San Francisco Employment Law Firm Blog

September 7, 2026

The Exact Wording Of Your Arbitration Agreement Matters

A recently published California Court of Appeal decision, Morales v. Superior Court, provides an excellent example of why the precise wording of an arbitration agreement matters. A relatively small difference in contractual language ultimately determined whether an employee’s discrimination and wrongful termination claims would be decided in private arbitration or in court. For employees with potentially significant discrimination, retaliation, or wrongful termination claims, that distinction can be extremely important because the chances of winning a case in court are generally much higher than in arbitration.

Sylvia Morales worked for San Diego Gas & Electric Company (SDG&E) for nearly 20 years. After SDG&E terminated her employment in 2024, Morales filed a lawsuit alleging disability discrimination, failure to provide reasonable accommodation, failure to engage in the interactive process, retaliation, and wrongful termination in violation of public policy. Her claims were based on California’s Fair Employment and Housing Act (FEHA), the California Family Rights Act (CFRA), and California public policy. SDG&E responded by asking the court to force Morales into arbitration.

And initially, the employer won. The trial court concluded that Morales had agreed to arbitrate her claims and ordered the case into arbitration. Morales challenged that ruling in the California Court of Appeal, which reached the opposite conclusion.

August 23, 2026

Your Doctor’s Restrictions Don’t Automatically Justify Termination

by Arkady Itkin

Employees returning to work after an injury sometimes encounter an unexpected problem: their employer decides that a medical restriction means they can no longer perform their job.

But a medical report does not necessarily give an employer a free pass to terminate an employee. A federal court’s decision in Narayan v. Compass Group USA, Inc. provides a useful example. The employee had worked for the company for approximately 32 years, suffered a knee injury, underwent surgery, and returned to work. He then performed his job for months before the company received a medical report that it interpreted as imposing permanent work restrictions.

Instead of resolving conflicting medical information and meaningfully involving the employee in the interactive process as required by both the California FEHA and ADA, the employer terminated him. The court denied the employer’s motion to dismiss, allowing the employee’s disability discrimination and related claims to proceed.

July 31, 2026

Is Your Employer Actually Aware Of Your Disability?

by Arkady Itkin

One of the fundamental requirements of a disability discrimination claim is that the employer knew, or reasonably should have known, that the employee had a disability. For obvious reasons, an employer cannot be held liable for discriminating on the basis of a disability it did not know existed.

An employer “knows an employee has a disability” when (1) “the employee tells the employer about his condition,” or (2) “the employer otherwise becomes aware of the condition, such as through a third party or by observation.” Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 887. When neither the employee nor a third party informs the employer of the disability, California law imposes a much higher standard. In that situation, knowledge will be imputed to the employer based solely on its observations only when “the fact of disability is the only reasonable interpretation of the known facts.” Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1167.

This is a pretty difficult standard to satisfy. If an employee has not disclosed a medical condition or requested an accommodation, it is often challenging to prove that the employer should have recognized that unusual behavior or performance issues were caused by a disability rather than something else, especially when the condition at issue is mental rather than physical.

July 9, 2026

Proving PERB Retaliation Claims in California

by Arkady Itkin

In most retaliation cases, the California Public Employment Relations Board (PERB) applies the framework established in Novato Unified School District (1982) PERB Decision No. 210 (Novato USD).

Under the Novato USD framework, the charging party must first establish a prima facie case by proving four elements: (1) The employee engaged in an activity protected by a labor relations statute enforced by PERB; (2) The employer knew of the employee’s protected activity; (3) The employer took an adverse employment action against the employee; and (4) There was a causal connection, or “nexus,” between the protected activity and the adverse action—that is, the protected activity was a substantial or motivating factor in the employer’s decision. (City of San Diego (2020) PERB Decision No. 2747-M, p. 26; City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 15.)

Once the charging party establishes a prima facie case, the burden shifts if the evidence also demonstrates a legitimate, non-discriminatory reason for the employer’s decision. In such circumstances, the employer may assert, as an affirmative defense, that it would have taken the same action even in the absence of the employee’s protected activity. The employer bears the burden of proving this defense by a preponderance of the evidence. (City and County of San Francisco, supra, at p. 15.)

June 30, 2026

Wrongful Termination: Why the “Bad Facts” Matter

by Arkady Itkin

In almost every California employment case, the employee and the employer have very different explanations for what happened. An employee may believe that he was fired for discriminatory or retaliatory reasons. The employer will claim that the same employee was fired for performance issues, poor attendance, misconduct, or a combination of the above reasons. Whether those reasons are true is a separate question. The important point is that they will almost certainly become part of the case.

When our office evaluates a potential wrongful termination case, we certainly want to hear why the employee believes the termination was unlawful. However, we also want to know:

What criticisms did your employer make about your work?

June 14, 2026

Three Types of Evidence to Prove A Retaliation Case in California

by Arkady Itkin

April 15, 2026

“We’re About to Blow Up” — Why a Recruiter’s Rosy Pitch Isn’t a Promissory Note

by Arkady Itkin

Picture the scene: you’re sitting across from a hiring manager who practically vibrates with excitement. The company, you’re told, is “on the verge of a Series C.” Our new product will “change the industry.” Revenues are “projected to triple.” The culture is “like a family.” Six months later, there’s no Series C, the product flopped, and the company just laid off a third of its staff — including you.

Can you sue them for fraud? In California, the short answer is almost always no — and understanding why reveals something important about the boundary between enthusiastic salesmanship and legally enforceable promises.

The doctrine of puffery: when words are just words

January 1, 2026

Preferring To Hire H1B Visas Holders over US Citizens is Illegal

by Arkady Itkin

November 19, 2025

Avoid This Mistake When Requesting Religious Accommodation

by Arkady Itkin

Workers in California often assume that because religious beliefs are private, they never have to explain anything about their religion when requesting a workplace accommodation. While it’s true that employers cannot demand intrusive details, many employees make the opposite mistake: they refuse to provide even the basic information needed for the employer to evaluate their request.

Under both Title VII of the Civil Rights Act and the California Fair Employment and Housing Act (FEHA), employees are protected from religious discrimination — but those protections only apply when the employee actually provides sufficient information for the employer to understand what accommodation is needed. Refusing to give essential information can legally justify the employer in denying that accommodation request.

Even though employers are generally not entitled to challenge, criticize, or judge your religion, they are entitled to confirm that the request for accommodation is religious in nature, what the conflict is between the belief and a job requirement, and evaluate various options for a reasonable accommodation. While you don’t have to share your life story or detailed theological explanations for your beliefs, you also can’t take the position of “my beliefs are private, and I don’t have to tell you anything” when you request an accommodation. In fact, this type of approach will almost guarantee a denial of that accommodation request, and legally – the employer will likely be justified in doing so.

October 5, 2025

Five Costly Legal Mistakes California Startups Should Avoid With Their Employees

by Arkady Itkin

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:

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.
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.