Many disabled employees and their employers are under the mistaken belief that once their FMLA leave is exhausted, they have no right to any other leave and have to come back to work despite their health condition and/or disability. It is not uncommon for California employers to discipline, suspend or even fire employees who are unable to return to work after their FMLA/CFRA leaves expires. This however is often unlawful as it may violate the employer's obligation to engage in interactive process and provide reasonable accommodations to a disabled employee. 

Numerous California cases have held that finite leave may be a reasonable accommodation under the Fair Employment and Housing Act, provided that upon expiration of leave the employee will be able to perform his duties, and finite leave might be all that's necessary to accommodate the employee's medical condition. 

Unfortunately, many employee are not aware of this right and feel both hopeless and helpless after their FMLA leave expires. Extended leave under FEHA is of major help in such situations. 

One common issue that arises under the above circumstances is whether the leave was finite or too indefinite, because the employers have no duty to accommodate an employee or keep his position open while he is on disability of he is expected to be on leave indefinitely.
 
 
It is common for a company to fire and employee and write in the letter of termination that the subject employee was terminated for falsifying company records. Many of these accusations are not true, unfounded, not based on any real facts or exaggerated, turning a simple innocent mistake by an employee into a charge of forgery. The California law provides a powerful tool of a claim for Defamation (general term for Slander and Libel) that can be brought against employers for such false accusations and result in award of damages. Although a number of hurdles, many of which are procedural technical, exist in bringing and prosecuting a claim for defamation, this article discusses a few of the common obstacles and defenses that the employers use when sued for defamation and the truth about those arguments.  

Employers often claim that the employee cannot have a defamation claim unless the publication of false information was made to a third party (someone other than the employee and the employer).  However, this argument is without merit, as publication occurs when a statement is communicated to any person other than the party defamed (the employee falsely accused). Bindrim v. Mitchell (9179) 92 Cal.App.3d 61, 79. Even internal corporate statements can be considered publications within the meaning of the defamation law. Agarwal v. Johnson (1979) 25 Cal.3d 932, 944. In Agarwal, the court stated that internal company statements regarding the plaintiff's "lack of job knowledge and cooperation" were considered "published" for the purposes of alleging libel. 

Employers and especially their attorneys like to argue that "falsifying" is the same as making a mistake. First, it is important ton ote that the code definition of libel has been held to include almost any language which, upon its face, has a natural tendency to injure a person's reputation, either generally, or with respect to his occupation. Schomberg v. Walker, 132 Cal. 224. At least in one case the court held that the statement that plaintiff falsified invoices were slanderous per se in that it charged plaintiff with forgery. This kind of statement clearly implies that the accused employee did so with intent do defraud. Kelly v. General Telephone Company (1982) 136 Cal.App.3d 278, 285.

The defendant empoyer cannot avoid liability by claiming that the employer gave a more innocent meaning to the term "falsify" or any other accusation damaging the employee's reputation, than the employee sees in it. However, the California Supreme Court observed that the language used is to be considered not only in terms of actual words used by also according to the sense and meaning under all the circumstnaces attending the publication which such language may fairly be presume to have conveyed to those to whom it was published. Grover v. Tribune Publishing Company, Inc. (1959) 52 Cal.2d 536, 546.

Further, the fact that an implied defamatory charage or insinuation leaves room for an innocent interpretation (such as considering falsifying to be equivalent to mistake or negligence), does not establish that the defamatory meaning does not appear from the language itself. The language used may give rise to conflicting inferences as to the meaning intended, but thwne it is addressed to the public at large, it is reasonable to assume that at least some of the readers will take it it its defamatory sense. Id. at 549.
 
 
Workplace Retaliation is one of the most common claims in the employment lawsuit filings in California. The other day I had a conversation with a friend who is in charge of the human resources department at one of the government offices in Sacramento. As an employment lawyer, I was really curious to learn about her perspective on the employer-employee relationships, disputes, as well as the wrongful termination claims.  

My friend openly told me that many of the employee are overly "dramatic" believing that their co-workers treat then unfairly or harass them, and that their management has conspired to get rid of them. 

The managers, in his opinion, cause many issues at workplace, including the ones that lead to lawsuits for harassment, retaliation and wrongful termination, because of their sense of entitlement. My friend told me that managers regularly respond to employee's complaint by saying that the manager is above the employee, that the manager can do whatever he or she wants, and that it's an employee's job to comply. It is only natural then for the managers to retaliate against their employees, when the same employee complain about them due to the mixed feelings of superiority and fear of losing their management position.
 
 
Many software companies routinely classfy their implementation and troubleshooting consultants as exempt employees, not entitle to overtime. The Third District's holding in Eicher v. Advaned Business Integrators, Inc. 151 Cal.App.4th 1363 (2007) illustrates that many of such consultants are likely entitled to overtime compensation and are wrongfully classfied as exempt. 

In Eicher, the consultant's duties were typical of a software employee. His work involved spending half of his working time in the office, and the rest of the time on the customers' site. The employee's work involved implementing his employer's software, helping the customers learn how to use it, as well as troubleshooting. The employer argued that the employee fell into the administrative exemption category. The court disagreed. One of the several requirements of administrative exemption is that  the employee's work must be "directly related to management policies or general business decisions" as per the IWC wage oreder 4-2001. The court found that since the employee was not engaged in any management policies such as hiring or firing, did not negotiate contracts with customers and did not otherwise affect his employer's operation, his was a "production worker" entitled to overtime. 

The employer argued that installation and troubleshooting are exempt administrative duties, relying on Levie v. AT&T Communications, Inc. N.D. Ga. (1990). The court distinguished the claimant in Levie, pointing out that in the latter case the employee, in addition to performing the stated non-exempt duties, also identified impacts of the work on the company's operations, as well as designed and coordinated project teams. The court reiterated that in Eicher, the employee had no such effect on how the company was run. 

The above analysis demonstrates that whether a software consultant is entiteled to overtime is a very fact sensitive inquiry, where the court would carefully analyze the specific duties in which an employee is engaged before determining whether the exemption applies.
 
 
Recently, I met with a client who I believe had strong wrongful termination claims under FEHA (Fair Employment and Housing Act) as he was terminated shortly after filing a workers compensation claim for his industrial injury, and there was strong evidence that his manager was very unhappy about him requesting reasonable accommodations.

Unfortunately, I was not able to help the aggrieved employee because the statute of limitations has run on all his claims. I was curious to find out why he waited for over 2 years to contact an attorney. His answer was astounding to me - it was because his Union representative told him that he has to wait for the union grievance/arbitration to be completed before he can file an action in court. That was a terrible advice as the contract that governs the employment relationship between the employer and its employees - union members (collective bargaining agreement) only preempts and forces the parties to arbitrate out of court those disputes that CBA covers. The Ninth Circuit Court of Appeals addressed the issue of preemption of FEHA claims by CBA in several cases, one of which is Jimeno v. Mobil Oil Corp. (9th Cir. 1995) 66 F.rd 1514. In that case, the court concluded that the FEHA discrimination / retaliation claims required a pure factual inquiry, not requiring consultating with the collective bargaining agreement. Therefore, the employee's claims for disability discrimination in employment was not preempted.   

Orindarily, issues that are covered by, and therefore also pre-empted by CBA, are whether the employee was terminated for "just cause" as well as working condition, wages, time off, and other terms of employment.

I hope this article will be of help those workers who submit a union grievance and will help them protect their rights to file a lawsuit in court.
 
 
California Labor Code 226.7, 512 and a number of Wage Orders of IWC (Industrial Welfare Commission) prohibit employers from employing a worker for more than five hours without a meal period of not less than 30 minutes, and from employing an employee for more than ten hours per day without providing a second meal period of not less than 30 minutes.

Section 226.7 and the applicable wage orders also require employers to provide employees ten minutes of net rest time per four hours or major fraction thereof of work, and to pay employees their full wages during those rest periods. Unless the employee is relieved of all duty during the 30-minute meal period and ten-minute rest period, the employee is considered "on duty" and the meal period is counted as time worked under the applicable wage orders.

Under section 226.7(b), and employer who fails to provide a required meal period must, as compensation, pay the employee one hour of pay at the employee's regular rate of compensation for each workday that the meal period was not provided. Similarly, an employer must pay an employee denied a required rest period one hour of pay at the employee's regular rate of pay for each workday that the rest period was not provided.
 
 
California Labor Code section 206.5(b) specifically prohibits employers from coercing employees into signing time cards that they know do not reflect the hours worked:

This section states as follows: "... For purposes of this section, [the void and unenforceable] "execution of a release" includes requiring an employee, as a condition of being paid, to execute a statement of the hours he or she worked during a pay period
which the employer knows to be false.

One of the most common examples of this violation is a situation in which the employer wishes to avoid paying overtime to his employees and orders that those employees who work overtime, clock out after 8 hours of work regardless of whether they work way pass the 8-hour day.
 
 
The California Supreme Court addressed the issue of non-compete agreements in the employment context in its leading decision on the issue, Edwards v. Arthur Anderson (2008). The court reiterated yet again the California's strong policy discouraging agreements restraining competition. In short, the Court held that virtually all non-compete agreements which are forced upon employees by their employers are void and unenforceable as a matter of law and public policy. The court went so far as to say that even those agreements which are narrow in scope and geographic location are invalid. 

The State's highest court also expressed its disfavoring of non-soliciation agreements, and noted that even when a former employee is contacting his employer's former clients, no law is violated, unless the competition itself is unfair, as it is in those cases where the information used to compete is found to be confidential or a trade secret.  

Just as importantly, the Court noted that when an employee is terminated for non signing a non-valid non-compete agreement, that employee will have a public policy violation claim which he can bring through civil lawsuit in court.
 
 
Recently, I have been running over and over into the same issue: an employer creates a leave policy which makes sense to them but is absolutely incompatible with the California laws on disability leave and FMLA/CFRA. For example, a typical employment policy in a handbook or employee manual might state that if an employee doe not report illness within 24 hours or if he doesn't provide medical certification within a day or two of taking time off, he will be considered terminated or he will be considered to have abandoned his job. This kind of policy is a mine field for an employer, as it ignores the basic obligations of the employer underr California Fair Employment and Housing Act which mandates that an employee must notify his employer of his condition/disability within reasonable time, without imposing specific restrictions.

For obvious reasons due to certain circumstances, such as being hospitalized for instance, an employee might only be able to call or e-mail his employer directly or through his friends/relative (if the employee is unconscious or not mobile, for instance) and notify an employer of his condition without being able to provide medical paperwork within the time prescribed by the company policy. Terminating an employee, just because he didn't provide the medical certification documentation right on time virtually guarantees that the employer will be held liable for violation various disability laws, especially if the employer was put orally or otherwise on notice of the employee's medical condition, and if that employee had a serious illness or disability.
 
 
The non-compete clauses that many employers make their employees sign upon hiring have been consistently held to be invalid and unenforceable under most circumstances, because California law has a general policy of discouraging unreasonable restraints on trade, and encouraging healthy competition. 

There seems to be a confusion, however, between non-compete and non-solicitation agreements which are distinct and different kinds of contract. The non-compete agreement usually provides that an employee may not engage in the same business as the employer is engaged in, within a certain locality for a certain period of time. The non-solicitation agreement, on the other hand, typically provides that the employee who is leaving the company to not solicit his services to his employer's current or past clients. Unlike non-compete agreements, the non-solicitation agreements are usually upheld and rightfully so. The law does not permit interfering with existing business that took a long time and much effort to build by "stealing" clients. 

It is important, however, to understand what the term "solicitation" means. To solicit in the employment law context means "to actively seek business." The key term is "actively." The non-solicitation agreement may only prohibit the employee's initiation and active pursuit of the business of client of his former employer. The law does not require employee or new employer to refuse to provide services to clients who independently initiate contact and invite the employee to provide them with services. Aetna Bldg. Maintenance Co. v. West (1952) 39 Cal.2d 198. In that case, the California Supreme Court noted that merely informing customers of a change of employment without more is not solicitation and the willingness to discuss business upon invitation of another party does not constitute solicitation.