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.
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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.
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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. 

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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

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If you are an employee in California who is or has become disabled as a result of work related injury or non-work related medical condition, it is important that you are aware of your three fundamental rights and your employer's obligations toward you: 

* You have the right to be free from disability discrimination under FEHA (California Fair Employment and Housing Act which applies to all employers that employ more than five persons). This means that your employer may not treat you differently in terms, conditions or privileges of your employment on the basis of your disability or your serious medical condition. Further, if the company implements a layoff, it may not take into account a workers disability as one factor in determining whether to choose him/her for a layoff.

* Your employer, if subject to FEHA, upon notice of your disability, has an affirmative duty to engage in interactive process with you to find reasonable accommodations to your disability. This means that your employer must engage in a form of dialogue with you to figure out what the employer can do to eliminate or reduce the challenges that your disability creates in your work performance. This duty is continuing, which means that if with time a certain accommodation doesn't work or if your condition changes or aggravates, the employer will remain obligated to continue the interactive process to accommodate your disability unless such accommodations impose undue hardship on the employer's business. 

* If you are forced to take medical leave due to your disability or a serious medical condition, you are have right to return to work and be reinstated to the same or a similar position at your workplace.

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Few issues are more upsetting to an employer - especially to the manager who feels very powerful and who has been engaging in unlawful  or unethical practices for a while, than an employee who is trying to change his ways, especially if that employee threatens to or actually reports the conduct to the outside public agency.  Whistleblower retaliation is a claim that arises when the employer takes adverse action against an employee (including termination, transfer to a less desirable position, suspension, and demotion) because that employee complained to the outside entity about what he reasonable believed to be an unlawful practice by his employer. 

One significant power of whistleblower retaliation claims in California is that the aggrieved employee does not how to prove that the conduct he or she reported was actually illegal. All the employee has to show is that he reasonably believed that the conduct was illegal. Thus, for instance, if you are an accounting manager, and after reviewing the statements of the company you believe that an comingling of funds or embezzlement is going on at your company, and you report that conduct to the entity overseeing the integrity of financials, you are protected from retaliation, as your position allows you to reasonable conclude within the scope of your skills, knowledge and job duties, that an unlawful practice is taking place. If your employer retaliates against you by terminating your after reporting that conduct and later proves that the conduct you were worried about is perfectly lawful, the employer will still be liable for unlawful retaliation and wrongful termination.

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One of the most common ways to resolve a wrongful termination, discrimination, harassment or any other employment dispute between employers and employees is a private mediation.  Mediation is an informal meeting between the parties and their attorneys, who submit their case to the third-party neutral evaluator - usually an experienced attorney in the subject area of law who also works as a mediator or a former judge. 

When the parties agree (or "stipulate") to mediation in court, which usually occurs after the written discovery is concluded and the depositions are taken, they draft mediation briefs (a statement of their case, liability, evidence and damages) submitting it to each other and to the mediator before the hearing. 

The mediation hearing itself usually consists of a brief face to face meeting between all involved, during which the mediator is listening to the opening statement of both parties, after which the mediator will separate the parties into different rooms and will basically go back from one room to another, trying to explain to the employer why their settlement offer is too low considering the evidence, and will also try to persuade the employee that his expectations are too high in light of the weaknesses of his or her case. As a result, this hearing can last anywhere between 3 hours and all day, and it's not uncommon for some of the best mediators to not let the parties leave the negotiation table till the late hours of the night.

The three main advantages of mediation are as follows: 

First, mediation is a great opportunity to get an objective and invaluable opinion from a mediator who used to be a judge, working on similar case and not rely just on one's own opinion about the case. An experienced mediator will not only evaluate the case, but will also assess the likelihood of the parties to prevail at trial as well as the jury appeal of the case. 

Secondly, mediation is a "risk free" hearing. The parties do not have to settle at the end of the day if they don't want to, but they will at least both know where each stands as far as the figure which they are willing to pay/accept to settle the claims.   

Lastly, a settlement reached at mediation is confidential (unlike court judgments which become a public record). This means that no one, except the parties and the mediator, will have knowledge of the settlement terms and conditions agreed upon at the conclusion of the mediation hearing.

Statistically, most mediations are successful and lead to settlement unless one of the parties or both sides are unreasonable stubborn and are not open-minded about the settlement possibility as they should be. 

The most significant disadvantage of a mediation hearing is its cost, which may may range these days in San Francisco Bay Area between $1,500 and $3,000 per party.  

It is important to have the right mindset when submitting a case to the mediation: mediation is an attempt to negotiate a settlement and it's all about compromise. Successful mediation reaching to settlement means that both parties are somewhat unhappy. The employee gets much less than what he thought he will or he deserves, and the employer pays more than he believes is right. In exchange, however, both parties get certainty and the opportunity to move on without the risk of losing at trial.

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Some of the worst business disputes I have had to work on ironically involved people who, until that dispute arose, were very close to each other. Those were either close relatives or best friends who did business with each other, such as engaging in a partnership or another form of business venture, who did not feel comfortable asking each other to sign any agreements, and who were proud to agree on everything orally, believing that they will be able to work out any disagreement about their business in the future. 

The above approach to business often backfires and hurts all parties as oral agreements inherently have serious flaws that are bound to give rise to conflicts, fights, disagreements and lawsuits that could have been avoided if a proper written contract was drafted. Most people who enter into an agreement do not plan to deceive, defraud or steal from each other. The most common reason for business disputes is the fact that people simply did not outline and did not agree or reached a mutual understanding on many of the key aspects of their deal. Even the most simple agreement for consulting services is not as simple as it might look at first. For instance, John hired his best friend Brad to perform software consulting services. They agree on the start date and on compensation orally and believe that there is no need to sign any written agreements. Brad quits his job for the better and a higher-paying consulting position. Subsequently, several unexpected events might take place - John might change his mind a few weeks later and decide to not use Brad's services any longer; or Brad's services might prove to be unsatisfactory, or both simply feel that although they get along very well in social situations, they are not working together very well at all.  In this situation, the parties are left without any agreement on how they should go about terminating their relationship. Investing a few hundred dollars in drafting a proper consulting services agreement would have been well worth the effort and the expense.

At a minimum, a consulting services contract would provide for termination terms, any applicable penalties that each party might bear, and basic dispute resolution terms, among other important terms that clarify any possible misunderstanding that may arise between the parties and eliminate many ambiguity that are typical in business agreements.

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Whether you are an employee or an employer, your deposition in a workplace harassment or wrongful termination lawsuit is one of the most important stages of your case. This is the opportunity for you to tell your story, to testify on your own behalf, and disprove your opponents arguments. 

It is critical to remember that just as important as the facts of your case, or even more important, is "how" your act at a deposition. It is critical that you come across as a likable person who is not emotionally destabilized easily, who doesn't get angry when disagreeing with his opponent, and who comes across as a reasonable and rational person. If the opposing and deposing attorney realizes that the jury will like you and thus is likely to be generous to you, it is likely to significantly increase the value of your claim and be very helpful in subsequent settlement negotiations. On the other hand, if you come across as an angry, hostile witness, the attorney deposing you will see that as an opportunity to not only make you say things on the record that you are going to regret later but to also prove to your own attorney that you are not someone who will do well at trial.  

Most trial lawyers know from experience that jurors don't really care about injuries and damages. They are generous toward those people who they like, and they are pretty tight fisted with those who they annoyed with. And, make sure that your read my deposition tips before you testify at your deposition. 

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Imagine the following, not uncommon situation. You are happily or at least not unhappily employed at your office for a number of years. You are slowly building a career enjoying a decent salary, benefits and a retirement package. One day, a different employer approaches you with a tempting offer to quit your current job and work for him for a significantly higher salary and a number of other perks that make the offer all the more difficult to resist.

You decide to take a risk, quit your job in anticipation of being hired, and suddenly, for whatever reason, you find out the the new employer's plans to hire you fell through. You try to return to your previous place of employment but they have already found a replacement for your position. You are devastated. Not only did you lose a job through no fault of your own, but you are also not eligible for unemployment compensation benefits because you voluntarily quit. 

The above scenario has a legal remedy as it is considered fraud, fraudulent inducement and detrimental reliance. Proving fraud requires showing misrepresentation inducing reliance and damages. Lazar v. Superior Court (1996). An action for a promissory fraud may lie where the employer fraudulently induces the potential employee to enter into a contract. This would allow the aggrieved employee to recover compensatory damages (wage loss) as well as damages for associated emotional distress, pain and suffering, and possible punitive damages to punish the employer for fraudulent or reckless conduct. 

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