Sacramento Employment Lawyer

Your Union Collective Bargaining Agreement Does Not Fully Determine Your Disability Leave Rights

Employees who are union members often face a situation where they sustain an industrial or repetitive motion injury and upon request for medial leave or reasonable accommodation, they are informed by their HR department that they have a set amount of weeks or months of leave, upon expiration of which they will be terminated regardless of the circumstances. This practice is a common mistake on the part of the employers and the unions as it often fails to take into account the fact that state and federal disability laws cannot be circumvented by the collective bargaining agreement or any other agreement. Workers who are otherwise qualified for certain protections, do not waiver those protections just because they become members of a labor union. 

A classic California case on the issue is Jimeno v. Mobil Oil Corp., 66 F.3d 1514 (1995). In that case, an employee who suffered from an injury and a degenerative disc disease was dismissed after exhausting his limited medical leave rights under the union bargaining agreement. At trial, the employer argued that the employee's claims under FEHA for disability discrimination, failure to engage in interactive process and provide reasonable accommodation were completely preempted by the signed agreement, and therefore the employee couldn't sue under FEHA. The ninth circuit court disagreed, analyzing the legal issue extensively and eventually holding that the agreement did not preempt FEHA disability discrimination claims. 

Thus, employees should be aware that their disability rights, and the right to reasonable accommodations due to their physical or mental condition might be more extensive than those provided in the booklet provided by the union.

What are "reasonable accommodations" withing the meaning of California Employment Law

The main source of interpretation of what "reasonable accommodation" duty is, imposed on the employers with regard to the workers who are disable or who are perceived as having a serious medical condition is Cal. Admin Code, title 2, section 7293.9. This regulation provides that any employer shall make reasonable accommodation to the disability of any individual with a disability if the employer or other covered entity knows of the disability, unless the employer can demonstrate that the accommodation would impose an undue hardship. 

The examples of such reasonable accommodations include but are not limited to making the existing facilities used by employees readily accessible and usable by individuals with disabilities; job restructuring, reassignment to a vacation position, part-time or modified work schedules, acquisition or modification of equipment or devices , adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters and other similar actions. 

An employer does not have to provide reasonable accommodations if the it can prove that doing so would impose undue hardship on its operations. Under the same regulation, "under hardship" means an action requiring significant difficulty or expense, when considered in light of several factors, including (1) the nature and cost of the accommodations needed; (2) the company's overall financial resources and the size of the employer; (3) the type of operations involved; and (4) the administrative or fiscal relationship of the facility. By Arkady Itkin, San Francisco Employment and Wrongful Termination Lawyer

Employers' Obligations to Prevent Sexual Harassment at California Workplace

Once an employer is informed of the sexual harassment, the employer must take adequate remedial measures. The measures need to include immediate corrective action that is reasonably calculate to (1) end the current harassment and (2) to deter future harassment. Sarro v. City of Sacramento (E.D.Cal. 1999) 78 F.Supp.2d 1057, 1061-1062. The employer's obligation to take prompt corrective action requires (1) that temporary steps be taken to deal with the situation while the employer determines whether the complaint is justified and (2) the permanent remedial steps be implemented by the employer to prevent future harassment once the investigation is completed. 

An employer has a wide discretion in choosing how to minimize contact between the two employees (the alleged harasser and the alleged victim), so long as it acts to stop the harassment. The reasonableness of an employer's remedy will depend on its ability to stop harassment by the person who engaged in potentially unlawful conduct at workplace. Ellison v. Brady (9th Cir. 1991) 924 F.2d 872, 882.

In Bradley v. California Department of Corrections 158 Cal.App.4th 1612 (2008), one of the claims by the employee was that the employer, the State agency, failed to prevent sexual harassment to which she was subjected by her co-worker. The court noted that while it recognized that things move slowly in the state government, the lack of action by the employer in that case was "startling." Id. at 1633. The court noted that very little investigation was done and nothing was done by the employer to make sure that the harassment stops. Each manager that the victim would approach for help would refer her to someone else over and over. The court further made an important point that an employer may be required to take remedial action even when harassment is not corroborated. Id. at 1634. This means that it's generally proper for employers to at least temporarily suspend or transfer the accused shortly after receiving a complaint before the investigation even begins, to avoid the risk of continuing to expose the victim to harassment.

California Employment Law: Terminating Employees Whose Wages are Garnished is Illegal

Under California Labor Code section 2929 it is unlawful for an employer to discharge an employee for the payment of one judgment of threatened garnishment. The law defines "garnishment" as any judicial procedure through which the employee's wages are required to be withheld for the payment of any debt. The term "wages" includes "all amounts for labor performed by employees of every description," whether the amount is fixed or calculated on the basis of time, task, piece, commission, or other method. Cal. Labor Code 200(a) & 2929(a)(2). 

If the employee is fired in violation of section 2929, his wages continue until reinstatement or until 30 days have elapsed. Generally, the recovery is limited to the wages the employee would have earned during the 30 days preceding the levy of execution on the garnishment order. An employee who wants to have the Labor Commissioner take an assignment of the claim must file it with the Commissioner within 60 days after discharge. However, a discharged employee cannot sue the employer if a criminal prosecution based on the same discharge has been commenced under the federal Act. Section 2929 does not affect any other rights that the employee may have against the employer for wrongful termination, including claims for discrimination, retaliation, harassment and alike.

California Employers Have to Pay their Non-Exempt Employees for Travel Time

Suppose you are a non-exempt employee (i.e. employee who is entitled to overtime) who was ordered by his employer to attend a training class in another city or another states, which requires you to take long drives or overnight flights to the training destination outside your work hours. Should you be compensated for that time? Many employers include in their policy (employment handbooks, etc...) a clause that provides that their employees will not be paid for any commute outside working hours. This policy usually violates California employment law with regard to the non-exempt employees. Time spent traveling to an event, attending which is required by the employer must be paid for whether the traveling takes place during the normal work hours or outside the normal work hours and regardless of whether the business trip includes overnight stay. 

The California high confirmed that the "hours worked" as defined by California labor law don't make a distinction between the "normal" hours worked and those hours worked outside the "normal" time. This actually makes sense. After all, why would an employee not be entitled to wages for work performed or commute related to work during the hours when he expected to or is normally supposed to enjoy his free time. No private policy of an employer can override these state laws.

If you are an hourly employee, your employer can establish a different rate of pay for any travel time before and after performing work, as long as that rate to doesn't fall below the state minimum wage rate. In fact, many companies pay their employees minimum hourly wage for all travel time in addition to reimbursing those traveling employees for all necessary and reasonable expenses associated with the business trip under California Labor Code section 2822, thereby properly complying with the state law.

Chargebacks against Employees' Commissions in California

An employee whose wages are based in part on commissions may face a situation where he is being terminated or laid off, shortly after a transaction (or a number of transactions) that result in earning his commissions take place and before he is paid or where the transaction falls through after he earns his commissions but before he is paid. At that point, the employer may refuse to pay the employee commissions due and argue that the subject employee is not entitled to those commissions. 

Although, the law is not fully clear on the issue of when the employer has the right to withhold commissions, the are certain useful guidelines that the courts have prescribed in the decided cases. In one leading case on the issue of chargebacks against commissions - Harris v. Investor's Business Daily, Inc. 138 Cal.App.4th 28 (2006) - the Second District deal with the issue of withheld commissions. In that case, the employer argued that the company was entitled to withholding commissions because they constituted "advance" to the telemarketers whose job was to sell monthly newspaper subscriptions, because the subscribers had the right to terminate the subscription after signing up, and thus, the company believed, the loss of the business should have been carried on to the employees in charge of obtaining that business. 

The court has rejected the above argument. The court started its analysis by noting the fundamental presumption that the employer shall not take any wages back from the employer after they are earned. Cal. Labor Code section 221. Wages are defined broadly to include all amount for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard time, task, piece, commission basis, or other method of calculation. Cal. Labor Code section 200. The court further held that in order to chargebacks to be legal in that case, (a) the commissions must be specifically identified as "advance" in the company's stated policy or compensation agreement. In addition, (2) the employees must expressly agree to the chargeback policy in writing. 

California Employment Law: Non-Compete Agreements and Customer Lists

The Edwards v. Anderson decision has recently further liberalized competition, holding that almost all non-compete agreements between an employee and the employer are invalid and unenforceable.

However, a number of significant exceptions to this rule remain in effect. One such exception is that it is illegal for a former employee of a company to engage in unfair competition, including using trade secrets or proprietary information of their former employer. This exception is often applied to the situations were the sales people who leave a company, take the company's customer lists, and start their own company, using the subjects lists of customers in order to solicit business from them. 

In 1985, California adopted a Uniform Trade Secret Act for misappropriation of trade secrets. It defines a trade secret as "information, including a formula, pattern, compilation, program, device, method, technique, or process that (1) derives independent economic value from not being generally known to the public..., and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. The legislature meant to codify that a customer list procured by substantial time, effort, and expense is a protectable trade secret. Thus, one case held that a list of customers or subscribers "built up by ingenuity, time, labor and expense of the owner over a period of many years is property of the employer," and "knowledge of such a list, acquired by an employee by reason of his employment, may not be used by the employee as his own property or to his employer's prejudice." Greenly v. Cooper (1978) 77 Cal.app.3d 382, 392.  

On the other hand, if the information about potential clients is generally available to the public, and the compilation process of the subject list that the employer used is neither sophisticated not diffcult or particularly time consuming, then there will likely not be a violation. This may include making cold calls or consulting phone directories in a competitive industry, where many other business target the same customers the same way. (See American Paper & Packaging Products, Inc. v. Kirgan 183 Cal.App.3d 1318 (1986)). For more information about non-compete agreements and their validity in a specific situation, feel free to contact San Francisco & Sacramento Employment Lawyer.

When Your Employer Does not Have a Workers Compensation Insurance Coverage

California Labor Code provides significant protection to employees who sustain an industrial injury and whose employer failed to secure a workers compensation insurance coverage. Under Labor Code section 3706 such an employer will be liable for employee's injuries in tort. That is, under the circumstances, the employer may be sued in negligence for injuries sustained by the employee.  While some injuries at work are relatively light, some injuries can be permanent and debilitating (assembly line type and alike machinery), exposing employer to significant exposure for the injured employee's damages. 

This is yet another reason why the employers who are subject to the provisions of the workers compensation laws are urged to have that kind of insurance coverage.

California Employment Law: Good Cause Termination Explained

Although the vast majority of the private sector workers in California are at-will employees and can be terminated for any reason, no reason, or arbitrary reason, as long as it's not an illegal reason, a number of employees have a contract with their employer which limits the employer's rights to terminate and require showing of "cause" or "good cause" for termination. Thus, practically all union members can be only terminated for "just cause" as their collective bargaining agreement provides. In addition, some employment contracts provide that the employee will be employed for a specified term and cannot be terminated except for cause. Usually "cause" means gross and/or intentional misconduct, such as fraud, theft, willful violation of company policy, competition or disclosing confidential information to competitors, etc.

The law on the meaning of "good cause" termination is ambivalent. On one hand it provides significant protection to employees whose employment is governed by this term. On the other hand, it gives a significant leverage to the employer. It is important to understand that the employer does not need to prove that the misconduct giving ground to contract termination actually took place. It only needs to show that in discharging the employee, it was acting for a purpose relating to its business needs or goals, rather than for a wrongful motive or reasons. Cotrans v. Rollins Hudig Hall Int'l (1998). The courts generally defer to the employer's good faith exercise of its managerial discretion, although that discretion is not unlimited.  

Under the leading on the issue Cotrans case standard, three factual determinations are relevant to the question of employer's liability in good cause discharge claims: 

(1) whether the employer acted in good faith in deciding to terminate the employee;

(2) whether the decision followed an adequate investigation; and

(3) whether the employer had reasonable grounds for believing the charges against the employee were true. 

"Adequate investigation" means that at a minimum, the employer should listen to both sides. That is - give the employee a fair opportunity to preset his position and to correct or contradict relevant statements or information. It is also important that any investigation taking place is conducted by neutral, unbiased personnel members who have no interest in the outcome of that investigation. Interviewing a large number of co-workers and other witnesses of the alleged misconduct will also make the investigation more valuable and complete, protecting the employer from liability and assuring that the results of the investigation are more reliable.

California Overtime Laws: Exempt or Non-Exempt?

It is not uncommon for employers to claim that a certain employee is exempt from overtime compensation benefits because of his title. The California Courts and the Department of Labor have consistently held, however, that the employee's job title has little, if anything to do, with his exempt status. This makes perfect sense. Many people have a title of a "director" or a "manager" when in fact they duties are very simple and basic and where they are clearly entitled to overtime. A classic example is a receptionist who has a title of "Front Office Manager."  Some janitorial workers have a title of "Maintenance Directors." 

Recently, I have representing an employee of a software company in her overtime claim. The employer claimed that her "Accounting Manager" title and her high salary ($100k per year) alone made her an exempt employee. I drew the employer's attention to numerous cases that clearly suggest that an employee's title or a salary do not determine her status, but it's ultimately the level of duties that makes a difference between exempt and non-exempt status. To be exempt, an employee must be primarily engaged in exempt/executive duties where she exercise a certain degree of control and discretion/creativity. In this case, the employer had to agree that the employee was performing the most basic bookkeeping duties rather than being an "Investment Analyst" as they tried to initially characterize her job description, and the claim settled before the hearing in front of the Labor Board.  

To learn more about overtime in California, please visit this article on California Overtime Exemption and Compensation Laws