San Francisco Employment Law Firm Blog

Having been working on sexual harassment and discrimination claims for a while now, I am puzzled as to why these kinds of violations still take place, considering the amount of training, warnings and other kinds of "cover up" that most if not all companies are concerned about creating. Thus, I always try to determine based on the facts of the cases I handle, what the source of sexual harassment/discrimination is at a given workplace. My observation reveals the following most common reasons as to why sexual harassment takes place and isn't prevented at workplace:

1. The harasser genuinely believes that he isn't doing anything wrong. A co-worker or a supervisor might perceive his jokes or his "affection" touching of a co-worker or his subordinate similar to his flirting at a happy hour, not realizing that the exact some behavior that would compliment a woman anywhere outside of work, would intimidate her and would make her feel threatened at workplace.

2. If the harasser is a very successful businessman (the owner of the company), he might be used to knowing that he can buy anything he needs, and he can buy his way in and out of everything. Thus, he feels entitled to treat his employees as he wishes. He might honestly believe that if he pays someone their salary, they have to do anything he asks.

3. Some employers believe that sexual harassment and hostile work environment lawsuits is something that happens to other companies, not theirs. Thus, they don't put much effort into training their employees and supervisors on how to address existing and prevent future harassment.

In any event, as hard as it is to see the "good" in suing someone, in any of the above three cases, a lawsuit, besides vindicating the rights of the victim of harassment, serves and important education purpose to employers, reminding them how important it is to comply with California laws on discrimination and harassment.

The California Pregnancy Disability Leave LAW (PDLL) is part of California Fair Employment and Housing Act (FEHA). It requires employers to provide an employee up to four months of leave for disability due to an employee's pregnancy, childbirth or related medical condition.

PDLL v. CFRA and FMLA

FMLA (Family Medical Leave Act) - a federal law allowing to take a qualifying employee up to 12 weeks of time off work due to a serious medical condition also applies to pregnancy, child birth or related condition. Interesting enough, CFRA (California Family Rights Act) expressly exclude pregnancy and child birth from its list of conditions entitling an employee to a CFRA leave.

PDLL and FMLA Run Concurrently

If an employee takes advantage of both PDLL and FMLA, then they will run concurrently. Thus, if an employee exhausts her 12 weeks of FMLA leave, she will also have exhausted the 12 weeks of her 4-month PDLL allowance, with likely remaining 4 extra weeks of unused PDLL time.

PDLL and CFRA do not Run Concurrently

Since CFRA leave rights do not apply to pregnancy and related conditions, it makes sense that PDLL an CFRA don't overlap. Thus, after taking FMLA/PDLL leave, an employee can take up to 12 weeks of CFRA leave "for reasons of the birth of her child, if the child has been born by this date," assuming that CFRA entitled for that year hasn't yet been exhausted by the same employee.

Which Employers are Covered by PDLL?

PDLL is part of FEHA, which means that an employer is covered if it has five or more employees. All employers within the meaning of FEHA must provide leaves of up to four months due to pregnancy, childbirth or related medical conditions and reasonable accommodate employees for conditions related to pregnancy, childbirth, or related medical condition.

Which Employees are Eligible for PDLL?

All employees of covered employers under FEHA are eligible for a leaves and reasonable accommodations under the PDLL. Unlike CFRA and FMLA, there is no length of employment requirement or requirement that an employee have worked 1250 horus prior to the time when the leave begins.

You are a manager or a director at a manufacturing plant or a sophisticated technology company in San Francisco, Sillicon Valley, or elsewhere in California. You take great pride in your work, and you are rewarded with generous compensation and real prospects for promotion. One of your duties is supervising the company's employees and making sure that they deliver what your clients expect.

One common challenge you might be facing is addressing issues in your subordinates' performance. Sooner or later, you will likely find yourself in a predicament with regard to how to address problems in your employees' performance effectively. You want everyone to be happy - you want the issues to be resolved, your clients to be happy, and your employees to improve their skills and abilities while maintaining great degree of respect for you as a boss.

Many managers, out of sheer kindness of their heart, choose to be too generous, too kind, and too polite with those employees whose performance doesn't meet expectations. A supervisor might like an employee on a personal level or might not want to be perceived as a mean boss, who puts a great deal of stress on his subordinates, and will be reluctant to be as direct as necessary to address performance deficiencies.

