Employment Archives - Page 3 of 3

Sometimes employers and employees both find themselves saying, “Give me a break!”

Must an employer provide a rest break to a worker during the day?

The general rule is that a worker is entitled to a 10 minute rest break for every 4 hours work, and the employer must not prohibit the workers from taking such breaks. If the nature or circumstance of work prevent the employer from giving the break at the preferred time (i.e. in the middle of the 4 hour period), then the employee must still receive the 10 minute break at another time during the day.

But, an employee cannot unilaterally choose to take his 20 minute break any time that he or she wants. For example, an employee cannot pass on both breaks in an 8 hour day, in order to leave 20 minutes early. The employer can also require that the employee stay on the premises during his or her breaks.

If the employer does not allow a rest break, then the employee can file a wage claim against the employer and recover one hour of pay for each workday that a rest period was not provided. For large employers, the damages can spiral out of control very quickly.

About Adishian Law Group, P.C.

Adishian Law Group is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco. As of March 2013, Adishian Law Group, P.C. has represented individual and corporate clients located across 20 California counties, 4 States outside of California and 9 foreign countries — in over 340 legal matters.

For more information about this topic or to speak with Chris Adishian:

Does Sexual Harassment Include Sex?

There are two recent decisions that we believe may be very significant for Plaintiffs in wrongful termination actions, particularly gender-based claims.

In Miller v. Department of Corrections, California Supreme Court, July 18, 2005, No. 114097, the court was faced with a fact pattern wherein a prison warden promoted women who were having sex with him, but did not promote women who were not having sex with him. On those facts, the court held that the women who were NOT having sex with the warden, and were being denied promotions, had standing to sue for sexual harassment.

In Christopher v. National Education Association, 05 C.D.O.S. 799, the 9th Circuit reversed a lower court’s dismissal of an action wherein a manager was accused of “shouting, screaming foul language, invading employees personal space, and making threatening gestures,” and held that the manager may be sued for gender discrimination under Title VII of the 1964 Civil Rights Act.

When we look at these cases, in conjunction with the widely acknowledged truism that “Since 2000, California employment law has diverged from federal law even more dramatically with California law being more favorable to employees…” (Rutter, Employment Law), it begins to look very difficult for a Defendant to obtain summary judgment on a gender-related claim in Federal court, and even more difficult in the California court system. It does not take much of a logical leap to apply this same rationale to other well-settled protected classes.

About Adishian Law Group, P.C.

For more information about this topic or to speak with Chris Adishian:

On August 3, 2006, the California Supreme Court ruled reversed an appellate court ruling that had reversed a trial court summary judgment on behalf of the defendant employer. The Appellate Court ruling would have allowed Plaintiff Dore to bring specific causes of action against his former employer. However, the Supreme Court’s decision, relying heavily on the express “at will” language in his employment contract, effectively denied any legal recourse to Dore.

Our view at the present time is that this case is not a material change to employment law in California. California is generally an “at will” state, meaning that an employer can fire an employee at any time, for any reason (i.e. no cause is required). However, that is not the end of the inquiry, as there are many causes of action that fall outside “at will” or trump “at will”. Fraud would be an example of the former, and a discriminatory firing of a protected class member would be an example of the latter.

Some of our colleagues representing employers believe that the recent Dore decision has somehow made California a “super at will” state. We don’t read it that way. Our view is that the Dore decision simply stated that absent a legal theory outside of the underlying at will employer-employee relationship, “at will” shields the employer. In Dore the Plaintiff either lacked such claims, failed to plead such claims or lacked sufficient evidence to support such claims. Regardless, nothing we read in Dore seems to abrogate long established employees’ rights under California Public Policy, California Statute or Tort.

Dore’s specific claims included variations on two contract theories, two variations of fraud and one other tort of intentional infliction of emotional distress. In reaching its decision, the Supreme Court noted that the express language of the employment contract, signed by Dore, included unambiguous “at will” language, thereby defeating any contract claims. No surprise there.

