San Francisco Employment Law Firm Blog

May 4, 2009

Overtime Law: Professional Exemption Clarified

Like with many other employment laws in general and wage laws specifically, there is no bright line rule that defines which employees are exempt from overtime, and which workers are entitled to overtime compensation. Below, I will try to make the job of both employers and employee who try to apply professional exemption to their situation easier and more certain.

For the purposes of determining professional exemption, the term “professional” means any employee who: (1) is compensated on a salary or fee basis at a rate of no less than $455 per week (periodically adjusted); (2) whose primary duty is the performance of work (a) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction; or (b) requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor. 29 C.F.R. 541.300(a).

The phrase “work requiring advanced knowledge” is the key part which is the most commonly litigated and disputed element of the rule. According to regulations, this includes work requiring consistent (although not necessarily constant) exercise of discretion and judgment, as distinguished from routine mental, manual, mechanical or physical work. An employee who performs work requiring the advanced knowledge generally uses the advanced knowledge to analyze, interpret or make deductions from a set of facts. The advanced knowledge required to be exempt as a professional cannot be attained at a high school level.

April 30, 2009

Leave of Absence as a Reasonable Disability Accommodation

by Arkady Itkin

A common question a California employer faces is for how long to provide an unpaid leave of absence as a reasonable accommodation to a disabled employee. Generally, a finite leave of absence may be a reasonable accommodation, if it is likely that the employee will be able to perform his oer her duties at the end of the leave. Under most circumstances, an indefinite leave of absence is not a reasonable accommodation. This makes sense as it would be unfair to expect employers to wait indefinitely wait for a disable employee to return to work.

Some courts have ruled, however, that there is no per se rule that an indefinite leave of absence is not a reasonable accommodation. Thus, extensions of leave of absence may be reasonable under some circumstances. An employer’s size and resources may affect its obligation to provide “indefinite” leaves of absence as reasonable accommodations. For example, in the case of a very large employer, with high turnover and fungible employees, the employer may be required to provide an indefinite leave of absence, if the leave would enable an easily replaceable employee to perform the essential functions of the position eventually, and the employer will not incur significant expenses as a result of maintaining the employee in the status of an employee.

The courts may consider the following factors to determine whether leave of absence is a reasonable accommodation with respect to a specific employee. This factors include the following: whether the employee gives any indicates when he or she can return to work; whether the employee’s absences from work are erratic and unexplained; whether the employee will be able to perform his duties when he returns; whether the employer hired the employee to perform a specific task; whether a leave poses an undue hardship given the circumstances of the situations.

April 29, 2009

When You are Falsely Accused of Violence at Workplace

by Arkady Itkin

False accusation of an employee being violent toward another employee are just as common or are even more common than the actual violence at workplace. This include physical violence as well as verbal threats of violence, including implied verbal threats such as “Next time, I don’t know what I am going to do to you…,” and similar statements.

Accusations of violence at workplace are typically grounds for immediate suspension or termination of employment. It is a hurtful and frustrating experience to be accused of something that you haven’t done. It is not uncommon for an employee who has been falsely accused of violence by his co-worker to “lose it” at a deposition or during the testimony at the arbitration, engaging in a heated argument with the opposing side or their attorney, and thus actually demonstrating to the other side and the judge/arbitrator that the employee has a short temper and might have potential for violence at workplace.

However, if you are determined to prove that the accusations against you are meritless prevail in a legal claim against your employer, related to false violence accusations, it is crucial that you prove through your subsequent actions that you are anything but violent. Maintaining calm, rational, reasonable composure throughout your subsequent communications and/or legal proceedings after suspension and termination is a very important part in compelling the employer to doubt the allegations made against you, and revisit the decision to fire you under the risk of being sued for wrongful termination based on defamation. Do not allow lies and fabrications with regard to your violent behavior to emotionally destabilize you and make you come across as a potentially violent person, and this will be of significant help to any legal claims you might be pursuing in court or through a union arbitration.

April 26, 2009

California Overtime Law – Administrative Exemption Clarified

by Arkady Itkin

One of the most vague and, as a result, frequently disputed and litigated claims by workers is whether they are entitled to overtime compensation or whether they are properly classified as exempt under administrative exemption as provided in Federal Labor Standards Act (FLSA) and the applicable federal regulations. This article clarifies the administrative exemption standard as it has been recently applied by California courts.

First, it is important to note that exemptions from overtime compensation requirements are narrowly construed against the employer, and their application is limited to those employees who plainly and unmistakably within their terms. Bell v. Farmers Ins. Exchange (2001).

Generally, except satisfying the minimum rate of salary requirement, which is regularly adjusted, exempt administrative work must be (1) non-manual; and (2) related to management policies or general business operations of the employer or the employer’s customers; and (3) must involve the customary and regular exercise of discretion and independent judgment.

April 21, 2009

California Employment Law: Discrimination because of Abortion is Illegal

by Arkady Itkin

Under PDA (Pregnancy Discrimination Act), it is unlawful for an employer to discriminate against an employee on the basis of pregnancy,childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs. This law is construed broadly and has been held by courts to include protection against pregnancy discrimination to women who underwent abortion, as abortion is a “medical condition” arising from pregnancy. Doe v. C.A.R.S. Protection Plus, Inc. (2008).

The basic principle of PDA is that women affected by pregnancy and related conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work. The PDA doesn’t require that employers treat pregnant employees better than other temporarily disabled workers, but the PDA does require that employers treat pregnant employees no worse than all others.

April 18, 2009

Racist or Discriminatory Comments at Workplace by a Supervisor

by Arkady Itkin

It has been held in California that to constitute hostile work environment at workplace based on racial or other kinds of harassment, the harassing conduct must be “sufficiently severe and pervasive.” This means that generally, a single discriminatory comment or isolated incidents of slur by a co-worker cannot be actionable as harassment or discrimination as a matter of law. However, the courts recognize the fundamental difference between the impact that a co-worker’s actions or words have an a potential victim of harassment and discrimination and the words/actions of a manager or any other person in a position of power over an employee.

The leading case on this issue is Dee v. Vintage Petroleum, Inc. (2003). In that case, the court pointed out that while one racial comment is insufficient as a matter of law to establish a claim for hostile work environment, there is neither a threshold “magic number” of harassing incidents that gives rise to employer’s liability… nor a number of incidents below which a claimant fails as a matter of law to state a claim. The court noted however that where the act committed by a supervisor, the result may be different. Because the employer cloaks the supervisor with authority, the supervisor’s conduct is normally attributed directly to the employer.

The effect of the offensive and unlawful conduct of a person who acts on behalf of the company and who is in a position of superiority has a much more dramatic and adverse impact on an employee creating a far more abusive workplace environment that would otherwise have been created by co-worker. The court further recognized that even an isolated incident of racial slur may not actually be “isolated” because it explains the manager’s motivation for creating abusive work environment

April 15, 2009

Tips for Winning the Unemployment Appeals Board Hearing

by Arkady Itkin

The hearing to contest the denial of your unemployment compensation benefits is very much like mini-trial. The employee and the employer find themselves sitting across from each other with or without legal representation in front of the administration law judge who will hear both sides, will allow both parties to ask each other questions and present their evidence and make a closing statements to support their position.

Support your Arguments with Evidence. The rules of admitting evidence are far more relaxed at an unemployment appeal hearing than the formal rules of evidence in trial courts. Thus, almost all evidence is admitted, although given different value according to its weight and credibility. The best evidence you can present is having actual, unbiased witnesses show up with you and testify as to the truth of what you you will telling the judge. The second best evidence is declarations signed under the penalty of perjury by any persons who witnessed any conduct by you or your employer, relevant to the appeal. Make sure to make two extra copies of any documents you plan to introduce into evidence – one copy for the judge and one for the opposing side.

Address Only Those Issues that are Directly Relevant to Your Claim. The biggest challenge that the parties to the hearing have is remembering that the administrative judge is only concerned with the most recent events that lead to termination. The hearing at the unemployment appeals board is not a hearing about harassment, discrimination, favoritism, defamation, retaliation or other civil claims. This hearing is strictly about whether the reason/s the employee was terminated disqualify that employee from the benefits.

April 5, 2009

Employers’ Undue Hardship Defense Explained

by Arkady Itkin

Under both FEHA and ADA, employers must make reasonable accommodations to the disability of an individual unless the employer can demonstrate that doing so would impose “undue hardship.” Cal. Code. Regs. tit. 2 section 7293.9. In other words, there are limits on the restructuring that an employer needs to do. Accommodations need only be “reasonable.” An employer need not undertake an accommodation that would created an “undue hardship.”

“Undue hardship” means an action requiring significant difficulty or expense, when considered in light of the following factors: (1) the nature and cost of the accommodation needed; (2) the overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility; (3) the overall financial resources of the covered entity with respect to the number of employees, and the number, type, and location of its facilities; (4) the type of operations, including the composition, structure, and functions of the workforce of the entity; and (5) the geographic separateness, administrative, or fiscal relationship of the facility or facilities.

The burden on proving that providing reasonable accommodations would constitute undue hardship is on the employer, as the law makes clear that the term “reasonable accommodation” is to be interpreted flexibly to that employer must not only remove obstacles that are in the way of the progress of the disabled, but that they actively restructure their way of doing business in order to accommodate the needs of their disabled employees. Prilliman v. United Airlines, Inc. (1997)

March 31, 2009

Employer’s duty toward disabled workers under California Law

by Arkady Itkin

It is not uncommon for a California employer to justify its termination of the disabled worker and it’s failure to engage in interactive process to find reasonable accommodations as require by law under the Fair Employment and Housing Act, by arguing that because the didn’t owe the duty to engage in interactive process because the terminated employee never requested it.

The California courts, however, routinely disagree with that argument by employers. Thus, the second district rejected such an argument by an employer, United Air Lines, where the company suggested that a disabled employee must first come forward and request a specific accommodation before the employer has a duty to investigate such an accommodation. The court reminded the employer that the law does not require the worker to speak any magic words before the disabled employee is subject to its protections. Of course, as the court continued to explain, the employee can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. The employer is also normally not liable for failing to accommodate a disability of which he had no knowledge. Finally, an employer has no duty to accommodate an employee who denies having a disability or denies a need for accommodation. Prillman v. United Air Lines, Inc. (1997).

However, the employer is likely to have the duty to engage in interactive process with a worker who the employer knows is disabled or who the employer perceives to be disabled.

March 28, 2009

The Court clarifies the tip pooling laws in California

by Arkady Itkin

On March 27, 2009, the second appellate district court of California published its decision on the tip pooling rules in the service industry which has been a subject of debate among litigants during the past several years. Etheridge v. Reins International. In that case, one of the issues was the interpretation of California Labor Code section 351 that states, among other things: ” No employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron, or deduct any amount from wages due an employee on account of a gratuity, or require an employee to credit the amount, or any part thereof, of a gratuity against and as a part of the wages due the employee from the employer. Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for.” The Etheridge case focused on the interpretation of the term “employee” in the above code section.

Should only the waiters and bussers serving the table be entitled to the tips left on that table, or everyone in the “chain of service” of that table be included in the “tip pool?”

The court went with the latter interpretation, supporting its holding with compelling logic. The court stated that a patron tips on all of the services received, not simply the service provided by the employee the customer sees with his own eyes. If the plates on which the food is served are not clean, the food received is not hot, or is not as ordered, the patron may be inclined to leave a smaller tip even when the services of the servers and bussers are satisfactory. Likewise, when the meal is good, the presentation on the plates is pleasing, and special food requests have been satisfied, the patron may be inclined to leave a more generous tip, even when the servers and bussers might not have delivered exceptional service.