San Francisco Employment Law Firm Blog

It is not uncommon for an employer to unlawfully retaliate against an employee not through a single, major act, such as suspension, demotion or termination of employment, but through series of less obvious acts that tend to negatively affect the victim employee's performance, motivation and cause him or her a significant amount of stress and other psychological problems, which also constitutes unlawful workplace retaliation.

The employer who is well aware of the liability imposed by law for unlawful retaliation at workplace realizes the danger of engaging in obvious retaliation such as terminating an employee. Thus, such an employer may try to punish an employee for opposing an unlawful conduct or exercising rights under Fair Employment and Housing Act or other statutory rights by interfering with that employee's job performance through series of intimidating, obstructive actions such as giving unreasonably large amount of work or imposing impossible deadlines, issuing false bad reviews after the employee engaged in a protected activity, spreading false rumors about the employee that tend to tarnish his reputation at workplace, and otherwise make the employee life at workplace harder and more stressful, trying force him out.

The courts recognize the above tactics used by the employers and analyze retaliation claims in "totality of circumstances" considering the actions taken by the employer against an employee collectively, rather than deciding whether each individual actions alone constitutes retaliation. Wideman v. Wal-Mart Stores, Inc. (11th Cir. 1998). A court should look at the context and totality of employer's conduct because "otherwise minor slights, relentlessly compounded may become sufficiently 'adverse' to warrant relief under the statute. Simas v. First Citizens Federal Credit Union (1st Cir. 1999).

It is a common practice for many employers, especially the larger employers, such as the software companies in San Francisco and Silicon Valley, to offer a severance package to the employees who are about to be laid off due to downsizing or restructuring. The amount of severance depends on several factors, but the main ones usually are: (1) the company's financial condition and it's corresponding ability to make severance payments; and (2) the amount of employees to be laid-off; and (3) the length of service of any particular employee at the company.

It is much harder to negotiate a higher severance than the one offered in a mass lay-off, as the employer will argue (and justifiable so) that you shouldn't be receiving greater severance than all the other employees. However, if you are the only person to be laid off from your department, or one of the few, you should take the opportunity to negotiate a higher severance directly or through an attorney. Like in many other aspects of work (and life), when it comes to negotiation of a severance package, and employee will normally get much more with "honey" than with "vinegar." This means that accusing an employer of wrongfully terminating you, especially without having solid evidence to support your accusations, and threatening with a lawsuit will not help in these negotiations and will likely achieve the opposite effect from the one you desired, antagonizing your employer, which never leads to desire to help and generosity.

You must remember that unless paying out severance is a company's formal rule/policy or one of your stated terms of employment (which is quite rare) such a payment is completely discretionary. Therefore, the right way to negotiate a severance package or a higher severance package is by trying to evoke empathy to your anticipated unemployment and financial hardship and forget about threats and accusations. If you have had a decent relationship with the decision maker during your career at the company, you might just be surprised as to his or her ability to relate to your situation, especially in these hard times, and your manager's desire to actually make a step to help you in getting a higher severance upon lay-off. Like in politics, successful severance negotiation requires diplomacy and civility.

It is common for an employer to offer severance to an employee who is being terminated or laid-off. The size of the severance usually depends on the circumstances of the worker's termination and the length of his or her employment. While severance is completely discretionary and there is no law that mandates lump sum payments upon separation of employment, it serves an important purpose for the employer. Every severance payment is conditioned upon signing a document, named "Release" or "General Release" through which the employee promises to never sue the company for any possible employment related claims and violations. Thus, by making a modest payment, the company "buys" a peace of mind - a guarantee that the employee will not bring a lawsuit against the company. This is particularly important for employers, if the circumstances of termination/lay-off are suspicious and may create an impression of unlawful conduct on the side of the employer (whether the termination was wrongful or not).

Regardless if the circumstances of employment separation, it is very important that you have your Release document reviewed by an experienced employment attorney before you sign the same, to make sure it is drafted properly and fairly, that it protects your rights as well as it serves the interest of the employer, and that you are not waiving potentially substantially greater rights than your severance package, if your termination is likely to be wrongful.

You may also consider negotiating a higher severance on your own or through an attorney.

