San Francisco Employment Law Firm Blog

Most employers, especially larger companies include detailed provisions on their anti-harassment at workplace policy. These policies generally serve several purposes. First, the employers are required to implement various harassment training and prevention procedures at workplace. Secondly, these policies are designed to provide an opportunity for employee to address and eliminate harassment at workplace. Lastly, and not less importantly, existence of those policies in the employee handbook is commonly used as a strong defense against sexual harassment, racial harassment and other hostile work environment claims, if the employee claims that he/she was harassed but failed to use the grievance procedures as provided by the employer's harassment policy.

However, the anti-harassment policies and the grievance procedures that the employee who believe to be harassed are encouraged to follow often have a fundamental flaw that entire defeats their use - many harassment manuals provide that the employee who feels that he/she is harassed should complain to his/her immediate supervisor or manager. The problem is that the immediate supervisor is often the source of harassment. If that's the case, that kind of policy will neither provide effective help to the employee, as it goes without saying that complaining to the source of harassment about his own harassment would be pointless.

Moreover, the employee's failure to use anti-harassment grievance procedures of the company in this case will likely not serve as a valid defense to the employer. As the United States Supreme Court stated in a leading case on harassment: "the employer's grievance procedure apparently required an employee to complain first to her supervisor. Since in this case the supervisor was the alleged perpetrator, it is not altogether surprising that the victim of the harassment failed to invoke the procedure and report her grievance to him. The employer's argument that the harassed employee's failure should insulate it from liability might have been substantially stronger if its procedures were better calculated to encourage victims of harassment to come forward..." Meritor Savings Bank, FSB v. Vinson.

Many female employees are afraid of telling their boss about their pregnancy. They are concerned about being perceived as less capable and desirable employees and about being terminated. This is especially likely to be the case if a female worker has a well-paying job and cares about her place in her workplace and her career advancement in the near future.

However, the reality is that there are simply no advantages to not disclosing pregnancy to the employer. First, sooner or later the employer will find out that the employee is pregnant as the pregnancy will become visible. Secondly, informing your employer that you are pregnant and have a difficulty in performing certain duties of your job, you may be entitled to certain protections, such as reasonable accommodations to your condition.

If you are concerned about pregnancy discrimination, this is yet another reason to put your employer on notice that you are pregnant as soon as possible. Employers who are sued for pregnancy discrimination ordinarily argue that they had no knowledge of the suing employee's pregnancy. This is often grounds for dismissal of the discrimination claim. By notifying your employer of your pregnancy promptly, you take this argument away, creating a further legal protection for yourself. After all, the more risky the position that the employer puts itself in when planning to terminate you, the less likely you are to be terminated.

Unfortunately, it is not uncommon for supervisors to use racial slur and stereotypes as references when criticizing an employee's performance or otherwise. These comments can be very innocent or obviously degrading and offensive, clearly showing the manager's hostility towards a given race.

To prove racial discrimination, however, it is not enough to simply show that the employer used racist slur toward a particular employee (although this can amount to racial harassment, if sufficiently severe and pervasive). To prove discrimination, there must be a link between the racists words and the adverse employment action that the manager takes against an employee, such as firing, demotion, or transfer to a least desirable position. Thus, to be evidence of discrimination, the supervisor's comments must be contemporaneous with the termination or causally related to the termination decision making process.

This means, for example, that a manger's racist joke six months prior to deciding to terminate an employee can be hardly considered to be evidence of racial discrimination. Neither judge nor jury will likely be convinced that just because your supervisor made a racist remark in your presence months or longer before your termination, the reason for your termination was racial hostility, if that much time has elapsed between the two events. On the other hand, using racial slur toward an employee while emphasizing his poor performance, such as "You Mexican's/Blacks/any other ace are all lazy" and then terminating him shortly thereafter is likely to be evidence of racial discrimination.

Generally, under California law, sexual harassment hostile work environment is an unlawful conduct at work place which involves unwelcome sexual advances of a co-worker or a supervisor, which may include sexual innuendos, offensive, inappropriate and sexual touching, and alike. Although these are typical examples of a conduct which is likely to be classified as sexual harassment, the offensive words or conduct directed at an employee because of his or her gender alone may create a hostile work environment even if those words or conduct are not sexual in nature. For example, even though an isolated incident of calling an employee a “bitch” will ordinarily not amount to harassment, using the word “bitch” repetitively in the presence of both men and women but in reference to women may constitute unlawful gender harassment, especially if coupled with other harassing conduct.

On the other hand, hostile words or conduct based solely on personal animosity are not 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 claims for sexual harassment. For instance, if a boss and a particular employee are not compatible and simply can’t get along, 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. Thus, one California court noted that 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.

In the absence of an agreement otherwise a worker in California is generally presumed to be an "at-will" employee. This means that an employee can be terminated for any reason, no reason or arbitrary reason as long as it's not an illegal reason (such as discrimination, harassment, retaliation, etc.) Once an employee establishes that he/she might have been terminated for unlawful reason, an employer will be required to defend its termination by demonstrating "just cause." Employers covered by collective bargaining agreements are also typically required to demonstrate "just cause" for any disciplinary action involving a covered employee. Thus, it is important to understand the "just case" term of art. In determining whether the employer had just cause for terminating an employee, the following questions should be asked:

* Did employer's action violate any statute or policy?
* Did the company investigate to determine whether the employee actually violated the rule for which he was disciplined or terminated?
* What the company's investigation fair and objective?
* During the investigation, did the company obtain substantial evidence or proof that the employee was guilty?
* Has the company applied its own rules and discipline, as outlined in employee handbook or similar materials, fairly and consistently to all employees?
* Is the degree of discipline reasonable proportional to the seriousness of the proven offense or violation in light of the gravity of that offense as compared to overall performance, track record and length of service of that employee?
* Has the employee been honestly informed of the reasons for discipline or termination?

Generally, especially in the context of unionized employee covered by CBA (collective bargaining agreements), just cause for termination is something more serious than a minor misconduct or isolated incidents of negligence, as there is both semantic and legal difference between "cause" (which can be any cause) and "good cause."

In addition to unemployment benefits compensation for those workers who are not disabled, the unemployment insurance code of California provides for disability compensation under Unempl. Ins. Code sections 2601 and 3272. Unemployment compensation disability benefits are paid from the disability fund. A worker is deemed disabled on any day in which, because of physical or mental condition, he was unable to perform his regular or customary work. Disability may include illness, injury, pregnancy, childbirth, infection with a communicable disease, acute alocoholism, or acute drug-induced illness.

The requirements for eligibility for disability benefits generally include (Unempl. Ins. Code sec. 2627):

(a) Making a claim;
(b) Being unemployed and disabled for a seven-day waiting period;
(c) Submitting to reasonable medical examinations; and
(d) Filing a physician's certificate.

A worker is not eligible for disability benefits with respect to any period for which he received or is entitled to receive unemployment compensation benefits of California or other state or the federal government. If other benefits are paid, such as workers compensation benefits for instance, the disability benefits must be reduced accordingly.

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.

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.

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.

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.

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.

The employer in Harris argued that the company's adjusters should be covered by administrative exemption from overtime compensation because they advise management on important decisions and participate in planning, negotiating and representing the company, which, according to Liberty Mutual, should have been considered administrative work. The court disagreed, holding that in order for such tasks to fall on the administrative side, they must be carried on at the level of policy or general operations as these were part of the employees' "routine day-to-day production work," comparable to that of a salespersons who negotiate prices and terms, represent the company, and purchase non-inventory products that customer requests.

The term "production" should not be taken literally when considering California administrative exemption from overtime compensation. For example, a law firm's product is legal advice and legal representation, not secretarial services. A secretary at a law firm therefore does not produce the firm's product as to do so would constitute providing unauthorized legal advice, and the secretary's work is a classic example of non-exempt production work, as it has nothing to do with policy or general operations (except in the sense that, like every employee's work, it is governed by policy). Rather, the secretary's work relates entirely to the day-to-day carrying on the firm's affairs.

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.

Associating with someone you don't like into a partnership just because the other partner has the needed skills and knowledge in the specific industry or the required capital is likely to be a mistake, as you will not be happy working with someone who you can't stand, which will hurt the productivity and profitability of your business venture and will inevitably lead to conflicts down the road.

Like many other relationships, partnerships form and dissolve - sometimes peacefully and sometimes after protracted, expensive and stressful legal battles, involving lawyers, judges and opposing counsel that will do everything in their power to discredit and undermine your position as they are paid to do so. From my experience, one of the most common reason for conflicts between partners is the ambiguities, and lack of clarity in the terms of the partnership agreement. Many people who enter into a business relationship, such as partnership, assume that things will work out and there will be no conflict and will not bother to outline clearly and specifically all the respective rights, duties and obligations of partners, which is extremely important to any and every partnership.

It is unfortunate that most people who plan to form a partnership don't bother to consider getting legal advice on forming a partnership the right way and avoiding misunderstandings between partners in the future that lead to conflicts and litigation, and only turn to a business attorney after the fact - when the agreement is violated, which is much more stressful, time consuming and expensive than having the partnership agreement draft clearly and properly, to cover all the essential terms.

Here are just some of the essential terms that every partnership agreements should have: the capital contributed by each partner, rights, duties and obligations of each partner, termination of partnership, the power and the process of adding, removing or replacing a partner, hiring and terminating employees, human resources issues, allocation of profits and losses, voting rights, dispute resolution - choice of forum (location for such proceedings) and choice of law (which State law will apply to resolving disputes).

Partnership can be a very effective, profitable, and enjoyable enterprise to be involved in, but to make the most out of such a business entity, you must make sure that it is formed competently and thoroughly. No one can fully protect himself from disputes, but it is quite possible to significantly minimize the likelihood of those business disputes and make the potential resolution of the potential disagreements easier and faster.

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
* other medical reasons. Cal. Labor Code section 233(b)(4).

"Sick leave" does not include benefits provided under the ERISA plan, insurance benefits, workers' compensation benefits, unemployment compensation, disability (SDI) payments, or other benefits not payable from the employer's general assets. Cal. Labor Code section 233(b)(4)(c)

An employer policy that counts sick leave taken to care for a child, parent or spouse as an absence from work that could lead to discipline or discharge is a per se violation of Cal. Labor Code section 233, entitling aggrieved or wrongfully terminated employee for appropriate legal relief as provided by section 234.

In the event of a violation of section 233, an employee is entitled to reinstatement, actual damages or one day's pay, whichever is greater, and to reasonable attorney fees as per section 233(d).