San Francisco Employment Law Firm Blog

A common question a California employer faces is for how long to provide an unpaid leave of absence as a reasonable accommodation to a disabled employee. Generally, a finite leave of absence may be a reasonable accommodation, if it is likely that the employee will be able to perform his oer her duties at the end of the leave. Under most circumstances, an indefinite leave of absence is not a reasonable accommodation. This makes sense as it would be unfair to expect employers to wait indefinitely wait for a disable employee to return to work.

Some courts have ruled, however, that there is no per se rule that an indefinite leave of absence is not a reasonable accommodation. Thus, extensions of leave of absence may be reasonable under some circumstances. An employer's size and resources may affect its obligation to provide "indefinite" leaves of absence as reasonable accommodations. For example, in the case of a very large employer, with high turnover and fungible employees, the employer may be required to provide an indefinite leave of absence, if the leave would enable an easily replaceable employee to perform the essential functions of the position eventually, and the employer will not incur significant expenses as a result of maintaining the employee in the status of an employee.

The courts may consider the following factors to determine whether leave of absence is a reasonable accommodation with respect to a specific employee. This factors include the following: whether the employee gives any indicates when he or she can return to work; whether the employee's absences from work are erratic and unexplained; whether the employee will be able to perform his duties when he returns; whether the employer hired the employee to perform a specific task; whether a leave poses an undue hardship given the circumstances of the situations.

Employers should remember that "reasonableness" of a request for an extended leave depends on specific circumstances as "each case must be scrutinized on its own facts."

False accusation of an employee being violent toward another employee are just as common or are even more common than the actual violence at workplace. This include physical violence as well as verbal threats of violence, including implied verbal threats such as "Next time, I don't know what I am going to do to you...," and similar statements.

Accusations of violence at workplace are typically grounds for immediate suspension or termination of employment. It is a hurtful and frustrating experience to be accused of something that you haven't done. It is not uncommon for an employee who has been falsely accused of violence by his co-worker to "lose it" at a deposition or during the testimony at the arbitration, engaging in a heated argument with the opposing side or their attorney, and thus actually demonstrating to the other side and the judge/arbitrator that the employee has a short temper and might have potential for violence at workplace.

However, if you are determined to prove that the accusations against you are meritless prevail in a legal claim against your employer, related to false violence accusations, it is crucial that you prove through your subsequent actions that you are anything but violent. Maintaining calm, rational, reasonable composure throughout your subsequent communications and/or legal proceedings after suspension and termination is a very important part in compelling the employer to doubt the allegations made against you, and revisit the decision to fire you under the risk of being sued for wrongful termination based on defamation. Do not allow lies and fabrications with regard to your violent behavior to emotionally destabilize you and make you come across as a potentially violent person, and this will be of significant help to any legal claims you might be pursuing in court or through a union arbitration.

One of the most vague and, as a result, frequently disputed and litigated claims by workers is whether they are entitled to overtime compensation or whether they are properly classified as exempt under administrative exemption as provided in Federal Labor Standards Act (FLSA) and the applicable federal regulations. This article clarifies the administrative exemption standard as it has been recently applied by California courts.

First, it is important to note that exemptions from overtime compensation requirements are narrowly construed against the employer, and their application is limited to those employees who plainly and unmistakably within their terms. Bell v. Farmers Ins. Exchange (2001).

Generally, except satisfying the minimum rate of salary requirement, which is regularly adjusted, exempt administrative work must be (1) non-manual; and (2) related to management policies or general business operations of the employer or the employer's customers; and (3) must involve the customary and regular exercise of discretion and independent judgment.

One key requirement that has been hotly contested and litigated is the meaning of the work being "directly related to management policies and general operations of the employer or the employer's customers" as required by the regulations defining administrative exemption. The California courts rejected the argument often made by employers that "management policies and general operations" must be interpreted broadly and it applies to any employee who exercises minimal discretion in his work.

Under California law, the construction of the above language is much more narrow. The actual test is whether the activities are directly related to management policies or general business operations. This has been interpreted as running of the business and not merely the day to day carrying out of its affairs. Bratt v. County of Los Angeles (1990). The Bratt court considered whether the county probation officers are exempt from overtime under administrative exemption. The court concluded that although probation officers provide recommendations to the courts, these recommendations do not involve advice on the proper way to conduct the business of the court, but merely provide information which the court uses in the course of its daily production activities. Thus, the duties of those employees did not qualify them as exempt administrative employees, even though conceivable some probation officers might be exempt. This is the reason that insurance adjusters have been held to be eligible for overtime compensation by numerous courts in California and not be exempt under administrative exemption.

Under PDA (Pregnancy Discrimination Act), it is unlawful for an employer to discriminate against an employee on the basis of pregnancy,childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs. This law is construed broadly and has been held by courts to include protection against pregnancy discrimination to women who underwent abortion, as abortion is a "medical condition" arising from pregnancy. Doe v. C.A.R.S. Protection Plus, Inc. (2008).

The basic principle of PDA is that women affected by pregnancy and related conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work. The PDA doesn't require that employers treat pregnant employees better than other temporarily disabled workers, but the PDA does require that employers treat pregnant employees no worse than all others.

It has been held in California that to constitute hostile work environment at workplace based on racial or other kinds of harassment, the harassing conduct must be "sufficiently severe and pervasive." This means that generally, a single discriminatory comment or isolated incidents of slur by a co-worker cannot be actionable as harassment or discrimination as a matter of law. However, the courts recognize the fundamental difference between the impact that a co-worker's actions or words have an a potential victim of harassment and discrimination and the words/actions of a manager or any other person in a position of power over an employee.

The leading case on this issue is Dee v. Vintage Petroleum, Inc. (2003). In that case, the court pointed out that while one racial comment is insufficient as a matter of law to establish a claim for hostile work environment, there is neither a threshold "magic number" of harassing incidents that gives rise to employer's liability... nor a number of incidents below which a claimant fails as a matter of law to state a claim. The court noted however that where the act committed by a supervisor, the result may be different. Because the employer cloaks the supervisor with authority, the supervisor's conduct is normally attributed directly to the employer.

The effect of the offensive and unlawful conduct of a person who acts on behalf of the company and who is in a position of superiority has a much more dramatic and adverse impact on an employee creating a far more abusive workplace environment that would otherwise have been created by co-worker. The court further recognized that even an isolated incident of racial slur may not actually be "isolated" because it explains the manager's motivation for creating abusive work environment

The hearing to contest the denial of your unemployment compensation benefits is very much like mini-trial. The employee and the employer find themselves sitting across from each other with or without legal representation in front of the administration law judge who will hear both sides, will allow both parties to ask each other questions and present their evidence and make a closing statements to support their position.

Support your Arguments with Evidence. The rules of admitting evidence are far more relaxed at an unemployment appeal hearing than the formal rules of evidence in trial courts. Thus, almost all evidence is admitted, although given different value according to its weight and credibility. The best evidence you can present is having actual, unbiased witnesses show up with you and testify as to the truth of what you you will telling the judge. The second best evidence is declarations signed under the penalty of perjury by any persons who witnessed any conduct by you or your employer, relevant to the appeal. Make sure to make two extra copies of any documents you plan to introduce into evidence - one copy for the judge and one for the opposing side.

Address Only Those Issues that are Directly Relevant to Your Claim. The biggest challenge that the parties to the hearing have is remembering that the administrative judge is only concerned with the most recent events that lead to termination. The hearing at the unemployment appeals board is not a hearing about harassment, discrimination, favoritism, defamation, retaliation or other civil claims. This hearing is strictly about whether the reason/s the employee was terminated disqualify that employee from the benefits.

Generally, the burden is on the employer to prove that the employee should not receive unemployment benefits. An employee, who is otherwise qualified for unemployment compensation, will be disqualified if he/she voluntarily resigned or if he/she was terminated for gross/intentional misconduct or comparably egregious violation.

The hearing judge gets annoyed and frustrated with the parties who bring their office politics and speculations about the workplace. The judge is not interested in hearing long stories about the history of employment and the background about the company. The judge wants to hear about the specific reasons for termination and see evidence in support of the parties’ arguments. Thus, the shorter and the more directly relevant your arguments are to the hearing officer, the clearer your position will be.

Be Respectful and Courteous to All Persons Present at the Hearing. The administrative officer hearing your appeal has a significant discretion in making a decision in your claim, and therefore it is worth doing your best to come across as a likable, reasonable person. You should avoid at all costs being dramatic, interrupt your employer's arguments or even worse - the judge or speak directly to your employer. Focus on the only goal you are trying to achieve at that hearing - to qualify for unemployment compensation benefits. This is not the time to close scores or prove that you were a good employee and that you were terminated unfairly.

Under both FEHA and ADA, employers must make reasonable accommodations to the disability of an individual unless the employer can demonstrate that doing so would impose "undue hardship." Cal. Code. Regs. tit. 2 section 7293.9. In other words, there are limits on the restructuring that an employer needs to do. Accommodations need only be "reasonable." An employer need not undertake an accommodation that would created an "undue hardship."

"Undue hardship" means an action requiring significant difficulty or expense, when considered in light of the following factors: (1) the nature and cost of the accommodation needed; (2) the overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility; (3) the overall financial resources of the covered entity with respect to the number of employees, and the number, type, and location of its facilities; (4) the type of operations, including the composition, structure, and functions of the workforce of the entity; and (5) the geographic separateness, administrative, or fiscal relationship of the facility or facilities.

The burden on proving that providing reasonable accommodations would constitute undue hardship is on the employer, as the law makes clear that the term "reasonable accommodation" is to be interpreted flexibly to that employer must not only remove obstacles that are in the way of the progress of the disabled, but that they actively restructure their way of doing business in order to accommodate the needs of their disabled employees. Prilliman v. United Airlines, Inc. (1997)