San Francisco Employment Law Firm Blog

June 24, 2017

Broad California Anti-Retaliation Laws Allow A Claim Against “Any Person”

Unlike many other claims that can only be brought against employers or individual employees, California anti-retaliation laws extend much further. In many cases, a retaliation case can be made in many cases against “any person”. This certainly applies to FLSA (Federal Labor Standards Act) and many California Labor Code provisions.

In a recently decided case by a 9th Circuit – Arias v Raimondo – the court illustrated that point very well. In that case, a plaintiff, who did not have a lawful authorization to work in the US, brought various wage claims against his employer under FLSA. The employer’s attorney retaliated against the claimant by reporting him to the immigration authorities and by planning for the US Immigration authorities to take him into custody at his deposition. The 9th Circuit ruled that Plaintiff could proceed with his retaliation claim against both – the employer and the attorney.

Further, the court noted that the FLSA anti-retaliation provision specifically states that liability can be imposed on … “any person”, or “employer” which is defined as anyone acting directly or indirectly in the interest of that employer as relates to the employee making a claim. Surely, under this definition an employer-defendant’s attorney retaliating against a Plaintiff falls square within the definition of both “any person” and “employer” as noted above.

June 4, 2017

How To Present Your Wrongful Termination Case To A Lawyer

by Arkady Itkin

Here are my top three tips on presenting your potential employment case or wrongful termination case to a lawyer:

I. Be able to explain the basics of your case in just a few sentences to capture a lawyers attention right away. For instance the following would be an excellent way to initially describe your case: “I have been employed with company x for 10 years and received mostly good reviews. 3 weeks after returning from medical leave or after filing a workers comp claim, I was terminated for not being a “team players” or based on false accusations.” There is no reason with telling the lawyer that your case is very complicated, because lawyers believe that “complicated” case all too often means no case.

When describing the employer’s actions against you, be specific and do not use generic adjectives. For instance, “verbal assault” or “harassment” doesn’t really tell your lawyer about what happened. But, “I am going to kill you” or “he grabbed me by my breast” gives that specific information that would be really useful to your lawyer.

May 14, 2017

Can You Be Fired While On Disability Leave Or Medical Leave?

by Arkady Itkin

“Can I be fired while on disability leave?” – this is one of the most common questions that I hear from employees, who have suffered an injury and have to be off work due to that injury or some other illness. The answer to this question is twofold:

(1) The reality is that you can be fired at any time regardless of your disability, disability leave or any other circumstances. No one can force the employer to continue employing you if they don’t want to, except in limited circumstances (i.e. employment relationship covered by a labor union agreement, employment with a public agency and a few other limited circumstances). Otherwise, if you are an at-will employee at a private company, you can leave at any time and you can be terminated at any time.

(2) The more correct question is whether firing you while on disability leave or medical leave would be illegal and could be a basis for a disability discrimination and wrongful termination case. The answer to this question depends on the specific circumstances of your employment and your termination. However, the most important factor is whether the employer had a legitimate reason for terminating you, or there is sufficient evidence that the reason given is just an excuse or a pretext for terminating you because of your disability and disability leave.

April 9, 2017

What To Expect From EEOC of DFEH Investigation?

by Arkady Itkin

EEOC (Equal Employment Opportunity Commission) and DFEH (Department of Fair Employment and Housing) are two main administrative agencies charged with address workplace discrimination. EEOC is federal agency, while DFEH is its California counterpart. These agencies pursue a very small number of cases that they pick from all the many inquiries they receive every year. EEOC investigation can take anywhere between 4-6 months and up to a year or longer, depending upon how busy your local EEOC branch is, the nature of allegations and the degree of cooperation of the employer with the process. A charge of discrimination must be filed within one year of the most recent discriminatory event. Obviously, if you believe you were terminated for discriminatory reasons, your termination would be that most recent event.

Most complaints received by these agencies result in no findings, and and issuance of a right to sue letter many months after a complaint is submitted. This is in part because these agencies have limited resources, and in part because many inquiries are either very hard to investigate or they simply have no merit. However, obtaining a right-to-sue letter is a requirement before a lawsuit for discrimination can be filed in California.

In some cases, allowing those agencies to investigate your discrimination allegations is a good idea. In other situations, especially if you have a strong case, it’s better to obtain an immediate right-to-sue letter, which can be done online through an attorney, and file a lawsuit without delay. This is especially important if there is a concern that with time evidence will “disappear” and witnesses will become unavailable.

April 1, 2017

A Mistake To Avoid In Employee Compensation At Sart-Ups

by Arkady Itkin

It’s common for start-ups in the Bay Area that are low on funding to compensate their employees by granting equity only and without providing any actual salary or hourly pay. This is a mistake that entitles any such employee in California to make a claim for unpaid wages, interest, and possibly penalties. Many start-up owners assume that just because they themselves are only compensated with equity, and their company doesn’t have the money to pay their employees, it’s fair to pay their employees with stock options only. It might or might not be the fair thing to do, but in California it’s definitely not legal.

California labor code is very clear on this – an employee should be paid for every hour of work. Stock options are not pay because they don’t have have immediate (liquid) value. The law does not exempt employers from paying wages to their employees just because they don’t have the money to pay or just because the owner doesn’t draw salary, so this is not a valid defense in a potential claim or a lawsuit for unpaid wages.

Although laws in other states allows company not to pay those employees who who hold a certain % of ownership / stock in the company, this is not the case in California – at least not yet. Therefore, start-ups should at least pay their employees minimum wage to avoid liability for non-payment of wages, regardless of whether these employees also receive stock options.

February 19, 2017

Computer Professional Salary For Exemption Purposes Increases This Year (2017)

by Arkady Itkin

On October 5, 2016, the Division of Labor Statistics and Research (DLSR) has announced a slight increase in the salary requirements for exempt employees under computer professional exemption. The increase is 1.3% as per California Consumer Price Index.

Thus, effective January 1, 2017, the computer software employee’s minimum hourly rate of pay (to be properly exempt) increases from $41.85 to $42.39. The minimum monthly salary exemption will increase from $7,265.43 to $7,359.88, and the minimum annual salary will increase from $87,185.14 to $88,381.55.

It’s easy to see how not complying with the above requirement can become quite costly to an employer. Here is an example to illustrate this point. Suppose the employer pays the purportedly exempt computer professional $88,000 a year instead of the required $88,381.55, and that employee worked 12 hour workday for 100 days. Arguably, exemption won’t apply because of non-compliance with the pay rate. Therefore, the employer will be liable to pay that employee as follows:

February 15, 2017

San Francisco Fair Chance Ordinance – Key Facts And Rules

by Arkady Itkin

The City of San Francisco has enacted this Ordinance to limit the employers’ ability to inquire into and consider an employee or applicant’s criminal history in hiring and employment decisions. The goal is to help individuals with past conviction to return to work force and be productive members of society, rather than suffer the consequences of prior criminal acts after they have already been convicted / served time. The full text of SF Fair Chance Ordinance can be found here. However, the key things to know about this Ordinance for both employers and employees are:

I. Covered Employers

This law covers all employers who employ 20 or more employees.

January 29, 2017

Employers Must Reimburse Employees For Mandatory Personal Cellphone Use

by Arkady Itkin

In the opening line of Cochran v. Schwan’s Home Service, Inc. (2014) the court says: “We hold that when employees must use their personal cell phones for work-related calls, Labor Code section 2802 requires the employer to reimburse them. Whether the employees have cell phone plans with unlimited minutes or limited minutes, the reimbursement owed is a reasonable percentage of their cell phone bills.”

The above holding is an important reminder to both employees and employers that employees are entitled to reimbursement of at least part or their cellphone bill when they must use their personal cellphone for work. This is true even if they are on an unlimited plan with their carrier, and the amount of calls their make does not make a difference to that bill.

January 13, 2017

Is Open Source Open To Women? – Candid Discussion

by Arkady Itkin

The following was posted in advance of the launch of Toptal Scholarships for Female Developers. To support scholarship applicants, Toptal has also published a guide to making your first open source contribution.

Women are underrepresented in tech. This realization is nothing new. Just look at numbers released by Facebook, Google, Intel, Slack, and many, many more. But the numbers might be even worse than these reports imply.

At a recent tech event, I overheard a side conversation about the lack of gender diversity in tech. The small group was discussing the fact that even though women make up about 30% of the workforce in tech, higher level engineering teams rarely have more than a few women.

January 8, 2017

CA Law Limits The Employers’ Right To Inquire Into Employees’ Juvenile Information

by Arkady Itkin

California recently amended its existing law governing inquiries into and the use of juvenile criminal information. Effective January 1, 2017 employers will be restricted from asking about, seeking, or using a California applicant/employee’s juvenile criminal history in the employment context. This is a very important protection for all those job seekers who have been arrested and / or convicted of crimes during their younger years, as this law will help them return or continue to remain part of the workforce without suffering the consequences of their juvenile years mistakes.

Summary

Assembly Bill No. 1843 amends California Labor Code § 432.7, the law that sets forth many of the California prohibitions on employment-related inquiries into and use of an applicant/employee’s criminal history, by establishing a number of new restrictions related to juvenile criminal history information. Specifically, the new law prohibits employers from: