Law Office of Arkady Itkin 

I am inherently skeptical when it comes to the allegations of racial and national original discrimination at workplace and elsewhere. Most employment lawyers are. They have to be, as the majority of racial harassment and discrimination claims fail for lack of sufficient evidence to support these allegations at workplace or anywhere else. My personal skepticism also comes from the fact that I was lucky enough to have never be or at least feel discriminated at workplace and I always felt that my superiors tried to conduct business and treat their employees "by the book." Today's incident however has changed my perhaps "naive" perception of the persistence of racism in our society.

This incident didn't happen at work and it has nothing to do with any of my clients. It happens in the most unlikely place - at one of the San Francisco's public parks in the Marina District, at the tennis court. My father ran through the court where two, older and seemingly well-to-do white ladies were playing tennis. He English is far from fluent, and his accent is thick, making it often hard for others to understand him. I was sitting at a bench near the courts and observing. These women got annoyed with my father going over the court instead of walking around as the tennis etiquette provides, and he was probably in the wrong. However, the reaction of one of the women shocked me. She approached  him and told him very slowly and clearly:
"When you are in our country, follow our rules! If you want to follow your rules, go home to where you came from!" 
I could not believe my ears. I did not think that the City of San Francisco, that prides itself on open-mindedness and tolerance was a home to people who hold such beliefs.

I was tempted to tell that lady that my father has been living in this country almost 20 years, that he is a US citizen, and that this is his home just as much as hers, but all I did was to tell her that as a civil rights attorney, I was disappointed to hear those words come from someone who looks as well put together as her. I guess people are not always what they appear to be.

This also made me realize that if this kind of person was in any kind of management position at workplace, it would only be a matter of time till she created a racially hostile work environment, insulting or humiliating her co-workers and subordinates.

You have a job that you value and enjoy, and it seems that you get along with everyone at the company except those few "bad apples" - your manager who harasses or retaliates against you and his superiors who are either reluctant to take action because they are biased and side with your manager no matter what, or because they want to "play it safe" by sweeping your reported problems under the rug.   

If you are not ready to quit and you believe that the situation can be remedied, it is very important that you don't become a victim of your anger. You should not allow yourself to lose your cool, to act or talk in a rude or offensive manner to your superiors, whether they are guilty of unlawful misconduct or not and not give them legitimate, legal reason to suspend or terminate you. This is the time to act like a true diplomat  - to voice your concerns in a compelling but courteous manner to all those who have the authority to address your issues without yelling at anyone or threatening your employer with a lawsuit.

As tempted as you might be to give your boss a piece of your mind - anger never serves any employee's best interests before litigation or after the lawsuit is filed, when treating the situation like business rather than personal battle is even more important for successful prosecution of a case in court.

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.