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Different companies and employers have a very different approach to handling disciplinary actions against their employees. While some company simple don’t have any formal policy regarding write ups, warnings and other disciplinary actions against employees, other employer have a clear policy of progressive discipline that generally shall be followed by the employer prior to taking a more significant adverse employment action against an employee, such as transfer, demotion, suspension, or employment termination.

Many workers become very upset, stressed out and nervous about the stability of their employment when they get written up or get a negative performance review, especially if they believe (and have good reasons to believe) that the write-up was unfounded or retaliatory (in response to an exercise of a legal right by an employee such as taking approved medical leave, serving on a jury duty, filing a workers compensation claim, complaining about harassment at workplace, etc…) Many employee are afraid of disputing their write-up, believing that any further escalation of the situation will lead to termination. Thus, the prefer to remain quite and passive. However, in the vast majority of cases, this is not a good strategy to follow for two main reasons: first, if you are reprimanded and written up for no reasons, chances are that your supervisor already has a plan to get rid of you and simply creating the necessary paperwork to make it comply with the company’s policies regarding discipline and termination which are usually outlined in the handbook. Secondly, but not contesting the write-up, you practically admit the allegations/accusations made in the disciplinary documentation, which will make it much harder to argue later that your termination was not justified and was motivated by unlawful factors.

Thus, it is very important that upon receipt of a repriment, a warning letter, or a negative review, you submit a rebuttal as you are entitled, in which you will address and dispute every allegation made specifically. You should also seriously considering requesting your employer to conduct an investigation into the merits of your negative review. This means that responding with “this is not true” is not sufficient, and you should explain why the facts in the write-up are not correct and suggest your versionof the events/conduct that is subject of the negative performance review. This will build your own paper-trail which often proves to be useful or even crucial in handling a wrongful termination claim.

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The California Fair Employment and Housing Act requires employers to make reasonable accommodation for the known disabilities of applicants and employees to enable them to perform a position’s essential functions, unless doing so would produce under hardship on the employer.

“Reasonable accommodation” means that employers have an affirmative duty to accommodate disabled workers. Some highly appointed executives often argue that their company should not be liable for failure to provide reasonable accommodation because the disabled employee did not inform them personally of his condition and only informed his/her immediate supervisor. However, this argument will not allow the employer to escape liability because a supervisor is the employer’s agent for purposes of the duty to accommodate. That is, if a supervisor has acquired knowledge that he or she had a duty to communicate to the employer information about an employee’s disability or medical condition, a conclusive presumption arises that the supervisor had done so. California Fair Employment and Housing Comm’n v. Gemini Aluminum Corp (2004).

This law makes perfect sense, as it would be unreasonable to expect a disabled or sick employee to notify of his condition every person superior to him in the company, especially if that company is large and employees hundreds of supervisors and managers. Arkady Itkin, San Francisco employment lawyer.

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Physical violence at workplace is more common than we would like to believe. Recently, a client approached me describing the outrageous conduct of his former employer – while being notified of his termination, his employer, during a mild verbal confrontation violently pushed him against a furniture store in his office, which resulted in severe leg and back injury to the terminated employee and disability. That was a classic case of battery at workplace.

Battery requires a showing that (a) the victim was touched with an intent to harm or offend victim; (b) the victim did not consent to be touched; and (c) the victim was harmed or offended by the conduct in question. Even a touching that doesn’t inflict physical pain would be considered “offensive” if it would have offended a reasonable person’s sense of personal dignity. Act of sexual harassment which involve touching may also be actionable as battery, assault and intentional infliction of emotional distress.

Under the doctrine of respondeat superior, the employer is vicariously liable for torts committed by one employee upon another if those acts occurred during the “course and scope of employment” (or later ratified by the employer. In those cases, the basic question is whether the employee’s conduct “may fairly be regarded as typical of or broadly incidental to the enterprise undertaken by the employer. The logic behind holding responsible for the acts of violence at workplace is that losses fairly attributable to an enterprise – those which foreseeably result from the conduct of the enterprise – are allocated to the employer as a cost of doing business.

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An issue often arises in connection with the off-duty conduct of employees of whether an employee can be disciplined or even discharged by his employer based on such off-duty conduct. This answer to this question will often depend on the facts surrounding the employee’s conduct. Where the conduct is offensive and egregious, however, the courts will often rule in the employer’s favor.

In a recent New York case, for example, a male nurse employed in a hospital visited the hospital while on vacation. The employee, who was intoxicated, got into a violent scuffle with security guards at the hospital and was terminated. The employee brought action for wrongful termination arguing that his off-duty conduct should not have been considered by the jury. The court disagree, however, holding that his off-duty conduct was relevant to the issue of whether he posed a threat to the safety of others.

Employers should avoid taking adverse action against the lawful off-duty conduct of employees unless:

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working-while-on-fmla-leaveMany employees who request leave under FMLA (Family Medical Leave Act) for one of the approved medical conditions are concerned about their ability to work at a different job, possibly part time, while being on FMLA leave. The are some good news for employees on FMLA. The California Supreme Court recently held in Lonicki v. Sutter Health Central that if a full-time, during the period in which medical leave was sought, continued to perform a similar job for another employer on a part-time basis, this does not conclusive establish the ability to do the job for the original employer. A showing that an employee is unable to work in the employee’s current job is enough to demonstrate incapacity.

The court further explained that when a serious health condition prevents an employee from doing the tasks of an assigned position, this does not necessarily indicate that the employee is incapable of doing a similar job for another employer. For example, a job in the emergency room of a hospital that commonly treats a high volume of life-threatening injuries may be far more stressful than similar work in the emergency room of a hospital that sees relatively few such injuries. And again, the circumstance that one job is full time and the other is part time may be significant.

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Generally, it is always a good idea to memorialize the terms of any agreement, including employment contracts, in writing. This helps avoid confusion, misunderstanding, lack of clarity in terms, and it also allows to not rely on their memory as to what they agreed on.

However, it is well established under California law that an oral agreement can be valid and enforceable. This is usually the case when the conduct of the parties suggests that they must have had an agreement about their relationship. For instance, if a worker is hired by his employer without signing any written employment agreement, a contractual employee-employer relationship is still created. The parties might later dispute the terms of employment (most commonly compensation and wages due), but if the employee presents evidence of performing work for the employer, statements from witnesses, and history of past compensation by the same employer, lack of written contract will not relieve an employer from his obligation to pay his employee wages and fulfill other applicable duties.

Still, certain contracts must be in writing in order to be valid under the “Statute of Frauds” exception. The most common such contracts are: (1) contracts for sale of goods for over $500; (2) a contract for services that will take one year or longer to perform, marriage, divorce, land sale transactions, and a promise to pay for debts of another (surety or loan guarantee).

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As one California court recently pointed out in Kelly v. Stamps.com Inc. (2005), downsizing alone is not necessarily a sufficient explanation, under the Fair Employment and Housing Act, for the consequent dismissal of a worker. An employer’s freedom to reduce its workforce and to eliminate positions in the process, does not mean that it may use the occasion to conveniently get rid of protected workers.

Invocation of a right to downsize does not resolve whether the employer had a discriminatory motive for cutting back its work force, or engaged in intentional discrimination when deciding which individual workers to retain and release. At least two facts were considered by court as casting serious doubt of discriminatory motive on the employer’s decision to terminated a pregnant employee, when the employer tried to argue that the reason for that termination was a reduction in force in the Stamps.com case: (1) the employee’s track of excellent performance; (2) hiring a new employee, who was not pregnant, instead of the terminated pregnant woman.

If you have been, or are about to, be laid off due to the alleged downsizing of your employer, but you suspect that the true reason for your termination might be discriminatory and has little to do with the downsizing itself, contact Arkady Itkin – San Francisco employment lawyer to discuss your situation at work.

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I get calls from many workers in the San Francisco Bay Area who turn toCalifornia Department of Fair Employment and Housing for help, filing a complaint against their employer with one or both of those agencies for harassment, discrimination and/or wrongful termination. There is a tendency among workers to expect that these agencies will actually aggressively defend employees’ rights pursue resolution of their discrimination and harassment claims, when in fact this hardly ever happens.

While the objective of establishing those agencies was to prevent unlawful discrimination, In the vast majority of cases, EEOC and DFEH are of little use in representing employees in their discrimination, harassment and/or wrongful termination claims. These agencies commonly send a notice to the aggrieved employee that they were not able to determine whether discrimination or any other wrongful conduct took place due to “insufficient evidence.” Unless the employer admits fault, these agencies will not issue any clear findings. Having said that, there is still value in having those agencies involved and having them contact your employer, which will likely “motivate” the employer to take some action to remedy the situation. This is especially useful if you continue being employed by the same employer.

However, if you have been unlawfully terminated, waiting for EEOC of DFEH to take action is a waste of time as those agencies have no power to either reinstate you or force your former employer to pay damages for unlawful conduct. You are much better off requesting an immediate right to sue letter (which can be obtain online at the DFEH site after filling out a simple questionnaire) and filing a civil complaint against the employer and/or individual harasser.

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Once your local Employment Development Department (EDD) denies your unemployment benefits, you have an opportunity to appeal that decision in front of the Administrative Judge of the Board of Appeal. At that hearing, you will have the opportunity to explain to the judge why you should be entitled to unemployment benefits, and the employer will try to convince the Board while the decision of EDD should be upheld.

In many ways, that hearing reminds the bench trial, as the parties have the opportunity to make opening statements, present relevant evidence (documents) , as well as direct and cross examine their own as well the opposing witnesses.

An employee may be represented by an attorney, and such representation is highly recommended for three main reasons: (1) an experienced employment attorney will make more compelling arguments based on the law and the past case law, analogizing the employee’s situation to other claims where the benefits were granted; (2) examining witnesses and eliciting from them the necessary information can often be tricky and requires experience that few, if any, non-attorneys have; and (3) at the end, most judges will take the lawyer’s words much more seriously than the arguments of any other person.

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