In what is sure to be a closely watched case, the EEOC recently filed its first ADA pandemic-related lawsuit relating to COVID-19 and an employee’s request to work from home. The EEOC claims that ISS Facility Services, Inc., a workplace experience and facility management company, unlawfully denied an employee’s reasonable request for an accommodation for her disability and then fired her because of her disability and in retaliation for requesting an accommodation. 

According to the lawsuit, the employee, who has chronic obstructive lung disease and other physical impairments, worked as a Health, Safety & Environmental Quality Manager at a company facility. Beginning in March 2020 and through June 1, 2020, the Company required all of its employees to work remotely four days per week due to the COVID-19. Beginning June 1, 2020, the Company required all employees to return to working five days per week. The employee then requested an accommodation to work from home two days per week and to take frequent breaks while working onsite due to her pulmonary condition, which made her high-risk for contracting COVID-19. Although the Company allowed others in the same position to work from home, it denied the employee’s request and, shortly thereafter, fired her.  

Generally, an employer is not required to provide an employee with the specific accommodation requested, but may offer alternative accommodations, so long as the accommodation provided is effective, which should be discussed during the ADA interactive process to determine whether there are alternatives to, for example, working from home, e.g., proper social distancing. Unless a job indisputably cannot be performed at home, employers should engage in the the interactive process to determine whether working from home is a reasonable accommodation that does not pose undue hardship on the operations, and whether any alternative accommodations would be effective.  

The COVID-19 pandemic has already demonstrated in many instances that certain positions not previously seen as remote positions can be effectively performed at home, creating a renewed focus on and need to reassess the reasonableness of such requests for an accommodation. 

An empoyee who prevails in a wrongful terminaton case, based on discrimination, retaliation or harassment claim, is entitled to recover unvested stock options among other damages. Scully v. US WATS, Inc. (3d Cir. 2001) 238 F.3d 497. Just like lost future salary, the value of stock can be considered compensation that the employee would have received in the future, had he not been illegally fired. Having a schedule of vesting is of course helpful in calculating that part of employee's damages. The California Supreme Court also recognized that stock awards are considered wages under California law. Schachter v. Citigroup (2009) 47 Cal. 4th 610, 619.     

Courts have developed methods for assigning value to stock in both employment cases as well as business disputes. Valuation methods include using the stock's highest market value within a reasonable period or valuing the stock on the date of the breach of the obligation or wrongful termination. Some courts take a combined approach, basing the value of the equity as the market price of the shares on the date the employee tried to exercise their shares. In other cases, the courts have denied employees' lost equity beause it was too speculative, where, for instance, the date of potential sale of a stock that never took place is virtually impossible to determine. Jaros v. LodgeNet Entm’t Corp. 294 F.3d 960 (8th Cir. 2002).

In some cases, an employer can be ordered by court to issue equity due. This particularly applies to closely held corporations that issue their employees equity of value that cannot be ascertained and where the stock is not publicly traded. Kramer v. Puracyp, Inc. (Cal. Ct. App. Mar. 17, 2017) 

In disovery, it is important to seek information from the employer regarding the valuation of the company, including any 409A valuations conducted by the company, and valuation of the company provided for insvestors.  If a court is unable to determine the value of the stock, the law provides the alternative of specific performance. This is particularly appropriate where the company's stock is not publicly traded. 

Let's say you work at a company, where the employer ends up not paying you correctly and owing you a significant amount of money. Should you necessarily quit that job as soon as possible? 
- In some cases, for strategic reasons it's better not to quit or at least not to quit that job right away. Instead, you should consider filing a wage claim or a lawsuit for unpaid wages. In the likely event the your employer retaliates against you for filing that case, you will also have a retaliation and wrongful termination case against them. This will provide you with additional leverage to negotiate a more favorable settlement or do better at trial if your case goes that far. On the other hand, if you quit, you will obviously not have any type of wrongful termination case, because no termination took place.   

Of course, your decision whether to quit and when will depend on other personal factors, including the prospects of you taking a new and better job, whether you can temporarily hold on to two jobs, and other factors. However, if for instance you are working from home, quitting will probably not be that urgent and you should at least stick around till your employer learns about your claim to "give them some time" to retaliate against you. 

Lay-offs because of Covid are an opportunity for some employers to try to get away with illegal age discrimination. They are hoping to "lay off" their older workers and replace them with younger employee right away or after a short period of time under the guise of slow business and challenging economic times. This is especially temping during harder economic times, when so many employer wish they could replace higher paid workers, with more junior workers for a significantly lower pay.    

The signs of age discrimination in these types of layoffs are similar to that in any other layoff:

(a) you are the oldest worker in your group or you are substantially older than most others (you don't necessarily have to be the oldest one); 
(b) you have been performing your job well or even better than anyone else, and/or you have been employed with the company for a long time or longer than everyone else in your team;  
(c) you are the only one who has been selected for the lay-off, or the employee who have been selected for to be laid off are generally older than others; 
(d) the criteria provided to you by the employer as to how they selected who will be laid off either doesn't makes sense or is simply untrue. 

If two or more of the above factors are present in your situation during the supposed Covid related lay-off, age discrimination might be at play in your layoff. 

The New California Labor Code section 432.6 prohibits employers from requiring applicants for a job or employees to agree to waive their right to file a claim with a state or law enforcement agency or a lawsuit for violation FHEA or labor code violation as a condition of employment or continuing employment. This law also precludes employers from threatening, retaliating, or discriminating against any employee or applicant who refuses to agree to waive their right to filing a claim or a lawsuit for FEHA violation or labor code violations as a condition of continuing employment.

This new prohibition applies to any contracts for employment entered into, modified or extended on or after January 1, 2020, but does not apply to post dispute settlement agreements or negotiated settlement agreements. This means that the employer can continue to lawfully require an employee, as a condition of receiving severance, to sign a severance and release of all claims agreement which will contain a mandatory arbitration provision. Likewise, when parties settle their dispute, it will continue to be lawful to require as a condition of that settlement, to arbitrate any disputes arising out of or related to complying with the terms of that agreement. 

It's important to note that this law doesn't prohibit entering into mandatory arbitration agreements with regard to FEHA and labor code violation claims. This law simply precludes employees from requiring them as condition of employment, or retaliating against employee who choose not to agree to arbitration. 

One of the most common mistakes that people make when going into business with their close friends or relatives is not having a partnership agreement in writing. They feel that they trust each other, and they don't want to suggest that they doubt each other by enter into any written agreements. This leads to all kinds of disputes all too often. Ironically, these disputes tend to be far nastier than similar disputes between partners who otherwise didn't have a close personal relationship. Since the expectations from friends and relatives are higher and involve more personal emotions, any type of dispute becomes more personal and tend to feel not just like a business issue but also like some sort of betrayal by someone who you are so close with. 

Therefore, you must have a written business agreement in place with your business partner/s no matter who they are, and no matter how long you have known each other. When you suggest signing an agreement, which you absolutely should, there should be no reason for you to be embarrassed of it, and there should be no reason for other partners to be offended by it. All the partners should understand that the reason that you are signing the agreement is not because you don't trust each other, but because each one of you wants to be clear about your respective rights, obligations, and expectations.

The primary purpose of your agreement is not to prevent you from deceiving each other (that can never be 100% prevent) but to avoid any misunderstanding and ambiguities about the rights and obligations of each partners. The more specifically you outline what each partner must do and what he is entitled to, the more clear you will be about your partnership, and the less likely you are to have any type of disagreement due to not being on the same page, or due to simply not remembering what you agreed upon when you started working together. 
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A typical sign-on bonus language in an employment offer letter will state that an employee's compensation is to include a "one-time, discretionary sign-on bonus in the amount of $x". The most common issue relating to sign-on bonuses is related to repayment obligations.

To minimize the likelihood of disputes over repayment of a hiring bonus, employers should clearly outline their employees' repayment obligations in the offer letter. The following language can be used as a guideline:  "Employee agrees to repay this bonus payment in full, shall he resign or be dismissed for cause prior to one-year anniversary of his employment with Company". This type of language protects the employer's right to repayment, and it also protects the employee on the other end of that agreement from having to repay the bonus, if he is terminated for insufficient performance, or some other reason lesser than serious misconduct or violation, or if that employee is simply laid off due to restructuring or reduction in force.   

The problem with the above bonus repayment language from an employee's perspective is that he could potentially work for almost a whole year and then have to repay the bonus, just because they quit right before that one-year anniversary.  To avoid this situation, an employee may request that the bonus repayment language be modified to include some type of pro-rata reduction in bonus repayment obligation.  A typical arrangement can be as follows: an employee's sign-on bonus repayment obligation is to be reduced by 1/12 after each month employment.    

The above terms are of course highly negotiable and the parties are free to agree on whatever bonus repayment terms they deem reasonable and acceptable. The important part is to clear about what these terms are and keep the above points in mind. 
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