In a recent, very interesting employment discrimination case holding - Castro Ramirez v Dependable Highway Express, Inc. (2016), the Second Appellate District clarified the employers' obligation to provide reasonable accommodations to employees in the associational disability context - i.e. where the employee who is not disabled is seeking an accommodation for a physical disability of another person with whom he is "associated" as per California Gov. Code section 12926. The court noted that an association with a psychically disabled person is itself a disability under the California FEHA.
Thus, when Gov Code section 12940(m) says that employers must reasonably accommodate "the known physical... disability of an applicant or employee," the disability that employers must accommodate include the employee's association with a physically disabled person. The court further pointed out that FEHA (Fair Employment and Housing Act) creates an associational disability discrimination claim by reading "association with a physically disabled person" into the Act where "physical disability" appears in section 12940(a).
Finally, the court pointed out that this is yet another way in which California FEHA provides a much broader anti-discrimination protection to employees than its federal counterpart - ADA. This law and clarification provides significant protection to employees who parents, children, or other closely associated persons/relatives are disabled and require some kind of significant attention from that employee.
Generally, deductions from commissions are permitted when (1) the deductions are tied to that employee’s sales rather than general business expenses, and (2) the employee agrees to the deductions by contract. Aguilar v. Zep (2014). Even if such a contract exists, an employer cannot shift the cost of doing business to an employee. Where routine business expenses that shift the cost of doing business to the employee are deducted from the employees’ commission-based compensation, the fact that the employee consented to the practice is irrelevant and does not make such deductions legal.
The above principle was first presented by the California Supreme Court in Kerr’s Catering case. There, the employer promised a commission of 15 percent to its sales people on all sales in excess of a certain minimum, where the employees sold food items from its lunch trucks. At the same time, the employer deducted cash shortages resulting from the failure to properly charge for the sold items as it routinely happens at jobs that involve many smaller transactions per day. The court held that those deductions were improper, observing that “some cash shortages, breakage and loss of equipment are inevitable in almost any business operation” and should be borne as a “business expense,” rather than deducted from a promised commission. This holding was applied to managerial employees in Quillian v. Lion Oil Company (1979). There, the court found that commissions similarly calculated on sales volumes and reduced by cash and merchandise shortages improperly placed the “burden of losses” on the managers and thus violated California Labor Code section 221 and other law, even though the managers had executed written contracts agreeing to this method of salary calculation.
More recently, in the Hudgins case, the court addressed an employer policy that promised salespersons commissions based on completed sales, but deducted on a pro rata basis returned merchandise that could not be traced to a particular sale or salesperson. The court found the policy “calls for deduction from earned commission wages of all sales associates a sum of money representing what would otherwise be business losses,” The court explained that this was improper under Labor Code section 221.
As the Hudgins court noted, the Legislature has recognized the employee’s dependence on wages for the necessities of life and has, consequently, disapproved of unanticipated or unpredictable deductions . . . .” The court further stated that by enacting Labor Code section 221, and retaining it as interpreted by the courts and [the Industrial Welfare Commission], the Legislature has prohibited employers from using self-help to take back any part of ‘wages theretofore paid’ to the employee, except in very narrowly defined circumstances provided by law. In cases such as Kerr’s Catering, Quillian and Hudgins, the courts’ findings were based on the impressibility of transferring to the employee, by way of wage deductions, the financial burden of business expenses and accidental losses that otherwise would be borne by the employer.
Our experience working on many discrimination and wrongful termination cases clearly suggests that in vast majority of cases being placed on a PIP means that your employer has already made the decision to terminate you, and they are using the performance improvement plan process to just make it look like they are giving you another chance. Often, the same employee who is placed on PIP doesn't even have a chance to finish that 30-day, 60-day, or 90-day plan, and they are terminated way before.
So, what should you do when you are placed on PIP?
- The first question is whether there is any evidence that the real reason for your (upcoming) termination is illegal - i.e. the potential firing will be discriminatory or retaliatory. If that's the case, you should contact an attorney as soon as possible, run your situation by them and talk about what, if anything, you can or should do to enhance your potential discrimination or wrongful termination case.
If there is no evidence that your employer is trying to fire you for illegal reasons and it's a matter of not getting along with them personally, then the only thing you can and should consider doing is looking for a new job before you are terminated, and at the same time consider other options, such as resigning in exchange for some type of severance. A consultation with an experience employment attorney will again be appropriate to determine what the best course of action is before taking the next step.
In the absence of evidence that the real reason for the fact that you received a negative performance is discriminatory (i.e. due to age, race, disability, sexual orientation, national origin, religion, familial status, etc.) or retaliatory, there is no much you can legally do to fight it, when you receive one. Your employer is entitled to their subjective view and evaluation of your performance, however unfair and unjustified you believe your performance rating is.
If your performance review has been affected by a personal conflict with your management or by some other fair or unfair reason, again - it has no legal relevance in the absence of evidence that discrimination or retaliation were in play. The fact that the negative (unfair) performance review affected your psychological help, ability to focus and ability to sleep also has no legal relevance, as these are your subjective symptoms to the employer's conduct that might be unfair but not illegal.
