San Francisco Employment Law Firm Blog

May 7, 2016

Top Five Misconceptions About California Employment Laws

Here are five very common misconceptions that many employees have about California employment law, including discrimination, retaliation, and wrongful termination laws:

“If I file EEOC of DFEH charge, my employer cannot terminate me.” – This is not correct. Your filing of a charge with one of the agencies might or might not be a protected activity depending on, among other things, whether you have a good faith, reasonable belief that you are being discriminated or retaliated against. However, the employer can still choose to terminated you, if they want to, and then deal with any type of legal consequences of that termination if you decide to pursue a claim against them. In other words, submitting a discrimination or retaliation complaint does not grant you immunity against termination.
“EEOC / DFEH will be fighting for my rights.” Equal Employment Opportunity Commission and Department of Fair Employment and Housing receive thousands of complaints every year. They have limited resources and they have to pick very few cases which they would look closely into and pursue. With regard to the vast majority of cases, they close their files and issue a right to sue letter to the complainants, informing them that they can hire a private attorney and proceed with their case in court, if they wish. Thus, you should not be expecting those agencies to pursue a case against your employer.

March 14, 2016

Important Clarification for Disability Discrimination Cases

by Arkady Itkin

Recently, the Fifth District Court of Appeal made a very important distinction in its disability discrimination opinion Wallace v County of Stanislaus, which is highly useful to employees-plaintiffs. The court clarified, among other things, what it means to be discriminated “because of” disability. For years, the employers have been fighting disability discrimination, and often effective, by arguing in court that the employee cannot prove that the employer intended to discriminate against an employee because of his medical condition, or that the employer had some kind of ill will toward an employee because of his disability.

The Wallace court rejected the above notion and stated that no such requirement exists in the law. The court distinguished between disability discrimination and other types of discrimination cases and concluded: “… an employer can violate section 12940, subdivision (a) by taking an adverse employment action against an employee “because of” the employee’s physical disability even if the employer harbored no animosity or ill will against the employee or the class of persons with that disability”. This means that technical violation of disability laws, such as failing to engage in the interactive process and / or failing to provide reasonable accommodations in violation of ADA / FEHA can be the basis for employers’ liability, whether those action was taken with malice or innocently.

February 18, 2016

The Most Common EEOC Claims Against Employers in 2015

by Arkady Itkin

Retaliation claims increased by nearly five percent in 2015 and continue to be the leading type of cases filed by workers across the US. Various disability law violations, including ADA disability discrimination claims increased by six percent from last year and are the third largest category of claims filed by employees.

The U.S. Equal Employment Opportunity Commission (EEOC) released breakdowns of the 89,385 charges of workplace discrimination that the agency received in fiscal year 2015. The year-end data shows that retaliation again was the most frequently filed charge of discrimination, with 39,757 charges, making up 45 percent of all private sector charges filed with EEOC. Race, disability and sex discrimination were other most commonly brought charges in 2015,. EEOC said it resolved 92,641 charges in fiscal year 2015, and secured more than $525 million for victims of discrimination in private sector and state and local government workplaces through voluntary resolutions and litigation.

Charges raising harassment allegations made up nearly 28,000 charges of the total number of claims, or 31%. Employees claimed harassment or hostile work environment based on race, age, disability, religion, national origin and sex, including sexual orientation and gender identity.

December 26, 2015

Signs of Age Discrimination at Your Workplace

by Arkady Itkin

This day and age, most employers are far too sophisticated and careful to make their desire to get rid of the older workers and replace them with younger ones obvious, because they are so afraid of being hit with an age discrimination / wrongful termination lawsuit by the older worker who is fired for some bogus reason. Our courts recognize how easy it would be for an employer to cover up the true reasons for terminating older employees behind such vague and hard to disprove reasons as performance, attitude, insubordination, etc. Therefore, the courts allow indirect evidence to be used as proof of age discrimination at workplace. Here are some of the typical signs of age discrimination at workplace that are often just the beginning of an employer’s campaign to push older workers out and replace then with younger employees:

(1) the managers’ comments about the need to bring more younger workers;

(2) referring to older employees by ageist nicknames, such as “father” or “father time”.

December 26, 2015

One Common Disability Leave Mistake To Avoid

by Arkady Itkin

The most important advice we have for communicating with your employer during your disability leave is doing it in a way that would make it clear to them why and how long you will not be able to work for. While you, of course, have a certain right to medical privacy and confidentiality, the employer is entitled to know that information which is relevant to your limitations and to your request for disability leave under ADA / FEHA or medical leave.

Many employees, while on leave, make this common disability leave mistake of ignoring the employer’s letters that request additional medical information or clarification of previously provided medical notes. This is not a good idea, and this can often give the employer a legitimate reason to terminate an employee who would otherwise have all the protections that are otherwise available to disabled employees.

For instance, suppose you provide your employer some type of medical notes that states that you are sick and you won’t be able to work for 30 days. Your employer is puzzled and they want to know why exactly you wouldn’t be able to work. While they might not be entitled to know your exact diagnosis, they are entitled to know the limitations that affect your ability to work or prevent you from working. For instance, if you need some type of surgery, the employer is not entitled to know what the surgery is, but they are entitled to know that you, for instance, won’t be able to move or walk for a certain period of time.

December 15, 2015

California CFRA Medical Leave Rights Explained

by Arkady Itkin

CFRA medical leave is intended to give employees an opportunity to take leave from work for certain presonal or family medical reasons without jeopardizing their job security. Nelson v United Technologieis (1999). Generally, CFRA makes it illegal for an employer of fifty or more employees to refuse to grant a request by an emloyee to take up to 12 weeks off work in any twelve month period for family care and medical leave. The goal of CFRA is to both prevent the effects of employment discriination and also promote CFRA’s specific goal of promoting stability and economic security in California families.

Employers subject to the CFRA medical leave laws are required to provide notice to thier employees of the right to request CFRA leave. Cal. Code. Regs, tit. 2, §7297.9(a). At the same time an employee who wishes to exercise his right to leave under CFRA should compy with Cal. Code Regs, tit. 2 §7297.4(a)(1): “An employee shall provide a tleast verbal notice sufficient to make the employer aware that the employee needs CFRA-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under CFRA or FMLA, or even moention CFRA of FMLA, to meet notice requirement however, the employee must state th reason the leave is needed, such as for instance, the expected birth of a child or for medical treatment. The employer should inquire further of the employee if it is necessary to have more information about whether CFRA leave is being sought by the employee and obtain the necessary details of the leave to be taken by that employee.

For example, in Mora v Chem-Tronics, Inc. (1998), the court held that when an employee stated to his employer that his son was HIV positive and had a very high fever and that the father could not leave his son when he was so ill, it was sufficient notice of the son’s serious medical condition as a matter of law for the purposes of obtaining CFRA leave.

December 3, 2015

When ADHD Is A Disability Under ADA / FEHA

by Arkady Itkin

In Weaving v City of Hillsboro, the Ninth Circuit Court of Appeal made an important distinction of when ADHD symptoms make it a qualifying disability under ADA and when they don’t. In dismissing the Weaving’s case, the court reiterated that as per the Court’s decision in McAlindin v City of San Diego – interacting with others is a major life activity within the meaning of ADA protections, while getting along with others is not. The Court noted that ADHD is a qualifying disability in those severe ADHD cases, where the condition renders the employee incapable or almost incapable of communicating with the outside world, such as in the case of recurring panic attacks or debilitating anxiety. Therefore, in these kinds of severe cases, the employee will be entitled to interactive process and reasonable accommodations within ADA as any other worker with a qualifying disability under the law.

On the other hand, being disciplined or terminated for simply not being able to get along with co-workers and management but otherwise being able to generally communicate with others in a reasonable, even if not perfect, manner, would not give rise to a disability discrimination claim.

