San Francisco Employment Law Firm Blog

Wrongful Termination and Accepting Responsibility

2010-08-19T06:30:18Z

Few wrongful termination, harassment, and discrimination cases are "clear cut." No matter how strong the evidence of unlawful conduct by the employer is in the hands of the aggrieved employee, the employer always has its own side to the story, which usually says "We did nothing wrong, and the plaintiff is lying." No employment case is perfect, and every case has its strengths and weaknesses.

One of the most important elements of any civil case, especially wrongful termination cases is maintaining your credibility as a claimant. Being credible usually means relying on facts rather than on unsupported beliefs and speculation, not lying and not exaggerating. The less commonly mentioned by equally important element of credibility, which plays a crucial role during your testimony is accepting responsibility for something that you have done wrong while working for the employer-defendant. Here is a classic example: suppose you were an outstanding employee with numerous awards for your performance and promotions, but like everyone else - you were not perfect, and a few suggestions were made to you as to how you could improve your performance throughout your tenure with the company. The employer's attorney chooses to focus on that specific issue during your testimony at the deposition or at trial, going over and over something relatively insignificant and belaboring the issue in part in order to destabilize your emotionally. It is very important that instead of getting angry and defensive, or justifying the common deficiencies in your performance, you accept at least some responsibility and admit that certainly things could have been done better by you. This will allow you to impress both the attorney, the judge and the jury, and send a strong message that not only you are a level-headed rational individual, but you are also responsible, recognize your mistakes when you make them and you deserve even more sympathy than you otherwise would.

EEOC Mediation is an Effective Tool for Resolving Employment Related Disputes

2010-08-05T08:55:39Z

Yesterday, I attended my client's mediation at EEOC (Equal Employment Opportunity Commission) office in San Francisco. In many ways, the proceedings were very similar to a typical private mediation of an employment case. However, I thought there were a few important advantages, at least in this particular case, over private mediation.

1. The EEOC mediation service is free. Mediation can be an expensive proceeding. Some of the mediators in the Bay Area who are know to be effective in resolving employment cases charge between $5,000 and $7,000 per day for their services. While paying half of this fee may be worthwhile for the Plaintiff, some employers use this expense as an additional way to pressure Plaintiff into settlement. They realize that consciously or subconsciously, the employee and his/her counsel who are naturally are not as well funded as the employer will want to make their expense worthwhile and would be more frustrated if the case doesn't settle at the end of the day, which means the aggrieved employee and his/her lawyer will likely be more flexible and amenable to a lower settlement. When the mediation is free, Plaintiff is under no pressure to accept settlement offer which seems to be clearly not fair.

2. At least some EEOC mediators seem to insist on a joint session before separating the parties into different rooms. Many private mediators believe that traditional join sessions, where both parties, their counsel and the mediator sit together and talk about the case are counter-productive and are more likely to hurt and help the process. While this might be true, especially if either of the parties or both or angry and each other and have a hard time communicating with each other without losing their temper, if respectful discussion is possible and the employee can keep his emotions under control, joint session should definitely be taken advantage of. First, it saves a lot of time, allowing both parties to nail down the main issues in their case and immediately see where the opposite side stands on the same issue. Some of the factual disputes, discrepancies and misunderstandings about the events that lead to the EEOC complaint can be resolved right then and there. Further, if the employer is represented by someone who has never met the aggrieved employee, it shows both parties the actual "human" side of the opposing party. This is especially helpful if the employer's representative and the employee are calm and likable people, who are able to respect the difference in opinion when looking at the same issue from a different angle, which is very common in most motive-related cases, such as discrimination and retaliation.

3. EEOC Mediators are Experienced Employment Law Attorneys. Employment law is a highly specialized and constantly evolving area of law. A mediator who doesn't know employment law, who doesn't have experience working on either side of the wrongful termination claims, and who doesn't keep up with the employment law developments is not going to be nearly as persuasive in trying to bring both parties to a compromise. EEOC seems to be quite picky when it comes to mediators, and the ones I had an opportunity to work with are quite competent.

