the fact that FEHA (Fair Employment and Housing Act) has been enacted several decades ago, most people who are familiar with the basic ADA disability protections against discrimination at workplace, are not familiar or have not even heard about the FEHA. Fair Employment and Housing Act – a California version of the federal ADA, is similar and in some ways far more protective of employees than its federal counterpart.

One of the significant differences between the two laws which favors employees in the FEHA is the definition of disability. Under ADA, disability is an impairment that substantially limits a basic physical or mental function of the body. Under FEHA, on the other hand, there is no requirement of “substantial” limitation and basically any limitation of a basic physical or mental function is considered disability, entitling a worker in California to the protections, and generally triggering the employer’s obligation to engage in interactive process and provide reasonable accommodations. California Government Code 12926.1 codifies the definition of disability which is very broad and includes a wide range of chronic and non-chronic conditions that would qualify as a disability at workplace.

For more information, read the full text of the California Fair Employment and Housing Act.

by

Reversing the lower court’s decision, the US Supreme Court, in Thompson v. North American Stainless LP, a third party retaliation claim proceed. In that case, both the Plaintiff and his fiance worked for the Defendant. Shortly after Plaintiff’s fiancee filed sex discrimination charge with EEOC against the employer, Plaintiff was fired. The Court noted that Title VII’s antiretaliation provision prohibits an employer from discriminating any of his employees for engaging in protected conduct, and further pointed out that it is obvious that a reasonable worker might be discouraged from engaging in a protected activity, such as complaining about discrimination or harassment, if she knew that her fiance would be fired.

The court declined to identify a fixed class of relationships for which third-party reprisals would be unlawful. The court stated however that firing a close family member will almost always meet the standard of a person who is in a “zone of interest” for purposes of establishing retaliation against a third party.

by

Asthma and sensitivity to tobacco smoke and other pollutants are conditions that have been recognized by courts as a protected disability at workplace, entitling the workers suffering from those conditions to a reasonable accommodation.
asthma_health.jpg
In County of Fresno v. Fair Employment & Housing Commission (1991), the employer (the county) argued that hypersensitivity to smoke is either a non-handicapping respiratory disorder, not covered by the California disability laws, or an “environmental limitation” rather than a physical limitation. The court has rejected both arguments, finding that because of the respiratory disorder, exposure to tobacco smoke produced by other employees substantially limited the Plaintiff’s ability to breathe, rendering the Plaintiff “handicapped” and covered by ADA (Americans with Disabilities Act) / FEHA (Fair Employment and Housing Act). In that case, the employer actually attempted to reasonably accommodate the plaintiff, and the following actions were taken: smokers used desktop air filtration machines, employees kept windows open, management separated Plaintiff’s desk from the desks of smokers, Plaintiff was offered an alternative position in another department, where smoking was not permitted. Because all of the above accommodations proved to be either futile or ineffective, the court still found that the employer failed to reasonably accommodate Plaintiff.

by

One of the hallmarks and great advantages of California disability laws, which encompasses employers’ obligation to engage in interactive process to find reasonable accommodations to qualifying employees with a disability or a medical condition, is its flexibility. Generally, the employer must consider various solutions to accommodating an employee and be reasonable creative and considering different types of things that the company can do to help the disabled worker remain in the workforce.
work-from-home-disability-reasonable-accommodation
One of such accommodations, which can be particularly relevant in cases where an employee has a psychological/mental disability is working from home. In Humphrey v. Memorial Hospitals Association, the Ninth Circuit specifically noted that allowing an employee who suffered from OCD (obsessive compulsive disorder) to work from home can be one type of reasonable accommodation that should be considered if it may be effective and if performing that employee’s job duties from home would not impose undue hardship on the employer. In that case, the other fact that was helpful to plaintiff is demonstrating that some of her co-workers worked from home, while she was denied that accommodation, and that company had a policy of allowing employee to work from home.

Even though the employer argued that there was no guarantee that working from home would be an effective accommodation to claimant, the court was not persuaded, as one doctor’s testimony that working from home could have been effective was sufficient to trigger liability against the employer for failure to provide such an accommodation.

by

One of the common mistakes claimants make is coming to the mediation with a set, firm “floor” settlement figure in their mind. This approach has seriously downside. First and foremost, mediation is a process that requires at least some compromise from both parties. Statistically, most cases that go to mediation settle, but it is also true that to be successful at mediation you have to take less than you were initially willing or give more than you initially wanted.

Being open minded about the settlement of your case during the mediation is particularly important in wrongful termination and other employment cases, as these are particularly challenging cases, in which liability is almost always an issue. Unlike in other cases, such as car accident, in which it’s typically clear and uncontested whose fault the accident is, and the only questions is how much the innocent victim should recover in damages, discrimination, retaliation, and other wrongful termination claims require proving motive. Direct evidence of illegal motive by the employer, such as open admission of guilt, is almost never available, and the aggrieved employee has to rely on circumstantial evidence to prove his/her case. In addition, the employer often have defenses that are hard to disprove, which include misconduct, insubordination and poor performance, which are inherently subjective and so easy for the employer to argue, unless you have a stellar, long-standing performance record.

The above and other factors all suggest that it is in your best interest to be open minded about the settlement value of your case at a mediation. It does not mean that you have to sell short a good case with compelling facts and reliable witnesses, but it does mean that you should listen carefully to the arguments of everyone else who shows up at mediation about the strengths and the weaknesses of your case, as all of the other present at the proceedings likely have much more experience in employment law and with trials and juries than you do.

Contact Information
San Francisco
100 Pine Street, Suite 1250
San Francisco, CA 94111
Phone: (415) 295-4730
Fax: (415) 508-3474
Sacramento
980 9th Street, 16th Floor
Sacramento, CA 95814

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2014 – 2024, The Law Office of Arkady Itkin
JUSTIA Law Firm Blog Design