| Blog - 2009 blogs |
| Written by Jason Erlich |
In an August 2009 decision, California’s Supreme Court held that an employer may secretly videotape its employee’s workspace without notifying the employees in advance and that this conduct does not invade the employee’s reasonable expectation of privacy. (Hernandez v. Hillsides, Inc. (2009) 97 Cal. Rptr. 3d 274)
The employer, Hillsides Children Center provided residential facilities for neglected and abused children, learned that some of its computers had been used to access pornographic websites during late night and early morning hours. Although the plaintiffs, Abigail Hernandez and Maria-Jose Lopez, were not suspected of the illicit activity, their director set up a hidden camera in plaintiffs’ office. The camera was activated at night when the plaintiffs left work and was turned off before they returned the next day, and the surveillance lasted about three weeks. Notably, no inappropriate conduct was found during the surveillance and no suspect was caught. However when the plaintiffs discovered the hidden camera, they sued Hillsides for invasion of privacy and infliction of emotional distress.
The Court examined the extensive history of workplace privacy issues and prior case decisions which have held that (1) there must be a reasonable expectation of privacy which was invaded by the conduct, and (2) the conduct must be sufficiently serious or offensive as to breach social norms.
Under the facts presented, the Supreme Court first noted that the plaintiffs did have a reasonable expectation of privacy in their workspace even though they shared an office, other employees had frequent access to the office, and that the inside of the office could be viewed from the hallway. Nonetheless, the Court was more attuned to the second prong – that the videotaping was narrowly limited in place, time, and scope, was based on legitimate business concerns, and that the plaintiffs were never actually videotaped during working hours.
Interestingly, the Court did not require that employer use the least intrusive means to curtail the alleged conduct. As noted in the decision, the employer could have stopped the pornographic website viewing by simply requiring all employees to log off of their computers at the end of the day. But, more importantly, the Court did not suddenly open the door for employers to secretly videotape employees: “Nothing we say here is meant to encourage such surveillance measures, particularly in the absence of adequate notice to persons within camera range that their actions may be viewed and taped.”
This decision provides a cautionary tale for both employers and employees. California employers must be very careful in deciding to monitor their employees’ activities where there is no legitimate business need. California employees can still take heart that even in a private place of business they have reasonable expectation of privacy in their workspace and may not be arbitrarily monitored by their employer. |
| Blog - 2007 blogs |
| Written by Jason Erlich |
Beginning February 5, 2007, all employees who work within the San Francisco city limits are entitled to one hour of sick leave for every 30 hours worked. The sick leave may be used to care for the employee, a family member (which includes parents, grandparents, children, grandchildren, siblings, and spouses or domestic partners) or to take a family member to medical appointments. Single employees may designate one person and take their sick leave to care for this person.
The new sick leave policy, however, is capped based on the size of the employer. For employers with less than 10 employees, employees are capped at five sick days per year, and for employers with more than 10 employees, the employer may cap at nine days per year. Accrued sick leave may be carried over from year to year, however, it is limited to the caps noted above. Employees hired before February 5, 2007 may begin accruing the sick leave immediately, and employees hired after that date begin accruing leave 90 days after their hire date. Sick leave, unlike vacation, may not be cashed out upon employment separation.
Employers who fail to provide the sick leave may be subject to penalties including fines up to three times any unlawfully withheld sick leave, $50 for each hour withheld, attorneys’ fees and interest. |
| Blog - 2010 blogs |
| Written by Jason Erlich |
One of the key provisions of FMLA/CFRA leave is the right to reinstatement to the same or comparable position after the leave.
A “comparable position” is defined as a position which is “virtually identical to the employee's original position in terms of pay, benefits, and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. It must be performed at the same or geographically proximate worksite from where the employee was previously employed. It ordinarily means the same shift or the same or an equivalent work schedule.”
The employer is not required to reinstate an employee if the employee’s position has been eliminated for legitimate business reasons unrelated to the leave. For example, a company downsizing or reorganization may be considered legitimate business reasons. Also if the employer has legitimate reasons to terminate the employee, then reinstatement is not required. The employer has the burden of proof to show that the employee would not have been reinstated for a legitimate business reason.
Also, there is no undue burden or undue hardship defense to FMLA/CFRA leave (in contrast to reasonable accommodation requests). An employer cannot deny FMLA/CFRA leave to an eligible employee simply because they think that the employee’s absence will cause an economic hardship or will be difficult to fill the employee’s job duties.
