San Francisco Employment Law Firm Blog

December 17, 2009

How to Deal with Workplace Harassment

Workplace harassment is a source of tremendous stress for many employees in California. Some of them confront their harassers in one way or the other, while others take a passive approach, feeling helpless or not believing that anyone can help them, including their human resources management.

Unless the harassment is very severe (such as unwanted touching, violence or threats of violence, repeated racial or sexist slurs, etc), most attorneys will advise you that suing the employer or the harasser is not a great option if you are still employed with the company where you are subjected to harassment. This is because any recovery of damages in employment related cases is to a great degree proportionate to the loss of wages. If you are still employed and have not been terminated, you are not losing any wages, which makes your case “smaller.”

This doesn’t mean however that you should remain helpless and do nothing to protect yourself and your position at workplace. Here are a few simple, practical and important steps you can and you should take if you are subjected to harassment, but no action such as suspension and termination has been taken against you:

November 22, 2009

California Wage Laws: Compensation for Travel / Commute Time

by Arkady Itkin

You are a consultant who travels from one work site to another serving the needs of your employer’s customers, or you are a support service provider for one of your company’s products and your travel all day from one office to another to repair or provide other on-site services. Are you entitled for compensation for the time you commute from one job site to another?

The answer is yes. The Industrial Welfare Commission Orders specifically define the term “hours worked” as the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not he or she is required to do so. In other words, under California law, if the travel time is subject to and under the employer’s control and it’s time for which the employee should be compensated at his regular rate of pay or at overtime rate of pay if applicable.

Of course, the commute in the beginning of the workday to the first job site and the commute at the end of the day – from the last job site back home – is not a compensable time, as it essentially the same kind of time as any other employee would spend who travels to and from one work site (his office) every day.

November 11, 2009

Proving Workplace Retaliation in California

by Arkady Itkin

Retaliation against employees for exercising their rights or complaining about unlawful conduct of their employer is common. However, proving retaliation in California presents unique legal and factual challenges, as employers almost never simply admit that they retaliated against an employee.

One California court discusses and provides excellent guidance on proving retaliation in California Fair Employment & Housing Commission v. Gemini Aluminum Corp. 122 Cal.App.4th 1094 (2004). In that case, the court noted that to establish the necessary causal link between an employee’s protected activity and the adverse employment action by the employer (such as termination, demotion, or transfer to a less desirable position/location) the employee needs to show that he/she engaged in a protected activity, that the employer was aware of that protected activity, and that the adverse action against that employee was taken shortly after the employee engaged in the subject protected activity.

The court emphasized two very important points with regard to retaliation. First, even informal complaints to management about discriminatory employment practices are considered sufficient opposition to trigger prohibition against retaliation. Secondly, the court noted that even threatening to file a discrimination complaint without actually filing it is a protected activity.

November 3, 2009

Terminating One Employee and Keeping the Other

by Arkady Itkin

Terminating an employee can be a difficult and even devastating experience to the terminated worker, but it’s also not an easy decision for the manager / employer charged with the duty of retaining and discharging employees. It’s not uncommon for an employee termination to seem unfounded or irrational. For example, an employer might decide to discharge a more senior employee or a good performer while retaining another worker who has performance issues or even many unexcused absences because the latter has a closer relationship with the employer, or compensates for his deficiencies in other ways.

If the aggrieved employee is an at-will employee, this kind of seemingly unfair preferential treatment is only illegal if the reason for it is the fact that the adversely affected employee either (1) belongs to the protected category, such as gender, sexual orientation, disability, religion, ethnicity, familial status; or (2) because the employee exercised protected rights, such as complaining about workplace harassment or unsafe working environment (internally or to the outside government agencies), reporting criminal conduct, filing a workers compensation claim, participating in a union/political activity, serving on a jury, etc.

Since the at-will employment doctrine states that an employee can be terminated for any reason, no reason, or arbitrary reason, except illegal reason, terminating one employee and keeping the other because the employer likes the second employee better for his own, personal reason, assuming that no sexual favoritism is involved, generally does not violate California of Federal employment laws.

September 27, 2009

Wrongful Termination: losing rights due to bad advice

by Arkady Itkin

Recently, one of my clients referred to me his former colleague. After having a long conversation with him, it became clear to me that he was a victim of blatant disability discrimination and retaliation for filing a workers compensation claim and for complaining about harassment because of his medical condition to the superiors of his HR manager.

There was nothing I could do to help him, however, because of the bad advice of his union representative, who told the employee that he could not file a lawsuit against the employer in court till he submitted his wrongful termination claim to Arbitration under the Collective Bargaining Agreement through a union, which he was a member of. As a result, an employee took no court action and waited till the union arbitrated his grievance. The employee contacted me shortly after he lost at the arbitration. The bad news were that our conversation took place 2 years and 1 month after his termination – a month after the statute of limitations has run on all his claims and they were all barred.

September 19, 2009

California Employment Law: Why Employers Violate Overtime Laws

by Arkady Itkin

For a while I could not understand why so many employers violate basic overtime laws. After all, these laws are not rocket science, and plenty of resources are available for employer to understand and make sure that they comply with the rules of the Department of Labor Standards Enforcement when it comes to overtime compensation.

Recently, I represented an employer at a hearing in front of the labor commissioner. The employer was clearly liable for some overtime to several of his employees, and my job was mostly mitigating that liability rather than denying it. I was also curious to find out why the employer did not bother to contact me or another employer attorney before hiring workers to make sure that he pays out compensation correctly. The answer was very simple: the employer was not aware of who the overtime laws apply, didn’t really care to find out, and honestly thought that the likelihood that he was going to have to deal with the issue in court was very low.

All of the above assumptions were mistakes on the part of the employer, especially the last part about the “likelihood.” Having hired over 10 workers for a project of 3-month duration and having had to unexpectedly terminate the project due to some cash-flow issues, he was guaranteed to turn his hard-working employee to disgruntled workers, left without the expected earnings from the project, who will do whatever they can to obtain additional compensation after being unexpectedly terminated. Naturally, they turned to the labor board to find out if they can “squeeze” some overtime from their employer.

September 5, 2009

Advice to Employers: Fighting Unemployment Benefits of an Employee Might Be a Mistake

by Arkady Itkin

Employers who terminate employees routinely fight the award of unemployment benefits if they feel that the employee was terminated for cause or for misconduct and should not receive unemployment compensation, which results in increasing the premium that the employer has to pay toward that insurance reserve with the State.

Fighting unemployment benefit and even winning that fight is very likely to backfire and turn out to be much more expensive than simply letting an employee collect unemployment. Many employees, when laid off or terminated, at the very least consider in the back of their mind the possibility of suing their recent employer. Whether the employee decides to aggressively pursue litigation against his former employer depends on the number of factors, but the emotional component – the anger at the employer is certainly not an insignificant element in that decision. Often, it’s what makes a difference between letting things go and going after the employer in court.

Consider terminating an employee who feels that he was fired unjustly. He is hurt and angry, but at the same time thinks that it’s a better idea to take a break, collect unemployment and look for another job. He applies for unemployment and gets denied benefits because the employer stated that the employee was terminated for misconduct. This very likely takes the employee over the edge and drives him to file a lawsuit for wrongful termination, harassment, discrimination, defamation, intentional infliction of emotional distress, and many other possible claims.

August 16, 2009

Employers’ Obligations to Prevent and Remedy Sexual Harassment

by Arkady Itkin

The leading opinion on the issue of employers’ obligation to remedy workplace sexual harassment of a victim by his co-workers, is the ninth circuit case Ellison v. Brady (1991). In that case, the court carefully analyzed the approach that a number of other courts take toward determining whether the employer complied with the obligations with regard to harassment imposed by law. The court made several important conclusions. First, the court reiterated that employers are liable for failing to remedy or prevent a hostile work environment of which management-level employees knew or should have reasonable known.

preventing harassment at workplace Then, the court attended to the issue of what action an employer should take against the harasser to avoid liability. The EEOC guidelines recommend that an employer’s remedy should be immediate and appropriate without adversely affecting and terms and conditions of the complainant’s employment. The ninth circuit, agreeing with a number of other courts, held that the remedies against harassment should be reasonably calculated to end the harassment. Not all harassment warrants dismissal. Rather, remedies should be assessed proportionately to the seriousness of the offense. Employers should impose sufficient penalties to assure a workplace free from sexual harassment. The reasonableness of an employer’s remedy will depend on its ability to stop harassment and the kind of remedy used.

In Ellison the harasser was transferred to a different work locations for six months, after which he was returned to work to the original location. The harasser was not subjected to any other significant discipline, even though the victim complained repeatedly about the relatively egregious comments and sexual innuendos by the harasser. Further, the employer actualy transferred the complainant to the less desirable location. The court concluded that by failure to take effective remedial measures against the harasser combined with taking adverse action against the victim by transferring her to a less desirable work location, the employer did not meet it’s obligation with regard to harassment prevention and was therefore liable.

August 10, 2009

Constructive Disharge – Read This Before Your Resign

by Arkady Itkin

An employee who feels harassed, discriminated or otherwise treated unfairly at his workplace may learn the term “constructive discharge” from his co-workers or from doing his own research, and will assume that quitting a job where he feels harassed or stressed out will automatically create a constructive discharge claim, entitling him to relief in court.

constructive-discharge-workplace

In reality, the standard for proving constructive discharge claim is much higher than a typical worker understands it to be. In Turner v. Anheuser-Busch, Inc. (1994), the California Supreme Court held that constructive discharge occurs when the employer’s conduct effectively forces an employee to resign, which is legally regarded as firing an employee. To be deemed a constructive discharge, the court noted, an employer must create or permit working conditions so intolerable or aggravated that a reasonable person in the employee’s position would fee compelled to resign. These employment conditions must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job, to earn a livelihood and to serve the employer. The circumstances giving rise to constructive discharge must be unusually aggravated or amount to a “continuous pattern” before the situation will be deemed intolerable. Single, trivial or isolated acts are insufficient to support a constructive discharge claim. Thus, the court continued, a poor performance rating or a demotion, even when accompanied by reduction in pay, does not by itself trigger a constructive discharge.

As the above language indicates, the employee must consider his options carefully before quitting his job in reliance on having a potential constructive discharge claim in court. It is highly recommend to consult an attorney before quitting the job to evaluate your work conditions and consider legal action along with other viable alternatives, short of quitting and suing.

August 7, 2009

San Francisco Employment Lawyer: Preserving Your Retaliation Claims

by Arkady Itkin

One of the challenging in proving the workplace retaliation claim against an employee is showing a nexus – a connection between the employee’s protected activity and the adverse employment action taken by the employer against the same employee. The employer will almost always deny retaliation and will always argue that the employee was terminated for reasons that have nothing to do with his disability or his complaints about discrimination/harassment. It is therefore crucial that the claimant has a solid evidence to establish that he complained and that those complaints were actually received by the employer.

This means that if you feel that you are subjected to discrimination and/or harassment, you complain to your supervisor or to the HR department in writing, so that later – the employer cannot deny the very fact that you actually complained. Whether it’s an e-mail, a handwritten note or a formal letter – written evidence of complaining about possibly unlawful conduct is much harder to refute than the “he said / she said” situations.