The main challenge of proving discrimination and discriminatory discharge at workplace is showing that the reason an employee was discharged is because of his/her belonging to one or more of the protected classes of employees because of his/her gender, sexual orientation, ethnic origin, disability, familial status, political affiliation, etc. It is not hard to show that an employee was terminated, but it's rarely easy to show why the same employee was terminated, especially when that employee's performance, at least in the subjective view of the employer, was less than perfect and could have been grounds for termination.

There is rarely a direct evidence of discrimination, such as blunt discriminatory statements, such as "We are firing you because we don't like blacks/disabled/republicans/married people. For obvious reasons, an employer will also almost never admit discriminatory motive in taking an adverse action against one of its employees. This means that in the vast majority of cases, the discrimination must be proven through circumstantial evidence, from which it is possible to infer that the reason an employee was terminated was discriminatory and thus unlawful.

The Second Appellate District engaged in a very important analysis of the various kinds of circumstantial evidence of discrimination in Johnson v. United Cerebral Palsy (2009). In that case, the court discussed a number of facts sited by an employee in support of her allegations of discriminatory termination and held that while each of the facts individually does not raise a suspicion that the aggrieved employee was discriminated. The court wasn't persuaded that just because the employer lied about the true reasons for termination Johnson, that termination was discriminatory, reminding that while discrimination is unlawful, lying about reasons for termination is not. The court was also not impressed with an employee argument that the mere timing of her termination after taking pregnancy leave shows discriminatory motive in her discharge, as it has been established that timing of termination alone is not sufficient to prove discrimination. The court further refused to interpret the words of employer "we are firing you because of what happened" in a way that the employee subjective understood them (being fired because of her disability claim). The second district found the "because of what happened part" to be far too ambiguous to prove any animus toward the worker because of her pregnancy, and not because, as the employer argued, her substandard performance.

Interestingly enough, the court held that although each of the above facts separately will not constitute substantial evidence of discrimination, when taken together, they do constitute sufficient evidence. The above circumstances, coupled with the fact that Johnson has never received a warning or counseling regarding her performance, in addition to declarations of other employees who stated that they were also terminated while on pregnancy leave was sufficient to allow the employee to have the opportunity to prove that she was terminated because of her pregnancy at jury trial.

Like with many other employment laws in general and wage laws specifically, there is no bright line rule that defines which employees are exempt from overtime, and which workers are entitled to overtime compensation. Below, I will try to make the job of both employers and employee who try to apply professional exemption to their situation easier and more certain.

For the purposes of determining professional exemption, the term "professional" means any employee who: (1) is compensated on a salary or fee basis at a rate of no less than $455 per week (periodically adjusted); (2) whose primary duty is the performance of work (a) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction; or (b) requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor. 29 C.F.R. 541.300(a).

The phrase "work requiring advanced knowledge" is the key part which is the most commonly litigated and disputed element of the rule. According to regulations, this includes work requiring consistent (although not necessarily constant) exercise of discretion and judgment, as distinguished from routine mental, manual, mechanical or physical work. An employee who performs work requiring the advanced knowledge generally uses the advanced knowledge to analyze, interpret or make deductions from a set of facts. The advanced knowledge required to be exempt as a professional cannot be attained at a high school level.

The above principle is applied to different professions in a way that draws a distinction between workers who must have an advanced degree to qualify for the position held and necessarily use their advanced education in the scope of their work, and those who don't. Thus, CPA's and financial analyst with a degree in finance generally qualify as exempt professionals, while accounting clerks, bookkeepers and other employees who perform routine billing work are not exempt. Dental Hygienist and Physician Assistants are generally exempt as those position require an advanced four-year degree. Chefs, such as executive and sous chefs, who have a degree in culinary arts are generally exempt, while cooks are not. Paralegal and legal assistants are generally not exempt, as a degree in paralegal studies is generally not a prerequisite to holding a paralegal position.

Thus, as the above examples show, one of the key questions that needs to be asked in determining whether a professional exemption applies to a particular employee is whether his job/position requires and advanced degree, and he actually uses the knowledge acquired in the course of obtaining that degree in his day-to-day duties.