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.
 
 

Often, an employee is subjected to unlawful discrimination and retaliation while still employed and weeks or even months before being terminated. Although very "tempting," suing an employer while still employed is problematic. First, you are very likely to lose a job (just because it's unlawful to terminate an employee who exercises his legal rights to bring legal actions, doesn't mean that the employer simply can't violate the law and do it). Secondly, your recovery in any case is likely to be insignificant because you have not sustained any loss of wages, which is at the core of any settlement or judgment.

Despite the above, there are a few important things you can do to line up your "weapons" if and when you get unlawfully terminated as a result of discrimination or retaliation: 

1. Make sure that your boss cannot blame terminating or demoting you on your performance. This is a critical time to do the best you can, as the employer's love to use poor performance as excuse for termination, because it's so subjective and relatively hard, although possible to argue against.   
 
2. If there are any witnesses to unfair treatment, get their statements in writing if possible, and keep their contact information. In many cases with opposing sides having opposing story, witness statements are crucial.   
 
3. Keep all relevant documents, emails and other documentation proving discrimination, retaliation, or your complaints to HR or your superiors about the same, as they will be of critical important when proving your case in court.   
 
4. If you witness discrimination or harassment against yourself or others, complain to HR in a courteous but firm manner and ask for investigation in writing.   
 
5. If you are terminated, do not sign any releases in exchange for severance before you consult an attorney, as signing a release usually extinguishes all legal claims, committing the signing employee to never sue the employer for any violation.
 
Then, when the time comes and you are well equipped to fight, the results will be better and the process will be likely shorter, as the employer, facing substantial evidence against them will likely want to settle faster. 

 
 

Are you familiar with your rights when it comes to being interviewed? There are laws in place intended to protect your from age, gender and other forms of discrimination, but they cannot work if you do not know you do not have to answer. Read the list below before your next interview to ensure that you're being treated fairly and by the letter of the law: 

1. Age: Regardless of whether you are very young or edging towards retirement, age cannot be a deciding or even one of the motivating factors in the hiring decision. Only questions about whether or not you are old enough to work are acceptable. 

2. Marital status: Whether or not you want to disclose this information is personal and women and men alike are not required to disclose marital status in an interview. 

3. Children: While an employer may have legitimate concerns about your ability to travel, questions based on parental status are not legitimate interview topics. 

4. Religion: Be wary about potential employers who are asking about your religious beliefs. Using religion as a deciding factor in hiring is prohibited. If interviewers want to know when you are available for work more general questions are more than sufficient. 

5. National Guard: While many employers are reluctant to lose an employee to deployment, military service cannot be used as a basis for job discrimination. 

6. Legal Drug Use: So long as these products are not being used on the job, it is not generally legal to discriminate against those who engage in these activities. 

7. Political Affiliation: Interviewers are not allowed to ask about your participation in political organizations, clubs or associations other than those which are related to your ability to perform your job.   

This post was contributed by Kathleen Baker, who writes about online universities. She welcomes your feedback at kathleenbaker3212@gmail.com