Excited to see an attorney friend file Plaintiff’s suit in DAMORE v. GOOGLE. The case involves a male engineer who Google fired after he posted a provocative essay about gender differences. Dhillon Firm is San Francisco in representing Mr. Damore. Will be watching this one carefully!

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State Law Ignores Workplace Bullying

Wronged at Work!

STATE LAW IGNORES WORKPLACE BULLYING

By David Graulich, Esq.

Plaintiff’s Lawyer Says Employees Need Legal Remedies

As an attorney specializing in workplace law, there’s one type of phone call that leaves me distressed and frustrated. These calls come from the victims of workplace bullying.

The relentless stream of cruel comments, hostile actions and vicious teasing extracts a physical and mental toll on the target.

Sometimes an entire department will collaborate to make the target’s life miserable. The situation is even worse when the bully has management responsibilities.

The reason these calls make me sad is that there is very little I can do to help. California workplace law does not recognize workplace bullying as a cause of action.

Although victims can complain to their company’s Human Resources department, there internal approaches usually don’t produce relief. A company can turn a blind eye to bullying and still remain compliant with the employment laws of California.

The situation changes if bullying crosses the line into harassment or discrimination based on protected characteristics such as race, national origin, religion or sexual orientation. These actions violate California’s employment laws. However, workplace bullies often know how to perpetrate their verbal and nonverbal acts of abuse without triggering the grounds for legal action.

California has taken a small step towards providing a legal remedy to this problem. In September 2014, Gov. Brown signed Assembly Bill 2053, which mandates that certain California employers provide workforce bullying training in addition to already-required sexual harassment training and education. The hope is that training will increase awareness of, and sensitivity to, the scale of the problem.

More is needed. Yet employers understandably worry that anti-bullying laws would open floodgates to nuisance litigation.

However, the law of sexual harassment demonstrates how the process can work to everyone’s benefit. Courts have interpreted sexual harassment actions to refine the focus of the law on authentic instances of misconduct. For example, the U.S. Supreme Court, in a 1993 decision, defined sexual harassment as “sufficiently severe or pervasive to alter the conditions of the victim’s employment.”

For employers who are losing productivity from bullied, demoralized and intimidated employees, anti-bullying laws would result in gains in workplace efficiency.

California has often led the nation in introducing enlightened labor and employment laws. I hope California will soon act again to thwart pernicious on-the-job bullying. Until then, the suffering will continue unabated for those who are targets of this abuse.

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David Graulich, Esq. is an employment lawyer who represents people who have been wronged at work. He helps clients with problems such as discrimination, harassment, and retaliation. David welcomes questions and comments about Wronged at Work! Contact him at David@wrongedatwork.com or (916)966-9600. Disclaimer: This column is not intended, and should not be construed, as an offer of legal advice. Consult a qualified licensed attorney for counsel on a specific legal problem.

Don’t Think Like……..A Lawyer!!

I’ll be teaching a class at the Sacramento County Public Law Library on January 16, 2015, on the subject of launching a solo law practice. The title of my talk is: Don’t Think Like a Lawyer!

I’m urging my audience to think like entrepreneurs who have licenses to practice law. In a declining market for legal services, the winners will be people who grasp the new realities of the legal industry and seize the opportunities created in this time of vast retrenchment.

You can find out more at the Web site for the Sacramento County Law Library [www.saclaw.org].

They Said I’m Too Old, So They Dumped Me

Wronged at Work!

THEY SAID I’M TOO OLD, SO THEY DUMPED ME

By David Graulich, Esq.

“I’m too young to retire….but I’m too old to get a job.”

A dilemma confronts millions of talented Americans. They are smart, experienced and ready to work. Yet they are jobless and unable to get hired due to their age.  Many of them worry that they are not only unemployed, but unemployable in a job market that has a fetish for youth.

Age discrimination is a widespread and destructive prejudice in today’s workplace. Job descriptions use code words such as “fun-loving,” “high energy,” or “recent college graduate.” Young, unmarried employees without children are more likely to work weekends, evenings and holidays at lower rates of pay. Employers believe that younger employees will lower the costs of health insurance. Years of experience, maturity and responsibility are perceived not as valuable assets but as excess baggage.

Here’s a comment from Mark Zuckerman, the 28-year-old founder of Facebook: “I want to stress the importance of being young and technical. Young people are just smarter.” A senior executive at Twitter, Melissa Daimler, told the Commonwealth Club in San Francisco that said she couldn’t comment on what older-generation workers want at their jobs because they don’t work at Twitter, nor does Twitter target them for hire. The average age of a Twitter employee, Ms. Daimler said, is 30.

A partner at a prominent venture capital firm in Palo Alto told a conference audience, “People over 45 basically die in terms of new ideas.”

I found similar comments from employers in the court records of recent age discrimination lawsuits:

— A director of sales said that the company needed “race horses, not plow horses,” and that the plaintiff’s sales techniques were unacceptable because they were “old school” and resulted from “a graying of the sales force.”

— The plaintiff was described as an “old geezer” who ““didn’t fit the mold of a young, aggressive type manager.”