Key employees. Certain employees, known as “key” employees, may be denied reinstatement. To be categorized as “key,” the employee must be in the top ten percent of their pay scale for all employees within 75 miles of their worksite. The employer must also establish that reinstatement would cause significant economic injury to the operations of the employer. However, prior to taking leave, the employer must notify the employee of this “key” designation and the possibility that the employee will be denied reinstatement. Nonetheless, the employer still must provide 12 weeks of leave with full health coverage even if a key employee is denied reinstatement. And if the “key” employee is out on leave, the employer must give the employee a reasonable opportunity to return to work. |
| Blog - 2009 blogs |
| Written by Jason Erlich |
In the latest installment of California's fair competition law, an appellate court provided additional guidance about the scope and extent that employees can solicit clients of their former employer.
In the case of The Retirement Group v. Galante, a group of former employees for the Retirement Group (TRG) joined a competing firm and began contacting their former clients some of whom transferred their brokerage accounts. TRG sued the former employees and received an injunction prohibiting the former employees from “directly or indirectly soliciting any current customers to transfer any securities account or relationship . . .” However, a second clause in the injunction stated that the former employees could not use any information which was found “solely and exclusively” on TRG databases. The former employees appealed the injunction as unfairly limiting their right to compete with TRG because in essence they could not contact any brokerage clients without running afoul of the injunction.
Previous cases have established that customer lists could qualify as a trade secret if the employer took appropriate action to meet the trade secret qualification (i.e. the list has independent economic value providing a substantial business advantage, is not generally known to the public, and reasonable steps are taken to protect its confidentiality). However, if the information on the customer list was available from public sources (e.g. business directories) or if the employer had not taken sufficient steps to protect the list (e.g. lists were in employees personal possession), then the customer list was not likely to be considered a trade secret.
Further, a line of cases had found that an employer could prohibit former employees from soliciting clients either through a contractual relationship (e.g. pre-employment non-compete agreements or a severance agreements). Well settled law had held that former employees could announce the opening of a new business or the joining of a new employer, and that it was within fair competition if the clients jumped ship.
Now, under a series of decisions (most notably Arthur Anderson v. Edwards and the current decision) courts seem to be leaning towards a view that former employees can freely contact and even “solicit” clients of their previous employer as long as the source of information is not a trade secret. As the decision noted, “[I]t is not the solicitation of the former employer's customers, but is instead the misuse of trade secret information, that may be enjoined.”
Thus, a word of caution for employers and employees – merely asserting that a customer list is “confidential” or “proprietary” is no longer good enough to prohibit former employees from contacting clients if the employees go on to a competitor. For employers, a careful review of any confidentiality or non-compete agreements is required to ensure that any clauses do not violate the new unfair competition landscape. And for employees, so long as the customer list is not a trade secret, it appears that openly contacting clients is permitted. |
| Blog - 2007 blogs |
| Written by Jason Erlich |
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A recent California court decision has narrowed the scope of enforceable “covenants not to compete.” California, unlike many other states, severely limits the ability of an employer to prevent former employees from taking a position in with a competing business. California Business & Professions Code § 16600 prohibits any contract which restrains a person from engaging in a lawful profession, trade, or business.
In Edwards v. Arthur Andersen LLP, Mr. Edwards, a former employee, agreed not to solicit Arthur Andersen’s clients after his departure. In seeking new employment, Mr. Edwards’ new firm (HSBC) required that he obtain a waiver from Arthur Andersen as a condition of employment. Arthur Andersen demanded that Mr. Edwards sign a general release in exchange for waiving the covenant. Edwards declined to sign the general release and sued Arthur Andersen for interference with his potential new job.
The court decided in California covenants not to compete will only be enforced if necessary to protect a company’s trade secrets or if signed as part of the sale of business. The court rejected a line of cases, mostly decided by federal courts interpreting California law, which had allowed covenants not to compete so long as a “substantial portion of the market” was still available to the employee.
For employees, this means that any employee non-disclosure or confidentiality agreement that attempts to restrain the employee from soliciting customers, competing against the former employer, or otherwise seeking new employment are void and unenforceable unless necessary to protect a trade secret. Trade secrets are a very narrow subset of information and much employer information does not meet the definition of trade secrets. Further, if the employer attempts to enforce an invalid non-disclosure or confidentiality agreement, then the employer may be liable for tortious interference with the employment relationship.
