San Francisco Employment Law Firm Blog

August 30, 2008

Reinstatement rights under FMLA

At the conclusion of leave under Family Medical Leave Act (FMLA) or California Family Rights Act (CFRA), an employer must reinstate an employee to the same or an equivalent job, unless he or she is a “key employee” who is given appropriate notification. One main limitation on this rules is that the employee returning to work is not entitled to reinstatement if unable to perform an essential function of the position because of physical or mental condition, including the continuation of a serious health condition.

In order to be deem equivalent, the alternate position must be virtually identical to the prior position in terms of pay, benefits, and working conditions, and involve substantially similar duties and responsibilities. In one case, a nurse who formerly worked a day shift was offered a full-time night shift position with the same duties and benefits, or a part-time day position with reduced benefits. As a matter of law, that offer was not an offer of an equivalent position. Hunt v. Rapides Healthcare System LLC (2001). An employee returning after FMLA leave may not be disqualified from bonuses which are not related to performance, but need not be credited with time spent on FMLA leave when the bonus is based on employee’s total performance or production.

If a salaried employee is deemed a “key employee” and reinstatment would result in substantial and griveous economic injury to an employer, the employer may deny reinstatement after propery notifing the employe and affording that employee an opportunity to forgo the leave or return from leave. 29 USC 2614(b)(2).

August 29, 2008

Should you file a lawsuit against your employer in California?

by Arkady Itkin

No matter what side of the workplace dispute you are on – whether you are an employee, a supervisor or the employer, it is important to remember one fundamental fact about California employment law: not every conduct which seems unfair is actually illegal, and not every violation of the law is worth pursuing through court or other enforcement bodies. Failure to take this very practical reality into consideration leads many employees, companies and attorneys to waste a lot of time, money, energy, and emotions. An aggrieved employee who believes that he was wrongfully terminated and discriminated will usually not bother to actually look up or inquire about the law and find out whether what happened to him was actually discrimination and what exactly makes his termination wrongful. An employee would rely on his anger and pure gut feeling in pursuing legal action without even knowing whether the employer who mistreated him or her actually violated the law.

This employee will likely not listen to the words of a seasoned employment lawyer who would explain to him why he shouldn’t be pursuing the claim, and will continue to look for an attorney to take his “case” until he finds one whose lack of experience in distinguishing meritorious claims from all the others and his possible need for more business will cause him to actually take the case and pursue it toward a dead end.

Employers, especially smaller companies who don’t even have a well-trained human resources department often fall victims to their ignorance of the law as well. They believe that they can avoid liability by simply relying in their actions and relationship with employees on what they think is fair. A common trap into which such employers fall is believing that the at-will employment doctrine gives them more protection when terminating employees than it actually does under the law. In one case, one of my clients was an at-will employee in San Francisco who was terminated two days after notifying his supervisor that he has a disability. When I contacted the owner of the company, he arrogantly told me that I was wasting my time and that he did everything right – according to him, my client was an at-will employee who could have been discharged for any reason or no reason. While this is in part true, his employer didn’t know and didn’t bother to find out that there are quite a few significant limitations on at-will employment doctrine in California. If he did, he would probably recognize that his actions were illegal, and he would opt to engage in settlement negotiations. Instead, he brushed me off. Many months and thousands of dollars in attorneys fees later, he was facing a far greater liability to my client, eventually paying more than twice as much as he could have settled for at the outset of my representation.

August 28, 2008

“Quid Pro Quo” sexual harassment at California workplace

by Arkady Itkin

There are various, although equally despicable and unlawful kinds of sexual harassment that employees may be subjected to at workplace. One type of sexual harassment may take the form of an economic “quid quo pro” where a supervisor’s requests for sexual favors are linked to the grant or denial of job benefits, such as getting or retaining a job, a receiving a favorable performance review, salary raise, promotion, bonus, etc. The typical case involves some for of sexual advance or proposition by a supervisor with an express or implied threat that if the employee refuses, he or she will be terminated or demoted, or lose other job-related benefits; or, the employee may be promised better treatment, such as a promotion, transfer, raise or favorable recommendation, if the employee submits to the sexual advances.

The supervisor’s requests for sexual favors in exchange for a certain benefit do not have to be express to constitute unlawful sexual harassment. It is enough that the individual making the unwelcome sexual advance was the victim’s supervisor, and that a link to employment benefits could be inferred under the circumstances. Such circumstances might include implied statements or simple the fact that the supervisor persists with demands for sexual favors after plaintiff has declined or stated that he or she is not interested in any kind of sexual interaction with the supervisor.

Thus, in one case a female employee was asked to lunch by her supervisor for the sole and express purpose of discussing his upcoming evaluation of her work and possible recommendation of her for a promotion. He allegedly told her that he continued success and employment at the company were dependent upon her agreeing to his sexual demands. His demand amounted to an additional “condition of employment” imposed upon her because of her gender in violation of Title VII of the Civil Rights Act. Tomkins v. Public Service Elc. & Gas Co. (1977)

August 27, 2008

Competing with Your Current Employer

by Arkady Itkin

Your employer has the right to the undivided loyalty of its employees. The duty of loyalty is breached and may give rise to the employee’s liability in a civil suit for unfair competition when the employees takes action adverse to the employer’s best business interests. Stokes v. Dole Nut Co. (1995). For example, employees who take for themselves, against their employer’s interests and to the employer’s loss, business opportunities in the employer’s line of business may be subjected to liability.

Normally, the unfair competition actions are governed by California Labor Code 2860, which states that “Everything which an employee acquires by virtue of his employment, except the compensation which is due to him from his employer, belongs to the employer, whether acquired lawfully or unlawfully, or during or after the expiration of the term of his employment. In one case, while still employed, several employees of a company attempted to divert business to their newly formed company by using confidential client information. The court found that their conduct constituted misappropriation of employer’s trade secrets. Courtesy Temporary Service, Inc. v. Camacho (1990).

However, an employee may announce a change of his or her employment to the current employer’s customers, if no solicitation of customers to switch vendors / service provides takes place. “Solicit” implies “personal petition to a particular individual to do a particular thing” which in the context of employment and unfair competition means personal petition to customers to change the way they conduct business.

August 25, 2008

Employer retaliation is illegal in California

by Arkady Itkin

Numerous California laws protect employees against retaliation by their employers. Most of the anti-retaliation statutes protect employees from adverse employment actions ( i.e. demotion, transfer to a less desirable workplace, suspension, administrative leave or termination) for exercising their rights under Fair Employment and Housing Act (FEHA), Occupational Safety and Health Act (OSHA), protected political activities, and wage claims.

One of the most common kinds of unlawful retaliation to which California employees are often subjected is FEHA retaliation. FEHA prohibits an employer from retaliating against employee for:

* Opposing any unlawful discriminatory practice prohibited by FEHA; or * Filing a compliant, testifying, or assisting in any proceeding under FEHA.

August 25, 2008

Write ups, negative performance reviews and warnings by employer

by Arkady Itkin

Different companies and employers have a very different approach to handling disciplinary actions against their employees. While some company simple don’t have any formal policy regarding write ups, warnings and other disciplinary actions against employees, other employer have a clear policy of progressive discipline that generally shall be followed by the employer prior to taking a more significant adverse employment action against an employee, such as transfer, demotion, suspension, or employment termination.

Many workers become very upset, stressed out and nervous about the stability of their employment when they get written up or get a negative performance review, especially if they believe (and have good reasons to believe) that the write-up was unfounded or retaliatory (in response to an exercise of a legal right by an employee such as taking approved medical leave, serving on a jury duty, filing a workers compensation claim, complaining about harassment at workplace, etc…) Many employee are afraid of disputing their write-up, believing that any further escalation of the situation will lead to termination. Thus, the prefer to remain quite and passive. However, in the vast majority of cases, this is not a good strategy to follow for two main reasons: first, if you are reprimanded and written up for no reasons, chances are that your supervisor already has a plan to get rid of you and simply creating the necessary paperwork to make it comply with the company’s policies regarding discipline and termination which are usually outlined in the handbook. Secondly, but not contesting the write-up, you practically admit the allegations/accusations made in the disciplinary documentation, which will make it much harder to argue later that your termination was not justified and was motivated by unlawful factors.

Thus, it is very important that upon receipt of a repriment, a warning letter, or a negative review, you submit a rebuttal as you are entitled, in which you will address and dispute every allegation made specifically. You should also seriously considering requesting your employer to conduct an investigation into the merits of your negative review. This means that responding with “this is not true” is not sufficient, and you should explain why the facts in the write-up are not correct and suggest your versionof the events/conduct that is subject of the negative performance review. This will build your own paper-trail which often proves to be useful or even crucial in handling a wrongful termination claim.

August 24, 2008

Reasonable accommodation at California Workplace

by Arkady Itkin

The California Fair Employment and Housing Act requires employers to make reasonable accommodation for the known disabilities of applicants and employees to enable them to perform a position’s essential functions, unless doing so would produce under hardship on the employer.

“Reasonable accommodation” means that employers have an affirmative duty to accommodate disabled workers. Some highly appointed executives often argue that their company should not be liable for failure to provide reasonable accommodation because the disabled employee did not inform them personally of his condition and only informed his/her immediate supervisor. However, this argument will not allow the employer to escape liability because a supervisor is the employer’s agent for purposes of the duty to accommodate. That is, if a supervisor has acquired knowledge that he or she had a duty to communicate to the employer information about an employee’s disability or medical condition, a conclusive presumption arises that the supervisor had done so. California Fair Employment and Housing Comm’n v. Gemini Aluminum Corp (2004).

This law makes perfect sense, as it would be unreasonable to expect a disabled or sick employee to notify of his condition every person superior to him in the company, especially if that company is large and employees hundreds of supervisors and managers. Arkady Itkin, San Francisco employment lawyer.

August 23, 2008

Assault and Battery at Workplace

by Arkady Itkin

Physical violence at workplace is more common than we would like to believe. Recently, a client approached me describing the outrageous conduct of his former employer – while being notified of his termination, his employer, during a mild verbal confrontation violently pushed him against a furniture store in his office, which resulted in severe leg and back injury to the terminated employee and disability. That was a classic case of battery at workplace.

Battery requires a showing that (a) the victim was touched with an intent to harm or offend victim; (b) the victim did not consent to be touched; and (c) the victim was harmed or offended by the conduct in question. Even a touching that doesn’t inflict physical pain would be considered “offensive” if it would have offended a reasonable person’s sense of personal dignity. Act of sexual harassment which involve touching may also be actionable as battery, assault and intentional infliction of emotional distress.

Under the doctrine of respondeat superior, the employer is vicariously liable for torts committed by one employee upon another if those acts occurred during the “course and scope of employment” (or later ratified by the employer. In those cases, the basic question is whether the employee’s conduct “may fairly be regarded as typical of or broadly incidental to the enterprise undertaken by the employer. The logic behind holding responsible for the acts of violence at workplace is that losses fairly attributable to an enterprise – those which foreseeably result from the conduct of the enterprise – are allocated to the employer as a cost of doing business.

August 22, 2008

Can you be fired / terminated for off-duty conduct?

by Arkady Itkin

An issue often arises in connection with the off-duty conduct of employees of whether an employee can be disciplined or even discharged by his employer based on such off-duty conduct. This answer to this question will often depend on the facts surrounding the employee’s conduct. Where the conduct is offensive and egregious, however, the courts will often rule in the employer’s favor.

In a recent New York case, for example, a male nurse employed in a hospital visited the hospital while on vacation. The employee, who was intoxicated, got into a violent scuffle with security guards at the hospital and was terminated. The employee brought action for wrongful termination arguing that his off-duty conduct should not have been considered by the jury. The court disagree, however, holding that his off-duty conduct was relevant to the issue of whether he posed a threat to the safety of others.

Employers should avoid taking adverse action against the lawful off-duty conduct of employees unless:

August 21, 2008

Working While on FMLA Leave

by Arkady Itkin

Many employees who request leave under FMLA (Family Medical Leave Act) for one of the approved medical conditions are concerned about their ability to work at a different job, possibly part time, while being on FMLA leave. The are some good news for employees on FMLA. The California Supreme Court recently held in Lonicki v. Sutter Health Central that if a full-time, during the period in which medical leave was sought, continued to perform a similar job for another employer on a part-time basis, this does not conclusive establish the ability to do the job for the original employer. A showing that an employee is unable to work in the employee’s current job is enough to demonstrate incapacity.

The court further explained that when a serious health condition prevents an employee from doing the tasks of an assigned position, this does not necessarily indicate that the employee is incapable of doing a similar job for another employer. For example, a job in the emergency room of a hospital that commonly treats a high volume of life-threatening injuries may be far more stressful than similar work in the emergency room of a hospital that sees relatively few such injuries. And again, the circumstance that one job is full time and the other is part time may be significant.