Non-Compete Agreements and Wrongful Termination in Violation of Public Policy in California

2010-08-01T06:31:11Z

The recent Silguero v. Creteguard, Inc., appellate decision from the Second Appellate district (Los Angeles County) is instructive on a less common issue arising out of the attempt by an employer to follow a non-compete agreement that the subject claimant signed with his former employer. In that case, shortly after claimant was terminated by his first employer, with whom he signed the non-compete agreement, she found employment with the defendant company. The first employer contacted the defendant and requested "cooperation" in enforcing the non-compete. As a result, claimant's employment was terminated by the defendant.

While the new employer had the best intentions of acting honestly and ethically toward the other company (previous employer) and trying to do the right thing, even though they suspected that the non-compete agreement might be unenforceable in California, the court still found that the future employer was liable for wrongful termination. The court's analysis largely relied on a very significant, and long standing public policy in California that protects the important legal right of persons to engage in businesses and occupations of their choosing and discourages circumvention of freedom to seek employment anywhere in the state.

The Court of Appeal further reminded the defendant-employer that a competitor may solicit another competitor's employees if they do use unlawful means or engage in acts of unfair competition. Thus, no actionable wrong is committed by a competitor who hires away his competitor's employees who are not under contract, as long as the inducement to leave the first employer is not accompanied by unlawful conduct.

Failure to Accommodate and Provide Reasonable Accommodations at SFMOMA

2010-07-15T09:04:23Z

Yesterday, I met with a client - a very pleasant lady in her mid thirties who was forced to quit from the SFMOMA (San Francisco Museum of Modern Arts) due to what appeared to be egregious violations of California disability laws at workplace. The former SFMOMA employee has been suffering from fairly severe scoliosis in her back and accompanying PTSD for several years. She submitted doctors' letters to her employer requesting the museum to provide her with reasonable accommodations, but they systematically ignored it for several years, openly accusing the employee of making her symptoms up and also telling her that unless she is crippled or has a terminal illness, she is not considered disabled and will not receive any special treatment. The accommodations requested were minimal - to allow the employee to take a few hours off per month to see her doctor in order to relief her back pain symptoms.

Out of curiosity, I asked my client to stand up and show me the curvature of her back, and I was surprised to find how noticeable the degenerative changes in her back were. I wonder if her employer ever bothered to look at her back...

This unprecedented ignorance of the disability laws at workplace that employs several hundreds of employees and that has been a distinguished establishment with national recognition for many years is unacceptable and should be changed. I am not sure if it's a wrong termination lawsuit or some involvement from the management that will trigger the change in the human resources management in that museum, but it seems to me that it's only a matter of time until such systematic disregard for disability laws will lead to significant liability on the part of the San Francisco's premier museum.

Peer Review and Staff Membership / Privileges Rights of California Medical Doctors

2010-06-08T09:30:46Z

Decisions concerning medical staff membership and privileges are made through a process of hospital peer review. Every licensed hospital is required to have an organized medical staff responsible for the adequacy and quality of the medical care rendered to patients in the hospital. Arnett v. Dal Cielo 14 Cal.4th 4, 10 (1996). The medical staff must adopt written bylaws which provide formal procedures for the evaluation of staff applications and credentials, appointments, re-appointments, assignment of clinical privileges, appeals mechanisms and such other conditions which the medical staff and governing body deem appropriate.

The medical staff acts mainly through peer review committees, which, among other things, investigate complaints about physicians and recommend whether staff privileges should be granted or renewed. California has codified the peer review process in Business and Professions Code section 809 et seq. The primary purpose of the peer review process is to protect the health and welfare of the people of the state by excluding through the peer review those medical practitioners who provide substandard care or who engage in professional misconduct. This process also allows hospitals to remove incompetent physicians from a hospital's staff to reduce exposure to possible malpractice liability. Kibler v. Northern Inyo County Local Hospital Dist. 39 Cal.4th 192, 199 (2006). Another purpose which is equally important is to protect the employment and the rights of competent medical doctors from being barred from practical of medicine for arbitrary and discriminatory reasons. As one court noted, peer review that is not conducted fairly and results in the unwarranted loss of a qualified physician's right or privilege to use a hospital's facilities deprives the physician of a property interest directly connected to the physician's livelihood. Anton v. San Antonio Community Hosp. 19 Cal.3d 802, 823 (1977).

The effect of denying staff privileges extends beyond reducing or eliminating a doctor's access to the facility that denies the privileges. The same hospital is required by section 805(b) to report certain disciplinary actions to the Medical Board. A hospital considering whether to grant or renew a physician's staff privileges must contact the Medical Board to learn if some other facility has reported a disciplinary action involving the physician as per section 805.5(a). A hospital is also usually required to report disciplinary actions to the National Practitioner Data Bank, established for the purpose of tracing the activities of incompetent physicians. 42 U.S.C. 11133(a). Thus, a hospital's decision to deny staff privileges may have the effect of ending the physician's career. Mileikowsky v. West Hills Hosp. and Medical Center (2009).

The peer review process, while generally delegating responsibility to the private sector to monitor the professional conduct of physicians, establishes minimum protections for physicians subject to adverse action in the peer review system. Smith v. Selma Community Hospital 164 Cal.App.4th 1478, 1484(2008). Where a peer review committee recommends a "final proposed action" that will require a hospital to file a report with the Medical Board, the affected physician is entitled to notice and may request a hearing for the purpose of determining if the recommendation is reasonable and warranted. The hearing shall be held as determined by peer review body, before a trier of fact, which shall be an arbitrator or arbitrators selected by a process mutual acceptable to the licentiate and the peer review body, or before a panel of unbiased individuals, which shall include, where feasible, an individual practicing the same specialty as the licentiate. At the hearing, both parties have the right to call, examine and cross examine witnesses and to present and rebut evidence. Upon the completion of the hearing, the parties are entitled to the written decision of the trier of fact, including findings of fact and a conclusion articulating the connection between the evidence produced at the hearing ad the decision reached. Section 809.4(a)(1).

It is important that the physician cooperates with any investigation into his conduct or practice of medicine, since a physician's refusal to cooperate in the investigation of reported problems may support a recommendation that the physician's staff privileges be denied. Webman v. Little Co. of Mary Hospital 39 Cal.App.4th 592, 602-603 (1995). However, it is also settled that a physician may not be denied staff privileges merely because he is argumentative or has difficulty getting along with other physicians or hospital staff, when those traits do not related to quality of medical care the physician is able to provide. Miller v. Eisenhower Medical Center 27 Cal.3d 614, 627-629 (1980).

Police Departments Assert Immunity When Terminating Officers and Falsely Accusing Them of Misconduct

2010-05-21T08:49:02Z

The most typical defense that city police departments assert when a terminated police officer files a lawsuit for wrongful termination, defamation, and related claims is governmental immunity. The good news for the aggrieved police officers and other public employees that might be in a similar situation is the fact that this immunity is available not nearly as often as the public employers believe.

One leading case on the issue is the California Supreme Court decision in Barner v. Leeds 24 Cal.4th 676 (2000). In that case, an innocent man who was wrongfully convicted of robbery, filed a legal malpractice action against his lawyer - public defender.

Under California Tort Claims Act (Gov. Code section 810 et seq), public employees are liable for their torts unless a statute provides otherwise. One exception is immunity for discretionary acts performed within the scope of the public employee's authority. The immunity, however, only applies to the basic public policy decisions and not the "operational" actions performed after the basic public policy function is performed. For instance, one court concluded that while deciding whether to provider a job reference is a policy decision that enjoys immunity, the contents of the reference itself is an operational action, which is not immune from liability that might result from its contents (i.e. - defamatory publications, containing slander/libel).

Why Even Large Employers, such as Kaiser, Tend to Contest Employment Benefits

2010-05-10T01:21:03Z

Recently, I had a chance to talk to one of the HR managers at Kaiser. I couldn't help but ask him why is it that Kaiser tends to fight their terminated employees' claims for unemployment benefits. Having had at least a dozen of clients who were terminated from Kaiser in the Sacramento area alone during the past six months, and who needed help reversing their denial of benefits, I couldn't help but be curious. After talking to him, I realized that at least one of the major reasons that Kaiser tries to have their fired nurses and cna's benefits denied is because they think that if they win in front of the Unemployment Appeals Board, the fired employee will be discouraged from taking any other legal action and will be less likely to sue for wrongful termination.

