San Francisco Employment Law Firm Blog

Hostile Work Environment: Harassment by Co-workers

2009-01-06T21:02:29Z

Many workers intuitively believe that just because their co-workers act toward them in a rude or unfair way or just because they are not friendly to them, this is ground for harassment claim in court. It is important to remember, however, that under California law, a conduct is considered harassment only if it's "sufficiently severe and pervasive to alter the conditions of the alleged victim's employment." This standard is quite high, and isolated incident of rude or inappropriate behavior usually don't qualify as harassment.

Thus, in one recent case, the Second District court considered a situation where the worker sued her employer for harassment hostile/work environment after several of her co-workers teased her on several occasions in front of the customers and called her a "retard," and refusing to change her schedule so that she could avoid working during the same shift as those employees who teased her. Young v. Exxon Mobil Corp. The court held that, as a matter of law, the evidence did not establish harassment sufficiently severe and pervasive to be actionable under the FEHA (Fair Employment and Housing Act) to alter the condition of Young's employment.

Admittedly, it takes a more egregious conduct to constitute harassment. Many companies can be characterized by being stressful workplaces with office politics, "backstabbing," and other manifestations of people's dissatisfaction of being forced to work together, but to constitute harassment, these working conditions must clearly be beyond the typical disagreements, and conflicts between co-workers, and a common stress that is brought about by most jobs.

Staring and Sexual Harassment at Workplace

2009-01-03T19:42:41Z

Under California law, to be actionable/unlawful the harassment at workplace must be sufficiently "severe and pervasive." This means that, generally isolated comments and incidents, unless egregious, do not rise to the level of sexual harassment as defined by FEHA (California Fair Employment and Housing Act). But, what about staring? Can staring be grounds for a sexual harassment claim? On one hand, staring might be a very subjective complaints, as some people might think that someone is staring at them when in fact no one does. On the other hand, overt staring might be very threatening and indicate a kind of obsession and other threatening behavior.

The California Court of Appeal confronted the issue of whether staring can be considered sexual harassment in Birschtein v. New United Motor Manufacturing, Inc. (2001). In that case, a forklift driver approached the female assembly worker and asked her out several times. After she refused his propositions, he started sharing his explicit sexual fantasies about her, and drive around and look for her when she was not around. After the claimant complaint about harassment to the management, the forklift driver stopped speaking to her and never spoke to her again. Instead, he began staring at her. He would drive to her work station five or more times per day and stare directly at her for at least several second each time. He would also sit behind the forklift and stare at the plaintiff for five to ten minutes at a time.

When the female employee sued her employer for sexual harassment and failure to prevent harassment, one of the arguments that the defense attorneys had was that staring is not a sufficiently severe and pervasive behavior to constitute harassment as a matter of law. The court disagreed. In its holding, the court suggested that staring is particularly likely to be actionable as harassment if there is a prior history of prior acts between the harasser and the victim of harassment that would cause the victim to feel threatened and intimidated when the harasser, who engaged in the more overt acts of harassment, engages in staring in retaliation for the victim's complaints. In other words, the court seemed to suggest that while staring alone might not be sufficient to constitute harassment, when combined with other (prior acts) by the same harasser, it may be sufficiently severe and pervasive to constitute sexual harassment.

When the employer's harassment policy is ineffective

2008-12-31T21:21:00Z

Most employers, especially larger companies include detailed provisions on their anti-harassment at workplace policy. These policies generally serve several purposes. First, the employers are required to implement various harassment training and prevention procedures at workplace. Secondly, these policies are designed to provide an opportunity for employee to address and eliminate harassment at workplace. Lastly, and not less importantly, existence of those policies in the employee handbook is commonly used as a strong defense against sexual harassment, racial harassment and other hostile work environment claims, if the employee claims that he/she was harassed but failed to use the grievance procedures as provided by the employer's harassment policy.

However, the anti-harassment policies and the grievance procedures that the employee who believe to be harassed are encouraged to follow often have a fundamental flaw that entire defeats their use - many harassment manuals provide that the employee who feels that he/she is harassed should complain to his/her immediate supervisor or manager. The problem is that the immediate supervisor is often the source of harassment. If that's the case, that kind of policy will neither provide effective help to the employee, as it goes without saying that complaining to the source of harassment about his own harassment would be pointless.

