San Francisco Employment Law Firm Blog

It is not uncommon for a California employer to justify its termination of the disabled worker and it's failure to engage in interactive process to find reasonable accommodations as require by law under the Fair Employment and Housing Act, by arguing that because the didn't owe the duty to engage in interactive process because the terminated employee never requested it.

The California courts, however, routinely disagree with that argument by employers. Thus, the second district rejected such an argument by an employer, United Air Lines, where the company suggested that a disabled employee must first come forward and request a specific accommodation before the employer has a duty to investigate such an accommodation. The court reminded the employer that the law does not require the worker to speak any magic words before the disabled employee is subject to its protections. Of course, as the court continued to explain, the employee can't expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. The employer is also normally not liable for failing to accommodate a disability of which he had no knowledge. Finally, an employer has no duty to accommodate an employee who denies having a disability or denies a need for accommodation. Prillman v. United Air Lines, Inc. (1997).

However, the employer is likely to have the duty to engage in interactive process with a worker who the employer knows is disabled or who the employer perceives to be disabled.
The Prillman court found the Washington Supreme Court's interpretation of the California disability statute to be useful. The Washington court held that the duty of an employer to reasonable accommodate an employee's disability does not arise until the employer is "aware of the employee's disability and physical limitations." The employee bears a burden of giving the employer notice of the disability.

This notice then triggers the employer's burden to take "positive steps" to accommodate the employee's limitations. The employee, of course, retains a duty to cooperate with the employer's efforts by explaining his disability and qualifications. Reasonable accommodation thus envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employee's capabilities and available positions. Goodman v. Boeing Co. (1995) (WA).

On March 27, 2009, the second appellate district court of California published its decision on the tip pooling rules in the service industry which has been a subject of debate among litigants during the past several years. Etheridge v. Reins International. In that case, one of the issues was the interpretation of California Labor Code section 351 that states, among other things: " No employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron, or deduct any amount from wages due an employee on account of a gratuity, or require an employee to credit the amount, or any part thereof, of a gratuity against and as a part of the wages due the employee from the employer. Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for." The Etheridge case focused on the interpretation of the term "employee" in the above code section.

Should only the waiters and bussers serving the table be entitled to the tips left on that table, or everyone in the "chain of service" of that table be included in the "tip pool?"

The court went with the latter interpretation, supporting its holding with compelling logic. The court stated that a patron tips on all of the services received, not simply the service provided by the employee the customer sees with his own eyes. If the plates on which the food is served are not clean, the food received is not hot, or is not as ordered, the patron may be inclined to leave a smaller tip even when the services of the servers and bussers are satisfactory. Likewise, when the meal is good, the presentation on the plates is pleasing, and special food requests have been satisfied, the patron may be inclined to leave a more generous tip, even when the servers and bussers might not have delivered exceptional service.

Thus, the court extended the tip pooling to include employee who do not provide direct table service, but who participate in the chain of service and contribute to the quality of the product/service provided with their labor.

California Labor Department statistics suggests that workplace retaliation claims are on the rise more than other employment related claims, such as discrimination and harassment and hostile work environment related lawsuits. This is not surprising as I believe that besides the common reasons for these violations, such as lack of knowledge of the law on the side of employers and managers, there is a deeper, fundamental cause of retaliation claims, rooted deeply in human nature. Most humans have a predisposition toward being at least somewhat vindictive. When someone intentionally hurts us, we have a natural desire to both defend ourselves and hurt the attacker back. Such dynamics are especially strong in an environment where people, besides dealing with each other, are faced with conscious or subconscious fear of losing their source of income and livelihood, such as workplace.

Thus, when an employee complains about the manager, whether it's a justifiable grievance or not, the supervisory employee will feel both angry and threatened. Unless the manager is well educated in the workplace retaliation laws and can consciously resist targeting the complainant or unless the company has adequate mechanisms that address retaliation and protect the employee who complains and/or "blows the whistle," some form of retaliation is almost certain to happen. That retaliation can be obvious and blunt, such as demoting, suspending or transferring an employee to a less desirable position or workplace, or it can be more subtle, such as creating a paper trail of made up bad performance reviews and picking on employee for every insignificant reason.

