San Francisco Employment Law Firm Blog

April 21, 2009

California Employment Law: Discrimination because of Abortion is Illegal

Under PDA (Pregnancy Discrimination Act), it is unlawful for an employer to discriminate against an employee on the basis of pregnancy,childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs. This law is construed broadly and has been held by courts to include protection against pregnancy discrimination to women who underwent abortion, as abortion is a “medical condition” arising from pregnancy. Doe v. C.A.R.S. Protection Plus, Inc. (2008).

The basic principle of PDA is that women affected by pregnancy and related conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work. The PDA doesn’t require that employers treat pregnant employees better than other temporarily disabled workers, but the PDA does require that employers treat pregnant employees no worse than all others.

April 18, 2009

Racist or Discriminatory Comments at Workplace by a Supervisor

by Arkady Itkin

It has been held in California that to constitute hostile work environment at workplace based on racial or other kinds of harassment, the harassing conduct must be “sufficiently severe and pervasive.” This means that generally, a single discriminatory comment or isolated incidents of slur by a co-worker cannot be actionable as harassment or discrimination as a matter of law. However, the courts recognize the fundamental difference between the impact that a co-worker’s actions or words have an a potential victim of harassment and discrimination and the words/actions of a manager or any other person in a position of power over an employee.

The leading case on this issue is Dee v. Vintage Petroleum, Inc. (2003). In that case, the court pointed out that while one racial comment is insufficient as a matter of law to establish a claim for hostile work environment, there is neither a threshold “magic number” of harassing incidents that gives rise to employer’s liability… nor a number of incidents below which a claimant fails as a matter of law to state a claim. The court noted however that where the act committed by a supervisor, the result may be different. Because the employer cloaks the supervisor with authority, the supervisor’s conduct is normally attributed directly to the employer.

The effect of the offensive and unlawful conduct of a person who acts on behalf of the company and who is in a position of superiority has a much more dramatic and adverse impact on an employee creating a far more abusive workplace environment that would otherwise have been created by co-worker. The court further recognized that even an isolated incident of racial slur may not actually be “isolated” because it explains the manager’s motivation for creating abusive work environment

April 15, 2009

Tips for Winning the Unemployment Appeals Board Hearing

by Arkady Itkin

The hearing to contest the denial of your unemployment compensation benefits is very much like mini-trial. The employee and the employer find themselves sitting across from each other with or without legal representation in front of the administration law judge who will hear both sides, will allow both parties to ask each other questions and present their evidence and make a closing statements to support their position.

Support your Arguments with Evidence. The rules of admitting evidence are far more relaxed at an unemployment appeal hearing than the formal rules of evidence in trial courts. Thus, almost all evidence is admitted, although given different value according to its weight and credibility. The best evidence you can present is having actual, unbiased witnesses show up with you and testify as to the truth of what you you will telling the judge. The second best evidence is declarations signed under the penalty of perjury by any persons who witnessed any conduct by you or your employer, relevant to the appeal. Make sure to make two extra copies of any documents you plan to introduce into evidence – one copy for the judge and one for the opposing side.

Address Only Those Issues that are Directly Relevant to Your Claim. The biggest challenge that the parties to the hearing have is remembering that the administrative judge is only concerned with the most recent events that lead to termination. The hearing at the unemployment appeals board is not a hearing about harassment, discrimination, favoritism, defamation, retaliation or other civil claims. This hearing is strictly about whether the reason/s the employee was terminated disqualify that employee from the benefits.

April 5, 2009

Employers’ Undue Hardship Defense Explained

by Arkady Itkin

Under both FEHA and ADA, employers must make reasonable accommodations to the disability of an individual unless the employer can demonstrate that doing so would impose “undue hardship.” Cal. Code. Regs. tit. 2 section 7293.9. In other words, there are limits on the restructuring that an employer needs to do. Accommodations need only be “reasonable.” An employer need not undertake an accommodation that would created an “undue hardship.”

“Undue hardship” means an action requiring significant difficulty or expense, when considered in light of the following factors: (1) the nature and cost of the accommodation needed; (2) the overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility; (3) the overall financial resources of the covered entity with respect to the number of employees, and the number, type, and location of its facilities; (4) the type of operations, including the composition, structure, and functions of the workforce of the entity; and (5) the geographic separateness, administrative, or fiscal relationship of the facility or facilities.

The burden on proving that providing reasonable accommodations would constitute undue hardship is on the employer, as the law makes clear that the term “reasonable accommodation” is to be interpreted flexibly to that employer must not only remove obstacles that are in the way of the progress of the disabled, but that they actively restructure their way of doing business in order to accommodate the needs of their disabled employees. Prilliman v. United Airlines, Inc. (1997)

March 31, 2009

Employer’s duty toward disabled workers under California Law

by Arkady Itkin

It is not uncommon for a California employer to justify its termination of the disabled worker and it’s failure to engage in interactive process to find reasonable accommodations as require by law under the Fair Employment and Housing Act, by arguing that because the didn’t owe the duty to engage in interactive process because the terminated employee never requested it.

The California courts, however, routinely disagree with that argument by employers. Thus, the second district rejected such an argument by an employer, United Air Lines, where the company suggested that a disabled employee must first come forward and request a specific accommodation before the employer has a duty to investigate such an accommodation. The court reminded the employer that the law does not require the worker to speak any magic words before the disabled employee is subject to its protections. Of course, as the court continued to explain, the employee can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. The employer is also normally not liable for failing to accommodate a disability of which he had no knowledge. Finally, an employer has no duty to accommodate an employee who denies having a disability or denies a need for accommodation. Prillman v. United Air Lines, Inc. (1997).

However, the employer is likely to have the duty to engage in interactive process with a worker who the employer knows is disabled or who the employer perceives to be disabled.

March 28, 2009

The Court clarifies the tip pooling laws in California

by Arkady Itkin

On March 27, 2009, the second appellate district court of California published its decision on the tip pooling rules in the service industry which has been a subject of debate among litigants during the past several years. Etheridge v. Reins International. In that case, one of the issues was the interpretation of California Labor Code section 351 that states, among other things: ” No employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron, or deduct any amount from wages due an employee on account of a gratuity, or require an employee to credit the amount, or any part thereof, of a gratuity against and as a part of the wages due the employee from the employer. Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for.” The Etheridge case focused on the interpretation of the term “employee” in the above code section.

Should only the waiters and bussers serving the table be entitled to the tips left on that table, or everyone in the “chain of service” of that table be included in the “tip pool?”

The court went with the latter interpretation, supporting its holding with compelling logic. The court stated that a patron tips on all of the services received, not simply the service provided by the employee the customer sees with his own eyes. If the plates on which the food is served are not clean, the food received is not hot, or is not as ordered, the patron may be inclined to leave a smaller tip even when the services of the servers and bussers are satisfactory. Likewise, when the meal is good, the presentation on the plates is pleasing, and special food requests have been satisfied, the patron may be inclined to leave a more generous tip, even when the servers and bussers might not have delivered exceptional service.

March 27, 2009

Why is workplace retaliation so common?

by Arkady Itkin

California Labor Department statistics suggests that workplace retaliation claims are on the rise more than other employment related claims, such as discrimination and harassment and hostile work environment related lawsuits. This is not surprising as I believe that besides the common reasons for these violations, such as lack of knowledge of the law on the side of employers and managers, there is a deeper, fundamental cause of retaliation claims, rooted deeply in human nature. Most humans have a predisposition toward being at least somewhat vindictive. When someone intentionally hurts us, we have a natural desire to both defend ourselves and hurt the attacker back. Such dynamics are especially strong in an environment where people, besides dealing with each other, are faced with conscious or subconscious fear of losing their source of income and livelihood, such as workplace.