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| Blog - 2010 blogs |
| Written by Jason Erlich |
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For California employees, both the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) provide up to 12 weeks per year of job-protected, unpaid leave because of:
- (1) the employee’s serious health condition, or
- (2) to care for an immediate family member (spouse, child, parent, or, in California, domestic partner) who has a serious health condition, or
- (3) for the birth or adoption of a child or for the foster care placement of a child; or
- (4) certain situations for active duty military members and their immediate family members
“Serious Health Condition“
One of the key phrases in FMLA or CFRA leave is that the leave time must be taken to treat a “serious health condition.” Serious health conditions include:
- An overnight stay in a hospital
- Being incapacitated for 3 or more consecutive days, and (i) receiving two or more treatments by a health care provider within 30 days, or (ii) continuing treatment under the supervision of a health care provider
- Taking time to treat a chronic health condition such as asthma, diabetes or epilepsy which requires periodic treatments for an extended period of time
- Conditions which require multiple treatments such as cancer treatments (e.g. chemotherapy or radiation), severe arthritis, kidney dialysis, or restorative surgery
- Pregnancy. Under the FMLA, pregnancy is a serious health condition if the employee is unable to work. However, in California, the right pregnancy leave, even if the woman is able to work, is protected under the Pregnancy Disability Leave Law.
It is important to note that many routine illnesses are not “serious health conditions.” For example, ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, and routine dental problems or diseases do not meet the definition of a serious health condition and do not qualify for protected medical leave.
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| Blog - 2009 blogs |
| Written by Jason Erlich |
A common dilemma faced by many employees is a variation of this theme: “my supervisor or my co-workers are making my work life miserable. I feel harassed, demeaned and put down all of the time. I don’t think I can continue to work there. Can I just quit?” When confronted with a harassing, unkind, or simply unjust supervisor (or even demeaning co-workers) many employees ask themselves, should I continue to put up with this? Of course, no one should have to work in an environment where their contributions are not credited or where their co-workers make it a drag to go to work every day. Nonetheless, for persons facing a sexually harassing hostile workplace or discriminatory environment, the decision to quit can be complicated and have a dramatic effect on any future lawsuit or claim.
The legal buzzword for quitting your job because of intolerable working conditions is “constructive discharge.” In a constructive discharge scenario, although the employee is the moving party separating the employment relationship, courts have recognized that the employer created or allowed intolerable working conditions which were so serious that the employer effectively terminated the employment relationship. In California, proving that an employee’s decision to quit was in reality a “constructive discharge” is quite a bit more difficult than most people might assume.
Many years ago the California Supreme Court held that a constructive discharge occurs when “the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign.” The intolerable conditions must be either unusually aggravated or amount to a continuous pattern of objectionable conduct. Generally a single incident would not be enough to substantiate a constructive discharge violation; however if the conduct is “sufficiently extraordinary and egregious” such that a reasonable employee would not remain on the job to earn a livelihood then a constructive discharge could occur.
In certain situations, lower courts have found intolerable working conditions, for example: a continuous pattern of sexual harassment; a supervisor who continuously yells and screams, threatens to fire the employee, and makes unfair and harsh criticism that remains uncorrected by upper management; or a supervisor’s campaign to fire an employee by frequently reassigning job duties and fabricating documentation. In sum, there must be objective evidence that the conditions were intolerable and that a reasonable person “in the shoes” of the employee would not tolerate the conditions.
The decision to quit your job, especially in tough economic times, can be quite important. So rather than assume that a jury would easily find that your workplace was “intolerable” make sure there is sufficient evidence, history and continuous conduct to support your decision to leave your employer. |
| Blog - 2010 blogs |
| Written by Jason Erlich |
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There are four common defenses to defamation claims: privilege, consent, truth and opinion. This entry will discuss the most widely employed defense to workplace defamation claims – absolute and qualified privileges.
