San Francisco Employment Law Firm Blog

An employee’s personnel file contains some of the most valuable information to a claim for discrimination, retaliation, harassment and wrongful termination. One of the powerful ways in which the personnel file can be used is when the employer argues that the worker was terminated for poor performance. If that worker’s personnel file contains good performance reviews, or even excellence awards and documentation of paid out bonuses, in addition to lack of warnings, bad reviews and disciplinary action, this will cast heavy doubt on the employer’s truthfulness and the true reasons for employee’s termination.

Often, however, when a personnel file is requested as permitted under California Labor Code 1998.5 and other provisions, the employer “interprets” that request very narrowly, providing minimum documentation, and claiming that all the other documents, such as performance reviews and investigation reports, are located in other files and therefore are not available. Some companies and especially their counsel will argue that the employee is only entitled to having that paperwork from his personnel file, which that employee has signed.

Both of the above arguments have no merit. In Wellpoint Health Networks, Inc., v. Superior Court 59 Cal.App.4th 110 (1997), the court specifically discussed the issue of obtaining personnel files. The court held that as California Labor Code section 1198.5(a) provides, every employer shall… at the request of employee, permit that employee to inspect such personnel files which are used or have been used to determine that employee’s qualifications for employment, promotion, additional compensation, or termination or other disciplinary action. The court further noted that these documents include, among others investigative reports of EEOC, pointing out that the above provision intends a broad definition of “personnel file” to preclude employers from assigning documents to files having some other name, and then refusing access to documents on the ground that they are not contained in the personnel file.

Having been working on sexual harassment and discrimination claims for a while now, I am puzzled as to why these kinds of violations still take place, considering the amount of training, warnings and other kinds of “cover up” that most if not all companies are concerned about creating. Thus, I always try to determine based on the facts of the cases I handle, what the source of sexual harassment/discrimination is at a given workplace. My observation reveals the following most common reasons as to why sexual harassment takes place and isn’t prevented at workplace:

1. The harasser genuinely believes that he isn’t doing anything wrong. A co-worker or a supervisor might perceive his jokes or his “affection” touching of a co-worker or his subordinate similar to his flirting at a happy hour, not realizing that the exact some behavior that would compliment a woman anywhere outside of work, would intimidate her and would make her feel threatened at workplace.

2. If the harasser is a very successful businessman (the owner of the company), he might be used to knowing that he can buy anything he needs, and he can buy his way in and out of everything. Thus, he feels entitled to treat his employees as he wishes. He might honestly believe that if he pays someone their salary, they have to do anything he asks.

The California Pregnancy Disability Leave LAW (PDLL) is part of California Fair Employment and Housing Act (FEHA). It requires employers to provide an employee up to four months of leave for disability due to an employee’s pregnancy, childbirth or related medical condition.

PDLL v. CFRA and FMLA

FMLA (Family Medical Leave Act) – a federal law allowing to take a qualifying employee up to 12 weeks of time off work due to a serious medical condition also applies to pregnancy, child birth or related condition. Interesting enough, CFRA (California Family Rights Act) expressly exclude pregnancy and child birth from its list of conditions entitling an employee to a CFRA leave.

You are a manager or a director at a manufacturing plant or a sophisticated technology company in San Francisco, Sillicon Valley, or elsewhere in California. You take great pride in your work, and you are rewarded with generous compensation and real prospects for promotion. One of your duties is supervising the company’s employees and making sure that they deliver what your clients expect.

One common challenge you might be facing is addressing issues in your subordinates’ performance. Sooner or later, you will likely find yourself in a predicament with regard to how to address problems in your employees’ performance effectively. You want everyone to be happy – you want the issues to be resolved, your clients to be happy, and your employees to improve their skills and abilities while maintaining great degree of respect for you as a boss.

Many managers, out of sheer kindness of their heart, choose to be too generous, too kind, and too polite with those employees whose performance doesn’t meet expectations. A supervisor might like an employee on a personal level or might not want to be perceived as a mean boss, who puts a great deal of stress on his subordinates, and will be reluctant to be as direct as necessary to address performance deficiencies.

Under the law, where the employee’s FMLA/CFRA certification is unclear about his health condition and his/her ability to return to work, an employer’s policy may lawfully require an independent medical examination (IME) to determine the employee’s fitness to return to work.

For example, in one case, an employee who was on FMLA leave because of a chronic back problem, submitted her treating physician’s certification that she may return to work. However, her doctor also stated that she should “avoid stressful working conditions.” Finding that FMLA certification confusing, the employer used its customary practice, incorporated in the collective bargaining agreement, and informed employee that an independent medical exam was required for her to return to work. The employee refused the exam, and as a result was fired. The court found that the employer did not violate FMLA.

