San Francisco Employment Law Firm Blog

December 23, 2013

Equal Treatment Can Be Discrimination at Workplace

Although this sounds counter-intuitive, equal treatment of all employees can be discriminatory and in violation of disability and other laws. The seminal case on this issues is US Airways, Inc. v Barnett (2002), decided by the US Supreme Court. In that case, the high court considered whether leave and other policies equally applied to all employees, regardless of their disabilities and limitations can still be discriminatory. The answer is yes. The Court said that an employer who treats all employees equally might still be in violation of the law, since preferences sometimes prove necessary to achieve the basic equal opportunity goal envisioned by law. The law requires preferences in the form of reasonable accommodations that are needed for those with disabilities to obtain the same workplace opportunities that those without disabilities automatically enjoy.

The Court further noted that by definition any special “accommodation” requires the employer to treat an employee with a disability differently, i.e. preferentially. Otherwise, neutral office assignment rules would automatically prevent the accommodation of an employee whose disability-imposed limitations require him to work on the ground floor. Neutral “break-from-work” rules would automatically prevent the accommodation of an individual who needs additional breaks from work, perhaps to permit medical visits. Likewise, neutral furniture budget rules would automatically prevent the accommodation of an individual who needs a different kind of chair or desk.

November 17, 2013

Employee or Independent Contractor Test (California)

by Arkady Itkin

The main test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired. S.G. Borello & Sons, Inc. v Dept. of Industrial Relations (1989). The process of distinguishing employees from independent contractors is fact specific. The right to control retains significance, but is no longer determinative. State Compensation Ins. Fund v Brown (1995). While the right to control work details is the most important consideration, the authorities also endorse several “secondary” factors of the employment relationship. The courts also noted that the “control” test, applied rigidly and in isolation is often of little use in evaluating the large variety of service and employment arrangements that can potentially exist.

The secondary factors usually considered by courts are (1) whether there is a right to fire at will without case; (2) whether the one performing services is engaged in a distinct occupation or business; (3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (4) the skill required in the particular occupation; (5) whether the principal or the worker supplies the instrumentalities, tools, and and the place of work for the person doing the work; (6) the length of time for which the services are to be performed; (7) the method of payment, whether by the time or by the job; (8) whether or not the work is a party of the regular business of the principal; (9) whether the parties believe they are creating an employer-employee relationship; (10) whether the classification of independent contractor is bona fide and not an obvious attempt by the employer to avoid employee status; (11) the hiree’s degree of investment other than personal service in his or her own business and whether the hiree holds himself out to be in business with an independent busienss license; (12) whether the hiree has managerial skill; and (14) whether the service rendered is an integral part of the alleged employer’s business. Sotelo v Medianews Group, Inc. (2012).

The label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced. Antelope Valley Press v Poizner (2008). Thus, signing an independent contractor agreement is not dispositive and is often of little significance to determining whether a worker is an employee or independent contractor.

November 8, 2013

Employers’ Favorite Ways to Get Rid of Older Workers

by Arkady Itkin

In a recent Forbes article, a Florida attorney Donna Ballman discusses the employers’ favorite sneaky ways of getting rid of older employees, which are described below. This very much applies to California and the checklist below can be a good start for any older employee who suspects that he is or might be a victim of age discrimination to determine whether in fact the employer is trying to get rid of him for unlawful reasons.

1. Job elimination.

One of the most common excuses used to get rid of older employees is “job elimination.” However, that may just be an excuse for what is really age discrimination. If the company is not really eliminating the job, just changing the title and putting someone younger is your former position, you may have an age discrimination claim.

November 3, 2013

When You Receive a PIP (Performance Improvement Plan)

by Arkady Itkin

As much as I didn’t want to believe in this for a while after I started practicing employment law, my experience suggests over and over and in the vast majority of cases, when an employer issues a PIP (performance improvement plan) to an employee, this means that the employee will be fired shortly after. The PIP might make it sound like the employer is interested in having you improve your performance and address the issues outlined in that disciplinary documents, and they are even offering you various resources to help you along the way, such as employment assistance program (EAP), etc.

However, the reality is that most likely your management has already made the decision to terminate you, and now they are just creating paperwork to create “history” of performance issues to make the termination look more legitimate and less likely to be challenged by that employee in court, or at an administrative hearing, if applicable, and to also make it look like they gave you a chance to improve before terminating you.

If you have a received one of those 30-day or 60-day or 90-day PIP’s, you should consult with an experienced employment attorney about the various options of dealing with the PIP. First, the attorney should analyze your potential termination and determine whether there likely to be a potential evidence of discrimination, retaliation and wrongful termination. If it appears that the employer might be trying to get rid of you for unlawful reasons, you can work with your attorney on gathering evidence to support your future case, and take steps on enhancing any potential wrongful termination and discrimination case before you have been fired, so that once you are terminated – you have a stronger case against your employer.

October 17, 2013

New California Law Protects Victims of Domestic Violence against Workplace Discrimination

by Arkady Itkin

After Carie Charlesworth was terminated from her teaching job due to security concerns about her estranged husband, the California mother championed legislation to make sure no one would ever have the same experience of being fired. This past Friday, Charlesworth got her wish when Governor Brown signed a measure into law to protect victims of domestic violence from losing their jobs and workplace discrimination. The new legislation will go into effect on Jan. 1, 2014.

Charlesworth said she was put on leave from her position as a second-grade teacher at Holy Trinity School in El Cajon, California in January 2013, after her ex-husband, Martin Charlesworth, 41, showed up that month in the school parking lot, prompting a campus lockdown until the police arrived. The couple divorced two years ago and Charlesworth said she got a restraining order against her ex-husband because he had been physically abusive. She said she also made her principal aware of the situation.

In April 2013, she received a notice that said the “unfortunate and challenging situation” created by her ex-husband would result in her contract not being renewed for the upcoming school year.

September 19, 2013

The Court Clarifies the Term “Wages” within the Meaning of EDD Unemployment Benefits Rules

by Arkady Itkin

In the recent decision of Natkin v California Unemployment Insurance Appeals Board, the appellate court clarified the term “wages” within the meaning of unemployment benefits rules. In that case, the claimant was an attorney who was laid off and who started his own law practice. On his application for unemployment benefits he calculated the wages that he was to report on his EDD claim by subtracting his business expenses from his income, which included various office purchases, such as office furniture, office supplies, etc.

The Court of Appeal disagreed and concluded that under Unemployment Ins. Code 1279, the term “wages” is plain and unambiguous, and it means “any and all compensation” received within a given period. Nothing in the law allows or even talks about the option to subtract business expenses from the total income generated by the claimant.

August 18, 2013

State Workers’ Rights to Continued Employment Under 14th Amendment

by Arkady Itkin

The 14th Amended of the Constitution provides that no state shall deprive any person of… property without the due process. Before the state deprives someone of a protected property interest, the right to some kind of prior hearing must be provided. Regents of State Colleges v Roth (1972). Property interest is not created by the Constitution. Rather, it is created and defined by the existing rules and understandings that stem from an independent source, such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

The Supreme Court explained that government employees can have a protected property interest in their continued employment, if they have a legitimate claim to tenure or if the terms of their employment make it clear that the employee can be fired only for cause. Perry v Sindermann, 408 US 593 (1972). Thus, such employees as assistant college professors, who are hired for a fixed one-year term and are not tenured, do not have a property interest in their job if their contract is not renewed after its expiration.

Thus, the first main step in determining whether an employee has property interest in his/her job under the 14th Amendment is asking whether the position can be terminated only for cause and/or whether it is tenured.

July 20, 2013

Pregnant Employee May Be Entitled to Disability Leave Beyond Pregnancy Leave

by Arkady Itkin

The Pregnancy Disability Leave regulations provide that all employers must provide a leave of up to four months, as needed, for the periods of time an employee is actually disabled because of pregnancy even if an employe has a policy or practice that provides less than four months of leave for other similarly situated temporarily disabled employees. If an employer has a more generous internal leave policy for similarly situated employees with other temporary disabilities than is required for pregnancy purposes under the regulations, the employer must then provide the more generous leave to employees temporarily disabled by pregnancy. (Cal. Code. Regs., tit. 2, section 7291.9(b)).

Thus, under PDLL, an employee disabled by pregnancy is entitled to up to four months of disability leave, regardless of any hardship to her employer. Under the FEHA, a disabled employee is entitled to a reasonable accommodation – which may include leave of no statutory fixed duration – provided that such accommodation does not impose an undue hardship on the employer.

It is been held that an employee may be entitled to both – the pregnancy leave and then, if needed, additional disability leave for a qualifying disability, and that disability is not in place of pregnancy by leave but a benefit in addition to pregnancy leave to a qualifying employee. (Fuentes Sanchez v Swissport, Inc.)

June 16, 2013

The Importance of Medical Note in a Disability Discrimination Case

by Arkady Itkin

Recently, one of our cases was dismissed after nearly two years of litigation in Sacramento Superior Court, because one key piece of evidence was missing. In that case, a State employee was deemed AWOL after not returning to work by the date, noted by her doctor. She requested an additional leave from her supervisor after having been on medical leave for nearly a year already at that time.

The supervisor refused to provide the same despite knowing about the claimant’s long history of injury, pain and treatment. That manager was firm that he was going to follow the instructions of then existing medical note, ordering the the employee return to work with specific restrictions. The employee did not return to work, but instead went to see her doctor who apparently extended her medical leave.

However, the claimant was not able to produce that medical note at the time the motion to dismiss the case was heard and also wasn’t able to prove that she provided the note to any of her manager prior to being deemed AWOL and terminated.

May 12, 2013

False Accusation, Retaliation and Wrongful Termination at Kaiser

by Arkady Itkin

One of the more common wrongful termination scenarios that Kaiser employees seem to face is retaliation for complaining about patient safety or other violations of safety and patient care. It’s easy for management to retaliate against registered nurses or nursing assistants, and it’s as easy as finding minor job related mistakes, such as charting errors that have no actual significance, in order to set the employee who complained about an unsafe practice for termination.

If you feel you are being targeted and retaliated against, you might not be able to save your job, unless you manage to transfer to work under a different management as soon as possible and before your are terminated. However, there are a few things you can do to make your future claim stronger, in case you choose to pursue a retaliation and/or wrongful termination case against your employer:

1. Keep track of all the important documents, e-mails, and your own chronology of any events that would suggest that your employer was unhappy about your complaints or other protected activities, and was trying to set you up for failure and for being fired.