However, this is the wrong time to be kind and generous for a number of reasons. First, "beating around the bush" and being overly diplomatic with an employee whose performance demands immediate improvement is unlikely to convey to the employee how serious his performance deficiencies are, and how urgently that worker must address them to maintain his employment. This means that the same worker will be less likely to actually work on improving his performance.

But more importantly from a legal standpoint - a supervisor who doesn't formally address his employee's performance issues and who is not being direct enough in communicating to the employee that the company is not satisfied with that worker's performance is depriving the company employer of a major potential defense to a lawsuit, if the bitter, underperforming worker decides to file a wrongful termination claim later, upon dismissal.

With over 400 employment related lawsuits filed in California every day (!), small and large employers are routinely sued for discrimination and retaliation. One of the most effective defenses to discrimination and retaliation allegations that an employer can produce is presenting evidence that the aggrieved employee was terminated for legitimate, non-discriminatory reasons, such as poor or below-standard performance.

If the manager never advises the employee of his performance issues prior to termination of his employment, or if the supervisor is not being direct enough at communicating the same, it will be much harder to convince the court that it's the employee's performance that resulted in his termination and not other, unlawful reasons such as discrimination, retaliation, etc... This, in turn will translate into much greater legal defense expenses, and higher settlement/verdict against the employer.

Thus, as a manager and a supervisor, you are urged to not only communicate to the underperforming employees their performance issues, but you must also document such communication in writing in a form of warnings, negative performance reviews, reprimands and any other formal actions that will leave an undisputed evidence of potentially legitimate reasons for that employee's dismissal. This kind of policy will not only serve your company but will be a blessing in disguise to an employee, alerting him to the seriousness of his situation and making him take the same more seriously, encouraging him to aggressively improve his performance in order to securing his position at workplace.

Under the law, where the employee's FMLA/CFRA certification is unclear about his health condition and his/her ability to return to work, an employer's policy may lawfully require an independent medical examination (IME) to determine the employee's fitness to return to work.

For example, in one case, an employee who was on FMLA leave because of a chronic back problem, submitted her treating physician's certification that she may return to work. However, her doctor also stated that she should "avoid stressful working conditions." Finding that FMLA certification confusing, the employer used its customary practice, incorporated in the collective bargaining agreement, and informed employee that an independent medical exam was required for her to return to work. The employee refused the exam, and as a result was fired. The court found that the employer did not violate FMLA.

Where the employee has been timely notified that a fitness for duty report will be required and has failed to provide the report, the employer may refuse to reinstate the employee until the certification is provided. If an employee does not provide either a fitness-for-duty report or a new medical certification for a serious health condition at the time the FMLA leave is concluded, the employee's position may be lawfully terminated.

Yesterday, I have been approached by a long-time employee of the local manufacturing company in the Sacramento area. The employer had a side business (running poker gaming facility) which the employee also regularly attended. When the employee decided to play poker elsewhere, his employer terminated him, telling him that "they need a loyal employee who will not take his business elsewhere."

This was a wrongful termination in violation of California Labor Code section 450, which states that employers are prohibited from forcing their employees to purchase the employer's or anyone else's products or services. Besides being grounds for civil damages, violation of section 450 is a misdemeanor under section 451 of the labor code.

In other words, the employer may not condition or encourage an employee to purchase anything from anyone with very few exceptions. If the employer requires an employee to wear a certain uniform at workplace, the employer must pay for the purchase of that uniform and for its upkeep.

Under Cal. Labor Code section 407, it is also unlawful to force an employee to invest in employer's business or advertise for employer's business as a condition for obtaining or maintaining employment. Violation of this section is also a misdemeanor under section 408.

On January 7, 2009, the Contra Costa Superior Court issued an order in a race discrimination and whistleblower retaliation case, finding unconscionable and unenforceable the arbitration agreement that Countrywide Home Loans company requires its employees to sign as a condition of employment. The court found two unconscionable provision in the arbitration agreement: (1) a provision giving the arbitrator exclusive authority to determine the arbitrability of employment case, and (2) a provision giving Countrywide the unilateral right to modify the agreement.

Having found the binding arbitration agreement unconscionable, the court struck that agreement as void and unenforceable, thus allowing the plaintiff to proceeds with his employment discrimination and retaliation claims to jury trial.

It is a common practice for employers to condition reimbursement of expenses incurred by employees on timely submission of those expenses to the employer's accounting department. A typical expenses reimbursement policy might state that an employee must submit his claim for expense reimbursement within 90 days of incurring that expense, or otherwise the employee will not be eligible to be reimbursed for the same expenses.

These kinds of policies however are generally unlawful. Under California Labor Code section 2802, an employer shall indemnify an employee for all qualifying expenses, which also includes any attorneys fees paid to take legal action for enforcing the right to reimbursement of expenses. Further, under section 2804 any contract or agreement between an employer and an employee to waive rights to reimbursement is null and void. This means that any express or implied policy of an employer to attach conditions to eligibility for reimbursement of expenses is likely to be illegal and void.

If you have any questions about reimbursement of expenses, contact San Francisco employment lawyer Arkady Itkin at (415) 640-6765.

Many California employees, and especially workers of the State and local government agencies experience a very stressful work environment as a result of bad relationships with their co-workers and supervisors, that can range from the typical gossip and office politics to threats by one employee do have the other fired, or even threats of violence. Often, these kinds of conflicts result in great deal of stress, leading one or more employee to take stress leave, be placed on temporary disability due to stress or even be taken to an emergency room for immediate medical attention.

However, most of the above very common and serious issues at workplace, although wrong and unfair, are not illegal. The courts are understandably reluctant to intervene every time one worker calls the other a "bitch" or slams the door or throws documents in one's face. There is a general consensus in the judicial community that it's not the court's job to resolve every dispute at workplace that is based on personal animosity or alike emotions, unless such disputes escalate to something more - other imminent threats of violence of discriminatory conduct (where an employee is clearly mistreated as a result of being a member of protected class, such as race, age, religion, ethnic origin, disability, etc.)

To recover for intentional infliction of emotional distress, the employer's action must be shown to be "so extreme and outrageous as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" as California Supreme Court noted in Alcorn v. Anbro Eng. Inc. By definition, to be actionable the employer's conduct must be more than just mere rudeness, insults or otherwise creating a stressful environment at workplace that's typical to many other places of work.

Thus, such egregious conduct as racial and sexual discrimination and harassment at workplace, national origin harassment (using racial slur, etc ) are considered to be extreme and outrageous, and so are repeated threats, stated in graphic terms, may constitute extreme and outrageous conduct. On the other hand, termination by itself, criticism of performance, unfriendly demeanor and similar claims are not considered extreme and outrageous.

The liability also generally doesn't extend to mere insults, indignities, annoyance, petty oppressions or other workplace trivialities. By nature, a workplace is an environment permeated with tension and insecurity about one's status. There is no way for the law to intervene in every case where a worker's feelings are hurt. But the law is of great help and protection, when the conduct that causes emotional distress goes too far.

Many conflicts have to be resolved within the workplace by addressing them with immediate supervisor, or - if ineffective - with executive management. An employee might feel that no one cares about his problems, but more often than not - there will be at least one executive at a company who will want to do the right thing and help resolve a conflict between workers. As an example, one typical step that a manager of a larger company can take, is transferring an employee to another department to distance him/her from another worker/s who he cannot get along with.

It is perfectly legal for an employer to implement layoffs of its workforce unless this right is limited by an express or implied contract to employ a worker for a set period of time or if the duration of employment and termination terms are protected by the collective bargaining agreement between an employee, a union member, and the employer. This makes sense as the owner of the business should have freedom to choose to reduce its workforce for legitimate business reasons.

However, workforce reduction is illegal if discriminatory criteria are applied to selecting which employees stay and which have to go. In other words, if the employer tries to disguise his desire to get rid of workers who are members of a certain protected class (gender, race, religion, disability, ethnic origin, etc...) this is unlawful discrimination.

It is not easy to determine whether the layoff is legitimate or it's just another form of workplace discrimination, as direct evidence of the employer's motive, such as admissions, is rarely available for obvious reasons. However, there are certain signs that should create suspicion and case doubt on the legality of a layoff. Here are four general questions that should be asked to determine whether the discrimination likely took place during your layoff:

1. Was there a mass lay-off or were you the only member (or one of the few members) of a protected class in your department who was terminated? Were you the only significantly older employee, or an employee of color/national origin/non-traditional sexual orientation at workplace?

2. Was your position really eliminated' or was someone else of hired in your place, was given essential the same duties under essentially the same position?

3. Has any other worker, in the same protected class as you are, been laid off at or near the time that your employment was terminated?

4. How did the employer determine which employees to retain and which workers to lay off? Was the selection discriminatory, or was the process supported by legitimate business reason, such as retaining the most experienced or the best performing workers, or eliminating the employees with the highest compensation?

The answers to the above questions should shed more light on the legitimacy of the layoff at workplace and reveal possible discrimination and wrongful termination.