San Francisco Employment Law Firm Blog

July 30, 2008

Who is liable for harassment at workplace in California?

Many workers who are subjected to sexual or other forms or harassment prefer not to disclose this to their supervisor or human resources department. This reluctance to speak up is usually motivated by fear of retaliatory termination in response to a complaint about harassment.

However, choosing not to complain about harassment at your workplace is hardly ever a good idea. First, the harassment which is not addressed usually only gets worse as the harasser sees how much he can get away with without being punished. More importantly, under California law, while the employer is strictly liable for the harassment by a victim’s supervisor, the employer is liable for harassment by a co-worker only if the employer knew or had a reason to know of the harassment. Thus, by not complaining about harassment, the victim virtually forecloses the future opportunity to seek legal redress for hostile work environment and harassment, as it’s hard to blame someone for preventing harassment if that entity wasn’t even aware of misconduct which the victim of harassment was subjected to.

July 28, 2008

Discrimination under FEHA at California workplace

by Arkady Itkin

The California Fair Employment and Housing Act (“FEHA”) prohibits an employer from taking any adverse action (such as refusing to hire or employ, refusing to select for a training program leading to employment, demoting or discharging from employment or training program leading to employment, discrimination in compensation or terms or conditions of employment) based on his or her: race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, marital status, sex, sexual orientation, age (if 40 or over), or pregnancy, childbirth or related medical conditions of any female employee.

It is also unlawful for employer to act upon the perception that the aggrieved individual has one of the above protected characteristics, even if he or she does not. Thus, if an employee discriminated or harassed based on his perceived homosexuality, he is protected under FEHA and the employer will be likely liable for discrimination and harassment even if that employee is not gay.

July 26, 2008

Meal and rest breaks at California workplace

by Arkady Itkin

There are numerous exemptions and exceptions that relieve California employers from the some legal duties with regards to providing their employee with rest and meal breaks. These exception usually apply to employees of such professions and in such environment where complying with the general rules would be unduly burdensome impracticable for the employer.

In the absence of an applicable exception, the following general rules apply to meal and rest breaks in California. An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of at least 30 minutes. However, if the total work day of the employee is sex hours or less, the meal period may be waived by mutual consent of both the employer and employee. It is very prudent for an employer to obtain such consent in writing in order to avoid subsequent claims for unpaid meal breaks, as the employer would normally have a burden of proving that he/she complied with the law.

Under California Labor Code 512, an employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of at least 30 minutes. However, if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee, but only if the first meal period was not waived. Further, under labor code section 226.7(a), no employer shall require any employee to work during any meal or rest period.

July 25, 2008

Good Cause Employee Termination in California

by Arkady Itkin

Many employment contracts and the majority of the union collective bargaining agreements provide that the employee should not be terminated unless for good cause. It is important to understand what the “good cause” standard exactly means, as the meaning of “good cause” in this instance is quite different from the ordinary meaning of the words “good cause.”

In the context of express or implied contracts not to discharge without good cause, “good cause” means “fair and honest reasons, regulated by good faith on the part of the employer, that are not trivial, arbitrary, or capricious, unrelated to business needs or goals, or pretextual. A reasoned conclusion supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond.

Employee misconduct on the job is, of course, good cause for termination. But employers do not need to prove that the alleged misconduct actually took place. “Good cause” exists if the employer reasonably believed the alleged misconduct took place and otherwise acted fairly.

July 24, 2008

What is Considered Sexual Harassment in California?

by Arkady Itkin

Many people believe that sexual harassment is an unlawful conduct at work place which involves unwelcome sexual advances of a co-worker or a supervisor such as sexual innuendos, offensive touching, unwanted flirting, sexual e-mails and text messages, and alike. Although those are typical examples of a situation which is likely to be classified as sexual harassment, the offensive words or conduct directed at an employee because of his or her gender may create a hostile work environment even if those words or conduct are not sexual in nature. For example, using a word “bitch” repetitively in the presence of both men and women but in reference to women may constitute unlawful gender harassment.

On the other hand, hostile words or conduct based solely on personal animosity is no actionable as sexual harassment in California even if the victim is of the opposite gender. As the court pointed out in once case – “Unfair, overbearing, or annoying treatment of an employee, standing alone, cannot constitute a sex discrimination claim. In other words, a conduct that is based on personal agenda or anger and not on gender is not grounds to claim sexual harassment. For instance, if a boss and a particular employee are not compatible, it would not be sexually discriminatory to harass employee on that basis. In other words, sexual/gender harassment requires showing that the employee was treated a certain way because of his or her gender. For example, where the employee was the only woman on the workforce, her coworkers’ acts of insubordination, dissemination of untrue rumors about her, and aspersions on her competence may contribute to a hostile work environment based on sex.

The employer may assert a defense against liability for sexual harassment claim by showing that the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm otherwise. This corrective opportunities commonly include a section in the employee handbook explaining the procedures of complaining about harassment and the employer’s express commitment to address those complaints as soon as possible.

July 23, 2008

Promissory estoppel in employment relationship

by Arkady Itkin

It is presumed in California that unless agreed otherwise between employer and his employee (such as through contract or the union’s collective bargaining agreement), the employment is “at will.” Generally, at-will employee may be terminated for any reason, no reason, or arbitrary reason, as long as it is not an illegal reasons such as harassment, discrimination or constructive discharge (objectively intolerable working conditions that force the employee to quit).

However, in some circumstances an employer may be estopped from claiming that an employment is at will where the employer has made a promise that it should reasonably have known would cause the employee to believe a more permanent employment relationship existed, and the employee has relied to his or her detriment thereon. Under such circumstances, the promise is binding. This kind of obligation upon employer is called “promissory estoppel.” To prove the existence of promissory estoppel, the employee must show that (1) a clear promise was made by his employer, (2) he relied on that promise, (3) to his substantial detriment (by giving up some benefit, such as then existing job), and (4) damages measured by the extend of obligation assumed by the employer and not performed.

The courts have invoked the above principle where an employer changes his mind and rejects a new employee before giving the new employee a good faith opportunity to perform the duties for which he or she was hired. If the new employee has detrimentally relied on the new employment, the employer may be estopped from asserting that the employer was at will.

July 22, 2008

What is Family Medical Leave Act (FMLA)?

by Arkady Itkin

The federal Family and Medical Leave Act (FMLA) provides job security to an employee who is absent from work because of the employee’s own serious health condition or to care for a specified family members with serious health conditions, as well as for the birth of a child and to care for a newborn child, or because of the placement for adoption or foster care of a child with the employee.

Employees eligible for FMLA are entitled to 12 workweeks of leave in a 12-month “leave year.” An employee may take FMLA leave for any of the following reasons: (1) the serious health condition that makes the employee unable to perform the essential functions of the position; (2) the serious health condition” of a spouse, child or parent; (3) the birth of a child or to care for such child; or (4) the placement of a child with the employee for adoption or foster care.

Employers may require medical certification of the existence of a serious health condition. Further, FMLA leave is unpaid unless available paid time off is taken (e.g. vacation, paid sick time or paid personal time off) and/or unless disability beneftis are available.

July 21, 2008

When former employer fights your unemployment claim

by Arkady Itkin

One of the most common ways that employer tries to fight their former employee’s claim for unemployment insurance benefits is arguing that the employee was terminated due to misconduct. Misconduct in the context of unemployment insurance code is a term of art, and understanding its legal definition is crucial to appealing the denial of unemployment benefits at the appeals board if your initial claim has been denied.

Under California Unemployment Insurance Code section 1256 “an individual is disqualified for unemployment compensation benefits if the director finds that he left most recent work voluntarily without good cause or that he has been discharged for misconduct connected with his most recent work.”

The standard for showing “misconduct” within the meaning of unemployment benefits eligibility is quite high and thus favoring applicants for those benefits. While such gross violations as violence or threats of violence at workplace and clear grounds for disqualification from unemployment insurance benefits, many of the less grave issues at work do not constitute misconduct. Thus, employee’s mere inefficiency, unsatisfactory conduct, ordinary negligence, or good faith errors in judgment at work are not “misconduct,” that will disqualify that employee from receiving unemployment compensation. In this context, the term “misconduct” is limited to conduct evidencing such willful or wanton disregard for an employer’s interest as is found in deliberate violations or disregard of standards of behavior which employer has right to expect of his employee, or in carelessness or negligence of such degree, or recurrence as to manifest equal culpability, or to show an intentional and substantial disregard of employer’s interest or of employee’s duties and obligations to his employer.

July 20, 2008

California whistleblower protection at workplace

by Arkady Itkin

California Labor Code 1102.5 prohibits discharging an employee for disclosing an alleged violation of a statute of public importance to a government or a law enforcement agency. Such a discharge may be grounds for a claim of wrongful discharge in violation of public policy.

The following are examples of “whistleblowing” cases in which such a claim was upheld:

* Reporting to management that the company was not paying overtime wages due to certain of its employees.

July 18, 2008

Is “use it or lose it” policy regarding employee vacation time legal?

by Arkady Itkin

Under a “use it or lose it” policy, an individual who does not use all of his or her accrued vacation pay by a particular time forfeits the right to be paid fro those days at a later date. The California Supreme Court held, however, that vacation pay vests as it is earned, and any vacation earned cannot be taken away. Vacation pay is, in effect, additional wages for services performed, the receipt of which is postponed. Thus, this “use it or lose it” policy is generally unlawful. Thus, upon termination, for instance, the employer must compensate the terminating employee for unused vested vacation time.

Vacation time is in many ways treated like wages under California law and is actually considered wages for the purposes of compensation. Thus, when vacation is earned during a period of employment (for example, two weeks of paid vacation annually) and the employee does not complete the period, California Labor Code section 227.3 requires compensation for a pro rata share of the unused vacation based on the percentage of the period completed.

Further, an employer may not force an employee to use accrued vacation time rather than serve out the term of his employment. Vacation pay that is not used continues to accumulate unless the vacation policy contains a “cap” on accruals. A “cap” precludes the employee from accruing additional vacation time after a specified amount has been accumulated.