Absolute Privilege. An absolute privilege relieves the defendant or employer of any liability or responsibility for defamatory statements, even if the statements were published with malice. For example,
• statements made by an employer in the course of “official proceedings” such as unemployment hearings, wage claims, or discrimination investigations, where the statements are related to such proceedings
• statements made in an arbitration under a collective bargaining agreement that are not published to persons lacking a legitimate interest in the proceedings
• statements made during a legally required background inspection of a potential employee
• statements made during any governmental or quasi-judicial proceedings (which include statements made to the police as part of an investigation into criminal activity)
Qualified Privilege. A qualified privilege, on the other hand, would relieve the defendant or employer of liability or responsibility if the statement was made without malice. “Malice” requires showing that the defendant harbored ill will toward the plaintiff or that the defendant lacked reasonable grounds for belief of the statement or publication. For example, qualified privilege has been found to apply in certain circumstances:
• Statements made in employee evaluations, performance reviews, or appraisals. Unless the evaluation falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics or behavior, a bad performance review will not be the basis of a libel suit. The qualified privilege has been held to apply even when the employer’s evaluation was objectively wrong and could not be “supported by reference to concrete provable facts”
• Statements made by an employer in employment references. Section 47(c) of the California Civil Code allows an employer to disclose certain information about a person's employment to interested parties including a potential new employer. For example, references and any other information a previous employer communicates, upon a potential employer's request, that relate to the employee's “job performance or qualifications” and whether the former employer would rehire the employee
• Co-Workers. In general, employees may not sue co-workers for defamation based on their conduct relating to “personnel actions” such as terminations, performance evaluations or work assignments
• Discussions about employee grievances and resolving the grievance
• Discipline or discharge letters
More information on consent, truth and opinion defenses can be found here.
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| Blog - 2010 blogs |
| Written by Jason Erlich |
In the realm of workplace defamation claims, the aggrieved employee (or plaintiff) needs to show that the slanderous (spoken) or libelous (written) comments harmed the reputation of the employee. There are five basic elements to a defamation claim - defamatory content, publication, the statements refer to the plaintiff, with intent, and harm.
However, some statements, because they are so naturally and obviously harmful, are considered per se defamatory. In defamation per se claims the plaintiff does not have to prove actual injury to reputation because the harm to the plaintiff is presumed. The plaintiff still has the burden to establish the other four elements even if he does not need to prove harm or damages. In California, there are four recognized categories of defamation per se statements:
• the plaintiff committed a crime
• the plaintiff has an infectious, contagious, or loathsome disease
• the plaintiff is impotent or “want of chastity”
• statements which imply that the plaintiff is unqualified to his engage in his profession, trade or business
Many employment defamation cases fall into the last category – statements about the employee’s professional reputation, job performance, or competence. For example, defamation per se may arise if an employer made statements to individuals, whether inside and outside of the employment setting, that the employee was “incompetent,” “lacking ability” or any statement which implies that the plaintiff cannot perform his employment occupation. Nonetheless, defamation per se only eliminates the plaintiff’s obligation to prove damages, the other defenses and qualifications to defamation claims still apply. |
| Blog - 2010 blogs |
| Written by Jason Erlich |
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Since many terminated and current employees ask about it, I thought I might dive into the treacherous waters of defamation in the workplace. Defamatory conduct in the workplace may occur, for example, when a discharged employee is removed from an employer's premises by security personnel, creating the false impression that the employee had committed a crime. Other times, a terminated employee may find out that a former employer is making, what the employee feels, are false statements about how the employment relationship ended or how the employee performed.
Let’s start with some basics - defamation is the unprivileged publication of a false statement tending to harm the reputation of another person. The elements necessary to prove defamation are:
- First, the content of the communication must be false, must contain an assertion of fact, not an opinion; and must reasonably be understood as negative.
- Second, the communication must be “published” which essentially means that the statement was: (a) written (libel) or spoken (slander), (b) by the employer or its agent(s), (c) to at least one other person (not the plaintiff), and (d) the recipient understood the statement.
Publication occurs when a statement is communicated to any person other than the party defamed. Publication may occur when one supervisor makes a false statement about the employee to another supervisor (e.g., a statement made by an employee's former supervisor to his current supervisor that plaintiff had “misused company funds” was found to satisfy the publication requirement.)
- Third, the employee must show that the statement or conduct referred to him or herself. There is no requirement that the statement refer to the person by name. A statement “refers" to an employee even if the recipient of the communication mistakenly, but reasonably, understands that the statement was intended to refer to the defamed party.
- Fourth, intent or “malice” may be required to overcome many of the qualified privileges granted to employers.
- Finally, the employee must prove that injury occurred because of the communication. Since defamation involves injury to reputation, the employee must show that actual damage has occurred to the esteem that the employee enjoys in his or her community. The one exception is defamation per se where no special damages need be proved.
Asserting and winning a defamation claim from conduct related to the workplace can be quite difficult given numerous privileges and qualifications.
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