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It is not unlikely for employees to have their words and/or conduct to be misinterpreted by their co-workers and have their colleague accuse them of sexual harassment without sufficient reason. An employer has a duty to investigation all sexual harassment allegations. Failure to do so may subject the employer to liability for both sexual harassment and failure to prevent sexual harassment. However, employee accused of harassing often feel helpless and without remedy to prove their innocence.

An employee who is falsely accused of sexual harassment is not without remedy however. That employee is also entitled to a prompt, thorough investigation of the facts and evidence of any alleged harassment. If the employer fails to conduct thorough investigation and instead summarily terminates a worker, he / she may have a defamation claim against the employer. Generally, false complaints of harassment and discrimination are conditionally privileged and do not constitute defamation, unless those accusation are made with malice. To show malice on the part of the accuser, the accused may be able to show whether the accuser had a history personal issues/hostility toward the accused, a pattern of unfounded complaints against co-workers, or any other ulterior, personal motive against the accused. If malice is shown, the liability for defamation of character may be attached to both the employer and employee personally.

If you believe that you have been a victim of defamation at workplace, contact Arkady Itkin – San Francisco employment lawyer to discuss your claims.

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In the ever increasing occurrence of mergers, dissolutions and restructuring of businesses it is not uncommon for an employee to face a situation where he/she is owed wages for work performed, but these wages are unpaid because the entity that purchases the original employer is not willing to pay the wages due or is unable to pay compensation because of dissolution, bankruptcy and/or claims of creditors who argue that they have priority in repayment over other claimants.

Under the circumstances where the assets of a company are sold or transferred, employees may have a priority lien over other creditors for the proceeds of the sale or transfer of assets of a company under California Civil Code section 1205. Under that section all wages earned during the 90 days prior to corporate dissolution or other “not ordinary” business event have priority over virtually all other claims and must be paid first from the proceeds of the sale and transfer. One court noted that wage earners will prevail over other statutory lien holders, including secured creditors such as mortgage lien holders (Myzer v. Emark Corporation (1996)).

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Under California Fair Employment and Housing Act (“FEHA”), an employer must make “reasonable accommodation” for individuals with known disabilities unless it can demonstrate that doing so would be an undue hardship on the business. Failure to make a reasonable accommodation is itself an unlawful practice than can give rise to a civil suit and damages under FEHA.

Under the law, the employer must engage in a timely, good faith, interactive process to determine effective reasonable accommodation. Reasonable accommodation may, but does not necessarily include the following: making existing facilities readily accessible to and usual by individuals with disabilities, such as wheelchair users; restructuring job schedules and responsibilities to allow an employee to attend medical appointments or reduce work load; acquiring or modifying equipment or devices, such as ergonomic chairs and keyboards, etc. Further, the employer has affirmative duty to inform a disabled employee of other job opportunities and lean whether the employee is interested in and qualified for them.

It is important to remember that an employer is not obligated to choose the best accommodation or the one sought by the employee. Rather, the employer has the ultimate discretion to choose among effective accommodations.

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severance-pay-unemployment-benefitsMany employee who are about to be laid off are concerned about accepting the offered severance package, as they fear that accepting a significant lump sum severance from their employer will disqualify them from unemployment benefits.

However, the good news for employees is that under California law, severance pay is not grounds for disqualification for unemployment insurance benefits. One court held that dismissal and severance pay received by employees from employer upon termination of employment was not “wages” for unemployment compensation purposes within provision of § 1265 that payments under plan established by employer for purpose of supplementing unemployment compensation benefit shall not be construed to be “wages”, and benefits shall not be denied because of receipt of payments under such plans. Powell v. California Dept. of Employment (1965) 45 Cal.Rptr. 136.

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The California Fair Employment and Housing Act specifically prohibits harassment based on “race, religious creed, color, and national origin.” Hostile work environment claims based on racial harassment are reviewed under the same standard as those based on sexual harassment. Thus, allegations of a racially hostile workplace must be assessed from the perspective of a reasonable person belonging to the same racial or ethnic group as plaintiff.

Harassment Standard under California Law

To constitute racial harassment, the conduct must be sufficiently “severe” or “pervasive” to later the conditions of the victim’s employment. The victim of the racial harassment must show a concerted partner of harassment of a repeated, routine or a generalized nature” and that the conduct constituted an “unreasonably abusive or offensive work-related environment or adversely affected the reasonable employee’s ability to do his or her job.”