In reality, however, the exact opposite is often true. Managers don't seem to realize that by trying to strangle a victim after shooting it, they only increase the chances of the employee getting angrier at them, more desperate for income, and thus having no other resort but at least try and bring a lawsuit against the employer. A terminated employee who feels that he was treated unfairly gets approved for unemployment benefits, might feel better in part because of having at least some income while he is looking for a new job. On the other hand, the same employee who has to fight to get his unemployment benefits will be much more likely to get even more angry at his employer and will be much more eager to sue.

It's important for both the employers and employees to remember that the outcome of the unemployment appeal hearing has no bearing on an employee's legal claims and has marginal relevance at best to the employee's ability to prove his claims in court. In other words, just because the employee is not eligible for unemployment benefits, doesn't mean that he won't win his case in court. The opposite is true as well - getting unemployment benefits awarded is no assurance to winning a lawsuit.

Additional Protections Against Retaliation to California Nurses and Medical Staff

2010-04-21T09:00:47Z

Besides other federal and California workplace anti-retaliation laws available to different groups of employees, nurses and other medical professionals working at hospital, clinics, and other healthcare facilities have additional law in California that protects them from retaliation. Under section 1278.5 of California Health and Safety Code, the employers may not prohibit against any employee who complains to an employer or a governmental agency about unsafe patient care or conditions.

Unfortunately, this kind of retaliation is not uncommon. The persons in charge who are afraid that the medical safety complaints are not only directed to them but they are also in part or in whole might be their responsibility will likely make it their first priority to terminate the complaining employee or otherwise shut him up.

In Mendiondo v. Centinela Hospital Medical Center, 521 F.3d 1097 (2008), the employee complained about compromised patient care, including unnecessary catheterizations, refusing to use the safest drug for heart attacks because of cost reasons, and using outdated cardiac equipment, among other things. Her manager informed her outright that she should either stop complaining or she will be fired. The ninth circuit allowed the case to proceed forward after it was found to be improperly dismissed by the district court.

Thus, healthcare employees who are fired for caring about their patients and about complying with their ethical obligations should know that the above statute protects them, and while it might not force the employer who unlawfully fired them, reinstate the victim of retaliation, it gives them a strong voice in court, especially if the fact that questionable practices took place is corroborated by other existing or former employees.

Deposition Advice: Insist that Your Attorney Prepares You for Your Deposition Testimony

2010-04-11T20:21:12Z

Most labor and employment attorneys know that their client's deposition testimony is likely the most important part and stage of the case. Few aggrieved employees win a case just because they do well at a deposition, but many lose their case or substantially decrease the value of their case because of how they testify or how they present to the opposing counsel. This is exactly why it is so important that you understand how the deposition works and learn to do well.

If your attorney does not plan to spend at least a few hours with you before your deposition because he doesn't think it's necessary or because he is too busy, request that your deposition be postponed, so your attorney can thoroughly prepare you for your testimony. Your attorney should explain to you the purpose of deposition, the basic rules, what to expect from the opposing side, and the common mistakes that deponents make that you should avoid.

My experience suggests that the most confident and calm people become very nervous during their deposition, especially if they testify for the first time. One of the best ways to eliminate the nervousness is for a client to see a video of a deposition, so he/she knows exactly what's going on during those proceedings, and what kinds of questions are being asked.

Attorneys know that when it comes to your deposition, it's not only what you say but how you act and how you present to the other side that matters just as much or even more than the substance of your testimony. If you are a calm, polite, charismatic person who doesn't get destabilized or angry under pressure, who doesn't get offended by inappropriate questions or false allegations, and who is generally likable, this will send a message to the opposing attorneys that the jury or the arbitrator is going to like you too - something that they will be eager to avoid, which in turn will contribute to a faster and better settlement for you. If, on the other hand, you show entitlement mentality, are angry and combative, would not stop talking when answering a question, instead of giving brief and direct answers, the deposing attorney will have a lot of fun "torturing" you at a deposition to the great disappointment of your attorney and will assume that you will simply not last all the way through trial.

As an example, here is one simple question and two very different ways to answer it that essential mean the same, but will produce extremely different results as far as your case goes:

Q: "Isn't it true that you stole $260.00 from the cash register?"
Good answer: "No, I didn't" - calmly and quietly.
Bad Answer: "How can you say something like that. I have never ever stole anything in my life, especially from this evil employer....How dare they accuse me of this after I did so much good work for them. This is outrageous and they need to be punished for this."

