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Some of the most common legal mistakes that California tech startups and other small employers make with their employees are also the easiest to avoid:

  1. Terminating an employee without consulting an attorney about the circumstances of that termination. Just because you believe that you have valid reasons for terminating an employee, who also happened to be “at will”, doesn’t mean that the same employee won’t be able to make it look like he was fired for an unlawful reason. Suppose you fire someone for poor performance, but that employee happened to complain about sexual harassment, or he filed a workers compensation claim just a few weeks or even a few days earlier. Will you be able to show, given this suspect timing, that the true reason for termination was in fact his performance, and it wasn’t retaliation? Or suppose you lay off a minority employee due to your changing needs or budget issues, but then just a couple of weeks later you get a new (and unexpected) round of funding and you post the same position back on Linkedin and end up hiring a white employee. Will that laid off employee come back and claim racial discrimination? These are just a few random examples of how a seemingly just termination can look less than entirely lawful. Consulting a reputable employment lawyer about your termination decisions before making that decision can make a difference between having a clean break-up with the employee in question v dealing with the stress, the expense, and the hassle of litigation. Remember – what matters is not what actually happened from your perspective, but what the employee can prove happened or most likely happened given all the surrounding circumstances.
  2. Misclassifying an employee as exempt v hourly. To be salaried and exempt from overtime pay in California, your employee has to satisfy very specific requirements. In the context of tech start-ups, the most common exemption is an executive /  managerial exemption. However, just because you label someone at your company as a manager, doesn’t mean that that employee is correctly classified as exempt, unless over half of his job duties actually involve managerial work. This type of misclassification can be particularly costly, if that employee frequently works more than 8 hours per day without being paid overtime, which is very common in start-ups, and who will later be able to claim that he worked hundreds of fifteen-hour days for which he wasn’t paid correctly.
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remote work as an accomodation at work in California under FEHAAs remote work continues to reshape the workplace, both California employees and employers are grappling with a key question:
When must an employer allow remote work as a reasonable accommodation to an employee’s disability or serious medical condition under California’s Fair Employment and Housing Act (FEHA)?

FEHA & Reasonable Accommodation Basics

FEHA requires California employers with five or more employees to provide reasonable accommodations to qualified employees with disabilities, unless doing so would impose an “undue hardship”. Reasonable accommodations may include changes to job duties, modified work schedules, assistive devices—and yes, in some cases – remote work.

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workpalce discrimination case in CaliforniaWinning any civil case, including an employment discrimination case, requires proving (1) liability and (2) damages (past and future wage loss, emotional distress, in some cases punitive damages). Because liability in many, if not most, wrongful termination and discrimination cases is disputed by employers, a practical assessment of how likely you are to prove liability and damages is essential before deciding whether to pursue that case in court.

If you have little to no evidence that the employer discriminated against you and/or terminated your employment for unlawful reasons, then that case is likely not worth pursuing no matter how significant the damages are. After all, if you can’t establish liability, you would never even get to present your damages. On the other hand, if the evidence of liability is compelling, then even the case with relatively modest damages is likely to be worth pursuing because the employer is more likely to settle that case in the face of that unfavorable evidence. And, even if the settlement is not achieved, you will have a better shot at winning your case at trial.

Establishing liability is inherently challenging, because in an at-will employment relationship you as an employee have a burden of proving that the unlawful discrimination or retaliation was the reason or a substantial reason for your termination, demotion, or failure to select and hire you for a particular job. “What else could it be” alone is never sufficient proof in court.  Because “smoking gun” evidence of discrimination is rarely available, all the relevant circumstances surrounding the employer’s adverse action have to be carefully evaluated before deciding whether to pursue that case. This is often a judgment call that’s not based on black-and-white rules, and  is more of an art than science.

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An employer who isn’t aware of your disability prior to firing you for taking several days off work due to that condition cannot possibly be held liable for disability discrimination based on the disability that the employer simply didn’t know about. This is both logical and fair.

In Avila v Continental Airlines, Inc. (2008), the employee was terminated for missing seven days at work, four of which were due to hospitalization for acute pancreatitis.  That employee had provided to his employer two medical forms that only indicated that he was seen for illness or injury and that he was unable to work for a number of days. Avila further stated that he gave the two medical notes to his supervisor, but could not recall if he gave them to the supervisor directly or left them on the supervisor’s desk. Avila also told his coworkers about his pancreatitis, but he did not directly discuss the illness with his supervisors.

After Avila was terminated he informed his supervisor that he was absent due to pancreatitis, but the employer refused to reinstate him anyway. In its opinion dismissing the disability discrimination portion of that case, the court found that Avila could not establish that the managers who terminated him knew about his disability, because the medical notes provided lacked diagnostic information or other information indicating the nature of the plaintiff’s illness or injury, and the plaintiff never told his supervisors about his pancreatitis.

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In its decision in Bailey v San Francisco District Attorney’s Office, the California Supreme Court has recently affirmed that even a single incident of using “N” word by a coworker in reference to a black employee can be a sufficient basis for making an unlawful harassment and hostile work environment. The Court emphasized that the analysis of any racial harassment claim is fact specific, and it must take into account the totality of the relevant circumstances.

The court further noted that even though generally harassment by a supervisor is viewed more seriously than the same conduct by a co-worker, this is not a rigid rule. After all, many employees don’t see their manager very often, while having to work side by side with their (harassing) co-worker on a daily basis. The court also pointed out that not all co-workers are made equal. For instance, a coworker whom one sees at the water cooler is quite different than a coworker with whom one shares an office space or work duties.  Also, it matters whether a supervisor is aware / condones the harassing conduct by coworkers , thereby further emboldening that type of behavior.

There is no magic number of slurs that create a hostile work environment. What matters is looking at the totality of the factors when determining whether the conduct is sufficiently severe and pervasive to be actionable as a claim in court.

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important deposition tipsKeeping in mind the two principles discussed below should be helpful to your deposition testimony on the most fundamental level, no matter who you are and no matter what type of case you are involved in:

1.Do Not Overthink Each Question You Are Asked At Your Deposition. This especially applies to the most educated and professionally accomplished deponents, who naturally read between the lines and look for deeper meaning in just about anything they hear. Contrary to what courtroom dramas make us believe, most questions you will be asked at a typical deposition are straightforward and are not meant to somehow trick you. There is no reason for you to overanalyze each question especially if you are trying to be honest and truthful and you have nothing to hide. When you look like you are responding to deposition questions in a way that will best serve your side of the case, rather than simply telling the truth, the other side will likely notice that and will try to take advantage of it in a number of potentially creative ways, including simply making you look less credible and less believable. Also, if you end up testifying incorrectly about anything during your deposition, you will still have the opportunity to go back and correct your testimony later in the proceedings or even after that deposition concluded. Hopefully, your attorney is carefully listening to your testimony and he will be able to address any issues with your testimony during breaks and before your deposition is over.

2. Answer The Questions Asked And Then Stop Talking and Wait For Next Question. This sounds so easy, and yet few people are able to follow this simple recommendation. All of us are used to speaking and elaborating on whatever we want to make a point. Also, saying more makes us less nervous if we are under any type of pressure when speaking. Your deposition testimony should be the opposite. You should be only answering each question asked and nothing more until you hear the next question.  For instance, if you are asked if you have been sued in the past 10 years for any similar issue, the answer should be “yes” or “no”; not “no, but I have been sued 15 years ago.” No one asked you about what happened 15 years ago, so there is no reason to elaborate on this. Your deposition is not the time to try to prove your case or convince the deposing attorney of anything. Your only goal during your deposition is to answer the questions asked as best and as truthfully as you can and do nothing more.

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