Where the employee has been timely notified that a fitness for duty report will be required and has failed to provide the report, the employer may refuse to reinstate the employee until the certification is provided. If an employee does not provide either a fitness-for-duty report or a new medical certification for a serious health condition at the time the FMLA leave is concluded, the employee’s position may be lawfully terminated.

Yesterday, I have been approached by a long-time employee of the local manufacturing company in the Sacramento area. The employer had a side business (running poker gaming facility) which the employee also regularly attended. When the employee decided to play poker elsewhere, his employer terminated him, telling him that “they need a loyal employee who will not take his business elsewhere.”

This was a wrongful termination in violation of California Labor Code section 450, which states that employers are prohibited from forcing their employees to purchase the employer’s or anyone else’s products or services. Besides being grounds for civil damages, violation of section 450 is a misdemeanor under section 451 of the labor code.

In other words, the employer may not condition or encourage an employee to purchase anything from anyone with very few exceptions. If the employer requires an employee to wear a certain uniform at workplace, the employer must pay for the purchase of that uniform and for its upkeep.

On January 7, 2009, the Contra Costa Superior Court issued an order in a race discrimination and whistleblower retaliation case, finding unconscionable and unenforceable the arbitration agreement that Countrywide Home Loans company requires its employees to sign as a condition of employment. The court found two unconscionable provision in the arbitration agreement: (1) a provision giving the arbitrator exclusive authority to determine the arbitrability of employment case, and (2) a provision giving Countrywide the unilateral right to modify the agreement.

Having found the binding arbitration agreement unconscionable, the court struck that agreement as void and unenforceable, thus allowing the plaintiff to proceeds with his employment discrimination and retaliation claims to jury trial.

It is a common practice for employers to condition reimbursement of expenses incurred by employees on timely submission of those expenses to the employer’s accounting department. A typical expenses reimbursement policy might state that an employee must submit his claim for expense reimbursement within 90 days of incurring that expense, or otherwise the employee will not be eligible to be reimbursed for the same expenses.

These kinds of policies however are generally unlawful. Under California Labor Code section 2802, an employer shall indemnify an employee for all qualifying expenses, which also includes any attorneys fees paid to take legal action for enforcing the right to reimbursement of expenses. Further, under section 2804 any contract or agreement between an employer and an employee to waive rights to reimbursement is null and void. This means that any express or implied policy of an employer to attach conditions to eligibility for reimbursement of expenses is likely to be illegal and void.

If you have any questions about reimbursement of expenses, contact San Francisco employment lawyer Arkady Itkin at (415) 640-6765.

Many California employees, and especially workers of the State and local government agencies experience a very stressful work environment as a result of bad relationships with their co-workers and supervisors, that can range from the typical gossip and office politics to threats by one employee do have the other fired, or even threats of violence. Often, these kinds of conflicts result in great deal of stress, leading one or more employee to take stress leave, be placed on temporary disability due to stress or even be taken to an emergency room for immediate medical attention.

However, most of the above very common and serious issues at workplace, although wrong and unfair, are not illegal. The courts are understandably reluctant to intervene every time one worker calls the other a “bitch” or slams the door or throws documents in one’s face. There is a general consensus in the judicial community that it’s not the court’s job to resolve every dispute at workplace that is based on personal animosity or alike emotions, unless such disputes escalate to something more – other imminent threats of violence of discriminatory conduct (where an employee is clearly mistreated as a result of being a member of protected class, such as race, age, religion, ethnic origin, disability, etc.)

To recover for intentional infliction of emotional distress, the employer’s action must be shown to be “so extreme and outrageous as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” as California Supreme Court noted in Alcorn v. Anbro Eng. Inc. By definition, to be actionable the employer’s conduct must be more than just mere rudeness, insults or otherwise creating a stressful environment at workplace that’s typical to many other places of work.

It is perfectly legal for an employer to implement layoffs of its workforce unless this right is limited by an express or implied contract to employ a worker for a set period of time or if the duration of employment and termination terms are protected by the collective bargaining agreement between an employee, a union member, and the employer. This makes sense as the owner of the business should have freedom to choose to reduce its workforce for legitimate business reasons.

However, workforce reduction is illegal if discriminatory criteria are applied to selecting which employees stay and which have to go. In other words, if the employer tries to disguise his desire to get rid of workers who are members of a certain protected class (gender, race, religion, disability, ethnic origin, etc…) this is unlawful discrimination.

It is not easy to determine whether the layoff is legitimate or it’s just another form of workplace discrimination, as direct evidence of the employer’s motive, such as admissions, is rarely available for obvious reasons. However, there are certain signs that should create suspicion and case doubt on the legality of a layoff. Here are four general questions that should be asked to determine whether the discrimination likely took place during your layoff: