San Francisco Employment Law Firm Blog

December 15, 2008

Sexual Harassment without Sexual Advances at Workplace

It is a common tactic for an employer to defend an employee’s claims of sexual harassment at workplace by arguing that because the conduct in question towards the victim wasn’t “sexual enough,” she cannot state a valid claim for sexual harassment. This is exactly what happened in Birschtein v. New United Motor Manufacturing, Inc. (2001). In that case, a forklift driver’s conduct included asking a female co-worker (Birschtein) out on a date 3-4 times, telling her that he had sexual fantasies about her in the most explicit detail, staring at her, and according to co-workers, driving around and looking for her when she was not around.

The defendant employer argued that its conduct did not amount to actionable sexual harassment because it was not “based on sex.” The court disagreed. Relying on prior, well established case law on sexual harassment, the Court stated that sexual harassment hostile work environment need not have anything to do with sexual advances. Hostile work environment shows itself in the form of intimidation and hostility for the purpose of interfering with an individual’s work performance.

Hostile environment sexual harassment may occur even if gender is a substantial factor in the discrimination and that if the claimant had been a man, she would not have been treated in the same manner. In other words, to constitute impermissible discrimination, the offensive conduct is not necessarily required to include sexual overtones.

December 13, 2008

Availability of Reasonable Accommodation

by Arkady Itkin

Last week, I participated in the interactive process discussion with my client and his employer – the state agency in Sacramento, to find reasonable accommodations to his disability (impairment of short-term memory and learning disability). The employer should an admirable willingness to comply with the disability laws under FEHA (Fair Employment and Housing Act) and engaged in the interactive process as required by law.

During our discussion in an attempt to see what reasonable accommodations, if any, may be available to my client, the employment lawyer for the State kept reiterating that it’s the employee’s burden to show that such reasonable accommodations are available. I, on the other hand, had to point out to the counsel for the State that he was incorrect. I reminded him that in one of the leading cases on the issue, Barnett v. U.S. Air, Inc. (9th Cir. 2000), the employer also tried to place the entire burden of showing the availability of reasonable accommodations on the employee, but the court disagreed, stating that to put the entire burden for finding a reasonable accommodation on the disabled employee and relief the employer from the duty to identify possible accommodations conflicts with the purpose of the law and thus doesn’t make sense.

The employer must participate in a search for effective accommodations to disabilities of their employees because these employees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations that the employer might have. Placing the entire burden on the employee to identify a reasonable accommodation risk shutting out many workers simply because they do not have the superior knowledge of the workplace that the employer has.

December 9, 2008

Internal Administrative Remedies and FEHA

by Arkady Itkin

In a unanimous opinion filed on October 27, 2008, the California Supreme Court held that when an employee voluntarily pursues an internal administrative remedy prior to filing a Fair Employment and Housing (FEHA) complaint, the statute of limitations (of one year) on the FEHA complaint is subject to equitable tolling.

This decision is important to those employees who are concerned about missing the one-year deadline on filing a Discrimination Charge with DFEH (Department of Fair Employment and Housing) and wonder if they should pursue internal administrative remedies first, provided optionally by their employer, skip the internal remedies altogether, or pursue both – the internal administrative action and DFEH procedures.

The recent Supreme Court holding establishes that an employee no longer need to worry about missing the DFEH deadline while pursuing an internal remedy. This decision makes a lot of sense as it reiterates the Court’s continuing efforts to encourage employees/potential litigants to seek and find out-of-court remedies to their grievances before filing a court action.

December 7, 2008

California Overtime Law: Insurance Adjusters and Administrative Exemption

by Arkady Itkin

To qualify for the administrative exemption from overtime compensation requirement an employee must be primarily engaged in a work of a type that is “directly related to management polices or general business operations.” This requirement of course must be interpreted as it is inherently vague. In one sense, every type of work directly relates to management policy because every employee does work that carries out, or is governed by, management policy. But for obvious reasons, such an interpretation wouldn’t make sense, as it would make virtually all employee exempt from overtime.

In Harris v. Liberty Mutual Insurance Co. (2007), the court clarified that the work is “directly related to management policies or general business operations” for the purposes of determining whether administrative exemption applies only if it “relates to the administrative operations of a business as distinguished from ‘production’ or in a retail or service establishment ‘sales” work.” This means, the court continued, that only work performed at the level of policy or general operations can qualify as “directly related to management policies or general business operations.” On the other hand, work that merely carries out the particular, day-to-day operations of the business is production and not administrative work, and thus doesn’t qualify for administrative overtime exemption.

California overtime law, administrative exemption The Harris court, applying this analysis, found that insurance adjusters, who sued the defendant for unpaid overtime, were primarily engaged in “production” – adjusting individual claims for their employer. They investigate claims, make coverage determination, set reserves, negotiate settlements, make settlement recommendations for claims beyond their settlement authority, identify potential fraud, and so forth. Noe of that work was found to be carried out at the level of management policy or general operations. Rather, it is all part of the day-to-day operation of defendants’ business.

December 3, 2008

San Mateo Employment Lawyer: Partnerships

by Arkady Itkin

Partnership is an association of two or more people to engage in business for the purpose of proportionately sharing the profits and losses of that business (as well as assets and liabilities). This means that partners decide on how they will share the profits and losses in % terms. A partnership can be formed in writing or orally, as what makes an association a partnership is not the paperwork, but the actions of the members of a business association. In other words, if people act like “partners,” then they will be recognized and treated as partners under California partnership law.

Despite that, like in any business deal, written partnership agreements are highly recommended to memorialize the essential terms and conditions of the business relationship and to avoid misunderstandings between the partners.

Like any other relationship, such as friendship, marital ties, etc… a business partnership necessarily involves and thus depends on the character and the emotions of its members. Thus, it is absolutely crucial that if you decide to enter into a business partnership with another person/s, you should actually like each other, respect each other, and at least somewhat feel comfortable around each other, as you will be spending a lot of time together.

December 2, 2008

Employment Law: California Paid Sick Leave

by Arkady Itkin

Under California Law, “sick leave” means “accrued increments of compensated leave” provided by an employer for an employee’s use because of:

* the employee’s physical or mental condition that makes the employee unable to perform his duties;

* the employee’s need to obtain a professional diagnosis or treatment for a medical condition; or

November 29, 2008

San Francisco Harassment Lawyer: Proving Discrimination at Workplace

by Arkady Itkin

One of the reasons that proving discrimination is such a challenging task in employment law is the fact that proving workplace discrimination requires showing a discriminatory state of mind. For obvious reasons, direct evidence of discrimination is rarely available, as few, if any, employers or supervisors would ever admit that they engaged in unlawful discrimination. Thus, eliciting circumstantial evidence (that evidence which inferred from other circumstances) can be crucial to a successful discrimination claim/lawsuit. This evidence includes demonstrating that the employee was treated differently from other similarly situated employees, certain remarks that would suggest hostility toward an employee because of his/her race, age, disability, religion, etc.

One of the very common ways in which employer try to deny allegations of harassment and discrimination by aggrieved employees and refute circumstantial evidence of discrimination and wrongful termination is by arguing that the reason that they treat the subject employees differently is because of their poor performance. It’s not uncommon for an employer who is trying to get rid of a certain employee to create a “paper trail” of performance issues by issuing warning letters, having counseling sessions with an employee, and take other unethical measure to mask the true reasons for the planned unlawful employment termination.

Rebutting the poor performance argument through documentation evidence and statements of co-workers with regard to the employee’s good performance is an important part of many, if not most, discrimination and wrongful termination claims, as it casts doubt on the employer’s true motives for discriminatory conduct and termination and suggest that the real reason for employee’s termination was other than his/her job performance.

November 22, 2008

San Francisco Employment Lawyer: Pregnancy and Disability Discrimination

by Arkady Itkin

FEHA (Fair Employment and Housing Act) prohibits disability discrimination and pregnancy based discrimination in California. To prove a wrongful termination claim based on pregnancy discrimination and failure to provide reasonable accommodations to a pregnant employee at workplace, first she has to prove that her condition constitutes disability within the meaning of the statute Cal. Gov. Code section 12940(m) which prohibits employment discrimination based on actual or perceived disability, as normal pregnancy itself is not considered disability entitling an employee to special accommodations.

Under California Fair Employment and Housing Act (FEHA) physical disability is defined as a condition that limits a major life activity. Thus, the female worker must show that a condition arising out of her pregnancy limited one or more of her major life conditions. An employee must specific state which of her daily functions was impaired by the condition arising out of pregnancy and what exactly she was not able to do in a course of her daily life that she would have otherwise been able to do.

In one case, the court rejected the employee’s argument that her morning sickness during pregnancy constituted disability entitling her to the protection of pregnancy and disability discrimination laws. The court stated that according to Fair Employment and Housing Commission regulation 7291.2(g) a woman is “considered to be ‘disabled by pregnancy’ if she is suffering from severe ‘morning sickness’.”

November 18, 2008

California Wrongful Termination Lawyer: Retaliation for Filing Workers Compensation Claim

by Arkady Itkin

Two critical aspects of proving (discriminatory) workplace retaliation for filing a workers compensation claim or engaging in other protected activity are: (1) proving causal relationship between the filing of the the workers compensation claim (or engaging in other protected activity) and the discriminatory actions by the employer; and (2) proving tat the employee was qualified and able to perform his or her job at the time when discrimination took place.

Careful investigation of the facts and circumstances of the employee’s employment and wrongful termination is essential. Obviously, with respect to establishing the causal relationship, the closer in proximity of time the discriminatory conduct is to the employer’s learning of the employee’s filing a workers compensation claim, the more likely the causal link will seem to the judge, jury, or an arbitrator.

The first very important component of proving retaliation is in disproving a possible legitimate reason for termination, the most common of which is poor performance. Thus, in a case of alleged retaliation, like in most other discrimination claims, an attorney should seek evidence such as the employee’s productivity and performance records, including all evaluations, commendations, promotions, raises, and any disciplinary measures.

November 15, 2008

San Francisco Employment Lawyer: Defamation Per Se and Wrongful Termination

by Arkady Itkin

False statements and accusations (defamation) by one employee or a supervisor against another employee are not uncommon at California workplace and often lead to the unfounded and unsubstantiated discipline, suspension, demotion and even termination of employment of the victim of defamation. The tort of defamation involves a publication of facts that is false, defamatory, unprivileged, and has a natural tendency to injure an employee’s reputation or cause special damages. Taus v. Loftus (2007) 40 C4th 683, 720. The “publication” element in this definition doesn’t mean that the defamatory statement must actually be published in writing in some kind of newspaper or brochure. For the purposes of alleging a defamation action, publication occurs when a statement is communicated to any person other than a party defamed. Kelly v. General. Telephone Co. 136 Cal.App.3d 278 (1982).

Defamation per se is a special kind of defamation which does not require the claimant to prove special damages / economic harm as a result of the statements made as otherwise required when bringing an action for defamation. Statements are defamatory per se if they tend to directly injure plaintiff in respect to his office, profession, trade or business, by imputing to him general disqualification in those respects which the office or other occupation specifically requires or charge the plaintiff with a crime.

Thus, stating that an employee made a $100,000 mistake in estimating a bid is defamatory per se because it would tend to injure plaintiff by imputing incompetence in his or her trade. Gould v. Maryland Sound Industries, Inc. (1995) 31 CA4th 1137, 1153-4. Likewise, accusing an employee of conduct that constitutes a crime, such as embezzlement or forgery, is slander per se. Kelly v. General Tel. Co. at 284.