To prevail on a claim for intentional interference with prospective economic advantage in California, a plaintiff must plead and prove (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) the defendant’s intentional acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff caused by the defendant’s acts. Youst v. Longo
(1987) 43 Cal.3d 64, 71, fn. 6.
Does company “A” have a claim for intentional interference with economic advantage under California law, when company “B” induces Company “A” at-will employee to leave them and switch to work for Company “B”?
The California on-call pay laws are largely based on balancing fairness between employees and employers. Generally, hours for which an employee has been hired to do nothing while merely waiting for something to happen are hours subject to the control of the employers, and constitute hours worked. (Armour & Co. v Wantock (1944); Skidmore v Swift (1944)). In the case of “standby” or “on-call” time, if the restrictions placed on the time of employee are such that the employee is unable to effectively engage in personal activities, the time is subject to the control of the employer and constitutes hours worked. (Madera Police Officers Association v. City of Madera (1984)).
The determination whether standby time is “controlled” such that it constitutes compensable hours under California law is a multi-factor analysis, set in the 9th Circuit case Berry v County of Sonoma (1994). These factors are:
- The geographic restrictions on the employee’s movements;
Both California employees and employers must know that an unprotected medical leave without a promise of reinstatement is not an accommodate under California disability laws. An accommodation by definition is a change or adjustment which allows disabled individuals to perform their job. A leave of absence without a corresponding right to return to work is not an accommodation but rather a delayed termination. Burnett v US Air, Inc., 228 F.3d 1105, 1114-5 (9th Cir. 2000). After all, it has been expressly held that requesting an accommodation to a qualifying disability as a protected activity. Head v Glacier Northwest, Inc. (9th Cir. 2005).
All too often, employers “accommodate” an employee by allowing him to go on medical leave and then, upon return, try to get rehired by searching for open, available positions within the company at the time of his return. In many cases, this practice unlawful, as it’s tantamount to terminating an employee and then allowing him the opportunity to apply for an open position, just like any other candidate. On the other hand, offering a vacant position may be a reasonable accommodation, even if the position pays less than the disabled employee’s former job, if he or she can no longer perform the former job’s duties. Gov. Code 12926(p).
(1) Review the repayment obligation in your relocation package to make sure that it’s fairly drafted. Most relocation packages and sign-on bonuses include a repayment provision, also known as a “clawback” provision. An experienced employment attorney can go over it with you and discuss typical issues that arise with relocation packages, such as wanting or having to leave that job for one reason or another much sooner than expected, as well as negotiating the type of pro-rata repayment plan that will not hold you hostage till the very last day of the total repayment period.
(2) Do not rush to spend every dollar of your relocation package. There is just no way to know for sure how your new job that you are excited about is going to work out. There could be so many reasons why you would want to quit that job and /or even move back as soon as possible. If you receive a generous relocation package of say $50,000.00, you may only need $10k-$15k for your moving expenses. Hold on to the rest for at least while, until you are settled at your new job in the new city. This way, if you have to leave it all and move back, repaying your employer while you only spent a small part of that amount would be so much easier than if you hurry to spend all that amount right away. I would recommend waiting for at least 6 months after you move, before you touch the remainder of the relocation package that you didn’t have to spend when you moved.
Under California Labor Code section 515.5, certain software industry employees are exempt from overtime pay requirements, if they perform specific, exempt duties and receive a rate of pay not less than the statutorily-specified rate.
Effective January 1, 2020, the computer software employee’s minimum hourly rate of pay, in order to be subject to this exemption, increases from $45.41 / hour to $46.55 / hour, the minimum monthly salary exemption will increase from $7,883.62 to $8,080.71, and the minimum annual salary exemption will increase from $94,603.25 to $96,968.33.
In order to be correctly classified as exempt from overtime under the California computer professional exemption, all of the requirements of section 515.5 must be met. Thus, for instance, an employee how is paid more than the above referenced minimum, but who performs work that lacks in creativity and independent judgment required by this law, as it’s often the case with IT administrators, will not qualify for this exemption and should be eligible for overtime pay, like any other non-exempt, hourly employee.
In most cases, it’s not a good idea for an employer to refuse to issue an employee his final paycheck until he repays his relocation bonus. Likewise, it’s a bad idea to unilaterally deduct the relocation bonus amount from that employee’s final paycheck. Here is why:
First, an employee’s failure to repay his relocation bonus or his failure to honor some other part of your employment agreement is legally not a defense to the legal requirement of paying all wages. A number of laws mandate upon employers to promptly pay all wages due to employees and prohibit taking improper deductions from paychecks except as authorized by law. Further, it has been held that an employer may not set off debts a terminated employee owes the employer against wages due to that employee. Barnhill v Robert Sunders & Co. (1981).
Secondly, when you don’t pay the wages due to an employee, you may be liable not only for the wages unpaid, but also for penalties, interest, and possibly – that employee’s legal fees, if he decides to pursue his claim for unpaid wages in court as a single claim or along with other claims (i.e. wrongful termination, discrimination, retaliation, etc…). This can be especially costly and not worth the risk in a situation where an employee is a high-wage earner, who received a relatively modest relocation bonus, as it may result in much greater liability for waiting time penalties (up to 30 days of that employee’s ordinary wages). To illustrate, imagine the following scenario: you hire a worker at a rate of pay of $800/day after issuing him $10,000 as a relocation bonus to be repaid, if the employee quits or is fired for cause before his one-year anniversary of employment with you. That employee resigns three months later. You refuse to issue his final paycheck until he repays his relocation bonus. That employee waits for a month and then files a claim for unpaid wage with the Department of Labor. He will then be entitled to his unpaid wages for two weeks plus up to $24,000(!) in waiting time penalties ($800 x 30 days as per California Labor Code 203). That employee then repays you relocation bonus, ending up receiving a total of $14,000 more from you than he should have and otherwise would have.
Many employers use temporary staffing agencies and recruiting agencies for hiring workers, in part, in order to insulate themselves from liability for potential discrimination, retaliation, and wrongful termination claims. They believe and are often advised that if their workers are hired through and are paid by an outside agency, then they will be off the hook for any such claims. However, this is not necessarily the case, as California law often finds “dual employment” relationship in these types of situations.
California FEHA (Fair Employment and Housing Act) that governs state discrimination and retaliation claims does not define “employee,” but the administrative agency charged with interpreting FEHA—the Fair Employment and Housing Council (FEHC)—does define the term in Gov. Code section 12935. The FEHC defines “employee” as “any individual under the
direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.” FEHA thus requires an employment relationship, but that relationship need not be direct. Instead, the employment relationship must show the employer’s exercise of direction and control over the employee. Direction and control may be shown by, among other factors, whether the employee must obey instructions from the employer and whether “there was a right to terminate the service at any time.”
In order to decide whether to file a case for wage violation or harassment / discrimination against the employer that you are still working for, you should take into account not only the legal aspects of your potential case but also the practical factors. In the short audio recording below, I talk about three key questions you should ask yourself when deciding whether to bring a case against your present employer. I also bring examples of two different situations to illustrate the point:
Discrimination on the basis of an employee’s foreign accent is a sufficient basis for finding national origin discrimination. Fragante v. Honolulu (9th Cir. 1989) Indeed, the Equal Employment Opportunity Commission Guidelines currently define national origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group. 29 C.F.R. § 1606.1 (2019). Thus, in Ortiz v Dameron Hospital Association (2019), the court referred to a manager’s statements with regard to Filipino workers that she “could not understand what they were saying’ and “did not know how they got their jobs speaking the way they do”, and that they “did not speak English” as significant evidence of national origin discrimination in violation of California FEHA. In Ortiz, this type of egregious evidence was also as sufficient basis for claims for constructive discharge, as well as hostile work environment.
On a practical level, it is a good idea for managers to avoid a situation where they lose patience with an employee’s accent an make derogatory comments about it, as this alone can lead to a lawsuit. And, if an employee with an accent complains that his co-worker/s mock his accent, the employer has the same obligation under the law to address and remedy that situation, as he would in any other situation where allegations of discrimination or harassment are made.