November 13, 2015

Truck Drivers Determined to Be Employees Again

by Arkady Itkin

Over the past few years, a number of cases in California regarding whether various drivers are employees or independent contractors have been reviewed by appellate courts, and many of them found drivers to be in fact employees. Garcia v Seacon Logix, Inc. (2015) is a recent case on point. In that case, the truckers transported cargo for a logistics company from the Port of Long Beach and Port of Los Angeles to warehouses and other facilities. Prior to 2008, the drivers were using their own trucks to perform the work, and it was undisputed that they were properly classified as independent contractors. However, after 2008 the employer started leasing their own newly purchased cleaner energy trucks to employees.

Three truck drivers brought a claim for reimbursement of deductions for insurance lease payments from their paycheck under Labor Code section 2822. The employer insisted that he truck drivers were still independent contractor. The court disagreed, concluding that under the California employee / independent contractor control test the drivers were now employees because (1) the drivers were obligated to use company vehicles; (2) they were required to come to work at a specific time and call if they were late or could not show up; (3) their delivery assignments were tightly controlled by the company, and they didn’t have much choice in choosing assignments, (4) the drivers were not permitted to work for other companies while they were working for the defendants; and (5) the company could terminate the drivers’ employment at anytime without cause and without notice, which made the whole situation look all the more like a typical at-will employment rather than a contractor relationship.

Of course, besides the issues of not having typical expenses deducted from a paycheck, being determined to be an employee will mean that these truck drivers are also entitled to overtime, workers compensation insurance coverage, unemployment insurance, and other benefits of being an employee.

October 2, 2015

Section 1102.5 Anti-Retaliation Protection Explained

by Arkady Itkin

Section 1102.5(b) protects an employee from retaliation by his or her employer for disclosing information to a law enforcement agency where the employee has reasonable cause to believe that the information discloses a violation of state or federal law. Hager v. County of Los Angeles (2014). Section 1102.5(b) has been broadly construed to protect an employee from retaliation by the employer even where the report to law enforcement concerned a violation of law committed by a fellow employee or contractor, and not by the employer. McVeigh v. Recology San Francisco (2013) . Where an employee is harmed by retaliation in violation of section 1102.5, he is entitled to maintain a damage claim against the employer.

To establish a prima facie case of retaliation under section 1102.5(b), a plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two. (McVeigh). An employee engages in protected activity under section 1102.5(b) when he or she discloses to a governmental agency reasonably based suspicion of illegal activity. If the plaintiff meets his initial burden when making a claim, the defendant has the burden to prove a legitimate, non-retaliatory explanation for its actions. To prevail on this type of claim then, the plaintiff has to show that the explanation is a pretext for the retaliation and not the actual, true reason for the action against that complaining employee.

Where the plaintiff succeeds in proving a violation of section 1102.5(b), compensatory damages are recoverable, including economic damages for past and future wage loss as well as emotional distress damages.

August 13, 2015

Adobe Is Expanding Its Child / Parent Leave Policy

by Arkady Itkin

On Monday, Adobe Systems became the latest tech giant to sweeten its parental leave policy for its employees. The San Jose-based company is now offering new moms 26 weeks of paid time off through a combination of medical and parental leave. This is up from the nine weeks leave with 100% pay it previously guaranteed.

The policy update provides for 10 weeks of medical leave for surgery, childbirth, or a medical emergency—up from seven weeks—and 16 weeks of paternal leave that’s available to any primary caregiver who becomes a parent through childbirth, surrogacy, adoption, or foster care. Fathers who aren’t the primary caregivers have access to four weeks of paid paternal leave—up from the two weeks they received before.

This move to expend leave policy for new parents comes one week after Netflix announced its own groundbreaking parental leave policy, which gives new moms and dads unlimited time off in the year following the birth or adoption of a child. Microsoft followed this trend by announcing a new 20-week leave offering for new mothers.