Expanded Articles on Employment Law

FOUR STATE EMPLOYMENT LAWYER KARL GERBER, IN PRACTICE OVER 20 YEARS, AND AUTHOR OF OVER 300 ARTICLES ON EMPLOYMENT LAW LAUNCHES NEW WEBSITE INTENDED TO BE THE LARGEST RESOURCE FOR EMPLOYEES TO RESEARCH WORKPLACE INJUSTICES

In order to provide expanded coverage of lengthy articles on topics pertaining to employment law, I launched a new website called http://employeelawca.com.

The goal of the new website is to feature:

Detailed employment case examples

Excerpts of statutes on discrimination in employment

Live interviews with myself and other members of the Employment Lawyers Group

To publish charts and diagrams about the interrelationships of the various laws pertaining to employment litigation

To be the largest resource, written by an employment lawyer, available to the public in order to help them navigate difficult situations at work which might require an employment lawyer

Employees have many questions when they are considering a lawsuit against their employer. It is my hope the new website will improve the resources to California employees looking into suing their employer due to workplace injustice.

As a professional writer who has published over 300 different articles on employment law since approximately 1997, I look forward to covering all aspects of the workplace that may require the assistance of a labor lawyer.

For my complete biography and credentials as a labor lawyer, please see:

http://worklawyerca.com/employment-attorneys-sherman-oaks/

STATE LAWS ON NON-COMPETE AGREEMENTS ARE NOT UNIFORM

In California, it is inherently unlikely an employer can enforce a non-compete agreement (also known as a restrictive covenant). California Business and Professions Code Section 16600 is a specific legislative act that prohibits covenants that restrict somebody’s ability to work in their profession and earn a livelihood.

Massachusetts does not have an equivalent of California Business and Professions Code Section 16600. Massachusetts law on non-compete agreements is therefore diametrically opposed to California’s. In Massachusetts, non-compete agreement are usually valid except for exception. One exception is the agreement must be signed each time the employee becomes an employee of the employer. Quite possibly, the restrictive covenant must be signed each time the job materially changes. Obviously, a signed non-compete agreement is required in Massachusetts.

Boston is known as a technology and bio-science hub. The number of graduates from Boston’s many fine universities create pools of employees in industries where trade secrets are everything. Accordingly, non-compete agreements are common in Boston and surrounding communities.

Employees move on, especially young people. In the case of a somewhat recent university graduates, they might soon move back to their home state. Difficult questions sometimes arise when a court is asked to enforce a non-compete agreement written in another state.

I encourage other lawyers and employees to comment on their experiences with restrictive employment covenants in different states. Do not divulge confidential information, or attempt to ask attorney-client privileged information. Nor should you bad mouth your employer. A lively discussion on which states have enforced non-compete agreements and what exceptions various states have would be most informative to the workplace.

If you have any legal issues about the workplace in California, the District of Columbia, Massachusetts, or Texas feel free to contact my firm at 877-525-0700, or view my California Labor or Massachusetts websites.

Karl Gerber, Representing Employees in California Since 1993

+Maternity case heads for retrial

Daily Journal

Monday, September 9, 2013

“Maternity case heads for retrial”

Order is first decision of its kind to apply state Supreme Court ruling

By Laura Hautala

A state appellate court has ordered a retrial in a pregnancy discrimination lawsuit after applying a recent landmark ruling that states a jury can only find an employer liable if discrimination was a “substantial motivating factor” in a worker’s firing.

The order is the first published decision to apply the state Supreme Court’s February ruling in Harris v. City of Santa Monica to decide whether a retrial is merited.

The case had to do with a billing clerk who was fired three hours after she returned to work from maternity leave at a small Los Angeles publishing company. A jury awarded her $10,000 in damages, and the court awarded attorney fees of more than $50,000.

But, “in accordance with Harris, we now hold that the trial court prejudicially erred in instructing the jury,” wrote Justice Laurie D. Zelon, who authored Thursday’s opinion. Harris said that asking jurors to find whether discrimination was a “motivating factor” in a termination was not sufficient – the discriminatory motivation needed to be “substantial.” Alamo v. Practice Management Information Corp., 2013 DJDAR 11998 (Cal. App. 2nd Dist. Sept. 5, 2013).

“It followed the precise contours of the Harris decision,” said Paul S. Marks, a defense attorney at Neufeld Marks PC who represented the publishing company. “However, every case has a different factual and procedural posture, and one can never tell if there’s some unusual aspect of the case that would have distinguished it from Harris.”

Attorneys who handle so-called “mixed motive” cases, where more than one factor may have brought about a firing or disciplinary action, are looking to the decision for clarity in how they must instruct juries.

Plaintiffs’ attorney Michael Rubin of Altshuler Berzon LLP in San Francisco said the appellate courts had no option but to remand similar cases, “because the Supreme Court in Harris – without explaining the difference between a motivating factor and a substantial motivating factor – decided it was enough to require remand in that case.” Rubin was not involved in Alamo.

However, Karl A. Gerber, an attorney at Employment Lawyers Group in Sherman Oaks who represented the plaintiff, said his client’s case was very different from Harris.  

“It wasn’t a mixed motive case,” he said. “They said they fired her because she was a disturbance, not because she was on maternity leave.”

Gerber said he would be surprised to hear a defense attorney argue that their client had some discriminatory intent, but that it wasn’t “substantial.”

Nonetheless, Zelon’s decision Thursday precludes the publishing company from making that argument in the retrial. Paul W. Cane, a partner at Paul Hastings LLP in San Francisco who defends companies in wrongful termination lawsuits, said that part of the decision was dispiriting. Cane was not involved in Alamo but argued before the Supreme Court on behalf of the city of Santa Monica in Harris.

“Defendants, beware,” Cane said. “Every defendant, out of an abundance of caution, should be including a dual-motive affirmative defense.”

Karl Gerber has been in the front line of Employment Discrimination Cases since 1993. Call his our office and find out if you have a case 877-525-0700 toll free.

+Sexual Harassment as Abuse of Authority

Supervisor Sexual Harassment

Sexual harassment is about subjugation. In my experience, a vast number of the sexual harassers my clients have sued do not expect to obtain sexual gratification. The harassment is about control, abuse, and abuse of power. The Appellate Court failed to comprehend how such utterly offensive comments could constitute an abuse of power through sex.

The court also decided that sexual taunting was commonplace at this particular workplace. The employee was an iron worker tying rebar at Conco sites. Apparently, the court has created a new type of immunity to vulgar workplaces of any industry. The court also decided none of this conduct caused the employee severe emotional distress despite the fact he cried as he reported this to the safety manager.

It would seem that there are other ways to criticize an employee, and probably create a worker’s compensation case, that do not so closely relate to male on male sexual interests. Had the supervisor not been interested in homosexual practices, or how good a man looked in his pants, words would not have flowed from his mouth with such ease about what might be stimulating.

Other Kinds of Sexual Harassment

Now every time there is same sex harassment, the lawyer representing the employee will have to ask whether the harasser is gay. The harasser’s claims about whether he is gay will then be subject to scrutiny. Consider this opinion a judicial assault on any gay people who are not openly gay and proud of their sexuality. Other disingenuous reasons for the appellate court’s decision may also be that all of the harassment happened in one day, there was an apology, and the ride home. These mitigating circumstances should not supersede such awful behavior.This is an example of a court being restrictive. The court decided the matter should be sent back to the trial court on the basis that there might have been retaliation for complaining about sexual harassment even though none of this amounted to sexual harassment. This logic does not make a tremendous amount of sense other than the court minimizing and subtracting from the panoply of laws this conduct should violate, and potentially holding the harasser individually responsible through laws on sexual harassment and the intentional infliction of emotional distress.It is also interesting to note that this case started with Judge M. True III’s grant of a summary judgment motion. I have never personally had any experience with this judge, but do note that a google search of his name has more negative content than I recall seeing for any other trial judge. However, prior to becoming a judge this man represented employees. Odd. Justice Bruiniers, who wrote the opinion, was apparently a police officer during the “turbulent years” at Berkeley (1967-1973). He also served in the Marines. In private practice, he represented businesses.

If any luck, the California Supreme Court will take review of this abomination of a judicial opinion. Alternatively, the legislature could take action, but with at least one of them making negative jokes about Italian Americans one must wonder whether anti-discrimination is a thing of the past. [1] Apparently this was also a funny joke to the panel of the three appellate justices who concurred in this opinion because they didn’t see there being a triable issue of fact for the jury whether this might be sexual harassment, or the intentional infliction of emotional distress.

Contact us, or call 1-877-525-0700 to consult with a sexual harassment lawyer.