San Francisco Employment Law Firm Blog

December 7, 2008

California Overtime Law: Insurance Adjusters and Administrative Exemption

To qualify for the administrative exemption from overtime compensation requirement an employee must be primarily engaged in a work of a type that is “directly related to management polices or general business operations.” This requirement of course must be interpreted as it is inherently vague. In one sense, every type of work directly relates to management policy because every employee does work that carries out, or is governed by, management policy. But for obvious reasons, such an interpretation wouldn’t make sense, as it would make virtually all employee exempt from overtime.

In Harris v. Liberty Mutual Insurance Co. (2007), the court clarified that the work is “directly related to management policies or general business operations” for the purposes of determining whether administrative exemption applies only if it “relates to the administrative operations of a business as distinguished from ‘production’ or in a retail or service establishment ‘sales” work.” This means, the court continued, that only work performed at the level of policy or general operations can qualify as “directly related to management policies or general business operations.” On the other hand, work that merely carries out the particular, day-to-day operations of the business is production and not administrative work, and thus doesn’t qualify for administrative overtime exemption.

California overtime law, administrative exemption The Harris court, applying this analysis, found that insurance adjusters, who sued the defendant for unpaid overtime, were primarily engaged in “production” – adjusting individual claims for their employer. They investigate claims, make coverage determination, set reserves, negotiate settlements, make settlement recommendations for claims beyond their settlement authority, identify potential fraud, and so forth. Noe of that work was found to be carried out at the level of management policy or general operations. Rather, it is all part of the day-to-day operation of defendants’ business.

December 3, 2008

San Mateo Employment Lawyer: Partnerships

by Arkady Itkin

Partnership is an association of two or more people to engage in business for the purpose of proportionately sharing the profits and losses of that business (as well as assets and liabilities). This means that partners decide on how they will share the profits and losses in % terms. A partnership can be formed in writing or orally, as what makes an association a partnership is not the paperwork, but the actions of the members of a business association. In other words, if people act like “partners,” then they will be recognized and treated as partners under California partnership law.

Despite that, like in any business deal, written partnership agreements are highly recommended to memorialize the essential terms and conditions of the business relationship and to avoid misunderstandings between the partners.

Like any other relationship, such as friendship, marital ties, etc… a business partnership necessarily involves and thus depends on the character and the emotions of its members. Thus, it is absolutely crucial that if you decide to enter into a business partnership with another person/s, you should actually like each other, respect each other, and at least somewhat feel comfortable around each other, as you will be spending a lot of time together.

December 2, 2008

Employment Law: California Paid Sick Leave

by Arkady Itkin

Under California Law, “sick leave” means “accrued increments of compensated leave” provided by an employer for an employee’s use because of:

* the employee’s physical or mental condition that makes the employee unable to perform his duties;

* the employee’s need to obtain a professional diagnosis or treatment for a medical condition; or

November 29, 2008

San Francisco Harassment Lawyer: Proving Discrimination at Workplace

by Arkady Itkin

One of the reasons that proving discrimination is such a challenging task in employment law is the fact that proving workplace discrimination requires showing a discriminatory state of mind. For obvious reasons, direct evidence of discrimination is rarely available, as few, if any, employers or supervisors would ever admit that they engaged in unlawful discrimination. Thus, eliciting circumstantial evidence (that evidence which inferred from other circumstances) can be crucial to a successful discrimination claim/lawsuit. This evidence includes demonstrating that the employee was treated differently from other similarly situated employees, certain remarks that would suggest hostility toward an employee because of his/her race, age, disability, religion, etc.

One of the very common ways in which employer try to deny allegations of harassment and discrimination by aggrieved employees and refute circumstantial evidence of discrimination and wrongful termination is by arguing that the reason that they treat the subject employees differently is because of their poor performance. It’s not uncommon for an employer who is trying to get rid of a certain employee to create a “paper trail” of performance issues by issuing warning letters, having counseling sessions with an employee, and take other unethical measure to mask the true reasons for the planned unlawful employment termination.