Moreover, the employee's failure to use anti-harassment grievance procedures of the company in this case will likely not serve as a valid defense to the employer. As the United States Supreme Court stated in a leading case on harassment: "the employer's grievance procedure apparently required an employee to complain first to her supervisor. Since in this case the supervisor was the alleged perpetrator, it is not altogether surprising that the victim of the harassment failed to invoke the procedure and report her grievance to him. The employer's argument that the harassed employee's failure should insulate it from liability might have been substantially stronger if its procedures were better calculated to encourage victims of harassment to come forward..." Meritor Savings Bank, FSB v. Vinson.

Should you tell your boss that you are pregnant?

2008-12-28T08:40:59Z

Many female employees are afraid of telling their boss about their pregnancy. They are concerned about being perceived as less capable and desirable employees and about being terminated. This is especially likely to be the case if a female worker has a well-paying job and cares about her place in her workplace and her career advancement in the near future.

However, the reality is that there are simply no advantages to not disclosing pregnancy to the employer. First, sooner or later the employer will find out that the employee is pregnant as the pregnancy will become visible. Secondly, informing your employer that you are pregnant and have a difficulty in performing certain duties of your job, you may be entitled to certain protections, such as reasonable accommodations to your condition.

If you are concerned about pregnancy discrimination, this is yet another reason to put your employer on notice that you are pregnant as soon as possible. Employers who are sued for pregnancy discrimination ordinarily argue that they had no knowledge of the suing employee's pregnancy. This is often grounds for dismissal of the discrimination claim. By notifying your employer of your pregnancy promptly, you take this argument away, creating a further legal protection for yourself. After all, the more risky the position that the employer puts itself in when planning to terminate you, the less likely you are to be terminated.

When racist comments at workplace amount to race discrimination

2008-12-23T21:07:32Z

Unfortunately, it is not uncommon for supervisors to use racial slur and stereotypes as references when criticizing an employee's performance or otherwise. These comments can be very innocent or obviously degrading and offensive, clearly showing the manager's hostility towards a given race.

To prove racial discrimination, however, it is not enough to simply show that the employer used racist slur toward a particular employee (although this can amount to racial harassment, if sufficiently severe and pervasive). To prove discrimination, there must be a link between the racists words and the adverse employment action that the manager takes against an employee, such as firing, demotion, or transfer to a least desirable position. Thus, to be evidence of discrimination, the supervisor's comments must be contemporaneous with the termination or causally related to the termination decision making process.

This means, for example, that a manger's racist joke six months prior to deciding to terminate an employee can be hardly considered to be evidence of racial discrimination. Neither judge nor jury will likely be convinced that just because your supervisor made a racist remark in your presence months or longer before your termination, the reason for your termination was racial hostility, if that much time has elapsed between the two events. On the other hand, using racial slur toward an employee while emphasizing his poor performance, such as "You Mexican's/Blacks/any other ace are all lazy" and then terminating him shortly thereafter is likely to be evidence of racial discrimination.

California Employment Law: Verbal Harassment at Workplace

2008-12-21T05:45:25Z

Generally, under California law, sexual harassment hostile work environment is an unlawful conduct at work place which involves unwelcome sexual advances of a co-worker or a supervisor, which may include sexual innuendos, offensive, inappropriate and sexual touching, and alike. Although these are typical examples of a conduct which is likely to be classified as sexual harassment, the offensive words or conduct directed at an employee because of his or her gender alone may create a hostile work environment even if those words or conduct are not sexual in nature. For example, even though an isolated incident of calling an employee a “bitch” will ordinarily not amount to harassment, using the word “bitch” repetitively in the presence of both men and women but in reference to women may constitute unlawful gender harassment, especially if coupled with other harassing conduct.

On the other hand, hostile words or conduct based solely on personal animosity are not actionable as sexual harassment in California even if the victim is of the opposite gender. As the court pointed out in once case – “Unfair, overbearing, or annoying treatment of an employee, standing alone, cannot constitute a sex discrimination claim. In other words, a conduct that is based on personal agenda or anger and not on gender is not grounds to claims for sexual harassment. For instance, if a boss and a particular employee are not compatible and simply can’t get along, it would not be sexually discriminatory to harass employee on that basis. In other words, sexual/gender harassment requires showing that the employee was treated a certain way because of his or her gender. Thus, one California court noted that where the employee was the only woman on the workforce, her coworkers’ acts of insubordination, dissemination of untrue rumors about her, and aspersions on her competence may contribute to a hostile work environment based on sex.

Just Cause Termination under California law

2008-12-16T23:47:53Z

In the absence of an agreement otherwise a worker in California is generally presumed to be an "at-will" employee. This means that an employee can be terminated for any reason, no reason or arbitrary reason as long as it's not an illegal reason (such as discrimination, harassment, retaliation, etc.) Once an employee establishes that he/she might have been terminated for unlawful reason, an employer will be required to defend its termination by demonstrating "just cause." Employers covered by collective bargaining agreements are also typically required to demonstrate "just cause" for any disciplinary action involving a covered employee. Thus, it is important to understand the "just case" term of art. In determining whether the employer had just cause for terminating an employee, the following questions should be asked:

* Did employer's action violate any statute or policy?
* Did the company investigate to determine whether the employee actually violated the rule for which he was disciplined or terminated?
* What the company's investigation fair and objective?
* During the investigation, did the company obtain substantial evidence or proof that the employee was guilty?
* Has the company applied its own rules and discipline, as outlined in employee handbook or similar materials, fairly and consistently to all employees?
* Is the degree of discipline reasonable proportional to the seriousness of the proven offense or violation in light of the gravity of that offense as compared to overall performance, track record and length of service of that employee?
* Has the employee been honestly informed of the reasons for discipline or termination?

Generally, especially in the context of unionized employee covered by CBA (collective bargaining agreements), just cause for termination is something more serious than a minor misconduct or isolated incidents of negligence, as there is both semantic and legal difference between "cause" (which can be any cause) and "good cause."

Disability Benefits in California - eligibility for SDI

2008-12-15T23:34:14Z

In addition to unemployment benefits compensation for those workers who are not disabled, the unemployment insurance code of California provides for disability compensation under Unempl. Ins. Code sections 2601 and 3272. Unemployment compensation disability benefits are paid from the disability fund. A worker is deemed disabled on any day in which, because of physical or mental condition, he was unable to perform his regular or customary work. Disability may include illness, injury, pregnancy, childbirth, infection with a communicable disease, acute alocoholism, or acute drug-induced illness.

The requirements for eligibility for disability benefits generally include (Unempl. Ins. Code sec. 2627):

(a) Making a claim;
(b) Being unemployed and disabled for a seven-day waiting period;
(c) Submitting to reasonable medical examinations; and
(d) Filing a physician's certificate.

A worker is not eligible for disability benefits with respect to any period for which he received or is entitled to receive unemployment compensation benefits of California or other state or the federal government. If other benefits are paid, such as workers compensation benefits for instance, the disability benefits must be reduced accordingly.

Sexual Harassment without Sexual Advances at Workplace

2008-12-15T20:04:51Z

It is a common tactic for an employer to defend an employee's claims of sexual harassment at workplace by arguing that because the conduct in question towards the victim wasn't "sexual enough," she cannot state a valid claim for sexual harassment. This is exactly what happened in Birschtein v. New United Motor Manufacturing, Inc. (2001). In that case, a forklift driver's conduct included asking a female co-worker (Birschtein) out on a date 3-4 times, telling her that he had sexual fantasies about her in the most explicit detail, staring at her, and according to co-workers, driving around and looking for her when she was not around.

The defendant employer argued that its conduct did not amount to actionable sexual harassment because it was not "based on sex." The court disagreed. Relying on prior, well established case law on sexual harassment, the Court stated that sexual harassment hostile work environment need not have anything to do with sexual advances. Hostile work environment shows itself in the form of intimidation and hostility for the purpose of interfering with an individual's work performance.

Hostile environment sexual harassment may occur even if gender is a substantial factor in the discrimination and that if the claimant had been a man, she would not have been treated in the same manner. In other words, to constitute impermissible discrimination, the offensive conduct is not necessarily required to include sexual overtones.

Availability of Reasonable Accommodation

2008-12-13T10:40:49Z

Last week, I participated in the interactive process discussion with my client and his employer - the state agency in Sacramento, to find reasonable accommodations to his disability (impairment of short-term memory and learning disability). The employer should an admirable willingness to comply with the disability laws under FEHA (Fair Employment and Housing Act) and engaged in the interactive process as required by law.

During our discussion in an attempt to see what reasonable accommodations, if any, may be available to my client, the employment lawyer for the State kept reiterating that it's the employee's burden to show that such reasonable accommodations are available. I, on the other hand, had to point out to the counsel for the State that he was incorrect. I reminded him that in one of the leading cases on the issue, Barnett v. U.S. Air, Inc. (9th Cir. 2000), the employer also tried to place the entire burden of showing the availability of reasonable accommodations on the employee, but the court disagreed, stating that to put the entire burden for finding a reasonable accommodation on the disabled employee and relief the employer from the duty to identify possible accommodations conflicts with the purpose of the law and thus doesn't make sense.

