San Francisco Employment Law Firm Blog

California Wrongful Termination Lawyer: Retaliation for Filing Workers Compensation Claim

2008-11-19T04:14:45Z

Two critical aspects of proving (discriminatory) workplace retaliation for filing a workers compensation claim or engaging in other protected activity are: (1) proving causal relationship between the filing of the the workers compensation claim (or engaging in other protected activity) and the discriminatory actions by the employer; and (2) proving tat the employee was qualified and able to perform his or her job at the time when discrimination took place.

Careful investigation of the facts and circumstances of the employee's employment and wrongful termination is essential. Obviously, with respect to establishing the causal relationship, the closer in proximity of time the discriminatory conduct is to the employer's learning of the employee's filing a workers compensation claim, the more likely the causal link will seem to the judge, jury, or an arbitrator.

The first very important component of proving retaliation is in disproving a possible legitimate reason for termination, the most common of which is poor performance. Thus, in a case of alleged retaliation, like in most other discrimination claims, an attorney should seek evidence such as the employee's productivity and performance records, including all evaluations, commendations, promotions, raises, and any disciplinary measures.

The second component of demonstrating unlawful retaliation is the evidence specific to the workers' compensation system. Information to obtain of this type includes the number and disposition of all workers' compensation claims that have been filed against the employer, and information about the whereabouts and subsequent histories of employees who had filed claims.

The third piece of evidence essential to proving retaliation claim is the aggrieved employee's hospital and medical records, with special attention to the timing of visits to health care providers. The employer may have likely retaliated for an employee taking time off to see a doctor or get treatment, which in many cases is also considered an unlawful retaliation and disability discrimination.

It is also important to obtain documents evidencing the employer's position with respect to the underlying workers' compensation claim. i.e. Was your workers compensation claim contested by the employer? On what grounds? How vigorously? What was the outcome?

It is hard to overestimate the importance of documentary evidence in proving retaliation and disability discrimination claims in California. As in most individual discrimination claims, the testimony of the employee and employer generally ends up in flat contradiction regarding key elements of the claim. Proper documentation is likely to be crucial in corroborate the employee's testimony and disprove the testimony of the employer, casting doubt on the truthfulness of the employer's stated motives for discriminating and/or terminating your employment.

San Francisco Employment Lawyer: Defamation Per Se and Wrongful Termination

2008-11-16T06:56:33Z

False statements and accusations (defamation) by one employee or a supervisor against another employee are not uncommon at California workplace and often lead to the unfounded and unsubstantiated discipline, suspension, demotion and even termination of employment of the victim of defamation. The tort of defamation involves a publication of facts that is false, defamatory, unprivileged, and has a natural tendency to injure an employee's reputation or cause special damages. Taus v. Loftus (2007) 40 C4th 683, 720. The "publication" element in this definition doesn't mean that the defamatory statement must actually be published in writing in some kind of newspaper or brochure. For the purposes of alleging a defamation action, publication occurs when a statement is communicated to any person other than a party defamed. Kelly v. General. Telephone Co. 136 Cal.App.3d 278 (1982).

Defamation per se is a special kind of defamation which does not require the claimant to prove special damages / economic harm as a result of the statements made as otherwise required when bringing an action for defamation. Statements are defamatory per se if they tend to directly injure plaintiff in respect to his office, profession, trade or business, by imputing to him general disqualification in those respects which the office or other occupation specifically requires or charge the plaintiff with a crime.

Thus, stating that an employee made a $100,000 mistake in estimating a bid is defamatory per se because it would tend to injure plaintiff by imputing incompetence in his or her trade. Gould v. Maryland Sound Industries, Inc. (1995) 31 CA4th 1137, 1153-4. Likewise, accusing an employee of conduct that constitutes a crime, such as embezzlement or forgery, is slander per se. Kelly v. General Tel. Co. at 284.

San Mateo Employment and Wrongful Termination Lawyer: Employer's Duty to Investigate Harassment

2008-11-14T22:40:25Z

The most significant immediate measure and employer may and should take in response to sexual harassment or another kind of harassment allegation by one employee against the other or against his or her supervisor is to launch a prompt and fair investigation to determine whether the complaint is justified. The employer must take temporary steps to deal with the situation while it determines whether the complaint is justified. Swenson v. Potter (9th Cir. 2001) 271 F3d 1184. The greater the potential injury to the complaining employee, the greater care the employer must take in investigation harassment allegations and preventing the alleged harassment from recurring or escalating.

The employer must conduct an investigation even if the alleged harasser denies the accusation and the victim wishes to drop the matter. The employer must investigate from "worst case scenario" in order to avoid exposing other employees to the alleged misconduct. Malik v. Carrier Corp. (2nd Cir. 2000) 202 F3d 97. A reasonable investigation does not require a trial-type proceeding. The inquiry may be conducted informally in a manner that will not unnecessarily disrupt the company's business.

If you believe that you are or have been a victim of harassment at work place in San Francisco, San Mateo/South Bay or East Bay regions, you might be entitled to legal protection. If you would like to discuss your situation at workplace, feel free to contact us by phone or by filling out the form on this page.

San Francisco Employment Lawyer: Independent Contractor v. (At-Will) Employee

2008-11-12T05:37:31Z

The main distinction between an employee or at-will employee and an independent contractor is that the independent contractor is responsible to the principal solely for the result of the work that is the subject of the contract between the parties. Independent contractor is responsible to principal only for result and not manner or means by which it is accomplished. Generally, whether a worker is an employee or independent contractor is a question of fact that depends on the trier of fact's evaluation of several factors, most notably whether the employer has the right to control not only the result but also the means by which the work is accomplished. Ali v. L.A. Focus Publication 112 Cal.App.4th 1477 (2003).

Labor Code section 2750.5 sets forth a number of factors that may prove that such an individual is working as an independent contractor, Among these factors are: (1) the individual worker has the right to control and discretion as to the manner of performance of the service contract in that the result of the work and not the means by which it is accomplished is the primary factor bargained for; (2) the workers is customarily engaged in an independently established business; (3) the worker's independent contractor's status is bona fide and not a subterfuge to avoid employee status; and (4) if the worker was performing work for which a contractor's license is required, he or she should have held such a license.

No matter what the status of the worker is, employers often wish to include "at will" language in service contracts. However, such language should be removed from a contract with an independent contractor, as language describing a relationship as "at-will" generally goes to show that an employment relationship was created because an employer can end a working relationship at any time and for any or no reason.

San Francisco Wrongful Termination Attorney: Interactive Process and Disability Discrimination

2008-11-11T09:17:50Z

Once an employer becomes aware of the need for accommodation for a qualifying disabled employee, that employer has a mandatory obligation under the law to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. An appropriate reasonable accommodation must be effective in enabling the employee to perform the duties of the position.

The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees, and neither side can delay or obstruct the process. A party or an employer that obstructs or delays an interactive process may be found liable for acting in bad faith.

The duty to accommodate disability is a continuing duty that is not exhausted by one effort. The EEOC Enforcement Guidance notes that an employer must consider each request for reasonable accommodation, and that if a reasonable accommodation turns out to be ineffective and the employee with disability remains unable to perform an essential function, the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship. This rule fosters the framework of cooperative problem solving contemplated by the law, by encouraging employers to seek to find accommodations that really work, while preventing employees from requesting the most drastic and burdensome accommodations possible.

One kind of evidence that an employee is wrongfully terminated because of his or her disability is evidence that that employee was warned and reprimanded for issues in his performance that were caused by his or her disability. As the 9th Circuit noted in Humphrey v. Memorial Hospital Ass'n 239 F.3d 1128 (2001), conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination. The link between disability and (wrongful) termination is particularly strong where it is the employer's failure to reasonable accommodate a known disability that leads to discharge for performance issues resulting from that disability. Id.

Alameda County Employment Lawyer: Racial Harassment and Discriminaion

2008-11-09T06:56:34Z

Alameda county is one of the most ethnically diverse areas, which brings lots diversity into workplace. With all wonderful benefits of having a variety of people from different backgrounds and cultures at workplace, this sometimes inevitably leads to animosity and conflicts between different racial groups and claims of race discrimination, racial harassment, and wrongful termination claims based on racial conflicts and claims of retaliation.

Employers who employ two or more large groups of workers from different racial backgrounds are likely to find themselves in situations where members of two or more racial minority groups of employees complain that the members of the other ethnic group engage in unlawful racial discrimination and harassment. For instance, it is not uncommon for the County of Alameda government agencies in Oakland, Alameda and surrounding cities to face these kinds of issues. An employer may find itself in a predicament in such circumstances. On one hand, the employer has an affirmative obligation to conduct a prompt and thorough investigation of harassment and discrimination complaints as FEHA (Fair Employment and Housing Act Requires), and take all appropriate measure to remedy harassment/discrimination. On the other hand, if the employer takes action against the alleged harasser, such as suspension, administrative leave, or termination, the company/agency runs the risk of being sued for racial discrimination by the disciplined employee.

This is one of the major reasons why it is so important for an employer to make sure that the conducted investigation is as thorough, unbiased and well documented as possible, as it will serve as a strong defense against discrimination and harassment allegations, showing that the employer too all reasonable steps to prevent/remedy discrimination and harassment.

California Overtime Law Update: Sullivan v. Oracle Corp.

2008-11-09T05:20:24Z

In it recent decision, filed in November 6, 2008, the 9th Circuit clarified an important point of California Overtime Law. In that case, the issue was whether Oracle employees, who are not residents of California, are entitled to the protections and privileges of California overtime compensation laws, if they work in California. In its well reasoned decision, the court summarized California Labor Code section 510(a). The court reminded that this law requires overtime pay of one and one-half regular pay beyond 8 hours worked in any single day, 40 hours in one week, and the first 8 hours of work on the seventh day worked of any one workweek. Additionally it requires double pay for hours worked beyond 12 in a day or 8 hours on the seventh day of any one workweek.

California Supreme Court has concluded that California's employment laws govern all work performed within the state, regardless of the residence or domicile of the worker, citing Tidewater Marine Western Inc. v. Bradshaw 927 P.2d 296. That case held that California employment laws implicitly extend to employment occurring within California state law boundaries. Please feel free to read the full decision on California Overtime Law as it applies to non-residents of California.

Thus, this recent decision suggests that all employees who would otherwise qualify for overtime compensation, regardless of the state of their residence, are entitled to overtime compensation under California law, if they perform the work at issue within the territory of state of California.

California Employment Law: Is employer's offer to apply for another position considered a reasonable accommodation?

2008-11-06T02:50:34Z

It is not uncommon for an employer to terminate an employee because of his or her disability in violation of FEHA and other anti-discrimination laws, and attempt to mask disability discrimination and failure to provide reasonable accommodations by telling an employee while terminating him that he can apply for other jobs in the company that might suit him. This move seems to be particularly obvious when the employer tells the employee that he should apply for any job externally, like any other outside applicant, not having any priority in hiring or consideration for any position.

The California courts are unimpressed with this move to go around the law protecting disabled workers. The Ninth Circuit specifically held in Barnett v. U.S. Air. Inc. (9th Cir. 2000) 228 F.3d 1105 that an offer to bid on other jobs, "a right the employee already had," did not represent reasonable accommodations as required by law. Reassignment involves more than a mere opportunity for disabled employees to compete. Quoting EEOC guidelines, the court concluded that reassignment within the meaning of reasonable accommodations means that the employee gets the vacant position if he/she is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congresses intended it when it enacted disability anti-discrimination laws.

Workplace Harassment: FEHA v. Title VII

2008-11-05T10:05:18Z

The California Fair Employment and Housing Commission (FEHC) defines "harassment" as:
- verbal harassment, such as epithets, derogatory comments or slurs (or repeated sexual comments and jokes or prying into one's personal affairs);
- physical harassment, such as unwanted touching, rubbing against someone, assault and physical interference with movement or work; or
-visual harassment, such as derogatory cartoons, drawings or posters, lewd gestures or leering.

California Fair and Employment Housing (FEHA) generally provides a broader protection to employees in California than Title VII in the following aspects:
- it specifically prohibits "harassment" (and retaliation) as well as "discrimination";
- it extends protection to independent contractors (persons providing services pursuant to a contract) as well as employees and job applications. Cal. Gov. Code 12940(j)(1)
- the FEHA ban on harassment extends to all employers (unlike Title VII, which applies only to employers of 15 or more employees, or the FEHA's general ban on discrimination, which applies only to employers of five or more employees). Cal. Gov. Code 12940(j)(4)(A).
- the FEHA ban on harassment extends to nonprofit hospital and health care facilities affiliated with or owned by religious entities.
- and under the FEHA, liability for harassment extends to any employee of a covered employer.

For these reasons, among others, most employees bases sexual harassment and other harassment claims primarily on the FEHA and only secondarily on Title VII.

CFRA / FMLA Leave Certification Requirements

2008-11-04T08:22:40Z

A qualifying employee (who worked for his employer for 1,250 hours or more during the past year for a company with 50 or more employees within a 75 mile radius) invokes his CFRA / FMLA rights when she asks for leave for her own serious health condition or that of a family member, and need not mention CFRA or FMLA by name in order to be entitled to leave. The employer may grant the leave without ever requesting medical certification. However, if the employer requires such certification, it should do so either at the time that the employee gives notice of her need for leave or within two business days thereafter, or - if the leave of the employee was unforeseeable - within two business days after the employee's leave starts. Cal. Gov. Code section 12945.2(j)(1), (k)(1).

Under CFRA, the certification is legally sufficient if it includes the dates on which the condition started, and the estimated time the employee will require the leave. Once an employee provides adequate certification of her serious health condition, the employer must grant the leave, unless it has "reason to doubt the validity of the certification." The employer may request an employee to undergo a second or third opinion of his condition if and only if the employer has a reason to doubt the validity of the original certification provided by the employee. Employers are required to obtain the opinion of a second and third doctor before denying leave or terminating an employee because of doubts about the validity of certification.

If you believe that you suffered an adverse employment action or were wrongfully terminated in retaliation for exercising your rights under FMLA / CFRA, contact San Francisco employment lawyer Arkady Itkin to discuss your rights.

Employee Rights under CFRA

2008-11-02T18:19:59Z

California Family Rights Act (CFRA) is a part of FEHA (Fair Employment and Housing Act) and generally provides that it is unlawful for an employer to refuse an employee's request for up to 12 weeks of family care and medical leave in a year. An employer is also forbidden from discharging or discriminating against an employee who requests family leave or medical leave. Family care and medical leave includes leave because of an employee's own serious health condition that makes the employee unable to perform the functions of his position. "Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves either of the following: (a) Inpatient care in a hospital, hospice, or residential care facility; (b) Continuing treatment or continuing supervision by health care provider.

To be eligible for CFRA leave, an employee must have more than 12 months of service with the employer and have at least 1,250.00 hours of service with the employer during the previous 12 months of employment. It is important to note that this condition must be satisfied not at the time the employee suffered an adverse employment action (termination, suspension, etc.), but whether the employee was eligible to take CFRA leave when she took the leave that resulted in adverse employment action.

It is also unlawful to retaliate against an employee for exercising his rights under CFRA. The Dudley v. Caltrans 90 Cal.App.4th 255 was the first court to outline the elements of proving CFRA retaliation, adopting FMLA retaliation analysis used by the federal courts. The court concluded that the elements of retaliation claim under CFRA are as follows: (1) the defendant was the employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercise her right to take leave for a qualifying CFRA purpose, and (4) the plaintiff suffered an adverse employment action, such as termination, fine, demotion, or suspension because of her exercise of her right to CFRA leave.

High Blood Pressure is a Disability under FEHA

2008-11-01T22:38:52Z

The California Supreme Court held that high blood pressure (hypertension) may be a protected disability condition within the meaning of Fair Employment and Housing Act (FEHA) in American National Insurance Co. v. Fair Employment and Housing Commission 32 Cal.3d 603 (1982). In that case, an insurance company terminated a sale and debit agent because of his elevated blood pressure. The Supreme Court held that high blood pressure may be a "physical handicap" under the FEHA, since the statutory definition of the protected disability under Cal. Gov. Code section 12926(h) permits consideration of all handicaps that are physical, and not only those are are presently disabling.