Misconduct and Tardiness Caused by Depression are Not Grounds for Denial of Unemployment Benefits

2010-03-23T10:01:37Z

I was glad to find out yesterday that yet one more of my clients won the appeal of the denial of unemployment benefits in Sacramento County. In that case, I represented a nurse who was an outstanding and dedicated employee for Kaiser for over 13 years before she was diagnosed with major depression that lead to her being late to work on occasions and seeking treatment.

My client was summarily terminated under the blanket absenteeism policy of Kaiser that completely disregards state and federal disability laws and obligations that employers have toward disabled workers. At a hearing, the employer represented by the managing nurse of the department admitted that she was aware of the claimant's diagnosis for several years prior to her termination. Being a medical professional, the employer's representative didn't even dare to suggest that she did not know that some of the common symptoms of depression are anxiety, fatigue, inability to focus and thus - the resulting tardiness.

The administrative law judge ruled in my client's favor as I expected, concluding that even though she violated the employer's policy, because the violation was caused by the common symptoms of depression, she should not be disqualified from unemployment benefits under section 1256 of the unemployment insurance code.

Employment Law Violations in Non Profit Organizations

2010-02-22T04:38:49Z

For years, I believed that since the whole purpose of establishing and running non-profit companies in California is providing some kind of service for the public good and not for profit. As a result, I assume that working in non-profit organizations must be a fulfilling experience on more levels and that the relationships between employees and the way the employees are treated by their management is also superior to the for-profit sector.

However, a number of claims I worked on reflect a different reality. Workplace Retaliation in non-profit agencies is quite common. One of the more common forms of retaliation is against a mid-level managers. A manager might suspect or even witness how funds provided to the employer by the government agencies or through other fund raising efforts are mishandled or even embezzled. That manager makes an internal complaint to his boss. That superior manager might be involved directly or indirectly in the unlawful and unethical handling of the funds and thus he tries to push the issue under the rug or starts building a paper trail of unsubstantial allegations of performance issues or insubordination to "lawfully" terminate the whistleblower.

Such retaliation claims are not easy prove that the year certainly worth investigation, as with proper documentation and witnesses to both - the unlawful activity and the retaliation, such claims can result in both substantial settlement or trial verdicts and changes in the company that assure fair proper management of funds.

Employers Must Pay Their Employees Immediately Upon "Discharge"

2010-02-04T06:45:30Z

Most employers are well aware that if they terminate an employee for any reason of if it's a lay-off, they must pay that employee's wages (which includes vacation and sick time if applicable) in full immediately upon discharge. But, what if an employee works for a certain company on per assignment basis, where upon completion of one assignment of a certain duration, the employee might have to wait a shorter or a longer period of time till he receives the next assignment, where having such future work is not even guaranteed.

Recently, my client's employer tried to argue that because my client was expected to receive a new work project within a few months, they did not have to pay him his outstanding, accrued vacation time which accumulated to nearly 500 hours. The employee was out of work for several months, and there was no real assurance that the employer was going to put him on a new project.

At the labor board hearing in San Francisco, the commissioner was persuaded by my argument that under the California Supreme Court ruling in Smith v. Superior Court 39 C4th 77 (2006), "discharge" includes not only termination from ongoing employment relationship, but also release of an employee upon completion of a specified job assignment or time duration for which the employee was hired. In Smith the court determined that a fashion model, who was hired for one-day assignment, had to be paid at the end of that day.

There are a few exceptions to the above rule, the most notable of which is the fact that employees of temporary agencies who are placed to work as temps at a company, do not have to be paid immediately upon completion of assignment, because the very nature of working for a temp agency entails an agreement with such an agency to be paid as per the agency's payroll periods.