In looking at the fraud claims, the Court noted simply that the record did not contain the requisite elements, by Dore’s own admission under deposition, to support his allegations under either fraud theory, and lacking such elements there presumably could be no intentional infliction of emotional distress (although the court did not address this point). We disagree with those who suggest that the Court held that “at will” now trumps fraud.

Based on the foregoing, we view Dore as an opportunity for the Court to refine the meaning of “clear and unambiguous” with respect to the admissibility of parole evidence to clarify and employment agreement with an express “at will” clause, and nothing more. Dore v. Arnold Worldwide, Inc. (2006), Cal.4th [No. S1224494, Aug. 3, 2006.] (7-0, 2 concurring opinions).

About Adishian Law Group, P.C.

For more information about this topic or to speak with Chris Adishian:

Have you been fired from your job? Do you believe that your termination was wrongful? Would you like to file a wrongful termination complaint against your former employer? Does your employment agreement contain an arbitration clause? What is arbitration? Does an arbitration clause preclude you from filing your claim in court?

What is Arbitration?

Arbitration is the most traditional form of private dispute resolution in which a neutral third party (ie. the arbitrator – who is usually a retired judge or attorney) renders a decision after a hearing at which both parties have an opportunity to be heard. Arbitration is designed to avoid the formalities, delays, expenses, and vexation of ordinary litigation (Black’s Law Dictionary, 6th Ed.).

Arbitration Clauses in Employee Agreements

Many individuals who have endured an injustice at the workplace seek remedy through the courts. However, many employment agreements contain an arbitration clause. Arbitration clauses, in general, stipulate that if there is any dispute or disagreement related to the employment (eg. claims of discrimination, wrongful termination, claims of harassment, etc.) both the employer and employee agree to submit the dispute to binding arbitration pursuant to the California Arbitration Act (California Code of Civil Procedure §1280, et. seq.). The decision reached at the end of an arbitration hearing is final and binding

But the simple inclusion of an arbitration clause does not necessarily preclude access to the courts. If a court finds that the employment agreement is an “unconscionable contract,” the court can refuse to enforce the arbitration clause (California Civil Code §1670.5(a)).

Validity of Arbitration Clauses

So what constitutes an unconscionable contract? In brief, a contract is unconscionable if it is an “adhesion contract,” which is to say that there is no equal bargaining power, no real negotiation, and an absence of meaningful choice (Ellis v. McKinnon Broad, Co. (1993); American Software, Inc. v. Ali (1996); Circuit City Stores v. Adams (2001)). Under California law, unconscionability consists of two components: (1) procedural; and (2) substantive.

Firstly, the procedural element focuses on two factors: oppression and surprise. Secondly, the substantive element focuses on “overly harsh” or “one-sided” terms within the contract (A&M Produce Co. v. FMC Corp (1982)). Arbitration clauses must meet certain requirements to be lawful, including “provid[ing] for more than minimal discovery,” and “not requir[ing]] employees to pay either unreasonable costs or any arbitrator’s fees or expenses as a condition of access to the arbitration forum” (Armendariz v. Found Health Psychcare Servs. (2000)).

What to do First?

Both procedural and substantive unconscionability must be present before a court will refuse to enforce a contract and its arbitration clause. If you believe that both are present in your case, or simply would like legal analysis, we recommend that you consult an attorney, who should b able to advise you of your choices.

[Many thanks to our friends at the Judicial Arbitration and Mediation Services (JAMS) for source materials on this topic.]

[Case References: Ellis v. McKinnon Broad, Co. (1993) 18 Cal.App.4^th 1796, 1803; American Software, Inc. v. Ali (1996) 46 Cal.App.4^th 1386, 1390; Circuit City Stores v. Adams (2001) 532 U.S. 105, 119; A&M Produce Co. v. FMC Corp (1982) 135 Cal.App.3d 473, 486-87; Armendariz v. Found Health Psychcare Servs. (2000) 24 Cal.4^th 83, 114]

[CA Statute References: California Code of Civil Procedure §1280; California Civil Code §1670.5(a)]

About Adishian Law Group, P.C.

For more information about this topic or to speak with Chris Adishian: