San Francisco Employment Law Firm Blog

November 14, 2023

An Employmet or Business Contract Can Be Based On Conduct

Both employees and employers in California need to know that even if they don’t sign a formal employment contract, their conduct alone, without many or any actual documents to that effect, can form an employment or business relationship. This is because to form a contract, a manifestation of mutual assent is necessary. Mutual assent may be manifested by written or spoken words, or by conduct. Restatement of Contracts § 19. “Contracts are often spoken of as express or implied. The distinction involves, however, no difference in legal effect, but lies merely in the mode of manifesting assent. . . . assent may be manifested by words or other conduct . . . intention to make a promise may be manifested in language or by implication from other circumstances, including course of dealing or usage of trade or course of performance.” See also CCP 1619 [contracts are either express or implied], and 1621 [“`An implied contract is one, the existence and terms of which are manifested by conduct.’ The distinction between express and implied in fact contracts relates only to the manifestation of assent; both types are based on the expressed or apparent intention of the parties.” 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts § 11, p. 46.

“. . . the actions of the parties may show conclusively that they have intended to conclude a binding agreement, even though one or more terms are missing or are left to be agreed upon. In such cases courts endeavor, if possible, to attach a sufficiently definite meaning to the bargain. An offer which appears to be indefinite may be given precision by usage of trade or by course of dealing between the parties. Terms may be supplied by factual implication, and in recurring situations the law often supplies a term in the absence of agreement to the contrary.” Restatement § 33, com., a.

Thus, in a rather common situation where one party performs services for another after not fully completing the negotiations over the terms of that engagement, that party can still show that it is entitled to the compensation discussed and promised during those negotiations along with the work performed to reflect that the parties generally agree to be engaged in that relationship. Thus, an employer cannot avoid paying their employee or vendors for the work performed simply because they didn’t sign a contract after exchanging emails and phone calls with each other about the terms of their relationship, even though it might be challenging to determine what the compensation due is under such circumstances.

November 12, 2023

On Asking Your Remote Workers To Return To The Office

by Arkady Itkin

Just like making all of your workers remote is often not a great idea for a business, asking every remote employee to come back to the office just because that’s your new policy can also be a bad decision. It is in your best interest as an employer to consider the individual circumstances of every employee and ask yourself certain questions about each one of them: do you really want them to be in the office or is that some type of power move on your part? How well is each specific employee doing performance wise while being remote? Is thgat worker likely to be doing better in the office given their job duties, their own preferences, the length of their commute, and their other personal circumstances? How much harder will you make that employee’s life by having them come to the office, and finally – how much are you willing to risk losing that employee as a result of your new policy? These are important types of questions to ask and the answers will be different each time.

Speaking of talking to your employees, perhaps the first step toward deciding whether to require any employee to return to the office should be testing the waters with them and asking them a hypothetical question – “hey, what do you think about returning to work in the office # days a week?” You can then factor their response into your overall decision making.Some of the most unfortunate stories are where workers, in reliance on their company’s remote work policy, move away to another city with their family, buy a house, put their kids in new schools, do very well at their job, but then their employer all of a sudden announces that they have to come back to the office for no other reason than “it’s our new policy”. In these types of situations, most workers don’t move back because they already have a new life set up, and they just decide to quit and look for a new job at their new location instead. In many of these cases, the employer loses a good worker for no good reason.

If you run a private business, you have all the authority and all the reasons to be flexible and make individual decisions about each employee’s returning or not returning to the office that would work best for you and for them. You can make your own rules as a private business, so why not take advantage of it? And, as long as there is no evidence that you make these decisions on a discriminatory basis, i.e. due to age, race, disability, sexual orientation, etc… you shouldn’t be facing any legal issue assessing each employee’s returning or not returning to the office individually.