Evidence of Discrimination against Others at Your Company May Be Helpful to Your Case

2010-01-04T09:05:57Z

Recently, the Second District Court has ruled in Johnson v. United Cerebral Palsy, 173 Cal.App.4th 740 (2009) on an important issue of admissibility of evidence of discrimination against a number of employees in a discrimination and wrongful termination case brought by a former employee. In that case, a pregnant employee was terminated for allegedly falsifying time records shortly after she notified her supervisor of her pregnancy. The employer defended against pregnancy discrimination allegations by introducing evidence of the claimants substandard job performance as well as falsification of time records on her part.
The court, after pointing out that the timing of termination alone or providing false reasons for termination alone are not sufficient reasons to disprove that the termination was not discriminatory, pointed out that declarations by some employees that the employer fired shortly after they got pregnant, and statements by other employees that the same supervisor made their job far more stressful after they notified him of their pregnancy, in addition to the negative comments that the employer made to the same women about their pregnancy were sufficient evidence to allow the case to be heard in front of the jury.

How to Deal with Workplace Harassment

2009-12-18T04:06:22Z

Workplace harassment is a source of tremendous stress for many employees in California. Some of them confront their harassers in one way or the other, while others take a passive approach, feeling helpless or not believing that anyone can help them, including their human resources management.

Unless the harassment is very severe (such as unwanted touching, violence or threats of violence, repeated racial or sexist slurs, etc), most attorneys will advise you that suing the employer or the harasser is not a great option if you are still employed with the company where you are subjected to harassment. This is because any recovery of damages in employment related cases is to a great degree proportionate to the loss of wages. If you are still employed and have not been terminated, you are not losing any wages, which makes your case "smaller."

This doesn't mean however that you should remain helpless and do nothing to protect yourself and your position at workplace. Here are a few simple, practical and important steps you can and you should take if you are subjected to harassment, but no action such as suspension and termination has been taken against you:

1. Make sure you complain in writing to your supervisor or your supervisor's manager if your supervisor is the harasser about your experience. Do everything you can to make sure that the employer cannot deny later that they knew you were harassed. Fax your complaint and keep a record of transmission confirmation. Deliver your letter in person if possible and also call to make sure that your complaint has been received by the people authorized to review harassment complaints and investigate the allgations.

2. If not action is taken to investigate your complaints within a few weeks to a month and the harassment continues, submit another complaint and demand that an investigation into your allegation be conducted as soon as possible an action to be taken against the harasser. This might also be a good time to contact and experience employment attorney who can advise you on the next steps considering all the specific circumstances of your situation.

3. If possible, don't let your performance slip and give your employer "legitimate" reason to terminate you and cover retaliatory discharge with such common reasons for firing as "insubordination" or poor performance.

4. If you communicate with HR and your management by e-mail, make sure you back or copy all your e-mails, so that you have access to your communication later. It's not uncommon for employees to be escorted out of the office upon termination without any notice and not have any opportunity to access their personal information on their office computer ever again later. Even though the employers are obligated to preserve electronically stored information about notice of potential litigation, deleting your e-mails and documents stored on the computer is too easy.

5. If there are witnesses (co-workers) to the way you are harassed, ask them to write a brief statement and sign it under the penalty of perjury. Some people will be afraid to testify against their employer for obvious reasons of being concerned about retaliation, while others won't mind helping you, especially if they are unhappy about the way you are treated (or they are treated. This can be used later as a compelling peace of evidence to prove that you indeed were harassed.

You might not be able to prevent your demotion, transfer, suspension or wrongful termination, but you can make sure you line up your "weapons" effectively, so if and when you need to bring a claim against your employer, they will have many reasons to settle your case sooner, or give you your job back and remove the harasser, or use the same weapons in court to your great benefit.

California Wage Laws: Compensation for Travel / Commute Time

2009-11-23T06:43:58Z

You are a consultant who travels from one work site to another serving the needs of your employer's customers, or you are a support service provider for one of your company's products and your travel all day from one office to another to repair or provide other on-site services. Are you entitled for compensation for the time you commute from one job site to another?

The answer is yes. The Industrial Welfare Commission Orders specifically define the term "hours worked" as the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not he or she is required to do so. In other words, under California law, if the travel time is subject to and under the employer's control and it's time for which the employee should be compensated at his regular rate of pay or at overtime rate of pay if applicable.

Of course, the commute in the beginning of the workday to the first job site and the commute at the end of the day - from the last job site back home - is not a compensable time, as it essentially the same kind of time as any other employee would spend who travels to and from one work site (his office) every day.

It should also be noted that the above rules apply to "employees" and not independent contractors, and the answer to the above question in the case if independent contractors is likely to be "no."