San Francisco Employment Law Firm Blog

January 29, 2017

Employers Must Reimburse Employees For Mandatory Personal Cellphone Use

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:

December 5, 2016

Are You An Intern Or An Employee Under California Law?

by Arkady Itkin

The distinction between an internship and employee / employer relationship has been subject to much debate and litigation all over the country during the past few years. However, in California the existing law states that a worker can be classified as an intern (and not be paid) only if all of the following six requirements are satisfied:

Factor 1: Training similar to that provided at a vocational school.

Training should be closely tied to the intern’s educational goals. This factor is more easily met if the employer’s office or facilities provide resources not necessarily available to the intern outside of an industrial or professional setting. For instance, in once case the interns – trainees learned how to operate trains in the rail yard. The DSLE’s Opinion Letter found this factor to be satisfied when “an intern’s use of the employer’s computers, network systems, and tools to perform tasks” was “directly related to training and the educational and vocational objectives of the program.”

November 20, 2016

California And San Francisco Sick Leave Law – The Basics

by Arkady Itkin

In addition to California law, San Francisco sick leave law applies to all employees who are employed within the geographic boundaries of the City and County of San Francisco by an employer. Every employee, whether exempt or non-exempt, full time or part time, permanent or temporary, who is employed in California for thirty days or longer will be entitled to accrued paid sick leave at the employee’s regular rate of pay. There is a limited number of exceptions to this coverage. The main exception is those employees who are covered by a collective bargaining agreement (union agreement) that specifically provides for accrual of sick leave.

Sick Leave Accrual

Sick leave accrues at a rate of not less than one hour per every 30 hours worked, counting from the first day of employment. Exempt employees are deemed to work 40 hours per week, unless the employee’s normal workweek is less than 40 hours.

November 17, 2016

Terminating an At-Will Employee Without Giving A Reason – Good Idea?

by Arkady Itkin

September 24, 2016

Being Laid Off And The Right to Stock Options

by Arkady Itkin

One of the more painful things that happen to employees of start-ups in San Francisco and the rest of Silicon Valley is being laid off shortly before or right before they become eligible for a stock or right before an important vesting deadline. Sometimes, employers terminate an employee specifically for that reason – to avoid giving them these stock rights. As unfair as this type of action may sound, usually it’s perfectly legal. Most stock agreements are written in a way that does not create a binding contract. These agreement allow employers to do this lawfully, and there is not much that the terminated employee can do to not lose the stock he was looking forward to receiving.

However, this loss of stock can often be used in negotiating a severance or a better severance packager, especially if an employee is terminated days before his stocks vest, which is not uncommon. Different strategies are appropriate for negotiating a severance depending on the length of your tenure with the company, your most recent position, duties and compensation, any potential legal claims you might have against the employer, and other specific circumstances of your employment and termination.

An experienced employment attorney can guide you through how to go about negotiating a higher severance and getting the best deal you can, as you transition to your next job or the next stage in your career. Negotiating a higher severance is always a good idea for a simple reason – you have nothing to lose, and if a 10 minute conversation can result in putting a few more thousand dollars in your pocket, then why not try.

September 10, 2016

Can You Be Fired While On Disability Leave?

by Arkady Itkin

One common question employees ask is whether they can be fired while on disability leave and whether that would be legal.

The reality is that an employer can choose to fire you at any time for any reason, and nothing can physically stop them from firing you or force them to continue employing you if they don’t want you around, if you are an at-will employee. Most private sector workers in California are employed at-will, and therefore this applies to them. An employer can choose to fire you even if they know it would violate the law, and then – if you decide to pursue a legal claim against them, you may choose to do so.

The more proper question is whether terminating an employee while that employee is on disability is legal. This depends on a number of factors, including (1) the reasons for that employee’s termination as stated by the employer; (2) the nature of the employer’s business, (3) the employee’s position and job duties with the company, (4) the expected length of disability leave and other factors.

August 28, 2016

What FMLA Protection Does And Does Not Mean

by Arkady Itkin

Many employees (and employers) misunderstand what FMLA protection means. They assume that this protection provides them with a certain immunity from being terminated – i.e. that they cannot be terminated while on FMLA leave no matter what. This is not entirely correct for at least two main reasons:

First, an employee who requested FMLA leave or who is already on FMLA leave can be terminated for any legitimate reason that any other employee could be fired. This includes such typical reasons as misconduct, insubordination, policy violations, and performance issues. That employee can also be laid off like anyone else due to workforce reduction, restructuring, etc. The fact that the reason provided does not seem to be fair does not make that termination illegal. FMLA prohibits discrimination on the basis of exercising FMLA rights; it doesn’t mean that the employee should be treated better or with more lenience than other employees. Thus, if you were terminated anyway, requesting FMLA leave is not a shield from that termination. Of course, if you are terminated while on medical leave or shortly after requesting it, it creates a suspicion that the true reason for your termination is exercising your FMLA rights, which would be illegal. However, timing of termination relative to FMLA leave is generally not enough to provide FMLA discrimination and retaliation. An experienced attorney should be able to evaluate your termination in light of all the circumstances surrounding it to advise you whether there is sufficient evidence to make a claim of FMLA violation against your employer.

Secondly, even if your termination would be illegal under FMLA, the employer can still choose to violate the law and fire you, and then deal with the legal consequences of illegal firing, if and when you decide to pursue a case against them. In fact, employers often intentionally violate the law and fire employees illegally because they just don’t want them around any more and they are willing to pay for it by spending money on defending the case against them and paying out settlements.

July 17, 2016

Top 6 Things Employers Do Which Are Not Illegal

by Arkady Itkin

The following is is a list of things that employers often do, which might seem unfair or hurtful, but generally not illegal (in the absence of specific evidence of discrimination or unlawful retaliation) in an at-will employment setting:

(1) Issuing unfair performance reviews or warnings

An employer is entitled to a subjective view and opinion of your job performance. The fact that you disagree with your review or believe it’s false or unfair, and the fact that you think that you are very good at what you do, doesn’t make that evaluation illegal. The same applies to warnings or any other disciplinary action.