preventing future wrongful terminationMany workers find themselves in a situation where they believe (and often rightfully so) that they will soon be wrongfully terminated due to some type of discrimination or retaliation. Can anything be done to prevent a future wrongful termination form taking place?

Realistically, there is nothing you can do to physically prevent your employer from firing you, if they are determined to do so. Just like they can’t force you to work for them against your will, you or anyone else can’t force them to employ you for longer than they want to. However, there are several things you can do to make your potential future wrongful termination case stronger:

  • Make sure you don’t give your employer any independent, lawful reasons for firing you. For instance, if you send mean / rude emails to your boss who has been retaliating against you in violation of the law, and you are terminated shorly after sending those email for some type of policy violation of verbal violence (which would be totally lawful), it will be quite hard to prove that the reason for your termination was that unlawful retaliation you were experiencing before, and not those angry emails that you sent most recently prior to your termination.

First of all, contrary to a popular belief – not all mediators are the same. Even though the role of a mediator is limited to facilitating negotiations in a legal dispute and they don’t make any decisions or ruling in a case, having the right mediator can make a big difference between settling a dispute or bringing it close to settlement v not getting anywhere at all. There is more than one type of effective mediator, and like all people – different mediators bring their own unique style of pursuing resolution. However, there are at least two fundamental qualities you should be looking for in a mediator when you are looking for one for your case:

  • Knowledge of the applicable law and practical experience pursuing or defending similar cases. Yes, it’s true that both parties submit their mediation briefs to the mediator outlining their position, supporting facts and the applicable law, but it surely helps having the type of mediator who dives deep into facts and into evidence with confidence because he or she knows the applicable law and can be persuasive with both sides by pointing out specific legal strengths and weaknesses in the parties’ respective positions and not just say “oh… you know… judges and jurors are unpredictable, trial is expensive… and you better just settle, because it’s the best option” or something like that.  Many mediators list their experience as a judge in their biography. While any such experience is impressive, it doesn’t necessarily translate into being a good mediator, so don’t rely on that type of experience to much when choosing a mediator.
  • Your mediator should have the right personality – When parties make a decision to settle their case at the mediation, they want to understand why their decision is the right thing to do under the circumstances, and why what they are getting is a fair deal, even if it is not perfect. You want your mediator to have the right personality and the right presence. Knowing the law and having courtroom experience is great, but if it can’t be translated into effectively listening to both sides’ concerns and goals and being as patient as necessary, then that impressive experience of that mediator isn’t going to be of much value.

Untitled-design-10-1-300x169“Outside salesperson” in California are exempt from overtime, minimum wage, reporting time and meal and rest break requirements. (Labor Code 1171). Wage Order No. 7-2001(2)(J) defines outside salesperson as “any person… who customarily and regularly workes more than half of the working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or contracfts for products, servies, or use of facilities.” Based on this definition, in order to qualify as an outside salesperson, an employee must (1) work more than half the time away from his employer’s place of business and (2) be engaged in sales. The main reason for this exemption is the fact that outside salesperson generally control their own hours and are paid on commission basis.  A classic example of a correct application of outside sales exemption is a door-to-door vacujm salesperson, who is on the road traveling from residence to residence.

It’s important to note that the “employer’s place of business” is not limited, under California law, to a principal places of business or an administrative headquarters. For instance, in one of their opinion letters DLSE concluded that temporary trailers and model homes located at a tract housing site, although physically separate from the home builder’s or seller’s headquarters office, nonetheless constitute “the employer’s place of business” within the meaning of the definition of “outside salespersons”. Therefore, employees who work out of temporary trailers or model homes and who sell newly constructed tract homes would not fall within this exemption unless they are customarily and regularly engaged in sales work for more than half of their work time away from the temporary trailer or model home, or other property at the housing tract owned or controlled by their employer. In the absence of such work away from their trailer / model home, these facilities would be treated pretty much like an employer’s satellite office, making those workers “inside salespersons” and not qualified to be exempt.  A similar analysis applies to car salesmen who spend much of their time on their employer’s car lot, perform all of their sales work at the employer’s place of business, and thus are not covered by the ouside sales exemptions. (Brennan v Modern Chevrolet Co. (1972)).

However, recently one California Court of Appeal noted in Espinoza v Warehouse Demo Services, Inc. (2022) that the relevant inquiry as to whether an employee works away from the employer’s place of business is not whether the employer owns or controls the work site, but the extent to which the employer maintains control or supervision over the employee’s hours and working conditions. Thus, this factor also must be taken into consideration when determination whether this outside sales exemption applies to any specific employee.

CFRA leave expanded in CaliforniaUp until now, California workers were eligible to take CFRA / FMLA leave to only care for their immediate family members, subject to a number of other criteria. Assembly Bill 1041, would expand CFRA to permit an employee to take job-protected leave to care for a “designated person.” The bill defines “designated person” as any individual related by blood or whose relationship with the employee is the “equivalent of a family relationship.”  The bill provides that the employee may designate a “designated person” in advance and that an employer may limit an employee to one designated person per 12-month period.

Of course, the above “equivalent of a family relationship” language is extremely vague, and we hope that future amendment and / or litigation will clarify what this means exactly and to avoid abuse by interpreting this language way too broadly.

The other question is whether an employee can designate a “designated person” after the need to take leave to take care of that person arises. The current language states that the employee “may designate … in advance”, so at least based on the plain reading of the language of this new law, there appears to be no prohibition against after-the-fact designation.

Here are three highly questionable behaviors, to put it mildly, we have been recently obeserving employers engage in, when denying their employees religious exemptions from their Covid-19 vaccination requirement at workplace. These behaviors do not include the obvious point – continuing the vaccanation requirement policy despite being fully aware that the vaccines in question neither stop infection nor transmission of Covid-19 are needlessly harmful to both the employers and their workforce.

  1. Requiring fully remote employees to be vaccinated and denying religious exemptions from this quirement on the grounds of “undue hardship”. It is hard to imagine a half legitimate argument as to why any employer would care about their fully remote workers’ vaccination status, let alone denying a remote worker’s request for a religious exemption from the vaccination requirement. These workers never come in contact with their co-workes or with the employer’s customers / clients, so there is no risk of any type of exposure from that employee.
  2. Denying requests for a religious accommodation to be exempt from the vaccination requirement without a good reason. We repeatedly see employers deny religious exemption requests after receiving more than sufficient information to grant an exemption, using the following vague verbeage: “Based on the information you have provided, we are unable to grant you your accommodation request”. Employers often do not (and cannot) provide any legitimate basis for their decision to deny these requests.

covid 19 vaccination exemption requests denialIt is disappointing, to say the least, that so many employers in California continue require all of their employees to be “fully vaccinated” or be fired, given that we have now known for quite a while that the MRNA vaccines don’t prevent infection or transmission, and they are also most definitely not risk free. Moreover, the same employers continue to routinely deny their workers’ medical and religious exemption requests in violation of California Fair Employment and Housing Act. According to a recent data, for instance, Marin County apparently only granted 11 such exemptions out of hundreds requested by their employees.

Many lawsuits for these unlawful exemption denials have already been filed all around the country. We also hope to be involved in as many such cases as possible, in order to participate in this extremely important fight against continuing, unscientific and unlawful coercion.  We foresee that it will be particularly difficult for employers to justify denying an exemption to workers who are expected to work remotely, especially if they remote indefinitely. What rational basis can there be to insist that a worker, who never comes in physical contact with his co-workers or clients / customers, be vaccinated, and how is it that employer’s business?

Some employers deny exemption requests for political / partisan reasons. That is, they are already unhappy that the same employee chose not to get vaccinated, so now they are trying to make his life more difficult by unreasonably denying an exemption. If this type of spiteful motive is proven in court, it will make that employee’s case much stronger.

doing your own legal researchDespite the wide availability of legal information online that allows you to research just about any legal issue on your own, you should treat any such information you find on the internet with a grain of salt, and this is for two key reasons:

(a) Your own research will reveal what you theoretically can do, but this doesn’t mean that this is what you actually should do, i.e. this doesn’t mean that practically taking the step you can take is in your best interest. For instance, let’s say you feel harassed at workplace and you learn online that you have the right to file a harrasment complaint with your HR. But does this mean that you should do it? And if so, when? More importantly, can you afford the risk of being retaliated against and possibly losing that job? You are not going to find answers to these questions online, because none of the resources that are out there on the interent can take your own unique circumstances into consideration.

Here is another, even more obvious example – you were rearended very, very lightly on the road, where the driver at fault basically lift a small scratch on your already less than perfect bumper. Legally, you can bring claim against that driver for negligence, but is this worth trouble, given the potential of receiving such modest compensation? Again, your legal research will likely not provide you with what you should do in your specific situation.

personal liability for wage violations 558.1Under California Labor Code section 558.1, any employer or other person acting on behalf of an employer, who violates, or causes to be violated, any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission, or violates or causes to be violated labor code sections 203, 226, 226.7, 1193.6, 1194, or 2802 may be held liable as the employer for such violation. For purposes of this section, the term “other person acting on behalf of an employer” is limited to a natural person who is an owner, director, officer, or managing agent of the employer, and the term “managing agent” has the same meaning as in Civil Code 3294(b).  White v Ultramar, Inc., 21 Cal.4th 563, 573 (1999). This law was enacted to discourage business owners from rolling up their operations and walking away from their debts to workers and starting a new company. Voris v Lampert (1999).

It’s important to note that an individual could not be liable under section 558.1 simply by virtue of his status as an owner, director or officer but he must have been “personally involved” in the alleged violations or “engaged in individual wrongdoing”. Usher v White 64 Cal.App.5th 883 (2021). The Usher court noted that there is no bright-line rule when it comes to finding individual liability, and this determination requires an examination of the particular facts of each case. The Espinoza v Hepta Run Inc. (2022) case in instructive. There, the court found that the company owner’s approval of the policy regarding paying employees was sufficient to show that he caused labor code violations and therefore could be held personally liable, even if the same owner was not involved in day to day business operations.

covid-19 related accommodations at workplaceCalifornia employers may need to evaluate new kinds of potential disabilities and requests for accomodations as a result of Covid-19. One possible scenario is an employee’s claim that  Covid-19 infection itself is a protected disability as opposed to a temporary illness such as influenza. Employees may also claim that fear of contracting the virus is a disability that must be accommodated. If the employee’s fear is based on an unerlying, qualifying disability that puts an employee at increased risk of severe illness from Covid-19, the employer may need to consider whether reasonable accomomdation is available to address this hightened risk.

Some workers may claim that an employer’s vaccination requirement should not apply to them because of a current medical condition or fear of having an allergic reaction or injury from the vaccine. Employer who require workesr to wear masks or other PPE may be asked to make exceptions to those policies as well. For example, an employee with a latex allergy may seek an accommodation of waering non-latex gloves. Whate the scenario, the same legal principals apply. An employer may require that an employee provides medical information confirming having a disabile condition.

If an employee doesn’t have a disability or sincerely held religious belief  for not being vaccinated, there is no obligation on the part of his employer to honor any request for exemption from the vaccination requirement. California employers that do require vaccinations (except for those employing 25 or fewer employees) must provide supplemental sick leave for time spent to receive a vaccine and for any time the employee can work as a result of symptoms related to a Covid-19 vaccine. Employers are allowed to aks why an employee has missed work, and whether the employee is expeirencing Covidf-19 symptoms.

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