An employer “knows an employee has a disability” when (1) “the employee tells the employer about his condition,” or (2) “the employer otherwise becomes aware of the condition, such as through a third party or by observation.” Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 887. When neither the employee nor a third party informs the employer of the disability, California law imposes a much higher standard. In that situation, knowledge will be imputed to the employer based solely on its observations only when “the fact of disability is the only reasonable interpretation of the known facts.” Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1167.

This is a pretty difficult standard to satisfy. If an employee has not disclosed a medical condition or requested an accommodation, it is often challenging to prove that the employer should have recognized that unusual behavior or performance issues were caused by a disability rather than something else, especially when the condition at issue is mental rather than physical.

The post Is Your Employer Actually Aware Of Your Disability? appeared first on San Francisco Employment Law Firm Blog.

Under the Novato USD framework, the charging party must first establish a prima facie case by proving four elements: (1) The employee engaged in an activity protected by a labor relations statute enforced by PERB; (2) The employer knew of the employee’s protected activity; (3) The employer took an adverse employment action against the employee; and (4) There was a causal connection, or “nexus,” between the protected activity and the adverse action—that is, the protected activity was a substantial or motivating factor in the employer’s decision. (City of San Diego (2020) PERB Decision No. 2747-M, p. 26; City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 15.)

Once the charging party establishes a prima facie case, the burden shifts if the evidence also demonstrates a legitimate, non-discriminatory reason for the employer’s decision. In such circumstances, the employer may assert, as an affirmative defense, that it would have taken the same action even in the absence of the employee’s protected activity. The employer bears the burden of proving this defense by a preponderance of the evidence. (City and County of San Francisco, supra, at p. 15.)

The post Proving PERB Retaliation Claims in California appeared first on San Francisco Employment Law Firm Blog.

When our office evaluates a potential wrongful termination case, we certainly want to hear why the employee believes the termination was unlawful. However, we also want to know:

• What criticisms did your employer make about your work?

The post Wrongful Termination: Why the “Bad Facts” Matter appeared first on San Francisco Employment Law Firm Blog.

The post Three Types of Evidence to Prove A Retaliation Case in California appeared first on San Francisco Employment Law Firm Blog.

Can you sue them for fraud? In California, the short answer is almost always no — and understanding why reveals something important about the boundary between enthusiastic salesmanship and legally enforceable promises.

The doctrine of puffery: when words are just words

The post “We’re About to Blow Up” — Why a Recruiter’s Rosy Pitch Isn’t a Promissory Note appeared first on San Francisco Employment Law Firm Blog.

The post Preferring To Hire H1B Visas Holders over US Citizens is Illegal appeared first on San Francisco Employment Law Firm Blog.

Workers in California often assume that because religious beliefs are private, they never have to explain anything about their religion when requesting a workplace accommodation. While it’s true that employers cannot demand intrusive details, many employees make the opposite mistake: they refuse to provide even the basic information needed for the employer to evaluate their request.

Under both Title VII of the Civil Rights Act and the California Fair Employment and Housing Act (FEHA), employees are protected from religious discrimination — but those protections only apply when the employee actually provides sufficient information for the employer to understand what accommodation is needed. Refusing to give essential information can legally justify the employer in denying that accommodation request.

Even though employers are generally not entitled to challenge, criticize, or judge your religion, they are entitled to confirm that the request for accommodation is religious in nature, what the conflict is between the belief and a job requirement, and evaluate various options for a reasonable accommodation. While you don’t have to share your life story or detailed theological explanations for your beliefs,  you also can’t take the position of “my beliefs are private, and I don’t have to tell you anything” when you request an accommodation. In fact, this type of approach will almost guarantee a denial of that accommodation request, and legally – the employer will likely be justified in doing so.

The post Avoid This Mistake When Requesting Religious Accommodation appeared first on San Francisco Employment Law Firm Blog.

1. Terminating an employee without consulting an attorney about the circumstances of that termination. Just because you believe that you have valid reasons for terminating an employee, who also happened to be “at will”, doesn’t mean that the same employee won’t be able to make it look like he was fired for an unlawful reason. Suppose you fire someone for poor performance, but that employee happened to complain about sexual harassment, or he filed a workers compensation claim just a few weeks or even a few days earlier. Will you be able to show, given this suspect timing, that the true reason for termination was in fact his performance, and it wasn’t retaliation? Or suppose you lay off a minority employee due to your changing needs or budget issues, but then just a couple of weeks later you get a new (and unexpected) round of funding and you post the same position back on Linkedin and end up hiring a white employee. Will that laid off employee come back and claim racial discrimination? These are just a few random examples of how a seemingly just termination can look less than entirely lawful. Consulting a reputable employment lawyer about your termination decisions before making that decision can make a difference between having a clean break-up with the employee in question v dealing with the stress, the expense, and the hassle of litigation. Remember – what matters is not what actually happened from your perspective, but what the employee can prove happened or most likely happened given all the surrounding circumstances.
2. Misclassifying an employee as exempt v hourly. To be salaried and exempt from overtime pay in California, your employee has to satisfy very specific requirements. In the context of tech start-ups, the most common exemption is an executive /  managerial exemption. However, just because you label someone at your company as a manager, doesn’t mean that that employee is correctly classified as exempt, unless over half of his job duties actually involve managerial work. This type of misclassification can be particularly costly, if that employee frequently works more than 8 hours per day without being paid overtime, which is very common in start-ups, and who will later be able to claim that he worked hundreds of fifteen-hour days for which he wasn’t paid correctly.

The post Five Costly Legal Mistakes California Startups Should Avoid With Their Employees appeared first on San Francisco Employment Law Firm Blog.

FEHA & Reasonable Accommodation Basics

FEHA requires California employers with five or more employees to provide reasonable accommodations to qualified employees with disabilities, unless doing so would impose an “undue hardship”. Reasonable accommodations may include changes to job duties, modified work schedules, assistive devices—and yes, in some cases – remote work.

The post Remote Work as An Accommodation To An Employee’s Disability Under California Law appeared first on San Francisco Employment Law Firm Blog.

The post Avoid This Mistake When Asking Your Manager or HR for Anything appeared first on San Francisco Employment Law Firm Blog.