In explaining section 12926(h), the court resorted to the literal definition of the term "handicap" as defined in Webster's dictionary: "physical handicap includes ..., or any other health impairment which requires special education or related services. The Court further emphasized that the law protecting workers from being discriminated based on their disability clearly was designed to prevent employers from acting arbitrarily against physical condition that, whether actually or potentially handicapping, may present no current job disability or job-related health risk.

Thus, the mere fact that a worker isn't constantly experiencing the symptoms of high-blood pressure, doesn't mean that he is not disabled within the meaning of FEHA, as he or she does face an actual risk of experiencing those disabling symptoms.

California Disability Law: Discrimination v. Failure to Accommodate

2008-10-30T02:31:24Z

The second district made an important distinction between disability discrimination and failure to provide reasonable accommodations in Jensen v. Wells Fargo Bank 85 Cal.App.4th 245 (2000). In that decision, the court noted that the elements of a failure to accommodate claim are similar to the elements of disability discrimination under under California Gov. Code section 12940(a), but there are several important differences. For the purposes of the failure to accommodate claim, the employee does not need to show that he is able to perform the essential functions of his present job (like it is necessary to show in order to prove discrimination), but only that he or she is able to perform the duties of the job which he or she is seeking to be reassigned to.

Even more importantly, in claims for failure to accommodate, it does not matter whether the employee was terminated, suspended or otherwise disciplined in retaliation for his disability (like it is required in discrimination claims). The employer's mere failure to reasonable accommodate a disabled individual is a violation of the statute in and of itself. Cal.Gov. Code section 12940(k).

In other words, prevailing on a disability discrimination claim is harder than proving failure to accommodate, because it requires showing that the employee suffered an adverse employment action, and that there is a causal link between the disability/medical condition and the adverse employment action, while no adverse employment action needs to be shown in order to prevail on a separate claim for failure to provide reasonable accommodations to a disabled worker.

San Francisco Paid Sick Leave Act

2008-10-29T04:32:39Z

A new municipal law has been enacted by San Francisco in 2007, under which all employers must provide paid sick leave to each employee (including temporary and part-time employees) who performs work in San Francisco.

This "San Francisco Paid Sick Leave" began to accrue on February 5, 2007 for employees working for an employer on or before that date. For employees hired by an employer after February 5, 2007, paid sick leave begins to accrue 90 calendar days after the commencement of employment.

Under this law, for every 30 hours worked, an employee shall accrue one hour of paid sick leave. Employees of employers for which fewer than 10 persons (including full-time, part-time, and temporary employees) work for compensation during a given week may not have more than 40 hours of accrued paid sick leave saved at any time. Employees of other employers
may not have more than 72 hours of accrued paid sick leave saved at any time. An employee’s accrued paid sick leave carries over from year to year. Employees are entitled to paid sick leave for their own medical care and also to aid or care for a family member or designated person.

Under this San Francisco ordinance, employees who assert their rights to receive paid sick leave are protected from retaliation. The City of San Francisco can investigate possible violations of this ordinance, shall have access to employer records, and can enforce the paid sick leave requirements by ordering reinstatement of employees, payment of paid sick leave unlawfully withheld, and penalties.

If you have questions or require additional information, please contact your employer or the office of San Francisco Department of Labor Standards enforcement at (415) 554-6271.

California Employment Law: Disability under FEHA

2008-10-27T05:04:35Z

The California Fair Employment and Housing Act basically defines two categories of disability: mental disability and physical disability. Each category contains its own specific definitions. In addition, under FEHA, an employee with a "medical condition" which is not quite considered a disability is also entitled to a reasonable accommodation.

The following are the specific definitions of physical disability under FEHA:having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that affects one or more of several body systems and limits a major life activity. The body systems listed include the neurological, immunological, muscular and skeletal, respiratory, speech, reproductive, digestive, urinary, lymphatic, skin, and endocrine systems. The major life activity is considered limited if it makes the achievement of that major activity difficult.

It should be noted that sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting form the current unlawful use of controlled substances or other drugs, are specifically excluded and are not protected as disabilities under FEHA.

Once a disability that is protected under the law is established, an employer is obligated to provide a reasonable accommodation unless the accommodation would constitute an under hardship on the employer's business operation.