The employer must participate in a search for effective accommodations to disabilities of their employees because these employees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations that the employer might have. Placing the entire burden on the employee to identify a reasonable accommodation risk shutting out many workers simply because they do not have the superior knowledge of the workplace that the employer has.

Internal Administrative Remedies and FEHA

2008-12-09T08:10:32Z

In a unanimous opinion filed on October 27, 2008, the California Supreme Court held that when an employee voluntarily pursues an internal administrative remedy prior to filing a Fair Employment and Housing (FEHA) complaint, the statute of limitations (of one year) on the FEHA complaint is subject to equitable tolling.

This decision is important to those employees who are concerned about missing the one-year deadline on filing a Discrimination Charge with DFEH (Department of Fair Employment and Housing) and wonder if they should pursue internal administrative remedies first, provided optionally by their employer, skip the internal remedies altogether, or pursue both - the internal administrative action and DFEH procedures.

The recent Supreme Court holding establishes that an employee no longer need to worry about missing the DFEH deadline while pursuing an internal remedy. This decision makes a lot of sense as it reiterates the Court's continuing efforts to encourage employees/potential litigants to seek and find out-of-court remedies to their grievances before filing a court action.

California Overtime Law: Administrative Exemption

2008-12-07T20:56:53Z

To qualify for the administrative exemption from overtime compensation requirement an employee must be primarily engaged in a work of a type that is "directly related to management polices or general business operations." This requirement of course must be interpreted as it is inherently vague. In one sense, every type of work directly relates to management policy because every employee does work that carries out, or is governed by, management policy. But for obvious reasons, such an interpretation wouldn't make sense, as it would make virtually all employee exempt from overtime.

In Harris v. Liberty Mutual Insurance Co. (2007), the court clarified that the work is "directly related to management policies or general business operations" for the purposes of determining whether administrative exemption applies only if it "relates to the administrative operations of a business as distinguished from 'production' or in a retail or service establishment 'sales" work." This means, the court continued, that only work performed at the level of policy or general operations can qualify as "directly related to management policies or general business operations." On the other hand, work that merely carries out the particular, day-to-day operations of the business is production and not administrative work, and thus doesn't qualify for administrative overtime exemption.

The Harris court, applying this analysis, found that insurance adjusters, who sued the defendant for unpaid overtime, were primarily engaged in "production" - adjusting individual claims for their employer. They investigate claims, make coverage determination, set reserves, negotiate settlements, make settlement recommendations for claims beyond their settlement authority, identify potential fraud, and so forth. Noe of that work was found to be carried out at the level of management policy or general operations. Rather, it is all part of the day-to-day operation of defendants' business.

The employer in Harris argued that the company's adjusters should be covered by administrative exemption from overtime compensation because they advise management on important decisions and participate in planning, negotiating and representing the company, which, according to Liberty Mutual, should have been considered administrative work. The court disagreed, holding that in order for such tasks to fall on the administrative side, they must be carried on at the level of policy or general operations as these were part of the employees' "routine day-to-day production work," comparable to that of a salespersons who negotiate prices and terms, represent the company, and purchase non-inventory products that customer requests.

The term "production" should not be taken literally when considering California administrative exemption from overtime compensation. For example, a law firm's product is legal advice and legal representation, not secretarial services. A secretary at a law firm therefore does not produce the firm's product as to do so would constitute providing unauthorized legal advice, and the secretary's work is a classic example of non-exempt production work, as it has nothing to do with policy or general operations (except in the sense that, like every employee's work, it is governed by policy). Rather, the secretary's work relates entirely to the day-to-day carrying on the firm's affairs.

San Mateo Employment Lawyer: Partnerships

2008-12-04T06:27:37Z

Partnership is an association of two or more people to engage in business for the purpose of proportionately sharing the profits and losses of that business (as well as assets and liabilities). This means that partners decide on how they will share the profits and losses in % terms. A partnership can be formed in writing or orally, as what makes an association a partnership is not the paperwork, but the actions of the members of a business association. In other words, if people act like "partners," then they will be recognized and treated as partners under California partnership law.

Despite that, like in any business deal, written partnership agreements are highly recommended to memorialize the essential terms and conditions of the business relationship and to avoid misunderstandings between the partners.

Like any other relationship, such as friendship, marital ties, etc... a business partnership necessarily involves and thus depends on the character and the emotions of its members. Thus, it is absolutely crucial that if you decide to enter into a business partnership with another person/s, you should actually like each other, respect each other, and at least somewhat feel comfortable around each other, as you will be spending a lot of time together.

Associating with someone you don't like into a partnership just because the other partner has the needed skills and knowledge in the specific industry or the required capital is likely to be a mistake, as you will not be happy working with someone who you can't stand, which will hurt the productivity and profitability of your business venture and will inevitably lead to conflicts down the road.

Like many other relationships, partnerships form and dissolve - sometimes peacefully and sometimes after protracted, expensive and stressful legal battles, involving lawyers, judges and opposing counsel that will do everything in their power to discredit and undermine your position as they are paid to do so. From my experience, one of the most common reason for conflicts between partners is the ambiguities, and lack of clarity in the terms of the partnership agreement. Many people who enter into a business relationship, such as partnership, assume that things will work out and there will be no conflict and will not bother to outline clearly and specifically all the respective rights, duties and obligations of partners, which is extremely important to any and every partnership.

It is unfortunate that most people who plan to form a partnership don't bother to consider getting legal advice on forming a partnership the right way and avoiding misunderstandings between partners in the future that lead to conflicts and litigation, and only turn to a business attorney after the fact - when the agreement is violated, which is much more stressful, time consuming and expensive than having the partnership agreement draft clearly and properly, to cover all the essential terms.

Here are just some of the essential terms that every partnership agreements should have: the capital contributed by each partner, rights, duties and obligations of each partner, termination of partnership, the power and the process of adding, removing or replacing a partner, hiring and terminating employees, human resources issues, allocation of profits and losses, voting rights, dispute resolution - choice of forum (location for such proceedings) and choice of law (which State law will apply to resolving disputes).

Partnership can be a very effective, profitable, and enjoyable enterprise to be involved in, but to make the most out of such a business entity, you must make sure that it is formed competently and thoroughly. No one can fully protect himself from disputes, but it is quite possible to significantly minimize the likelihood of those business disputes and make the potential resolution of the potential disagreements easier and faster.

Employment Law: California Paid Sick Leave

2008-12-02T08:34:16Z

Under California Law, "sick leave" means "accrued increments of compensated leave" provided by an employer for an employee's use because of:
* the employee's physical or mental condition that makes the employee unable to perform his duties;
* the employee's need to obtain a professional diagnosis or treatment for a medical condition; or
* other medical reasons. Cal. Labor Code section 233(b)(4).

"Sick leave" does not include benefits provided under the ERISA plan, insurance benefits, workers' compensation benefits, unemployment compensation, disability (SDI) payments, or other benefits not payable from the employer's general assets. Cal. Labor Code section 233(b)(4)(c)

An employer policy that counts sick leave taken to care for a child, parent or spouse as an absence from work that could lead to discipline or discharge is a per se violation of Cal. Labor Code section 233, entitling aggrieved or wrongfully terminated employee for appropriate legal relief as provided by section 234.

In the event of a violation of section 233, an employee is entitled to reinstatement, actual damages or one day's pay, whichever is greater, and to reasonable attorney fees as per section 233(d).

San Francisco Harassment Lawyer: Proving Discrimination at Workplace

2008-11-29T08:41:39Z

One of the reasons that proving discrimination is such a challenging task in employment law is the fact that proving workplace discrimination requires showing a discriminatory state of mind. For obvious reasons, direct evidence of discrimination is rarely available, as few, if any, employers or supervisors would ever admit that they engaged in unlawful discrimination. Thus, eliciting circumstantial evidence (that evidence which inferred from other circumstances) can be crucial to a successful discrimination claim/lawsuit. This evidence includes demonstrating that the employee was treated differently from other similarly situated employees, certain remarks that would suggest hostility toward an employee because of his/her race, age, disability, religion, etc.

One of the very common ways in which employer try to deny allegations of harassment and discrimination by aggrieved employees and refute circumstantial evidence of discrimination and wrongful termination is by arguing that the reason that they treat the subject employees differently is because of their poor performance. It's not uncommon for an employer who is trying to get rid of a certain employee to create a "paper trail" of performance issues by issuing warning letters, having counseling sessions with an employee, and take other unethical measure to mask the true reasons for the planned unlawful employment termination.

Rebutting the poor performance argument through documentation evidence and statements of co-workers with regard to the employee's good performance is an important part of many, if not most, discrimination and wrongful termination claims, as it casts doubt on the employer's true motives for discriminatory conduct and termination and suggest that the real reason for employee's termination was other than his/her job performance.