California Employment Law Advocate : California Employment Lawyer & Attorney : Robert Ottinger Law Firm : California, San Francisco, Los Angeles, Oakland : workplace discrimination, harassment, severance packages, wrongful termination, retaliation, sexual harassment, Family Medical Leave Act, overtime violations, executive employee contracts,

A California woman successfully sued her employer for pregnancy discrimination and won $85,000 in emotional distress, repayment of all lost wages and her employer was fined an additional $25,000.  The decision was issued by the California Court of Appeal on July 15, 2009.  The successful plaintiff, Zibute Scherl, was a Second Captain on a yacht.  After she became pregnant, her boss expressed disappointment that she was pregnant, had concerns about "mothers working in the boating business," and worried about potential liablity.   He fired Ms. Scherl soon after she announced her pregnancy. 

The Company argued that Ms. Scherl's pregnancy was not a factor in her termination.  Instead the Company claimed that she was simply part of a company wide reduction in force.  But the Court did not believe this argument because when the company was in need of new employees, it did not ask Ms. Scherl to return and instead hired other less experienced people.   

This is a great result for pregnant employees.   At our firm, we find that a lot of pregnant woman are caught up in reductions in force.  The companies always argue that pregnancy was not a factor and often are unwilling to settle.   But this case shows that a close look at the facts can get past the "reduction in force" defense.  Click here to see a short video of a typical pregnancy discrimination case. 

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Employees in California have a right to privacy says the California Supreme Court in Hernandez v. Hillsides.   But, that right is limited and defined by the circumstances.  In some cases, companies are allowed to monitor employees with hidden cameras or other methods, but employees are entitled to notice of the monitoring and the company will need a good reason to monitor.   For example, in the Herandez case,  the company placed a hidden camera in a workroom because they were trying to identify an employee who was watching porn on a computer in a facility that cared for abused children.   The company had a strong reason to use the hidden the camera.  

They key point is that employees do have a right to privacy, but that right can be compromised if the company has a legitimate reason.    Also, companies should notify employees of potential monitoring in the company policy manual or other posting locations.   But, if a company does not notify employees of the monitoring and does not have a good reason, then employees may be able to sue the company for invasion of privacy. 

For a thorough review of Hernandez from an employer's perspective, see the Labor Employment Blog by Sheppard Mullin. 

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Today's Wall Street Journal has an article by Anna Prior that starkly details the cold reality facing hundreds of thousands of people today. Companies are cutting back severance pay to bone and they are less willing to negotiate. Today, it is take it or leave it. We see this every day at our law firm. In the past, companies were more willing to enhance severance packages by increasing the amount of pay, extending health care and other forms of compensation. Today, some companies will offer modest enhancements, but typically only when the employee has a potential claim.

I speak to people on a daily basis who contemplating severance offers and there are two common misunderstandings. First, most employees do not have a legal right to keep their job because they are employees at will. Second, people do not have a right to severance pay. Severance pay is not a legal right in the United States unless you have an employment contract that creates this right.

As Ms. Prior points out in her article, certain senior executives can increase the offer if the company requests a non-competition clause. In the past, we have obtained substantial increases for executives in this situation, but today it is more difficult. In some cases, the money offered in severance does not justify the restrictions imposed by a non-competition clause. The clauses are enforceable and people should think twice before signing them as they can keep a person out of their field for years. Before signing one, make sure you narrow it as much as possible and be sure you are well paid as you are basically agreeing to run in the race with one leg.

In my opinion, the best way to survive in today's economic climate is to save money while you have a job and build your own severance package in your bank account because you cannot rely on your company. Also, there will be a small minority of people who can extract an enhanced severance or settlement from a company because they have a legitimate employment discrimination or harassment claim that can be used as negotiating leverage. Most people, however, will not have a genuine employment claim and they will not have leverage to negotiate.

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I know Judge Sotomayor and I can say without any reservation that she will be an excellent addition to the U.S. Supreme Court.  Back when I was an Assistant Attorney General in New York City, I tried an employment discrimination case before Judge Sotomayor in the Southern District of New York.  I represented the defendant, the New York State Prison system.   The accusations against the State were serious.  But Judge Sotomayor was fair to both sides.  There were many motions that she ruled on along the way and she came to the right decisions.  She followed the law.  She is brilliant and tough.  She brings the best of the lawyers who appear before her because she makes it known that she expects the lawyers to do their job well.

I liked her so much that after the trial, I asked her to give a talk at the Attorney General's Office on trial practice.  She agreed and gave a great talk.  Even back then when she was a trial judge, I remember thinking that she was one of those judges who just might make it to the U.S. Supreme Court.   This country needs more people like her.  She is a rare find and I am glad that she will be on the Court soon.
 

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The Mercury News reported that the U.S. Equal Employment Opportunity Commission has filed an employment discrimination case against the Sahara Hotel in Las Vegas.  The EEOC alleges that hotel supervisors and co-workers created a hostile work environment for an Egyptian kitchen worker by making derogatory comments at his national origin.  The worker was responsible for the delivering food to the buffet and subject to racial slurs and told repeatedly to "go back to Egypt."  The EEOC filed suit against the hotel in federal court.

National Origin cases like this are not uncommon.  At our law firm, we have handled many of these cases.   We are about to file a national origin case against a large national bank for mistreating and firing a Chinese computer programmer.   Our client alleges that his department was managed by several people from India and that the Indian supervisors began hiring other people from India and soon the department was predominately Indian.   Our client says that favoritism was rampant with all the good assignments going to other Indians and when it came time for layoffs, he was let go while other less qualified Indians retained their jobs. 

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