San Francisco Employment Law Firm Blog

July 24, 2008

What is Considered Sexual Harassment in California?

Many people believe that sexual harassment is an unlawful conduct at work place which involves unwelcome sexual advances of a co-worker or a supervisor such as sexual innuendos, offensive touching, unwanted flirting, sexual e-mails and text messages, and alike. Although those are typical examples of a situation which is likely to be classified as sexual harassment, the offensive words or conduct directed at an employee because of his or her gender may create a hostile work environment even if those words or conduct are not sexual in nature. For example, using a word “bitch” repetitively in the presence of both men and women but in reference to women may constitute unlawful gender harassment.

On the other hand, hostile words or conduct based solely on personal animosity is no actionable as sexual harassment in California even if the victim is of the opposite gender. As the court pointed out in once case – “Unfair, overbearing, or annoying treatment of an employee, standing alone, cannot constitute a sex discrimination claim. In other words, a conduct that is based on personal agenda or anger and not on gender is not grounds to claim sexual harassment. For instance, if a boss and a particular employee are not compatible, it would not be sexually discriminatory to harass employee on that basis. In other words, sexual/gender harassment requires showing that the employee was treated a certain way because of his or her gender. For example, where the employee was the only woman on the workforce, her coworkers’ acts of insubordination, dissemination of untrue rumors about her, and aspersions on her competence may contribute to a hostile work environment based on sex.

The employer may assert a defense against liability for sexual harassment claim by showing that the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm otherwise. This corrective opportunities commonly include a section in the employee handbook explaining the procedures of complaining about harassment and the employer’s express commitment to address those complaints as soon as possible.

July 23, 2008

Promissory estoppel in employment relationship

by Arkady Itkin

It is presumed in California that unless agreed otherwise between employer and his employee (such as through contract or the union’s collective bargaining agreement), the employment is “at will.” Generally, at-will employee may be terminated for any reason, no reason, or arbitrary reason, as long as it is not an illegal reasons such as harassment, discrimination or constructive discharge (objectively intolerable working conditions that force the employee to quit).

However, in some circumstances an employer may be estopped from claiming that an employment is at will where the employer has made a promise that it should reasonably have known would cause the employee to believe a more permanent employment relationship existed, and the employee has relied to his or her detriment thereon. Under such circumstances, the promise is binding. This kind of obligation upon employer is called “promissory estoppel.” To prove the existence of promissory estoppel, the employee must show that (1) a clear promise was made by his employer, (2) he relied on that promise, (3) to his substantial detriment (by giving up some benefit, such as then existing job), and (4) damages measured by the extend of obligation assumed by the employer and not performed.

The courts have invoked the above principle where an employer changes his mind and rejects a new employee before giving the new employee a good faith opportunity to perform the duties for which he or she was hired. If the new employee has detrimentally relied on the new employment, the employer may be estopped from asserting that the employer was at will.

July 22, 2008

What is Family Medical Leave Act (FMLA)?

by Arkady Itkin

The federal Family and Medical Leave Act (FMLA) provides job security to an employee who is absent from work because of the employee’s own serious health condition or to care for a specified family members with serious health conditions, as well as for the birth of a child and to care for a newborn child, or because of the placement for adoption or foster care of a child with the employee.

Employees eligible for FMLA are entitled to 12 workweeks of leave in a 12-month “leave year.” An employee may take FMLA leave for any of the following reasons: (1) the serious health condition that makes the employee unable to perform the essential functions of the position; (2) the serious health condition” of a spouse, child or parent; (3) the birth of a child or to care for such child; or (4) the placement of a child with the employee for adoption or foster care.

Employers may require medical certification of the existence of a serious health condition. Further, FMLA leave is unpaid unless available paid time off is taken (e.g. vacation, paid sick time or paid personal time off) and/or unless disability beneftis are available.

July 21, 2008

When former employer fights your unemployment claim

by Arkady Itkin

One of the most common ways that employer tries to fight their former employee’s claim for unemployment insurance benefits is arguing that the employee was terminated due to misconduct. Misconduct in the context of unemployment insurance code is a term of art, and understanding its legal definition is crucial to appealing the denial of unemployment benefits at the appeals board if your initial claim has been denied.

Under California Unemployment Insurance Code section 1256 “an individual is disqualified for unemployment compensation benefits if the director finds that he left most recent work voluntarily without good cause or that he has been discharged for misconduct connected with his most recent work.”

The standard for showing “misconduct” within the meaning of unemployment benefits eligibility is quite high and thus favoring applicants for those benefits. While such gross violations as violence or threats of violence at workplace and clear grounds for disqualification from unemployment insurance benefits, many of the less grave issues at work do not constitute misconduct. Thus, employee’s mere inefficiency, unsatisfactory conduct, ordinary negligence, or good faith errors in judgment at work are not “misconduct,” that will disqualify that employee from receiving unemployment compensation. In this context, the term “misconduct” is limited to conduct evidencing such willful or wanton disregard for an employer’s interest as is found in deliberate violations or disregard of standards of behavior which employer has right to expect of his employee, or in carelessness or negligence of such degree, or recurrence as to manifest equal culpability, or to show an intentional and substantial disregard of employer’s interest or of employee’s duties and obligations to his employer.

July 20, 2008

California whistleblower protection at workplace

by Arkady Itkin

California Labor Code 1102.5 prohibits discharging an employee for disclosing an alleged violation of a statute of public importance to a government or a law enforcement agency. Such a discharge may be grounds for a claim of wrongful discharge in violation of public policy.

The following are examples of “whistleblowing” cases in which such a claim was upheld:

* Reporting to management that the company was not paying overtime wages due to certain of its employees.

July 18, 2008

Is “use it or lose it” policy regarding employee vacation time legal?

by Arkady Itkin

Under a “use it or lose it” policy, an individual who does not use all of his or her accrued vacation pay by a particular time forfeits the right to be paid fro those days at a later date. The California Supreme Court held, however, that vacation pay vests as it is earned, and any vacation earned cannot be taken away. Vacation pay is, in effect, additional wages for services performed, the receipt of which is postponed. Thus, this “use it or lose it” policy is generally unlawful. Thus, upon termination, for instance, the employer must compensate the terminating employee for unused vested vacation time.

Vacation time is in many ways treated like wages under California law and is actually considered wages for the purposes of compensation. Thus, when vacation is earned during a period of employment (for example, two weeks of paid vacation annually) and the employee does not complete the period, California Labor Code section 227.3 requires compensation for a pro rata share of the unused vacation based on the percentage of the period completed.

Further, an employer may not force an employee to use accrued vacation time rather than serve out the term of his employment. Vacation pay that is not used continues to accumulate unless the vacation policy contains a “cap” on accruals. A “cap” precludes the employee from accruing additional vacation time after a specified amount has been accumulated.

July 17, 2008

Advantages / Disadvantages of Being An Independent Contractor

by Arkady Itkin

In recent years, it has become increasingly popular for businesses to use the services of independent contractors for both short and long-term projects rather than to hire new career employees. Business can retain the services of independent contractors directly, or through a temporary employment agency.

The potential advantages of suing independent contractors include:

1. Cost savings from mandated contributions. The employer does not have to pay the usual employer contributions – state unemployment tax, social security tax or federal unemployment tax.

July 13, 2008

Constructive Discharge in California

by Arkady Itkin

Constructive discharge occurs when an employer engages in conduct that effectively forces the employee to resign or retire. Although the employee may say “I quit,” the employer relationship is actually terminated by the employer’s acts against the employee’s will. As a result, a constructive discharge is legally considered as a firing by the employer rather than a voluntary resignation or retirement by the employee.

To establish a constructive discharge claim, an employee must prove that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign. In determining whether a reasonable employee would feel compelled to resign, courts consider such factors as demotion, reduction in salary, reduction in job responsibilities, reassignment to degrading work, badgering, harassment or humiliation by the employer intended to encourage the employee to resign, offers of early retirement or continued employment on terms less favorable than the employee’s former status. The employee must further notify someone in a position of authority of intolerable conditions before he may prevail on a constructive discharge claim. Such notice prevents employers from closing their eyes to wrongdoing and permits employers who are unaware of any wrongdoing to correct a potentially destructive situation.

It is important to remember that this standard is objective, and employee’s subjective feeling of disappointment is not enough to claim constructive discharge. An employee is not permitted to quit and sue simply because he doesn’t like something at his workplace.

July 12, 2008

Sexual Harassment Claim Does Not Have to Be “Sexual”

by Arkady Itkin

It is commonly known that sexual harassment at workplace involves unwelcome acts of sexual nature by a co-workers or a supervisor, such as unwelcome touching, repeated unwanted propositioning, conditioning employment or promotion on sexual favors, etc.

Offensive conduct, however, need not be sexual in nature to create a hostile work environment in the workplace. Hostile non-sexual conduct (or language) directed at an employee because of his or her gender may create an actionable hostile environment. A pervasive pattern of abuse violates Title VII even if not motivated by sexual desire to drive women out of the organization. Rude overbearing, loud, vulgar and generally unpleasant comments by a male supervisor toward female subordinates, coupled with physically aggressive (though non-sexual) actions, may constitute sexual harassment if male subordinates were treated with proper respect. Interestingly enough, the fact that there were more women than men in the office does not make a difference.

A non-sexual conduct that singles out an employee based on gender may also be actionable and constitute sexual harassment/hostile work environment . In one California case, a hostile work environment was shown by evidence that male police officers engaged in overtly hostile acts toward female police officer, including stuffing her shotgun barrel with paper so that the weapon would explode if fired, spreading untrue rumors about her abilities, singling her out for unfavorable work assignments and shifts, making false complaints about her performance, and even threatening to disrupt her wedding.

July 11, 2008

An Employer’s Duty to Conduct Workplace Investigation

by Arkady Itkin

Under California law, an employer is required to promptly and thoroughly investigate any claim of harassment, discrimination, or retaliation through a formal workplace investigation. The obligation to investigate arises out of the affirmative duty under the Fair Employment and Housing Act, Cal. Gov. Code section 12940(j) and (k) to take all reasonable steps necessary to prevent discrimination and harassment from occurring. The duty to investigate a harassment claim promptly and throughly exists whether or not the claimant consents to an investigation or cooperates with one. Further, neither an employee’s failure to report harassment nor the fact that the harassment stopped before the investigation began conclusively absolve an employer from liability for discrimination and harassment. Moreover, it is not enough for an employer to conduct an investigation without also taking measure to protect the employee from retaliation.

Employer’s failure to investigate an employee’s complaint adequately may violate California anti-discrimination laws. To be adequate, the investigations should be commenced immediately or as soon as practicable, and be completed as soon as circumstances reasonably allow. Investigations commenced within a day or days of a complaint and completed within a two-week period have been routinely upheld as timely. Waiting until after the complainant has filed an administrative charge with DFEH or EEOC will be presumed inadequate.

While the complaint is undergoing investigation, the employer should take steps to prevent contact between the complaining employee and the alleged harasser, such as rescheduling or placing the alleged harasser on leave.