Compensation and overtime and on-call duty

The Supreme Court has held that time spent waiting for work is compensable if the waiting time is spent "primarily for the benefit of the employer and his business." Armour & Co. v. Wantock (1944). Whether the time spent predmoninantly for the employer's benefit depends on the specific circumstances of each situation. Although there is no hard and fast rule, the cases dealing with the question of compensation and overtime for on-call duty consider two major factors: (1) the degree to which the employee is free to engage in personal activities; and (2) the agreement between the parties.

While the second factor - the existence or non existence of the agreement to waive on-call duty compensation - is usually easy to determine, the first factor includes sub-elements that determine whether the employee is free to engage in personal activities while on call: (a)whether there was an on-premises living requirement; (b) whether there were restrictions on employee's travel during on-call duty; (c) whether the frequency of calls was so high that it prevented employee from engaging in typical off-duty activities of a person; (d) whether a fixed time limit for response was unduly restrictive; (e) whether the employee could easily trade on-call responsibilities; (f) whether employee actually engaged in personal activities during call-in time. 

The above list is not exhaustive but merely illustrative. 

Thus, the underlying principle of determining whether compensation for on-call duty is due is looking into the specific details and the frequency of the duties of the on-call employee and how much their restrict his ability to enjoy his hours off work.

Reinstatement rights under FMLA

At the conclusion of leave under FMLA or CFRA, an employer must reinstate an employee to the same or an equivalent job, unless he or she is a "key employee" who is given appropriate notification. One main limitation on this rules is that the employee returning to work is not entitled to reinstatement if unable to perform an essential function of the position because of physical or mental condition, including the continuation of a serious health condition. 

In order to be deem equivalent, the alternate position must be virtually identical to the prior position in terms of pay, benefits, and working conditions, and involve substantially similar duties and responsibilities. In one case, a nurse who formerly worked a day shift was offered a full-time night shift position with the same duties and benefits, or a part-time day position with reduced benefits. As a matter of law, that offer was not an offer of an equivalent position. Hunt v. Rapides Healthcare System LLC (2001).  An employee returning after FMLA leave may not be disqualified from bonuses which are not related to performance, but need not be credited with time spent on FMLA leave when the bonus is based on employee's total performance or production. 

If a salaried employee is deemed a "key employee" and reinstatment would result in substantial and griveous economic injury to an employer, the employer may deny reinstatement after propery notifing the employe and affording that employee an opportunity to forgo the leave or return from leave. 29 USC 2614(b)(2). 

A key employee is a salaried employee who is one of the highest paid 10% of all employees within 75 miles of the employee's worksite. The determination of "key employee" status is made at the time an employee gives notice of the need to leave. 29 CFR 825.217(c)(2).

Reinstatement of a key employee may be denied if the return to the position (not the absence) would result in "substantial and grievous economic injury" to the operations of the mployer. However, an employer must give writen notice to the employee of his "key employee" status and the potential consequences of reinstatement rights. An employer who does not give timely notice to a "key employee" loses the right to deny reinstatment even if substantial and grievous economic injury will result. 29 CFR 825.219(a).

Should you file a lawsuit against your employer?

No matter what side of the workplace dispute you are on – whether you are an employee, a supervisor or the employer, it is important to remember one fundamental fact about California employment law: not every conduct which seems unfair is actually illegal, and not every violation of the law is worth pursuing through court or other enforcement bodies. Failure to take this very practical reality into consideration leads many employees, companies and attorneys to waste a lot of time, money, energy, and emotions. An aggrieved employee who believes that he was wrongfully terminated and discriminated will usually not bother to actually look up or inquire about the law and find out whether what happened to him was actually discrimination and what exactly makes his termination wrongful. An employee would rely on his anger and pure gut feeling in pursuing legal action without even knowing whether the employer who mistreated him or her actually violated the law.

This employee will likely not listen to the words of a seasoned employment lawyer who would explain to him why he shouldn’t be pursuing the claim, and will continue to look for an attorney to take his “case” until he finds one whose lack of experience in distinguishing meritorious claims from all the others and his possible need for more business will cause him to actually take the case and pursue it toward a dead end.

Employers, especially smaller companies who don’t even have a well-trained human resources department often fall victims to their ignorance of the law as well. They believe that they can avoid liability by simply relying in their actions and relationship with employees on what they think is fair. A common trap into which such employers fall is believing that the at-will employment doctrine gives them more protection when terminating employees than it actually does under the law. In one case, one of my clients was an at-will employee in San Francisco who was terminated two days after notifying his supervisor that he has a disability. When I contacted the owner of the company, he arrogantly told me that I was wasting my time and that he did everything right – according to him, my client was an at-will employee who could have been discharged for any reason or no reason. While this is in part true, his employer didn’t know and didn’t bother to find out that there are quite a few significant limitations on at-will employment doctrine in California. If he did, he would probably recognize that his actions were illegal, and he would opt to engage in settlement negotiations. Instead, he brushed me off. Many months and thousands of dollars in attorneys fees later, he was facing a far greater liability to my client, eventually paying more than twice as much as he could have settled for at the outset of my representation.

Both sides – the employer and the employee – must remember that no matter how emotional and stressful the workplace disputes, acts of discrimination, harassment, and termination might be, at the end of the day, pursuing legal action is a business decision and it should be treated as such. Fighting for the sake of fighting, principles and “justice” might sound like a noble battle in theory, but such an ideological approach to litigation of employment claims often makes little sense in the real world and makes both parties lose more than gain.

I remember a client tell one of my mentoring attorneys: “This case is not about money to me; it’s about justice, about principle,” to which the attorney would respond: “No, it is about money, because that’s the remedy that we have and you expect, so let’s not make a mistake about it.”

"Quid Pro Quo" sexual harassment at workplace

There are various, although equally despicable and unlawful kinds of sexual harassment that employees may be subjected to at workplace. One type of sexual harassment may take the form of an economic "quid quo pro" where a supervisor's requests for sexual favors are linked to the grant or denial of job benefits, such as getting or retaining a job, a receiving a favorable performance review, salary raise, promotion, bonus, etc. The typical case involves some for of sexual advance or proposition by a supervisor with an express or implied threat that if the employee refuses, he or she will be terminated or demoted, or lose other job-related benefits; or, the employee may be promised better treatment, such as a promotion, transfer, raise or favorable recommendation, if the employee submits to the sexual advances. 

The supervisor's requests for sexual favors in exchange for a certain benefit do not have to be express to constitute unlawful sexual harassment. It is enough that the individual making the unwelcome sexual advance was the victim's supervisor, and that a link to employment benefits could be inferred under the circumstances. Such circumstances might include implied statements or simple the fact that the supervisor persists with demands for sexual favors after plaintiff has declined or stated that he or she is not interested in any kind of sexual interaction with the supervisor. 

Thus, in one case a female employee was asked to lunch by her supervisor for the sole and express purpose of discussing his upcoming evaluation of her work and possible recommendation of her for a promotion. He allegedly told her that he continued success and employment at the company were dependent upon her agreeing to his sexual demands. His demand amounted to an additional "condition of employment" imposed upon her because of her gender in violation of Title VII of the Civil Rights Act. Tomkins v. Public Service Elc. & Gas Co. (1977)

Competing with Your Current Employer

Your employer has the right to the undivided loyalty of its employees. The duty of loyalty is breached and may give rise to the employee's liability in a civil suit for unfair competition when the employees takes action adverse to the employer's best business interests. Stokes v. Dole Nut Co. (1995). For example, employees who take for themselves, against their employer's interests and to the employer's loss, business opportunities in the employer's line of business may be subjected to liability.

Normally, the unfair competition actions are governed by California Labor Code 2860, which states that "Everything which an employee acquires by virtue of his employment, except the compensation which is due to him from his employer, belongs to the employer, whether acquired lawfully or unlawfully, or during or after the expiration of the term of his employment. In one case, while still employed, several employees of a company attempted to divert business to their newly formed company by using confidential client information. The court found that their conduct constituted misappropriation of employer's trade secrets. Courtesy Temporary Service, Inc. v. Camacho (1990). 

However, an employee may announce a change of his or her employment to the current employer's customers, if no solicitation of customers to switch vendors / service provides takes place. "Solicit" implies "personal petition to a particular individual to do a particular thing" which in the context of employment and unfair competition means personal petition to customers to change the way they conduct business. 

If you have any questions about trade secret or unfair competition issues, feel free to contact San Francisco employment lawyer Arkady Itkin to discuss your business and employment issues.