San Francisco Employment Law Firm Blog

You are a manager or a director at a manufacturing plant or a sophisticated technology company in San Francisco, Sillicon Valley, or elsewhere in California. You take great pride in your work, and you are rewarded with generous compensation and real prospects for promotion. One of your duties is supervising the company’s employees and making sure that they deliver what your clients expect.

One common challenge you might be facing is addressing issues in your subordinates’ performance. Sooner or later, you will likely find yourself in a predicament with regard to how to address problems in your employees’ performance effectively. You want everyone to be happy – you want the issues to be resolved, your clients to be happy, and your employees to improve their skills and abilities while maintaining great degree of respect for you as a boss.

Many managers, out of sheer kindness of their heart, choose to be too generous, too kind, and too polite with those employees whose performance doesn’t meet expectations. A supervisor might like an employee on a personal level or might not want to be perceived as a mean boss, who puts a great deal of stress on his subordinates, and will be reluctant to be as direct as necessary to address performance deficiencies.

Under the law, where the employee’s FMLA/CFRA certification is unclear about his health condition and his/her ability to return to work, an employer’s policy may lawfully require an independent medical examination (IME) to determine the employee’s fitness to return to work.

For example, in one case, an employee who was on FMLA leave because of a chronic back problem, submitted her treating physician’s certification that she may return to work. However, her doctor also stated that she should “avoid stressful working conditions.” Finding that FMLA certification confusing, the employer used its customary practice, incorporated in the collective bargaining agreement, and informed employee that an independent medical exam was required for her to return to work. The employee refused the exam, and as a result was fired. The court found that the employer did not violate FMLA.

Where the employee has been timely notified that a fitness for duty report will be required and has failed to provide the report, the employer may refuse to reinstate the employee until the certification is provided. If an employee does not provide either a fitness-for-duty report or a new medical certification for a serious health condition at the time the FMLA leave is concluded, the employee’s position may be lawfully terminated.

Yesterday, I have been approached by a long-time employee of the local manufacturing company in the Sacramento area. The employer had a side business (running poker gaming facility) which the employee also regularly attended. When the employee decided to play poker elsewhere, his employer terminated him, telling him that “they need a loyal employee who will not take his business elsewhere.”

This was a wrongful termination in violation of California Labor Code section 450, which states that employers are prohibited from forcing their employees to purchase the employer’s or anyone else’s products or services. Besides being grounds for civil damages, violation of section 450 is a misdemeanor under section 451 of the labor code.

In other words, the employer may not condition or encourage an employee to purchase anything from anyone with very few exceptions. If the employer requires an employee to wear a certain uniform at workplace, the employer must pay for the purchase of that uniform and for its upkeep.

On January 7, 2009, the Contra Costa Superior Court issued an order in a race discrimination and whistleblower retaliation case, finding unconscionable and unenforceable the arbitration agreement that Countrywide Home Loans company requires its employees to sign as a condition of employment. The court found two unconscionable provision in the arbitration agreement: (1) a provision giving the arbitrator exclusive authority to determine the arbitrability of employment case, and (2) a provision giving Countrywide the unilateral right to modify the agreement.

Having found the binding arbitration agreement unconscionable, the court struck that agreement as void and unenforceable, thus allowing the plaintiff to proceeds with his employment discrimination and retaliation claims to jury trial.

It is a common practice for employers to condition reimbursement of expenses incurred by employees on timely submission of those expenses to the employer’s accounting department. A typical expenses reimbursement policy might state that an employee must submit his claim for expense reimbursement within 90 days of incurring that expense, or otherwise the employee will not be eligible to be reimbursed for the same expenses.

These kinds of policies however are generally unlawful. Under California Labor Code section 2802, an employer shall indemnify an employee for all qualifying expenses, which also includes any attorneys fees paid to take legal action for enforcing the right to reimbursement of expenses. Further, under section 2804 any contract or agreement between an employer and an employee to waive rights to reimbursement is null and void. This means that any express or implied policy of an employer to attach conditions to eligibility for reimbursement of expenses is likely to be illegal and void.

If you have any questions about reimbursement of expenses, contact San Francisco employment lawyer Arkady Itkin at (415) 640-6765.