Regardless of the cause and the degree of retaliation, it almost never simply goes away. On the contrary, the employee who is being retaliated against will likely be subjected to a greater retaliation with time if he is not taking action, unless the issue is address with the human resources department or higher up in the company, or through legal representation.

Under the avoidable consequences doctrine, as recognized in California, a person injured by another's wrongful conduct will not be compensated for those damages that the injured person could have avoided by reasonable effort. Thus, this doctrine gave rise to the duty to mitigate damages in employment cases - the duty to search for a comparable employment that wrongfully terminated employees have in order to prove their wage loss in court as a result of termination.

This doctrine also applies as a partial defense to the determination of damages in sexual harassment hostile work environment claims against employers. This defense has three elements (1) the employer took reasonable steps to prevent harassment; (2) the employee unreasonably failed to sue the preventive and corrective measures that the employer provided; and (3) reasonable use of the employer's procedures would have prevented at least some of the harm that the employee suffered. Department of Health Services v. Superior Court (2003).

This defense will allow the employer to escape liability only for those damage that the employee more likely than not could have prevented with reasonable effort and without undue risk, expense or humiliation, by taking advantage of the employer's internal complaint procedures appropriately designed to prevent and eliminate sexual harassment.

Employees, of course, may be reluctant to report their supervisors to higher management, and an employee will often attempt informal negotiation with a supervisor or other strategies. Delay that results from an employee's initial resort to such non-confrontational means of dealing with the supervisor harassment and failure to file a formal harassment complaint with the human resources department will have to be carefully evaluated to determine whether it was reasonable in a particular employment setting.

It is important that this defense only affects damages but not liability. An employer that has exercised reasonable care in providing channels of reporting harassment remains strictly liable for harm a sexually harassed employee could not have avoided through reasonable care. In other owords, if the employer proves that the employee, by taking reasonable steps to utilized employer-provided complaint procedures, could have caused the harassing conduct to cease, the employer will nonetheless remain liable for any compensable harm the employee suffered before the time at which the harassment would have ceased, and the employer avoids liability only for the harm the employee incurred thereafter.

California Civil Code sections 45 and 46 define libel and slander (written and oral statements which may constitute defamation). It has been consistently held in California over 60 years ago that libel includes, with certain limitations, almost any language, which, upon its face, has a natural tendency to injure a person's reputation either generally or with respect to his occupation. Washer v. Bank of America (1943).

The courts have held that while there is a strong public interest in allowing employers to freely and subjectively evaluate the performance of their employees according to their own unique standards and guidelines, even a performance review can be defamatory if it accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence, or reprehensible personal characteristics or behavior.

The critical part of any defamation claim is demonstrating that the defamatory language used by the employer was an assertion of fact or not an opinion. Thus, when the employer describes an employee in the performance review as "poor communicator" or "lacking in focus" - these are highly subjective statements of opinion that cannot constitute defamation. An assessment of skills, habits and personal qualities is necessarily an expression of an opinion by the evaluating body.

On the other hand, if the employee is accused of stealing at workplace or falsifying documentation - these are assertion of fact that must be necessarily true or untrue and which, if not true, may give rise to a claim for defamation.

The distinction between a statement of opinion and fact is not always easy. However, the courts tend to strictly apply the civil code language, finding that ridicule can be defamation just as much as other, harsher falsities, such as accusations of fraud, stealing, etc. In one case, the court found defamation where the magazine publisher described a high-ranked employee is being "out for a fast back," holding that this kind of description is likely to injure the claimant's professional reputation. Cameron v. Wernick (1967)

Proving any kind of employment discrimination is not easy. The core of any legitimate claim of discrimination is proving that the reason for the adverse employment action taken against the worker (demotion, transfer, termination, suspension, etc.) is the fact that he/she belongs to one or more of the protected classes, such as being of a certain race, being disabled, being injured, etc...

Age discrimination is one of the more subtle violations at workplace as there are so many easy ways to mask it. An employer who is determined to get rid of the older worker will use all kinds of legitimate reasoning in terminating that employee. One of the common ways to disguise the true reason for terminating an employee is creating a paper trail of poor performance. This may start from one or more bad performance reviews over the period of time, and end up with warnings and suspensions, eventually leading to employment termination.

Indeed, many workers don't even suspect that they are being discriminated as it even cross their mind. However, there is a number of signs that would suggest that the worker was terminated due to his/her older age. If you are about to be laid off or were recently terminated while being 40 or older, ask yourself the following questions:

1. Have you been given a nickname at work, such as "father time," "pops," "old man..." etc. while being surrounding by significantly younger workers?
2. Have you been told by your co-workers or your supervisor that you are "just not the same" after having worked for a company for a large number of years?
3. Have you witnessed a systematic, gradual elimination of older workers in your company/department throughout the time you worked there?
4. Have you receive negative performance shortly before being terminated? Do they seem to be clearly groundless?
5. Have you been replaced with a younger worker?

If you answered "yes" to two or more of the above questions, it is possible that you were a victim of age discrimination at workplace that your employer was trying to carefully disguise.

Under California law, an employee is presumed to be "at-will" employee unless agreed otherwise. Cal. Labor Code section 2922. "At will" means that an employee can be terminated for any reason, no reason, or arbitrary reason, as long as it's not an unlawful reason (such as discriminatory or retaliatory discharge, to name a few).

There is a number of laws and ways in which the presumption of at-will employment can be defeated, as might be necessary in order to prove a wrongful termination claim. Some of those laws are stronger and more definite while others are more vague and are not applied by all courts equally in California. Below is a number of the more compelling ways to defeat at-will employment presumption.

An express agreement that employment is other than at-will of course defeats the at-will employment presumption. Thus, most union employees are not at-will employees as their contract with the employer - the collective bargaining agreements - almost always provides that an employee can be only terminated for good/just cause. Additionally, personnel manuals that list specified grounds for discharge are evidence of an implied-in-fact contact to terminate only for good cause.

Likewise, an employment agreement for a specific term is inconsistent with employment at-will, and thus defeats that presumption. Chyten v. Lawrence & Howell, Inc. (1993). Similarly, although not always, the employer's written policies or procedures, contained in its personnel manuals, may rebut the presumption of at-will employment. Pomona College v. Superior Court (1996).

The presumption of at-will employment is not a defense to termination in violation of public policy (terminating an employee for exercising one of the enumerated important, fundamental rights which were established to benefit the public in general). When an employee is terminated in violation of public policy, the at-will employment presumption has little, if any, relevance. Foley v. Interactive Data Corp. (1988).

Evidence of only salary increases, longevity and promotion is sufficient to create a triable issue of whether implied agreement not to terminate by for good cause existed. In one case, the court considered an employee six-year work history at a company, including a promotion after two years, grade and salary increases during that time and compliments about the high quality of her work to establish that the above evidence was sufficient to potentially defeat the at-will presumption.

Employers often argue that because a worker's health condition is temporary and passing, the condition can't possibly be considered a disability under California Fair Employment and Housing Act (FEHA). The assume, relying mostly on intuition, that the concept of disability necessarily entails some kind of permanent impairment.

The courts, however, disagree with this argument. In Diaz v. Federal Express Corp.(2005) the court specifically discussed the issue of temporary physical and mental conditions. In that case, Federal Express argued that because the Claimant severe anxiety attacks were only temporary and lasted just over one year, that condition couldn't possibly fall within the protection of FEHA. The federal court rejected that argument. The court noted that the reading of the law itself suggests that a temporary condition might be a protected disability, entitling an employee to reasonable accommodations. The statute defines a disabled person as one regarded as having or having had a condition that makes achievement of a major life activity difficult, or the one that has not present disabling effect, but that may become a disability in the future.

It is unclear what weight, if any, should be give to how long a condition lasts in determining its disabling effect as the relevant statute Cal. Gov. Code section 12926.1(c) is noticeable silent on that issue. Thus, one way to interpret the law is to treat the duration of the condition as only mildly relevant in simply showing whether how serious the condition is, as one might argue that part of being "serious" is having a lasting effect on a personal physical or mental health.

On the other hand, the courts commonly find certain very short-term conditions as qualifying disabilities. A classic examples of this is a heart attack. It's a matter of common knowledge, of course, that even though a heart attack itself only lasts a few moments, the events and conditions that lead up to the attack and follow the attack would suggest that the person suffers from one or more serious health conditions that would limit his/her ability to work.

The FMLA provides that employee are eligible for FMLA leave if they have worked at least 12 months for an employer, worked 1,250 hours during the 12 months immediately prior to requesting leave, and work at a location that has 50 employees within 75 miles. This requirement, however, creates uncertainty when an employee has joint employers, such as when the employee is working at a site through an off-site temporary agency. Under such circumstances, the regulations provide that when the employee has worked at least 12 months at a worksite, the employee will be considered to be employed where he physically reports. 29 C.F.R. section 825.111(a)(3).

This means, for example, that the employee, referred by a small temp agency to work at a large company shouldn't be concerned about being ineligible for FMLA leave, as it's the size of the number of employees at the physical location where he works that determines his eligibility; not the size of the temp agency.

In the past, compliance issues have arisen when evaluating FMLA leave requests by employees who telecommute / work from home. The regulations now confirm that the worksite for such employees is the location where they report and receive assignments, and not their physical location. This is logical, as counting employees at home wouldn't make any sense.

The whole idea behind FMLA criteria is imposing this obligation on the larger employers and providing this benefit to employees who have already provided substantial benefit to the company over the period of time. Whether an employee works from home or not does not and should not matter under the circumstances. 29 C.F.R. section 825.111(a).

To find out more about FMLA and CFRA leave, check out this FMLA/CFRA comparison chart prepared by the Department of Fair Employment and Housing.

An employee's personnel file contains some of the most valuable information to a claim for discrimination, retaliation, harassment and wrongful termination. One of the powerful ways in which the personnel file can be used is when the employer argues that the worker was terminated for poor performance. If that worker's personnel file contains good performance reviews, or even excellence awards and documentation of paid out bonuses, in addition to lack of warnings, bad reviews and disciplinary action, this will cast heavy doubt on the employer's truthfulness and the true reasons for employee's termination.

Often, however, when a personnel file is requested as permitted under California Labor Code 1998.5 and other provisions, the employer "interprets" that request very narrowly, providing minimum documentation, and claiming that all the other documents, such as performance reviews and investigation reports, are located in other files and therefore are not available. Some companies and especially their counsel will argue that the employee is only entitled to having that paperwork from his personnel file, which that employee has signed.

Both of the above arguments have no merit. In Wellpoint Health Networks, Inc., v. Superior Court 59 Cal.App.4th 110 (1997), the court specifically discussed the issue of obtaining personnel files. The court held that as California Labor Code section 1198.5(a) provides, every employer shall... at the request of employee, permit that employee to inspect such personnel files which are used or have been used to determine that employee's qualifications for employment, promotion, additional compensation, or termination or other disciplinary action. The court further noted that these documents include, among others investigative reports of EEOC, pointing out that the above provision intends a broad definition of "personnel file" to preclude employers from assigning documents to files having some other name, and then refusing access to documents on the ground that they are not contained in the personnel file.

To accomplish this, the statute defines an employee's personnel file as anything "used to determine that employee's qualifications for employment, promotion, additional compensation, or termination or other disciplinary action."