San Francisco Employment Law Focus: Paid Sick Leave

In February 2007, San Francisco implemented its Paid Sick Leave employment law. Per the terms of the ordinance, contained in Chapter 12W of the San Francisco Administrative Code, employers doing business in San Francisco must provide its employees with one hour of paid sick leave for every 30 hours worked.

Paid sick leave may be used for the employee’s illness, injury, medical condition, diagnosis or treatment; and for time taken off by an employee to provide care or assistance to certain other persons for a medical reason. The employee can use paid sick leave to care for the following: child, parent, legal guardian or ward, sibling, grandparent, grandchild; and spouse, domestic partner, or “designated person.”

If an employee has no spouse or domestic partner, the employee may designate one person for whom they may use paid sick leave to provide care. A San Francisco employer must provide an opportunity for the employee to make a designation within 10 days of accrual of their first hour of paid sick leave. After that window of time, a San Francisco employer must provide its employees with an annual opportunity to name or change their designated person…

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Superior Court of San Francisco Budget Crisis Update

In a recent blog post, we informed our San Francisco employee clients about significant cuts in the budget for the Superior Court of San Francisco.

In that post, we were very concerned that the necessary overwhelming budget cuts would so impact court services that we would be forced to consider alternatives to filing employment law cases in the Superior Court of San Francisco.

While there are significant cuts still in effect, those cuts have been drastically reduced as a result of the court’s reorganization and an infuse of several million dollars in funding from the Judicial Council. Significantly, the Superior Court of San Francisco will only be forced to lay off 75 employees…

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Filing Your Administrative Charges of Discrimination, Retaliation & Harassment Online

In the course of providing our free initial consultation to our prospective clients in our San Diego, Orange County and San Francisco offices, we regularly field questions from prospective clients about their employment law claims including discrimination, retaliation and harassment.

In some cases, our clients have conducted research on their discrimination, retaliation and harassment in advance of meeting with us and have already taken steps to file their administrative charge(s) of discrimination, retaliation and harassment with the appropriate state or federal agency before meeting with us.

A Practical Approach For Our San Diego, Orange County & San Francisco Clients

For those clients who have not researched the issue, we typically advise those clients of their rights with regard to filing such charges. We normally recommend that our clients allow us to handle the filing of their charges, when they hire us to pursue their claims. This is due to the fact that our clients who are unfamiliar with the administrative process involved in filing such claims, can have a difficult time deciding on which administrative process to follow. The selection of an administrative process can be complicated and obtaining help at the outset of the claim can be instrumental in ensuring that all of your employment rights are protected…

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New Proposed California Employment Law Would Require Employers to Provide its Employees with Bereavement Leave

AB 325, a bill presented by Bonnie Lowenthal, is being considered by the California legislature and would require employers to provide up to 3 days of unpaid bereavement leave to employees upon the death of specified family members.

This proposed California employment law states that it would be an “unlawful employment practice for an employer to refuse to grant a request by any employee to take up to three days of bereavement leave upon the death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner.”

In order to be eligible for the leave, an employee must have been employed with his or her employer for at least 60 days prior to the death of the family member. The days of bereavement leave would not need to be taken consecutively and, in fact, can be taken up to three after the death of the family member.

A California employer could require its employee who is seeking leave to provide documentation regarding the family member’s death within the first 30 days after family members death…

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Those With Disabilities And Medical Conditions Should Obtain Help At The Earliest Possible Time

In Rogers v. County of Los Angeles, the Plaintiff Katrina Rogers returned to work after 19 weeks of medical leave only to learn that after a reorganization of her department, her position was filled by another employee and she was transferred to a new department.

At the time, Ms. Rogers had been employed by the County of Los Angeles for 36 years. In her lawsuit against the County of Los Angeles, Ms. Rogers alleged two distinct theories of liability. First, Ms. Rogers alleged that the county interfered with her right to medical leave by transferring her to a new position. Second, she alleged that the transfer amounted to retaliation. At trial, the jury returned a verdict in Ms. Rogers favor in the amount of $356,000.00.

The County of Los Angeles appealed the verdict, and upon appeal, the appellate court reversed the verdict. In reversing the trial court verdict, the appellate court concluded that there had been no interference with Ms. Rogers’ leave as she did in fact receive the entire 12 weeks of leave allowed her under the California Family Rights Act. Next, with regard to retaliation, the Court of Appeals determined that a transfer to a new position did not amount to retaliation against Ms. Rogers.

It is a rare occurrence for an appellate court to overturn a jury’s verdict, and to be clear, the decision is not a favorable one for California employees…

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Budget Cuts For The Superior Court Will Force San Francisco Employment Attorneys To Consider Alternative Venues

On July 18, 2011 the Superior Court of San Francisco issued a press release with the following warning:

Two hundred San Francisco Superior Court employees will receive their 60-day layoff notices this week as the Court prepares for an unprecedented dismantling of court operations with far-reaching public impacts, Presiding Judge Feinstein announced today. “The civil justice system in San Francisco is collapsing,” Judge Feinstein said. “We will prioritize criminal, juvenile, and other matters that must, by law, be adjudicated within time limits. Beyond that, justice will neither be swift nor accessible.”

The court warned of dire consequences for civil litigants…

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The Bad Reference: What Can Your Former Employer Say?

You’re fired! We have all heard Donald Trump utter this phrase on The Apprentice. But what happens when you have been fired?

What if it was for an untrue or unjustified reason? Or worse, what if you actually did something illegal or in violation of company policy that justified your termination?

Once you have recovered from the initial shock of your termination, it is time to get back out there and begin searching for a job. But with the black mark of a termination now on their record and the possibility of a bad reference, many employees are paralyzed with fear about what their prior employers are allowed to say to future employers. So what can your prior employer say?

California Employees Have Protection Against Misrepresentation In Employment References

The good news is that in fifteen years of practice, this type of claim surfaces much less frequently than people think. Unbeknownst to most people, the California Labor Code governs what your prior employer can and cannot say. Labor Code Section 1053 specifically states…

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The Jerk Boss Conundrum: What To Do? Part 2

So you have remained professional and calm and have met with your boss to request that the insulting abusive behavior stop, but the abuse continues. What now?

How To Fight Back Against Workplace Bullying

To the extent possible, document the behavior of your boss including detailed notes of what was said, the date and time of the statement(s) and anyone who was present. While it may not be practicable under the circumstances to contemporaneously take notes (and may anger your boss) as soon as the boss leaves your area immediately write down word for word what was said. This “journal” or calendar can be an invaluable tool for later recounting events to Human Resources or recalling events should you be terminated.

If you have requested that your boss stop harassing you and it continues or worse your boss is now retaliating against you, it is time to file a formal complaint with Human Resources. I can not stress enough that this complaint should absolutely be in writing and should be detailed and further should request a written response. The reasons for this are twofold…

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The Jerk Boss Conundrum: What To Do? Part 1

The childhood bully has grown up and is in a position of power. Petty insults, name calling, shouting, exclusion from events, and sabotage, are now daily occurrences.

In an alarming trend, more and more employees are subjected to daily abusive language and insults from a Supervisor. It is easy to feel helpless and powerless in such a situation. After all, you can’t complain to the very person you find objectionable right? And if you complain you will be fired right? This is the proverbial “catch 22” in that if you don’t complain you must continue to endure the harassment, but if you do complain you will inevitably be fired. If allowed to continue, The Jerk Boss abuse frequently results in significant emotional distress requiring medical care. So, what to do?

Tips On Dealing With Workplace Harassment

First, remain professional and calm in the face of whatever insults or harassment are being leveled at you. By remaining professional and calm you will not escalate the situation further or worse give the Jerk Boss ammunition to later accuse you of insubordination justifying a termination…

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Overtime For Inside Salespersons in California

For employees whose job duties primarily entail inside-sales, a recent California appellate decision has restricted, but in our opinion, left the door open, for such inside-sales personnel to make an overtime claim against their employers.

According to Labor Code Section 204.1, commission is defined as “compensation paid to any person for services rendered in the sale of such employer’s property or services and based proportionately upon the amount or value thereof.” However, the Court of Appeal in Areso v. Carmax (2011) 195 Cal.App.4th 996, interpreted Section 204.1′s definition of commission in a way that significantly broadened the previous definition of what constitutes commission/wages. As a result of such broadened definition, employees claiming designated as inside-sales personnel have some additional limitations in making claims for, and receiving overtime compensation.

In Areso, Ms. Areso and a class of Carmax inside sales representatives brought a class action lawsuit against Carmax. Those inside sales representatives sold used vehicles, warranty plans, and appraisals. At issue in the matter was Carmax’s pay policy for those inside-sales representatives. Until 2005, Carmax paid its sales representatives a flat $150 per sold car. Carmax later changed its commission plan to a formula based upon percentages, that ended up paying the sales representatives $154.00 per vehicle. Carmax also paid its sales personnel fixed sums for each warranty sold, each car leased, and other miscellaneous services.

Ms. Areso claimed that Carmax misclassified its inside-sales representatives as exempt from the payment of overtime due to the fact that the fixed rate Carmax paid per vehicle to its inside-sales representatives constituted a “piece rate” rather than a commission. On that basis, Ms. Areso believed she and all similarly situated sales representatives were entitled to (among other things) overtime compensation.

The Court of Appeal previously stated in Keyes Motors, Inc. v. Division of Labor Standards Enforcement, 197 Cal. App. 3d 557, 563 (1987): “Labor Code section 204.1 sets up two requirements, both of which must be met before a compensation scheme is deemed to constitute ‘commission wages.’ First, the employees must be involved principally in selling a product or service . . . . Second, the amount of their compensation must be a percent of the price of the product or service.” The state Supreme Court quoted this definition with approval in Ramirez v. Yosemite Water Co., 20 Cal. 4th 785, 804 (1999).

However, in Areso, the appellate court held that Carmax’s fixed payment…

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