There are different ways of dealing with negative performance reviews, depending on the overall nature of the business in your industry, your position at the company, your relationships with your immediate supervisor and higher management and other factors. Sometimes, writing a rebuttal to the questionable review is a good idea, while at other times it will likely be pointless or even counterproductive. In some situation, complaining about discrimination after receiving a bad review is a good idea, while in other cases it isn't. Finally, in some cases looking for a new job is the only and the best option you might have. An experienced employment attorney should be able to advise you on the best legal and practical option for your particular situation.
Here is a common pattern for a new hire. An employee receives his first performance evaluation after three or six months of employment or even after a year. The review appears to be mixed with both, good and not so great comments. The employee seems to meet or exceed expectation in some categories, while the review also states that a few other categories need improvement. The employee, who strongly disagrees with the "needs improvement" section, decides to write a strong rebuttal, where he explains why the author of the review is incorrect, or even worse - accusing the reviewing supervisor of not being fair or even being discriminatory. The employee has no factual basis to accuse the manager of discrimination besides disagreeing with the review.
The above rebuttal naturally upsets the reviewing supervisor. Among other things, the supervisor will feel attackd and will start thinking of that employee is ungrateful. From there, the relationship between the employee and his manager is very likely to deteriorate quickly. This means that the manager will either fire that employee as soon as possible, or will be looking for a reason to write him up and otherwise make that employee's life at work unhappy with the intent of driving that employee out one way or the other.
If you received a mixed performance review, and you don't have any reasons to believe that the manager is out to get you (at least yet), ask yourself what the purpose of any rebuttal would be and whether you should bother to submit it at all. In most cases, rebuttal is, at best, a waste of time. A rebuttal will likely gain you nothing. I assure you that your manager or his higher management will not come to you and say "Oh, you are right; we are wrong. We apologize. Here is the correct performance review with a higher mark." This happens but very, very, very rarely. If you genuinely disagree with your supervisor performance appraisal, you need to remember that he is entitled to his subjective view of your performance. And, the fact that you disagree with it doesn't mean that the review is false or not valid. Your time and energy are much better spent at looking into whether your supervisor has a point and whether you actually could do something to improve those specific aspects of your performance that were pointed out in the review as needing improvement.
Of course, if you receive a negative performance review, and it's clear that it's a patter of some kind of harassment or discrimination against you, it's a totally different situation that would require a different approach, including a prompt involvement by an attorney.
As an employer, who is facing a labor commissioner claim for unpaid wages, overtime, and other possible violations, which was brought by your present or former employee, the practical consideration of fighting a claim are just as important as the legal merits of the claim against you. When making the decision as to whether to have a hearing on your claim v settling the claim early and avoiding the risk of losing the claim, you need to ask yourself the following four key questions:
1. How likely are you to win v lose? An experienced employment attorney should be able to advise you on your chances of prevailing v losing and what's the most you can lose, so that you know what your risks are. Even though no attorney can know for sure the outcome of a claim, knowing your chances and assessing your exposure risks will help you make the decision about continue to fight v settling.
2. If you win, will this really be a victory for you? How much will it cost you to take the claim all the way through a hearing even if you end up winning. Will you spend more on an attorney than you can settle your claim for today? If so, maybe it's worth considering putting the principle aside for the sake of making the right financial decision and making the claim go away earlier than later.
3. How much of an (emotional) distraction is this? Do you get angry, anxious or stressed out from this process? Does it interfere with your ability to run your business efficiently by taking your time and mind away from what's really important to you now? Is this something you can put to rest relatively inexpensively? If you answer "yes" to these questions, it might be worth settling your claim sooner than later, especially if the amount doesn't justify losing sleep over it.
4. Do you need to send a strong message to other employees? Is it important for you to fight this case to send a message to other employees that you don't settle claims easily in order to discourage them from filing (similar) claims? If so, you might have to continue fighting and even consider filing an appeal if you end up losing at the labor commissioner hearing. If you are not ready for this, this is yet another reason to settle sooner than later.
We review hundreds of documents and e-mails from different employees' personnel files every week. I am often amazed by the tone of some of those e-mails from employees to their managers. From accusations that the manager is corrupt, to long laundry lists of all the reasons that the employee believes his manager is not fit for his job.
When I read those types of e-mails, I can't help but ask myself - what was the writer hoping to accomplish by writing that e-mail? And that's the exact question you should be asking yourself before writing that kind of e-mail to your supervisor. Without knowing much about who you are and where you work, I assure you that sending an e-mail full of criticisms to your employer is not going to (1) make him treat you better or (2) get you promoted. At best, it will cause some type of personal friction between the two of you, and at worst - it will encourage that supervisor engage in a campaign of retaliating against you, micromanaging you, writing you up and even trying to fire you. Whether it will be legal or not is a different story, and that will depend on what you complained about and other facts. But, the bottom line will remain the same - your supervisor will try to make your life harder regardless of what the law says about his actions.
So, before you consider writing that harsh e-mail, consider (a) whether it's really worth sending and what the goal of that e-mail is; and (2) have someone else more "objective" review your e-mail before sending it out to make sure it doesn't appear more harsh than you really want it to be. Usually, unless you are ready to quit, giving your piece of mind to your manager has way more risks than benefits.