— The plaintiff was told that management “was looking for younger, single people” and that “you wouldn’t be happy here in the future.”

Statistics suggest the scope of the prejudice. The state’s Department of Fair Employment and Housing (DFEH) tracks discrimination filings by categories. In 2002, DFEH recorded 3,282 complaints of age discrimination. In 2012, DFEH logged 5,605 age discrimination complaints, an increase of 71%.

One discharged employee who fought back in court was Brian Reid, a 52-year-old manager at Google who was fired nine days before Google announced plans to go public. According to his lawsuit, Reid’s supervisors called Reid a “poor cultural fit,” an “old guy” and a “fuddy-duddy” with ideas “too old to matter.”

Mr. Reid sued Google for age discrimination and asserted that his unvested stock options would have been worth at least $45 million if he had stayed there. The case ultimately settled out of court for an undisclosed amount.

Another case that I’m following closely is being argued in Alameda County. In May 2008, Lawrence Livermore Laboratories fired hundreds of experienced employees, including nuclear weapons scientists, researchers, assistants, and others with long years of service. Earlier this year, a jury awarded a $2.7 million verdict in favor of five ex-employees. The litigation is continuing with about 125 former employees, most aged 40 and over, as plaintiffs.

Both federal and California laws protect employees from age discrimination. The regulations apply to anyone over the age of 40 at the time of the discriminatory conduct, and apply to employers with five or more employees.

    The federal law is called the Age Discrimination in Employment Act of 1967 (ADEA).  California’s age discrimination laws are codified in Government Code sections 12940, 12945 and 12945.2. Remember that complaints of discrimination must be filed with DFEH within one year from the date of the discriminatory act. You can file your complaint yourself, or you can retain an attorney to file on your behalf.  After filing with DFEH, you can also choose to pursue a private lawsuit against the employer on the basis of age discrimination.

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David Graulich, Esq. is an employment lawyer who represents people who have been wronged at work. He helps clients with problems such as discrimination, harassment, and  retaliation. David welcomes questions and comments about Wronged at Work! Contact him at David@wrongedatwork.com or (916)966-9600. Disclaimer: This column is not intended, and should not be construed, as an offer of legal advice. Consult a qualified licensed attorney for counsel on a specific legal problem.

I Work Overtime — Why Don’t They Pay Me Overtime?

Wronged at Work!

I Work Overtime – Why Don’t They Pay Me Overtime?

By David Graulich, Esq.

At first glance, California’s overtime (OT) laws seem clear-cut. Eight hours of labor are one day’s work.  If a nonexempt employee works beyond eight hours in any work day, or more than six days in any work week, the employer is required to pay overtime. A work week doesn’t have to correspond to a calendar week.

OT rates are set by law. They are:

One and one-half times the regular rate of pay for all hours worked in excess of eight hours, up to and including 12 hours in any work day, and for the first eight hours worked on the seventh consecutive day of work in a work week.

Double the employee’s regular rate of pay for all hours worked in excess of 12 hours in any work day. Double rate also applies for all hours worked in excess of eight on the seventh consecutive day of work in a work week.

What appears clear-cut on paper is complex in reality. Overtime disputes, known as “Wage and Hour cases,” are a constant source of lawsuits in California between employers and employees.

So you are working OT but not getting paid OT. What’s going on?

One common problem is when employees are expected to work “off the clock.” Their labor beyond eight hours a day doesn’t get recorded or compensated. Timecards and timesheets are altered in furtherance of the scheme. Permitting or directing such activity violates the law, and exposes employers to substantial fines and penalties.

For example, imagine that a restaurant requires waiters and waitresses to clock out in the kitchen at the end of an eight-hour shift. Then, when the workers leave through the dining area, they are required to re-fill the salt and pepper shakers “off the clock.” This practice would be a violation of the Labor Code.

Another area of controversy: whether an employee is “exempt” or “non-exempt.” Exempt work is managerial, professional, and administrative, and involves independent judgment and discretion. Exempt employees have authority for hiring and firing other employees. Engineers, doctors, teachers, journalists and architects are examples of exempt professionals. (A lawyer who works all day and late into the night does not get paid overtime, as I know from painful personal experience).

In contrast, nonexempt employees are protected by OT laws. The presumption in California is that all workers are nonexempt unless shown otherwise.

Nonexempt employees are often referred to as “hourly” workers, but that is misleading. It is incorrect to say, “I’m on salary, so I must be exempt.” A worker can be paid an annual salary and still be nonexempt. In this situation, the base hourly rate for OT is calculated by dividing the annual salary by 52 weeks, and dividing again by 40 hours per week.

What if your job title says “Manager”? Does that alone make you exempt? The answer is no. California law is designed to protect people who are managers in name only—that is, given a fancy title to deny them overtime pay, but expected to “primarily” perform the work of nonexempt employees.

“Primarily” means more than 50% of the employee’s time. A frequent violation occurs in the retail industry, where a “store manager” has exempt responsibilities, such as re-ordering inventory and hiring associates. However, this “manager” spends more than 50% of his or her time in nonexempt tasks: cashiering, stocking, unloading pallets, hauling inventory into the storage room, mopping floors. These “managers” routinely work ten and twelve hour days, but are not paid overtime.

Then there’s the question of classification: are you an employee or an independent contractor (IC)? If you are an IC, you don’t get paid overtime, nor do you get meal and rest breaks.

Courts apply a wide range of factors to determine the correct classification: who provides the tools? Who sets the schedule? Is the work performed on-site or off-site? Does the worker perform the same labor for other entities? How much control does the person paying the money have over the person providing the labor? The more control that can be demonstrated, the more likely it is that the worker is an employee rather than independent contractor.

There’s much more to this controversy than I can cover here. If you want to learn more about California’s overtime law, a good place to start is the Web site of the Department of Industrial Relations (http://www.dir.ca.gov).

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David Graulich, Esq. is an employment lawyer who represents people who have been wronged at work. He helps clients with problems such as discrimination, harassment, and retaliation. David welcomes questions and comments about Wronged at Work! Contact him at David@wrongedatwork.com or (916)966-9600. Disclaimer: This column is not intended, and should not be construed, as an offer of legal advice. Consult a qualified licensed attorney for counsel on a specific legal problem.

Can They Make Me Sign A Non-Compete Clause?

Wronged at Work!

CAN THEY MAKE ME SIGN A NON-COMPETE CLAUSE?

By David Graulich, Esq.

I received an email a few weeks ago from a reader I’ll call Larry (not his real name):

Dear Wronged at Work: I am a salesman at [a local company]. I just gave two-weeks notice to my boss that I taking a sales job at another company. My boss is asking me to sign a non-compete clause before I go. Is a non-compete clause legal in California? Should I sign? Thank you in advance.  — Larry

There’s an unusual aspect here. Larry’s boss is asking him to sign the non-compete clause when Larry is leaving; most employees are confronted with these clauses when they are hired.  Larry’s boss has no leverage if Larry refuses. What’s he going to do – fire Larry?

Most of the time, non-compete clauses (also known as covenants) are encountered in the thick stack of papers from Human Resources when you show up for your first day of work. This is the pistol-to-the-head scenario: if I don’t sign, do I lose the job? Or does refusing to sign make me PNG (persona non grata)?

The good news for Larry – and for every working person in California – is this:

Employee non-compete clauses are void in California and cannot be enforced. The applicable statute is Business & Professions Code Section 16600. In keeping with California’s history as a place for risk-takers and fresh starts, the statute prohibiting non-compete clauses has been on the state’s books, in one form or another, since 1871.

Economists credit California’s strong policy against non-compete clauses with spurring the expansion of California’s high-technology industries. Most other states impose “reasonableness” standards, based on length of time and geography, that permit restrictions on ex-employees. California has spawned hundreds of spinoffs staffed with talent from such corporate “Mother Ships” as Hewlett-Packard, Lockheed and Genentech.  Massachusetts, which has a high-tech sector but which limits the job mobility of employees, has created relatively few spin-off companies compared to California.

Note that California’s policy applies to the employer-employee relationship. The rules are different if the situation involves a business owner who is selling a business. An acquirer can enforce a non-compete clause against the departing owner. This protects the good will of a business after a change of ownership, and prevents the seller from diminishing the value of the business that has just been purchased.

A company also has a right to protect its trade secrets. This is really a different legal issue, one that pertains to the commercial value of intellectual property, such as patents and proprietary information. In other words, you can compete like crazy against your former employer, but you cannot make off with trade secrets in order to do so. Customer lists are the subject of much bitter litigation. These lists may or may not qualify as trade secrets, depending on what data is contained with them, whether that data is generic or proprietary, and how the former employee uses the data.

Let’s get back to Larry. Assume Larry is starting his job and the employer insists that he sign a non-compete clause. Larry refuses and the employer fires him. Is this wrongful termination in California?

The answer is yes, based on D’Sa v Playhut (2000).  Playhut, a toy designer and manufacturer, presented Richard D’Sa with a document that contained a non-compete clause. Mr. D’Sa objected to the non-compete clause because such clauses are void in California. The employer insisted. When Mr. D’Sa again refused, he was fired.

Surprisingly, Mr. D’sa lost at trial.  The appellate court saw the law more clearly, thank goodness, and reversed the trial decision so that the winner was Mr. D’Sa.

“The issue is whether defendants can make plaintiff’s acceptance of the agreement a condition of his continued employment by firing him when he refused to sign it. We hold they cannot,” the Court declared, in a ringing victory for California workers.  “California law would protect plaintiff if defendants sought to overreach by trying enforce the covenant not to compete, and California law will also protect him from a termination of his employment brought on by his refusal to sign an agreement containing the illegal covenant.”

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David Graulich, Esq. is an employment lawyer who represents people who have been wronged at work. He helps clients with problems such as discrimination, harassment, and wrongful termination. David welcomes questions and comments about Wronged at Work! Contact him at David@wrongedatwork.com or (916) 966-9600. Disclaimer: This column is not intended, and should not be construed, as an offer of legal advice. Consult a qualified licensed attorney for counsel on a specific legal problem.