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.

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.

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.

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."

One California court discusses and provides excellent guidance on proving retaliation in California Fair Employment & Housing Commission v. Gemini Aluminum Corp. 122 Cal.App.4th 1094 (2004). In that case, the court noted that to establish the necessary causal link between an employee's protected activity and the adverse employment action by the employer (such as termination, demotion, or transfer to a less desirable position/location) the employee needs to show that he/she engaged in a protected activity, that the employer was aware of that protected activity, and that the adverse action against that employee was taken shortly after the employee engaged in the subject protected activity.

The court emphasized two very important points with regard to retaliation. First, even informal complaints to management about discriminatory employment practices are considered sufficient opposition to trigger prohibition against retaliation. Secondly, the court noted that even threatening to file a discrimination complaint without actually filing it is a protected activity.

If the aggrieved employee is an at-will employee, this kind of seemingly unfair preferential treatment is only illegal if the reason for it is the fact that the adversely affected employee either (1) belongs to the protected category, such as gender, sexual orientation, disability, religion, ethnicity, familial status; or (2) because the employee exercised protected rights, such as complaining about workplace harassment or unsafe working environment (internally or to the outside government agencies), reporting criminal conduct, filing a workers compensation claim, participating in a union/political activity, serving on a jury, etc.

Since the at-will employment doctrine states that an employee can be terminated for any reason, no reason, or arbitrary reason, except illegal reason, terminating one employee and keeping the other because the employer likes the second employee better for his own, personal reason, assuming that no sexual favoritism is involved, generally does not violate California of Federal employment laws.

There was nothing I could do to help him, however, because of the bad advice of his union representative, who told the employee that he could not file a lawsuit against the employer in court till he submitted his wrongful termination claim to Arbitration under the Collective Bargaining Agreement through a union, which he was a member of. As a result, an employee took no court action and waited till the union arbitrated his grievance. The employee contacted me shortly after he lost at the arbitration. The bad news were that our conversation took place 2 years and 1 month after his termination - a month after the statute of limitations has run on all his claims and they were all barred.

Recently, I represented an employer at a hearing in front of the labor commissioner. The employer was clearly liable for some overtime to several of his employees, and my job was mostly mitigating that liability rather than denying it. I was also curious to find out why the employer did not bother to contact me or another employer attorney before hiring workers to make sure that he pays out compensation correctly. The answer was very simple: the employer was not aware of who the overtime laws apply, didn't really care to find out, and honestly thought that the likelihood that he was going to have to deal with the issue in court was very low.

All of the above assumptions were mistakes on the part of the employer, especially the last part about the "likelihood." Having hired over 10 workers for a project of 3-month duration and having had to unexpectedly terminate the project due to some cash-flow issues, he was guaranteed to turn his hard-working employee to disgruntled workers, left without the expected earnings from the project, who will do whatever they can to obtain additional compensation after being unexpectedly terminated. Naturally, they turned to the labor board to find out if they can "squeeze" some overtime from their employer.

This was yet another example that it is well worth for the employer to seek counsel to assure compliance with the basic overtime laws, as liability for such violations is far greater than any expense of seeking legal advice to prevent such a liability.

Fighting unemployment benefit and even winning that fight is very likely to backfire and turn out to be much more expensive than simply letting an employee collect unemployment. Many employees, when laid off or terminated, at the very least consider in the back of their mind the possibility of suing their recent employer. Whether the employee decides to aggressively pursue litigation against his former employer depends on the number of factors, but the emotional component - the anger at the employer is certainly not an insignificant element in that decision. Often, it's what makes a difference between letting things go and going after the employer in court.

Consider terminating an employee who feels that he was fired unjustly. He is hurt and angry, but at the same time thinks that it's a better idea to take a break, collect unemployment and look for another job. He applies for unemployment and gets denied benefits because the employer stated that the employee was terminated for misconduct. This very likely takes the employee over the edge and drives him to file a lawsuit for wrongful termination, harassment, discrimination, defamation, intentional infliction of emotional distress, and many other possible claims.

Whether the employer wins or loses, the company will likely spend anywhere between $20,000 and $50,000 in legal fees on defense and often much more. Thus, even if the company prevails in the wrongful termination lawsuit, the cost will be much greater than allowing the employee collect unemployment and possibly paying out a small severance in exchange for a full release of all claims, like many wise employers routinely do.

In Ellison the harasser was transferred to a different work locations for six months, after which he was returned to work to the original location. The harasser was not subjected to any other significant discipline, even though the victim complained repeatedly about the relatively egregious comments and sexual innuendos by the harasser. Further, the employer actualy transferred the complainant to the less desirable location. The court concluded that by failure to take effective remedial measures against the harasser combined with taking adverse action against the victim by transferring her to a less desirable work location, the employer did not meet it's obligation with regard to harassment prevention and was therefore liable.

Another clear pattern is present in subsequent court decision on harassment. An employer who continues using the same remedial action toward a repeated offender is violating the law, because it should be obvious to the employer that if a more gentle remedy does not change the harasser behavior, the same remedy is not effective, and a more stringent disciplinary action must take place. Thus, writing up the harasser over and over is not a sufficient remedial measure. After one or two write-ups, an employer is well advised to take a more serious action, including suspension, administrative leave or even termination of employment, especially if the evidence of harassment is clear and corroborated by other employees.

In reality, the standard for proving constructive discharge claim is much higher than a typical worker understands it to be. In Turner v. Anheuser-Busch, Inc. (1994), the California Supreme Court held that constructive discharge occurs when the employer's conduct effectively forces an employee to resign, which is legally regarded as firing an employee. To be deemed a constructive discharge, the court noted, an employer must create or permit working conditions so intolerable or aggravated that a reasonable person in the employee's position would fee compelled to resign. These employment conditions must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job, to earn a livelihood and to serve the employer. The circumstances giving rise to constructive discharge must be unusually aggravated or amount to a "continuous pattern" before the situation will be deemed intolerable. Single, trivial or isolated acts are insufficient to support a constructive discharge claim. Thus, the court continued, a poor performance rating or a demotion, even when accompanied by reduction in pay, does not by itself trigger a constructive discharge.

As the above language indicates, the employee must consider his options carefully before quitting his job in reliance on having a potential constructive discharge claim in court. It is highly recommend to consult an attorney before quitting the job to evaluate your work conditions and consider legal action along with other viable alternatives, short of quitting and suing.

This means that if you feel that you are subjected to discrimination and/or harassment, you complain to your supervisor or to the HR department in writing, so that later - the employer cannot deny the very fact that you actually complained. Whether it's an e-mail, a handwritten note or a formal letter - written evidence of complaining about possibly unlawful conduct is much harder to refute than the "he said / she said" situations.

Under section 12R.3(a) of the ordinance, an employee is any person who, in a particular week, performs at least two hours of work for an employer within the geographic boundaries of the city. The local San Francisco minimum wage during the past few years have been as follows:
$8.82 per hour during 2006; $9.14 during 2007; $9.36 during 2008; and $9.79 during and till the end of 2009.

In addition to paying the minimum hourly wage under the MWO, San Francisco employers are required to pay overtime under California law in in compliance with the IWC Order No. 4-2001.

Thus, typically, the retail businesses such as stores and restaurants are subject to the following overtime requirements:

Employees should be paid one and a half time of their regular rate of pay for all hours worked in excess of 40 hours per workweek or 8 hours in any workday and for the first 8 hours of work during the seventh consecutive day of work. An employee shall be compensated double the regular rate for all hours in excess of 12 hour workday and for any overs beyond the first 8 hours of work on the seventh consecutive workday.

Here are five common, subtle and "circumstantial" ways in which employers engage in discrimination against employees:

1. Applying the Rules of Discipline Unequally. If you have been terminated for being tardy 3 times but there are other employees who are in the same or similar position and rank as you are, who are late to work more often than you are without facing any discipline, it might be evidence of the employer's attempt to get rid of you for reasons other than tardiness.

2. Stating Untrue Reasons for Termination. The easiest justification for employee's termination from the perspective of any employer is poor performance. However, if you have a history of good performance with awards, bonuses and other kinds of recognition for your work, and your "poor" performance is clearly fabricated and highly subjective, the employer is likely concealing the true reason for your termination.

3. Asking About Your Plans to Retire. Asking and "reminding" an older employee about his option to retire, discussing the benefits of retiring and otherwise encouraging a senior employee to abandon workforce is one kind of significant indirect evidence of age discrimination.

4. Not Investigating Complaints or Allegations Prior to Terminating the Accused Employee. If you have been accused of theft, harassing another employee, or other misconduct at work, but the employer puts no effort into investigating whether the allegations are true, it is possible that lack of investigation is part of a larger scheme to get rid of you for unlawful reasons that have nothing to do with the accusations.

5. Terminating an Employee Shortly After He Exercises His Rights. Although proximity in time alone is usually insufficient to prove discrimination, an employee with a good track record of performance, who gets demoted or terminated a few days or weeks after being injured, or asking for disability or religious accommodations, or complains about harassment, was likely retaliated against for exercising his legal rights.

The are more indirect ways in which employers try to discriminate and retaliate against employees, incorrectly believing that they will never face liability as proving unlawful conduct would be virtually impossible. A careful investigation of all facts, in addition to the testimony of witnesses, is effective in revealing the true reasons for adverse employment action against a certain worker.