Rebutting the poor performance argument through documentation evidence and statements of co-workers with regard to the employee’s good performance is an important part of many, if not most, discrimination and wrongful termination claims, as it casts doubt on the employer’s true motives for discriminatory conduct and termination and suggest that the real reason for employee’s termination was other than his/her job performance.

November 22, 2008

San Francisco Employment Lawyer: Pregnancy and Disability Discrimination

by Arkady Itkin

FEHA (Fair Employment and Housing Act) prohibits disability discrimination and pregnancy based discrimination in California. To prove a wrongful termination claim based on pregnancy discrimination and failure to provide reasonable accommodations to a pregnant employee at workplace, first she has to prove that her condition constitutes disability within the meaning of the statute Cal. Gov. Code section 12940(m) which prohibits employment discrimination based on actual or perceived disability, as normal pregnancy itself is not considered disability entitling an employee to special accommodations.

Under California Fair Employment and Housing Act (FEHA) physical disability is defined as a condition that limits a major life activity. Thus, the female worker must show that a condition arising out of her pregnancy limited one or more of her major life conditions. An employee must specific state which of her daily functions was impaired by the condition arising out of pregnancy and what exactly she was not able to do in a course of her daily life that she would have otherwise been able to do.

In one case, the court rejected the employee’s argument that her morning sickness during pregnancy constituted disability entitling her to the protection of pregnancy and disability discrimination laws. The court stated that according to Fair Employment and Housing Commission regulation 7291.2(g) a woman is “considered to be ‘disabled by pregnancy’ if she is suffering from severe ‘morning sickness’.”

November 18, 2008

California Wrongful Termination Lawyer: Retaliation for Filing Workers Compensation Claim

by Arkady Itkin

Two critical aspects of proving (discriminatory) workplace retaliation for filing a workers compensation claim or engaging in other protected activity are: (1) proving causal relationship between the filing of the the workers compensation claim (or engaging in other protected activity) and the discriminatory actions by the employer; and (2) proving tat the employee was qualified and able to perform his or her job at the time when discrimination took place.

Careful investigation of the facts and circumstances of the employee’s employment and wrongful termination is essential. Obviously, with respect to establishing the causal relationship, the closer in proximity of time the discriminatory conduct is to the employer’s learning of the employee’s filing a workers compensation claim, the more likely the causal link will seem to the judge, jury, or an arbitrator.

The first very important component of proving retaliation is in disproving a possible legitimate reason for termination, the most common of which is poor performance. Thus, in a case of alleged retaliation, like in most other discrimination claims, an attorney should seek evidence such as the employee’s productivity and performance records, including all evaluations, commendations, promotions, raises, and any disciplinary measures.

November 15, 2008

San Francisco Employment Lawyer: Defamation Per Se and Wrongful Termination

by Arkady Itkin

False statements and accusations (defamation) by one employee or a supervisor against another employee are not uncommon at California workplace and often lead to the unfounded and unsubstantiated discipline, suspension, demotion and even termination of employment of the victim of defamation. The tort of defamation involves a publication of facts that is false, defamatory, unprivileged, and has a natural tendency to injure an employee’s reputation or cause special damages. Taus v. Loftus (2007) 40 C4th 683, 720. The “publication” element in this definition doesn’t mean that the defamatory statement must actually be published in writing in some kind of newspaper or brochure. For the purposes of alleging a defamation action, publication occurs when a statement is communicated to any person other than a party defamed. Kelly v. General. Telephone Co. 136 Cal.App.3d 278 (1982).

Defamation per se is a special kind of defamation which does not require the claimant to prove special damages / economic harm as a result of the statements made as otherwise required when bringing an action for defamation. Statements are defamatory per se if they tend to directly injure plaintiff in respect to his office, profession, trade or business, by imputing to him general disqualification in those respects which the office or other occupation specifically requires or charge the plaintiff with a crime.

Thus, stating that an employee made a $100,000 mistake in estimating a bid is defamatory per se because it would tend to injure plaintiff by imputing incompetence in his or her trade. Gould v. Maryland Sound Industries, Inc. (1995) 31 CA4th 1137, 1153-4. Likewise, accusing an employee of conduct that constitutes a crime, such as embezzlement or forgery, is slander per se. Kelly v. General Tel. Co. at 284.

November 14, 2008

San Mateo Employment and Wrongful Termination Lawyer: Employer’s Duty to Investigate Harassment

by Arkady Itkin

The most significant immediate measure and employer may and should take in response to sexual harassment or another kind of harassment allegation by one employee against the other or against his or her supervisor is to launch a prompt and fair investigation to determine whether the complaint is justified. The employer must take temporary steps to deal with the situation while it determines whether the complaint is justified. Swenson v. Potter (9th Cir. 2001) 271 F3d 1184. The greater the potential injury to the complaining employee, the greater care the employer must take in investigation harassment allegations and preventing the alleged harassment from recurring or escalating.

The employer must conduct an investigation even if the alleged harasser denies the accusation and the victim wishes to drop the matter. The employer must investigate from “worst case scenario” in order to avoid exposing other employees to the alleged misconduct. Malik v. Carrier Corp. (2nd Cir. 2000) 202 F3d 97. A reasonable investigation does not require a trial-type proceeding. The inquiry may be conducted informally in a manner that will not unnecessarily disrupt the company’s business.

If you believe that you are or have been a victim of harassment at work place in San Francisco, San Mateo/South Bay or East Bay regions, you might be entitled to legal protection. If you would like to discuss your situation at workplace, feel free to contact us by phone or by filling out the form on this page.

November 11, 2008

Independent Contractor v. (At-Will) Employee

by Arkady Itkin

The main distinction between an employee or at-will employee and an independent contractor is that the independent contractor is responsible to the principal solely for the result of the work that is the subject of the contract between the parties. Independent contractor is responsible to principal only for result and not manner or means by which it is accomplished. Generally, whether a worker is an employee or independent contractor is a question of fact that depends on the trier of fact’s evaluation of several factors, most notably whether the employer has the right to control not only the result but also the means by which the work is accomplished. Ali v. L.A. Focus Publication 112 Cal.App.4th 1477 (2003).

Labor Code section 2750.5 sets forth a number of factors that may prove that such an individual is working as an independent contractor, Among these factors are: (1) the individual worker has the right to control and discretion as to the manner of performance of the service contract in that the result of the work and not the means by which it is accomplished is the primary factor bargained for; (2) the workers is customarily engaged in an independently established business; (3) the worker’s independent contractor’s status is bona fide and not a subterfuge to avoid employee status; and (4) if the worker was performing work for which a contractor’s license is required, he or she should have held such a license.

No matter what the status of the worker is, employers often wish to include “at will” language in service contracts. However, such language should be removed from a contract with an independent contractor, as language describing a relationship as “at-will” generally goes to show that an employment relationship was created because an employer can end a working relationship at any time and for any or no reason.

November 11, 2008

San Francisco Wrongful Termination Attorney: Interactive Process and Disability Discrimination

by Arkady Itkin

Once an employer becomes aware of the need for accommodation for a qualifying disabled employee, that employer has a mandatory obligation under the law to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. An appropriate reasonable accommodation must be effective in enabling the employee to perform the duties of the position.

The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees, and neither side can delay or obstruct the process. A party or an employer that obstructs or delays an interactive process may be found liable for acting in bad faith.

The duty to accommodate disability is a continuing duty that is not exhausted by one effort. The EEOC Enforcement Guidance notes that an employer must consider each request for reasonable accommodation, and that if a reasonable accommodation turns out to be ineffective and the employee with disability remains unable to perform an essential function, the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship. This rule fosters the framework of cooperative problem solving contemplated by the law, by encouraging employers to seek to find accommodations that really work, while preventing employees from requesting the most drastic and burdensome accommodations possible.