Thus, when an employee complains about the manager, whether it’s a justifiable grievance or not, the supervisory employee will feel both angry and threatened. Unless the manager is well educated in the workplace retaliation laws and can consciously resist targeting the complainant or unless the company has adequate mechanisms that address retaliation and protect the employee who complains and/or “blows the whistle,” some form of retaliation is almost certain to happen. That retaliation can be obvious and blunt, such as demoting, suspending or transferring an employee to a less desirable position or workplace, or it can be more subtle, such as creating a paper trail of made up bad performance reviews and picking on employee for every insignificant reason.

Regardless of the cause and the degree of retaliation, it almost never simply goes away. On the contrary, the employee who is being retaliated against will likely be subjected to a greater retaliation with time if he is not taking action, unless the issue is address with the human resources department or higher up in the company, or through legal representation.

March 25, 2009

Harassment at Workplace and Avoidable Consequences Doctrine

by Arkady Itkin

Under the avoidable consequences doctrine, as recognized in California, a person injured by another’s wrongful conduct will not be compensated for those damages that the injured person could have avoided by reasonable effort. Thus, this doctrine gave rise to the duty to mitigate damages in employment cases – the duty to search for a comparable employment that wrongfully terminated employees have in order to prove their wage loss in court as a result of termination.

This doctrine also applies as a partial defense to the determination of damages in sexual harassment hostile work environment claims against employers. This defense has three elements (1) the employer took reasonable steps to prevent harassment; (2) the employee unreasonably failed to sue the preventive and corrective measures that the employer provided; and (3) reasonable use of the employer’s procedures would have prevented at least some of the harm that the employee suffered. Department of Health Services v. Superior Court (2003).

This defense will allow the employer to escape liability only for those damage that the employee more likely than not could have prevented with reasonable effort and without undue risk, expense or humiliation, by taking advantage of the employer’s internal complaint procedures appropriately designed to prevent and eliminate sexual harassment.

March 21, 2009

Bad Performance Reviews & Defamation Claims at Workplace

by Arkady Itkin

California Civil Code sections 45 and 46 define libel and slander (written and oral statements which may constitute defamation). It has been consistently held in California over 60 years ago that libel includes, with certain limitations, almost any language, which, upon its face, has a natural tendency to injure a person’s reputation either generally or with respect to his occupation. Washer v. Bank of America (1943).

The courts have held that while there is a strong public interest in allowing employers to freely and subjectively evaluate the performance of their employees according to their own unique standards and guidelines, even a performance review can be defamatory if it accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence, or reprehensible personal characteristics or behavior.

The critical part of any defamation claim is demonstrating that the defamatory language used by the employer was an assertion of fact or not an opinion. Thus, when the employer describes an employee in the performance review as “poor communicator” or “lacking in focus” – these are highly subjective statements of opinion that cannot constitute defamation. An assessment of skills, habits and personal qualities is necessarily an expression of an opinion by the evaluating body.

March 20, 2009

Age Discrimination at Workplace in California

by Arkady Itkin

Proving any kind of employment discrimination is not easy. The core of any legitimate claim of discrimination is proving that the reason for the adverse employment action taken against the worker (demotion, transfer, termination, suspension, etc.) is the fact that he/she belongs to one or more of the protected classes, such as being of a certain race, being disabled, being injured, etc…

Age discrimination is one of the more subtle violations at workplace as there are so many easy ways to mask it. An employer who is determined to get rid of the older worker will use all kinds of legitimate reasoning in terminating that employee. One of the common ways to disguise the true reason for terminating an employee is creating a paper trail of poor performance. This may start from one or more bad performance reviews over the period of time, and end up with warnings and suspensions, eventually leading to employment termination.

Indeed, many workers don’t even suspect that they are being discriminated as it even cross their mind. However, there is a number of signs that would suggest that the worker was terminated due to his/her older age. If you are about to be laid off or were recently terminated while being 40 or older, ask yourself the following questions: