San Francisco Employment Law Firm Blog

February 22, 2013

Illegal Workplace Retaliation Claims based on FEHA (Fair Employment and Housing Act)

It is well established that a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by FEHA. Strong policy considerations support this rule. Employees often are legally unsophisticated and will not be in a position to make an informed judgment as to whether a particular practice or conduct by their employer or a manager actually violates the anti-discrimination laws. A rule that permits an employer to retaliate against an employee with impunity whenever the employee’s reasonable belief turns out to be incorrect would significantly deter employees from opposing conduct they believe to be discriminatory.

Moreover, a mistake of either fact or law may establish an employee’s good faith but mistaken belief that he or she is opposing conduct prohibited by FEHA.

To have a claim for retaliation, an employee does not necessarily have to be terminated. Creation of tolerance of hostile work environment for an employee in retaliation for the employee’s complaining about prohibited conduct is an adverse employment action within the meaning of California Gov. Code section 12940(h). Moreover, an employer’s alleged retaliatory responses may be considered collectively to determine whether the employee was subjected to an adverse employment action under the same section. However, mere ostracism in the workplace is insufficient to establish an adverse employment decision. Brooks v City of San Mateo (9th Cir. 2000) 229 F.3d 917, 929.

February 9, 2013

Age Discrimination at Wells Fargo and Other Banks

by Arkady Itkin

We receive more and more calls from potential clients in the banking industry, and especially from Well Fargo Bank, who believe that they are being mistreated, discriminated and disciplined because of their age. While some of those claims don’t have much merit, in some cases there is significant evidence that the reason that an employee is mistreated is his or her age. This is particularly prevalent in sales and IT departments, but for two different reasons:

Age Discrimination in Sales

Age Discrimination in sales and marketing is mostly driven by the fact that companies won’t to put the prettiest, the youngest and the most energetic people to the front line to interact with their customers, primarily for “aesthetic reasons”. This is not a defense to an age discrimination lawsuit, but for some banks it’s worth taking the risk of facing liability for discrimination for the sake making its sales teams younger and more physically attractive.

January 31, 2013

State Employees’ Rights and AWOL

by Arkady Itkin

There are a few basic things every California state employee should know about the AWOL policies that agencies have the right to invoke how these agencies can use and abuse this policy to wrongfully terminate state workers:

* AWOL stands of “Absent Without Leave”. It was enacted to prevent abuses of time off by state employees and allow agencies to terminate its employees by invoking the AWOL statute.

* Generally, an employee who is absent without approved leave for 5 consecutive days, may be deemed AWOL and be separated from his state service.

January 25, 2013

Mortgage Loan Officers are Not Exempt from Overtime Pay

by Arkady Itkin

The Department of Labor has recently issued an opinion holding that mortgage loan officers performing typical job duties, regardless of the title affixed to them (i.e. loan originator, loan consultant, etc…) and who spend the majority of their time working in the employer’s place of business of the employee’s own office, would not qualifiy as bona fide exempt employees.

One of the three requirements for being exempt from overtime under administrative exemption is that an employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers. The Department of Labor pointed out that mortgate loan officers’ duties are contacting potential customers based on the information generated by the employer or databses to discuss or sell loan products. These are not administrative duties because the qualify as “making sales” and not running the business.

Although this determination is not limited to just mortgate loan officers, it may be applicable to other professionals selling products out of their employer’s office.

January 3, 2013

Age Discrimination in the Banking Industry

by Arkady Itkin

I am surprised by the amount of calls I get from older workers who work for banks who are clearly driven out of their workplace during age. Most of these calls come from Wells Fargo Bank branches. Many of them hold high level positions and have been working for the same bank for fifteen, twenty or more years. Usually the process starts with the older worker being written up by his or her manager for petty violations or fabricated violations or being issued unsatisfactory performance reviews. Because there are no laws that regulate these performance reviews, and the employer has almost full discretion in expressing their opinion about an employee’s performance, the management can basically include what they please in employee’s evaluation.

A negative performance review or several such reviews are followed up with a 30 or 90-day performance improvement plan (PIP), and then “termination for unsatisfactory performance”.

Shortly after the older employee is terminated, he is replaced by a significantly younger employee.

December 15, 2012

Your Wrongful Termination and Union Grievance Arbitration

by Arkady Itkin

There is a number of benefits to pursuing both, the arbitration of your union grievance and a wrongful termination lawsuit (if there are grounds to bring such a claim). One of the main such benefits is the fact that losing one does not really affect the other, so in a way you get to have two shots of handling the same problem. This is because the two proceedings are fundamentally different.

First, a union arbitration takes place before an arbitrator and outside of court, while a wrongful termination lawsuit is pursued in court (State or Federal). More importantly, the standard of proof in both proceedings is very different. Generally, at a union grievance arbitration, the issue will be whether there was just cause for a discipline imposed against the aggrieved employee, and whether the discipline imposed was proportional to the alleged violation. In court, however, whether there was just cause for employee’s termination has no legal relevance, because a wrongful termination plaintiff needs to present evidence of discrimination or retaliation – to prove that he/she was either (1) treated differented due to being a member of protected class (i.e. age, religion, disability, familial status, gender, sexual orientation) or (2) suffered an adverse employment action due to engaging in a protected activity (i.e. complaining about unlawful discrimination or harassment, complaining about safety violations, engaging in political activities, reporting embezzlement of public funds, etc…)

Thus, if an employee loses at arbitration and fails to prove that there wasn’t just cause of discipline imposed, he can still be able to prove in court that the true reason for the discipline was discrimination or retaliation. Or, if an employee loses his case in court and fails to prove discrimination or retaliation, he still has an opportunity to prove that there was no just cause for discipline or tetermination.

November 9, 2012

Disciplinary Actions against a Chiropractor’s License in California

by Arkady Itkin

The Board of Chiropractic Examiners may impose discipline against a licensee-chiropractor in California only when that chiropractor’s misconduct is substantially related to the qualification, functions or duties of such a license. It has been held that sexual misconduct with a patient and a conviction involving use of dangerous drug alcohol, such as DUI, are events that can lead to a discipline against a chiropractor’s license. Further, certain types of advertising are forbidden and constitute ground for discipline.

Like in disciplinary actions against other types of professional licenses, a chiropractor may and should present evidence of mitigating circumstances during the license defense proceedings.

Hiring the right attorney, experienced in professional license defense, who can present the case and the mitigating circumstances in the most favorable light without overreaching can be critical in reducing the discipline from revocation to probation with or without suspension, or reducing the penalty from suspension to a letter of admonishment, which letter can also be appealed subsequently.

September 20, 2012

Legal Issues in Disciplinary Actions Against Registered Nurses

by Arkady Itkin

The California Board of Registered Nursing is charged with investigating licensed nurses and taking disciplinary actions when appropriate. These kinds of actions are brought under the Administrative Procedure Act. The Board’s executive officer files the disciplinary action against, but the board itself is the ultimate decision maker in any such action. The board may only impose discipline against a licensed nurse only when the licensee’s misconduct or violation is substantially related to qualifications, functions, or duties of the nursing license. The criteria for determining whether such substantial relationship exists is outlined in the board’s regulations. The typical disciplinary actions involve penalties ranging from a citation to license suspension or revocation.

The most common charges leading to disciplinary actions against registered nurses are “incompetence” and “gross negligence” as well as “substance abuse” and “charting errors.”

disciplinary action against registered nurses in California One of the very important elements of making the case for reducing the discipline imposed is showing either rehabilitation or other mitigating evidence. This is especially important in substance abuse cases, where showing active rehabilitation can be critical to maintaining a license or at least not having it revoked. Usually, simply attending AA meetings or similar meetings is not enough to show rehabilitation at a disciplinary hearing, and being involved in a more formal rehabilitation program is required in order to demonstrate to the board that the nurse is on the right track toward recovery from addiction.

September 2, 2012

Disability Discrimination in Public and Government Agencies

by Arkady Itkin

My experience suggest that one of the reason for disability discrimination and failure to comply with disability laws in public / government agencies is the ignorance of disability laws and not understanding the obligations of the employer toward disabled workers among the managers and human resources personnel in these agencies.

Some of the managers that make critical decision of how to reasonably accommodate and employee and what constitutes an effective, reasonable accommodations have very little or no background or training in either human resources or disability laws. Many supervisors lack basic understanding of what qualifies as disability at workplace under ADA or FEHA. Some of the managers in state, county and municipal agencies get very high up in the ranks due to good performance and length of service alone, as usually there is no requirement to get high education in the public sector employment in order to continue to be promoted. While allowing employees from all backgrounds and all walks of life to have opportunities in high management, not requiring additional education or training when it comes to human resources and basic laws that govern employee’s right and duties leads to many employment and wrongful termination lawsuits against these agencies. Most often we hear about lawsuits against Department of Corrections and Department of Health and Human Services.

July 24, 2012

How To Tell If It’s A Layoff or Retaliation / Discrimination?

by Arkady Itkin

It appears that employers become progressively more creative at trying to cover up unlawful retaliation and wrongful termination as a layoff. Because the employer’s motive for terminating an employee is inherently hard to prove, this is a temptingly easy way for companies to retaliate and also discriminate, including replacing older workers with younger ones, females with men, workers of color with white employees, or doing the opposite – replaced white employees with minorities to achieve a certain quota, which is just as unlawful.

Here is a common situation, especially in the tech industry: a high-level employee, who happens to be an Asian female with a distinct accent, is being demoted to a lower position due to the alleged elimination from that higher position. A few months later, due to the alleged restructuring in the company, the above-mentioned eliminated position becomes open again, and a white male who is less qualified in every way, is being hired to fill that position. Shortly after, the demoted female is being advised of the company’s cuts in workforce, and is handed layoff notice with bigger or smaller severance offer.

Whether this kind of lay-off is discriminatory depends on many facts, but it surely is worth considering all the evidence available relating to that termination. An experienced employment attorney can evaluate the totality of the evidence to determine whether a discrimination or retaliation case can be made. This would be useful not only in taking legal action against the employer, but it can be just as useful in negotiating a higher severance than the one originally offered.