Many California employees, and especially workers of the State and local government agencies experience a very stressful work environment as a result of bad relationships with their co-workers and supervisors, that can range from the typical gossip and office politics to threats by one employee do have the other fired, or even threats of violence. Often, these kinds of conflicts result in great deal of stress, leading one or more employee to take stress leave, be placed on temporary disability due to stress or even be taken to an emergency room for immediate medical attention.

However, most of the above very common and serious issues at workplace, although wrong and unfair, are not illegal. The courts are understandably reluctant to intervene every time one worker calls the other a “bitch” or slams the door or throws documents in one’s face. There is a general consensus in the judicial community that it’s not the court’s job to resolve every dispute at workplace that is based on personal animosity or alike emotions, unless such disputes escalate to something more – other imminent threats of violence of discriminatory conduct (where an employee is clearly mistreated as a result of being a member of protected class, such as race, age, religion, ethnic origin, disability, etc.)

To recover for intentional infliction of emotional distress, the employer’s action must be shown to be “so extreme and outrageous as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” as California Supreme Court noted in Alcorn v. Anbro Eng. Inc. By definition, to be actionable the employer’s conduct must be more than just mere rudeness, insults or otherwise creating a stressful environment at workplace that’s typical to many other places of work.

It is perfectly legal for an employer to implement layoffs of its workforce unless this right is limited by an express or implied contract to employ a worker for a set period of time or if the duration of employment and termination terms are protected by the collective bargaining agreement between an employee, a union member, and the employer. This makes sense as the owner of the business should have freedom to choose to reduce its workforce for legitimate business reasons.

However, workforce reduction is illegal if discriminatory criteria are applied to selecting which employees stay and which have to go. In other words, if the employer tries to disguise his desire to get rid of workers who are members of a certain protected class (gender, race, religion, disability, ethnic origin, etc…) this is unlawful discrimination.

It is not easy to determine whether the layoff is legitimate or it’s just another form of workplace discrimination, as direct evidence of the employer’s motive, such as admissions, is rarely available for obvious reasons. However, there are certain signs that should create suspicion and case doubt on the legality of a layoff. Here are four general questions that should be asked to determine whether the discrimination likely took place during your layoff:

One common issue with regard to leaves of absence between an employment and an employee arises when the employee is absent due to being sick or other health-related reason. The employer may try to avoid it’s obligations under FMLA (Family Medical Leave Act) or CFRA (California Family Rights Act) by claiming that the employee’s absence while being sick was unexcused and thus unprotected under the law, if the employee didn’t specifically request FMLA / CFRA.

This argument is without merit, however, according to California courts, which repeatedly held that an employee doesn’t have to use “magic words” such as FMLA and CFRA to be eligible for a qualified leave of absence. It is generally sufficient to place the employer on notice triggering the employers obligation under California law if the worker contacts the employer shortly before or shortly after being absent, advising the employer of the reasons of his absence and providing medical documentation or other objective proof of having the underlying health condition.

This position of California courts makes sense, as it would be unreasonable to expect an employee to be familiar with the specific legal terms, such as FMLA and CFRA, and actually use them in order to receive the medical leave of absence benefits that he or she would be entitled under the law. It is sufficient that the employer is placed on reasonably clear notice of its employee’s medical condition to trigger the employer’s FMLA/CFRA obligations.

California Labor Code section 432.7 generally prohibits California employers from using as a factor in hiring, or asking an applicant to disclose, an arrest or detention that did not result in conviction or participation in pre- or post-trial diversion programs.

However, the above general rule is subject to various exceptions. For example, the rule does not apply to applicants for peace office, Department of Justice, or other criminal justice agency positions. Further, employers may ask applicants about arrests for which the applicant is currently out on bail or on his own recognizance pending trial. Employers that are health facilities may ask applicants for positions with regular access to patients to disclose information regarding arrests for sex offenses, and ask applicants for positions with access to drugs and medication to disclose information regarding arrests for controlled substance offenses.

The penalties for violating the above laws are relatively mild, and generally amount to a few hundred dollars plus costs and reasonable attorneys fees. An intentional violation of this section by the employer is also considered a misdemeanor. In addition, this section doesn’t prohibit pursuing remedies for violation of other laws, such as California Fair Employment and Housing Act (FEHA) provisions that may come into play and other prohibitions on discrimination in hiring and promoting employees.