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In 2007, the California Supreme Court addressed the issue of reimbursement of mileage expenses incurred by traveling employees under California Labor Code 2802 in the case of Gattuso v. Harte-Hanks Shoppers, Inc. The court held that when calculating costs that an employee incurred using his or her automobile, for purpose of statute requiring employers to indemnify employees for costs necessarily incurred in discharge of their duties, use of mileage is permissible, even though it is less accurate than calculating actual expenses incurred. But if employee can show that reimbursement by mileage is less than actual expenses, the employer must make up the difference.

In calculating reimbursement amount due to employee under the labor code section 2802, the employer may consider not only actual expenses that employee incurred, but also whether each of those expenses was “necessary,” which in turn depends on the reasonableness of employee’s choices.

Thus, the employer will probably not be obligated to reimburse employee for lavish or extravagant expenses such as five-star hotels, extravagant dinners, etc.

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Negative job performance evaluations are usually held to be statement of opinion rather than fact, and hence not properly the subject of a defamation action, unless an employer’s performance evaluation falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics of behavior. Thus, in one case the court held that no defamation action lies even when the employer’s opinions about the employee’s performance are objectively wrong and cannot be supported by reference to concrete, provable facts. (Jensen v. Hewlett Packard, Co.) Even calling a teacher at a particular school a “babbler” and the “worst teacher” was found to be a subjective judgment and again – not grounds for defamation. (Moyer v. Amador Valley J. Union High School Dist.)

As stated above, while a statement of opinion is not grounds for defamation, a publication of false fact may be actionable. Thus, while a statement accusing plaintiff of poor performance is clearly a statement of opinion, a statement that an employee made a $100,000 mistake in estimating a business bid is a statement of fact and therefore, if false and published to third parties, is actionable (Gould v. Maryland Sound Industries, Inc.)

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Under California Labor Code section 221, an employer may not take back any wages from an employee after they are earned. The statute provides: “It shall be unlawful for any employer to collect or receive from an employee any part of wages theretofore paid by said employer to said employee.” The labor code section 200 defines wages broadly to include “all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation. The statute illustrated California’s strong public policy favoring the protection of employee’s wages.

Some employers and especially retailers have the “chargeback” policy under which the employees’ incentive that is to be paid, is charged back if the consumer of the products/services returns the purchased product to the store. It is important to note that such a policy is only valid and legal if agreed upon by an employee in writing. If the worker does not expressly agree to the chargeback policy in writing, it will likely be found to be unlawful.

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Under California Labor Code section 510(a), all employees who work in excess of 40 hours in one workday or in excess of 8 hours per day must receive overtime pay. This provision, however, doesn’t apply to any employee “whose earnings exceed one and a half time of the minimum wage if more than half of that employee’s compensation represents commissions.” (California Code of Regulations, title 8, section 11040, subdivision 3(D)).

It is important to understand which compensation exactly is considered commissions for the purposes of the issue in question. A commission is a compensation paid for services rendered in the sale of property and services, and based proportionately upon the amount of the value of the services rendered. Under the Supreme Court definition, the compensation is commissions if (1) the employee receiving compensation is involved in selling a product or a service; (2) the amount of compensation in question is a percent of the price of the product or service.” (Ramirez v. Yosemite Water Co. (1999)).

Thus, if, for instance, the employer’s “bonus” or “incentive” pay does not depend on the volume of products/services sold by an employee, the overtime protections laws probably apply to that employee.

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It is common for an employee who charges the public employer (government office) with discrimination and harassment claims to receive a response from the government attorney, claiming that the employee’s claims are rejected for non compliance with the Tort Claims Act. This legal argument, however, has no merit, when it comes to claims made under the Fair Employment and Housing Act (“FEHA”). It is well established that actions seeking redress for employment discrimination and harassment pursuant to the FEHA are not subject to the claim presentation requirements of the Tort Claims Act. Snipes v. City of Bakersfield 145 Cal.App.3d 861 (1983). A local government entity may not impose a claims requirement where, because of special procedural provisions of the FEHA, the California Tort Claims Act provisions do not apply. Pasadena Hotel Development Venture v. City of Pasadena 119 Cal.App.3d 412, 414-415 (1981). Thus, the compliance with the Tort Claims Act is not necessary in order to purse legal action under FEHA.

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