San Francisco Employment Law Firm Blog

November 7, 2023

Retaliation for Complaining About Working Conditions Is Illegal

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.

June 25, 2022

Unethical Behavior By Empoyers Denying Religious Exemptions From The Vaccination Requirement

by Arkady Itkin

Here are three highly questionable behaviors, to put it mildly, we have been recently obeserving employers engage in, when denying their employees religious exemptions from their Covid-19 vaccination requirement at workplace. These behaviors do not include the obvious point – continuing the vaccanation requirement policy despite being fully aware that the vaccines in question neither stop infection nor transmission of Covid-19 are needlessly harmful to both the employers and their workforce.

Requiring fully remote employees to be vaccinated and denying religious exemptions from this quirement on the grounds of “undue hardship”. It is hard to imagine a half legitimate argument as to why any employer would care about their fully remote workers’ vaccination status, let alone denying a remote worker’s request for a religious exemption from the vaccination requirement. These workers never come in contact with their co-workes or with the employer’s customers / clients, so there is no risk of any type of exposure from that employee.
Denying requests for a religious accommodation to be exempt from the vaccination requirement without a good reason. We repeatedly see employers deny religious exemption requests after receiving more than sufficient information to grant an exemption, using the following vague verbeage: “Based on the information you have provided, we are unable to grant you your accommodation request”. Employers often do not (and cannot) provide any legitimate basis for their decision to deny these requests.

May 7, 2022

To CA Employers Who Deny Exemption Requests From Cov-19 Vaccination

by Arkady Itkin

It is disappointing, to say the least, that so many employers in California continue require all of their employees to be “fully vaccinated” or be fired, given that we have now known for quite a while that the MRNA vaccines don’t prevent infection or transmission, and they are also most definitely not risk free. Moreover, the same employers continue to routinely deny their workers’ medical and religious exemption requests in violation of California Fair Employment and Housing Act. According to a recent data, for instance, Marin County apparently only granted 11 such exemptions out of hundreds requested by their employees.

Many lawsuits for these unlawful exemption denials have already been filed all around the country. We also hope to be involved in as many such cases as possible, in order to participate in this extremely important fight against continuing, unscientific and unlawful coercion. We foresee that it will be particularly difficult for employers to justify denying an exemption to workers who are expected to work remotely, especially if they remote indefinitely. What rational basis can there be to insist that a worker, who never comes in physical contact with his co-workers or clients / customers, be vaccinated, and how is it that employer’s business?

Some employers deny exemption requests for political / partisan reasons. That is, they are already unhappy that the same employee chose not to get vaccinated, so now they are trying to make his life more difficult by unreasonably denying an exemption. If this type of spiteful motive is proven in court, it will make that employee’s case much stronger.