November 7, 2023

Retaliation for Complaining About Working Conditions Is Illegal

by Arkady Itkin

Under California Labor Code section 232.5(c): “No employer may … discharge, formally discipline, or otherwise discriminate against an employee who discloses information about the employer’s working conditions.” It is not uncommon for employers to become unhappy about their employees complainign about safety issues at worksite or lack of regulatory approval to complete a certain project, as illustrated in Zirpel v Alki David Productions, Inc. (2023). The burden of proof for section 232.5 is “substantial motivating reason”. In other words, the employee doesn’t have to prove that their complaints about working conditions were the only reason for termination, as long as it was one key reason.

This is particularly helpful to victims of retaliations in situations where a protected complaint is followd by a hostile verbal exchange between the complaining employee and employer before actual retaliatory discipline or firing occur. In these types of cases the employer will often argue that the employee was terminated not in retaliation for making that complaint but due to subsequent “verbal violence” or “insubrodination.” The employee will then have the opportunity to show that his complaints were a major factor that lead to retaliation because, for instance, workplace arguments weren’t considered serious offenses by the employer before, based on the employer’s previous ways of handling such issues. Evidence of prior verbal conforntations with the same manager who ended up not punishing the employees or punishing them more leniently can be used as one type of evidence to show that the true reason for termination was making of those work conditions complaints.

September 10, 2023

Two Issues California Salespeople On Commissions Should Avoid

by Arkady Itkin

June 8, 2023

Avoid This “Shifty Eyes” Habit During Your Video Deposition

by Arkady Itkin

You may have heard before that when it comes to testifying, whether you are the plaintiff or the defendant in a case, your credibility is of critical importance. This is because so many cases inevitably involve “he said / she said” situation, where the fact finder (a judge or a jury) has to decide who to believe. If they find that you appeared dishonest on one issue during your testimony, then they will be doubting everything else you say.

Video depositions tend to significantly amplify gestures and body language of a witness because the camera is zoomed in and focused on the testifying witness’ face. In many ways, these gestures are way more obvious on a video than in person. A smirk or an eye roll that a jury might overlook during a live testimony in a courtroom when they are 30 feet or more away from the testifying witness is hard to miss on a video, when played in front of a jury.

Having your eyes race and shift side to side is one common behavior you should avoid during your video deposition, especially when it comes to answering simple questions, because it strongly suggests that your mind is racing to find the answer that serves you best, instead of simply stating the truth as it is.

May 30, 2023

Can You Prevent Being Wrongfully Terminated In The Future?

by Arkady Itkin

Many workers find themselves in a situation where they believe (and often rightfully so) that they will soon be wrongfully terminated due to some type of discrimination or retaliation. Can anything be done to prevent a future wrongful termination form taking place?

Realistically, there is nothing you can do to physically prevent your employer from firing you, if they are determined to do so. Just like they can’t force you to work for them against your will, you or anyone else can’t force them to employ you for longer than they want to. However, there are several things you can do to make your potential future wrongful termination case stronger:

Make sure you don’t give your employer any independent, lawful reasons for firing you. For instance, if you send mean / rude emails to your boss who has been retaliating against you in violation of the law, and you are terminated shorly after sending those email for some type of policy violation of verbal violence (which would be totally lawful), it will be quite hard to prove that the reason for your termination was that unlawful retaliation you were experiencing before, and not those angry emails that you sent most recently prior to your termination.

March 22, 2023

Two Important Qualities To Look For When Choosing A Mediator

by Arkady Itkin

First of all, contrary to a popular belief – not all mediators are the same. Even though the role of a mediator is limited to facilitating negotiations in a legal dispute and they don’t make any decisions or ruling in a case, having the right mediator can make a big difference between settling a dispute or bringing it close to settlement v not getting anywhere at all. There is more than one type of effective mediator, and like all people – different mediators bring their own unique style of pursuing resolution. However, there are at least two fundamental qualities you should be looking for in a mediator when you are looking for one for your case:

Knowledge of the applicable law and practical experience pursuing or defending similar cases. Yes, it’s true that both parties submit their mediation briefs to the mediator outlining their position, supporting facts and the applicable law, but it surely helps having the type of mediator who dives deep into facts and into evidence with confidence because he or she knows the applicable law and can be persuasive with both sides by pointing out specific legal strengths and weaknesses in the parties’ respective positions and not just say “oh… you know… judges and jurors are unpredictable, trial is expensive… and you better just settle, because it’s the best option” or something like that. Many mediators list their experience as a judge in their biography. While any such experience is impressive, it doesn’t necessarily translate into being a good mediator, so don’t rely on that type of experience to much when choosing a mediator.
Your mediator should have the right personality – When parties make a decision to settle their case at the mediation, they want to understand why their decision is the right thing to do under the circumstances, and why what they are getting is a fair deal, even if it is not perfect. You want your mediator to have the right personality and the right presence. Knowing the law and having courtroom experience is great, but if it can’t be translated into effectively listening to both sides’ concerns and goals and being as patient as necessary, then that impressive experience of that mediator isn’t going to be of much value.

February 23, 2023

Can You Be Terminated While On Medical Disability Leave?

by Arkady Itkin

December 23, 2022

Who Qualifies As “Outside Salesperson” in California

by Arkady Itkin

“Outside salesperson” in California are exempt from overtime, minimum wage, reporting time and meal and rest break requirements. (Labor Code 1171). Wage Order No. 7-2001(2)(J) defines outside salesperson as “any person… who customarily and regularly workes more than half of the working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or contracfts for products, servies, or use of facilities.” Based on this definition, in order to qualify as an outside salesperson, an employee must (1) work more than half the time away from his employer’s place of business and (2) be engaged in sales. The main reason for this exemption is the fact that outside salesperson generally control their own hours and are paid on commission basis. A classic example of a correct application of outside sales exemption is a door-to-door vacujm salesperson, who is on the road traveling from residence to residence.

It’s important to note that the “employer’s place of business” is not limited, under California law, to a principal places of business or an administrative headquarters. For instance, in one of their opinion letters DLSE concluded that temporary trailers and model homes located at a tract housing site, although physically separate from the home builder’s or seller’s headquarters office, nonetheless constitute “the employer’s place of business” within the meaning of the definition of “outside salespersons”. Therefore, employees who work out of temporary trailers or model homes and who sell newly constructed tract homes would not fall within this exemption unless they are customarily and regularly engaged in sales work for more than half of their work time away from the temporary trailer or model home, or other property at the housing tract owned or controlled by their employer. In the absence of such work away from their trailer / model home, these facilities would be treated pretty much like an employer’s satellite office, making those workers “inside salespersons” and not qualified to be exempt. A similar analysis applies to car salesmen who spend much of their time on their employer’s car lot, perform all of their sales work at the employer’s place of business, and thus are not covered by the ouside sales exemptions. (Brennan v Modern Chevrolet Co. (1972)).

However, recently one California Court of Appeal noted in Espinoza v Warehouse Demo Services, Inc. (2022) that the relevant inquiry as to whether an employee works away from the employer’s place of business is not whether the employer owns or controls the work site, but the extent to which the employer maintains control or supervision over the employee’s hours and working conditions. Thus, this factor also must be taken into consideration when determination whether this outside sales exemption applies to any specific employee.

November 3, 2022

California AB 1041 Expands Workers’ CFRA Leave Rights

by Arkady Itkin

Up until now, California workers were eligible to take CFRA / FMLA leave to only care for their immediate family members, subject to a number of other criteria. Assembly Bill 1041, would expand CFRA to permit an employee to take job-protected leave to care for a “designated person.” The bill defines “designated person” as any individual related by blood or whose relationship with the employee is the “equivalent of a family relationship.” The bill provides that the employee may designate a “designated person” in advance and that an employer may limit an employee to one designated person per 12-month period.

Of course, the above “equivalent of a family relationship” language is extremely vague, and we hope that future amendment and / or litigation will clarify what this means exactly and to avoid abuse by interpreting this language way too broadly.

The other question is whether an employee can designate a “designated person” after the need to take leave to take care of that person arises. The current language states that the employee “may designate … in advance”, so at least based on the plain reading of the language of this new law, there appears to be no prohibition against after-the-fact designation.