Fundamentals of
advertisement
Fundamentals of EMPLOYMENT LAW SUPPLEMENTAL San Francisco Panel Handout SAN FRANCISCO - October 21 & 22, 2011 - Bar Association of San Francisco Douglas J. Farmer (Moderator) - Ogletree, Deakins, Nash, Smoak & Stewart PC, San Francisco Margaret J. Grover - Kronick Moskovitz Tiedemann & Girard, Walnut Creek Randy M. Hess - Adleson, Hess & Kelly, Campbell Therese M. Lawless - Lawless & Lawless, San Francisco Michelle M. Leetham - Ogletree, Deakins, Nash, Smoak & Stewart PC, San Francisco Tyler M. Paetkau - Hartnett, Smith & Paetkau, Redwood City Howard A. Simon - V.P. Human Resources & Administration, InterMune, Inc., Brisbane Charles L. Thompson - Ogletree, Deakins, Nash, Smoak & Stewart, PC, San Francisco BU-77527 (Supplemental) Live Program BU-07561 CONTINUING EDUCATION OF THE BAR OAKLAND, CALIFORNIA For program information call 1-800-232-3444 Website: ceb.com Tyler M. Paetkau, Esq. tpaetkau@hslawoffice.com (650) 260-1066 Hartnett Smith & Paetkau, Redwood City, CA Overview At-will employment Avoiding Wrongful Termination Claims Job applications (At-Will Policy) Job offer letters Employment Agreements Performance evaluations Grievance Policies Protecting Internal Investigations Discipline Checklist Why Should We Care About Employment Law Compliance? Personal liability Pocketbook Lost time and resources Bad for morale Bad for fund-raising Fairness 1 Personal Liability Issues Unlawful harassment OSHA violations Overtime violations Trade secret misappropriation/unfair competition/breach of fiduciary duty Defamation, invasion of privacy Labor Code §2922 – “At-Will” Termination “An employment, having no specified term, may be terminated at the will of either party on notice to the other.” (1937) Overcoming the “At Will” Presumption Statutory limitations “Public Policy” limitations Contractual Limitations Express and Implied-in-Fact Contracts Covenant of Good Faith and Fair Dealing 2 Statutory Limitations EEO laws prohibit specific types of discrimination in employment practices, including discipline and discharge Antiretaliation and “Whistle blower” laws Other special protections (Leave of Absence Statutes, Labor Code Protections.) “Public Policy” Limitations “Fundamental” Public Policy Benefiting public at large (v. individual) Applicable to the defendant employer Retaliatory Terminations in Violation of Public Policy Examples of Public Policy Cases Moorpark v. Superior Court. (1988) 18 Cal. 4th 1143 Green v. Ralee’s Eng’g Co. (1998) 19 Cal. 4th 66 – employer’s attempt to coerce employee to lie in DFEH investigation Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028 – employee refused to follow executive’s directive that she hire someone who was “hot” 3 Express Contracts Union collective bargaining agreements “Good cause” for discipline/discharge Individual employment contracts Termination provisions with defined terms Implied Contract Requiring Good Cause to Terminate Employment Guz v. Bechtel National, Inc. 24 Cal 4th 317 (2000) Pugh v. See’s Candies 116 Cal. App. 3d 311 (“Pugh 1”) (1981) 203 Cal. App. 3d 743 (“Pugh II”) (1988) Implied Contract Requiring Good Cause to Discipline Employees Scott v. PG&E (1995) 11 Cal. 4th 454 “Wrongful demotion” case Written personnel policies and procedures can impose contractual obligations regarding employee disciplinary action 4 Factors to Consider Consider “totality of the parties’ relationship” Duration of employment Commendations and promotions Lack of criticism Assurances of continued employment Employer’s policies Wrongful Constructive Discharge Turner v. Anheuser-Busch (1994) 7 Cal. 4th 1238 Compelled resignation due to intolerable working conditions based upon “reasonable person” standard can be considered “discharge” Examples of Public Policy Cases Foley v. Interactive Data Corp. (1988) 44 Cal. 3d 654 Termination for informing employer of supervisor being investigated by FBI for possible embezzlement DOES NOT make out pubic policy claim Private dispute v. vindication of broader public interest 5 Examples of Public Policy Cases Jennings v. Marralle (1994) 8 Cal. 4th 121 Age bias claim against small employer does not constitute viable public policy claim Remedies Contract damages in contract claims Compensatory damages (including emotional distress) in statutory and public policy tort claims Punitive damages in statutory and public policy tort claims Statutory attorney fees provisions Prevention Fundamentals 6 Basic Prevention Tools Employment applications Offer letters/contracts Employee handbooks Performance evaluations Termination letters Exit interviews Use Job Applications At-will provision “After Acquired Evidence” clause Use Job Offer Letters Essential terms of employment relationship At will clause or reference to employee handbook “Merger” clause 7 Use Written Performance Evaluations Review evaluation forms: Avoid “subjective” standards “attitude,” “demeanor,” “social behavior” Avoid preprinted forms Attach a job description Use Written Performance Evaluations Review evaluation forms: Give specific examples of strengths and weaknesses Incorporate a “comments section” Discuss with the employee get signed acknowledgement Allow disputes Correct mistakes What Employees Expect From Their Employers (4 Legal Concepts Every Supervisor MUST Know) Protection from discrimination, harassment, unfair dealing, unsafe working conditions, & retaliation. Clearly communicated performance expectations. Constructive job performance feedback Performance improvement plans and career counseling 8 Ways to Avoid Harassment in the Workplace Communicate and implement formal investigation and discipline procedures Educate all staff regarding policy: Rights to file harassment complaint Assurance of protection from retaliation Communicate and implement formal investigation and discipline procedures Communicating Performance Expectations What’s expected of me? How am I doing? What’s my future with the company? Why employees May Seek Representation Untrained in position Uninformed and insecure Unassisted with performance problems Not fairly warned Feels harassed Wrongfully treated Opinions don’t matter 9 Assessing For “High Risk” Termination Factors Employee is in one or more protected groups or is “long term” Employee history of claims against the company or others Assessing For “High Risk” Termination Factors Supervisor has a “history” Is on or has recently returned from a statutorily authorized leave (FMLA/CFRA; ADA, Workers’ Comp) Employee has recently complained Avoid Common Termination Mistakes Giving a reason which later proves false or inaccurate Termination violates company practice or policy Bad documentation 10 Avoid Common Termination Mistakes Reason for termination is unrelated to company business needs or goals Termination violates a state or federal law Manage “High Risk” Situations Delay termination to correct mistakes e.g., document performance, distribute policies, provide notice, etc. Delay termination to explore alternatives (training, transfer, demotion, etc.) Manage “High Risk” Situations Get a second opinion (outside counsel, employment law specialist, etc.) Offer a severance package (and get release/confidentiality) 11 Use Termination Letters to Avoid Liability Carefully state reasons for termination Dates and subject matter of prior warnings/discipline Use Termination Letters to Avoid Liability Benefits to which employee is entitled Availability of appeal or review Last day of work/exit interview Final paycheck/company property Conduct Termination Meetings to Avoid Liability Conduct meeting in private Avoid having “antagonizers” present Have a second manager attend 12 Conduct Termination Meetings to Avoid Liability Be brief (15 minutes should do it) Avoid “escorting” Arrange exit interview (if appropriate) Provide termination letter (if appropriate) Use Exit Interviews to Avoid Liability Select appropriate interviewer Explain reference to be given Review confidentiality/trade secret agreements Use Exit Interviews to Avoid Liability Provide opportunity to comment about job, supervisor and/or termination Severance agreement Document the meeting 13 THANK YOU 14
