Practice Areas and Legal Definitions

Labor Laws:
Historically, labor laws have focused on such matters as eliminating unsafe workplace conditions, securing a living wage for employees, and eliminating, or at least, tempering the strife that often occurs between employee and employers.  Since the appearance of organized labor, laws have established collective bargaining rights, and have sought to prevent either employers or employees, individually or through associations or unions, from engaging in unfair labor practices.  It is well-established, by various statutes, that both sides to a labor dispute are legally required to engage in good faith collective bargaining.  Modern labor laws also address such complex and often emotionally charged issues as strikes, picketing, mutual injunctive relief and lockouts.

Labor and Employment attorneys can help employers with the following:

• Reviewing client employee handbooks, manuals and policy statements
• Assisting with federal and state wage and hour law issues and claims
• Representing employers before the Equal Employment Opportunity Commission (EEOC) and state human rights agencies
• Providing advice on issues involving National Labor Relations Board (NLRB) representation and elections including campaign assistance
• Representing employers in unfair labor practice proceedings before the National Labor Relations Board and state labor agencies
• Providing representation for grievance and arbitration hearings under collective bargaining agreements
• Collective bargaining on behalf of clients including strategic planning and acting as spokesperson
• Counseling on issues related to strikes or lockouts and providing related litigation support

Employment Law:
Employment law is a well-established body of statutes and judicial decisions covering all rights and obligations within the employer-employee relationship, including current employees, job applicants and former employees.  It covers a wide range of legal issues, ranging from employment discrimination and wrongful termination to matters involving wages and workplace safety.  Many employment law issues are governed by applicable federal and state employment law, but a number of issues are determined according to basic contract law.

Employee Rights:
All employees have basic rights arising from both state and federal laws.  Some of these rights include:  the right not to be subjected to discrimination on the basis of race, national origin, skin color, gender, pregnancy, religious beliefs, disability, age, and in some places, marital status or sexual orientation; the right to a workplace free of harassment; the right to be paid at least the minimum wage as provided by federal or state law; the right to overtime wages as provided by federal or state law; the right to a safe workplace and the right to take leave to care for a personal or family member's serious illness, or following the birth or adoption of a child.

Employment Discrimination:
Discrimination generally occurs when an employee is intentionally treated differently because of race, color, religion, national origin, disability, gender, age, and in some states, sexual orientation.  Employment discrimination claims may be prosecuted under various state and federal statutes.  Even if the employee’s evidence is sufficient to show discrimination, an employer may be able to justify a particular job action by demonstrating that such treatment arose out of business necessity, or that a legitimate job qualification required consideration of factors that had an unintentional discriminatory effect.  When the employer makes such a legitimate justification, the employee must show that discrimination, not the employer’s justification, was the true reason for the action.

Age Discrimination:
It is unlawful for an employer, employment agency or labor union to discriminate in employment on the basis of age.  This includes refusing to hire an individual or firing an employee.  It also includes an individual’s compensation, the terms, conditions, and privileges of his or her employment, and all employee benefits.

Disability Discrimination:
Both the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 protect individuals with disabilities from employment discrimination.  An individual with a disability is defined as someone who has a physical or mental impairment that substantially limits a major life activity, has a record of having such a physical or mental impairment, or is regarded as having such impairment.  The term is broadly defined to include any physiological, mental or psychologically-based impairment, but it does not include mere physical characteristics or cultural, environmental, or economic impairment—the impairment must cause a substantial limitation to a major life activity.  Temporary conditions, such as a broken arm or the flu, would not be considered substantial limitations amounting to a disability entitled to statutory protection.

Wrongful Termination:
Termination of employment cannot be classified as "Wrongful Termination" unless it is in violation of some fundamental public policy, as set forth in a state or federal statute, regulation or constitutional provision.  Examples of Wrongful Termination include situations where:

• An employee is discharged for failure to comply with an order to perform an act that violates some law, ordinance or regulation, or
• An employee is discharged in retaliation for complaints about conduct by the employer that he or she believes to be unlawful, e.g., failure to pay overtime, or failure to comply with safety regulations.

Sexual Harassment:
Sexual harassment is any unwanted and unwelcome sexual behavior.  It involves a broad range of conduct, including such verbal harassment as derogatory comments, explicit sexual comments and descriptions of sexual exploits, leering or requesting sexual favors.  The term also describes physical harassment, ranging from inappropriate touching to outright sexual assault. In order to be classified as illegal the conduct in question must be both unwelcome and offensive to the victim.

Sexual harassment is a form of sexual discrimination, prohibited in employment settings under Title VII of the Civil Rights Act of 1964.  Title IX of the 1972 Education Act makes sexual harassment in schools or other educational settings unlawful.  The Federal Fair Housing Act also provides protection against sexual harassment, and most states have enacted legislation making it unlawful.

Overtime Compensation:
Under both State and Federal law employers are required to pay additional compensation to eligible employees who work more than forty hours during any seven-day period.  For every hour over forty hours in any given workweek the employer must pay the eligible employee at least one and one-half times the employee's ordinary hourly rate.

Defamation (Libel & Slander):
Defamation is the communication of a false and unprivileged statement that exposes another to hatred, contempt or ridicule, or which causes him or her to be shunned or avoided, or which has a tendency to injure him or her in his or her trade or occupation.  The defamatory statement must be communicated to someone other than the person to whom it refers and it must refer to a living person.

Defamation communicated verbally it is called "Slander," but if it is communicated in writing, it is called "Libel".  As a general rule it is easier to recover damages in a lawsuit for libel than in a slander lawsuit.  Most defamation litigation in the employment arena concerns the employer’s “qualified privilege” to defame.  Under this concept, employers and former employers are often protected from liability for defaming employees or former employees.  By its very definition, however, the privilege is “qualified,” and not “absolute”.  It is generally limited to situations in which the employer or former employer is making a good faith communication of information to someone who has a legitimate interest in receiving it.  A good example of this is a former employer’s good faith response to a new or prospective employer’s inquiry about the job performance of a former employee.  Generally speaking, even if the information given is false and damaging and would otherwise give rise to a defamation lawsuit, it will be protected under the “qualified” privilege.

If the communication exceeds the scope of the privilege, the privilege is not available.  For example, if the communication to your new or prospective employer is not in response to an inquiry, but a voluntary and unsolicited communication, liability for defamation will attach if the information is untrue.  Even if the communication is made in response to prospective employer’s inquiry, false and damaging information will not be protected by the privilege if it is made with knowledge or reckless disregard of its falsity, or with the intent to cause injury to the former employee.  It is important to remember that however damaging it may be, a truthful statement cannot form the basis of a defamation lawsuit.  This legal truism is often expressed in the phrase:  "The Truth is a complete defense to a defamation action".

Severance Agreements:
A severance agreement is a form of settlement agreement under which an aggrieved employee agrees to accept an agreed sum of money in exchange for, among other things, abandoning all claims against the employer.  Where it can be negotiated, a severance agreement saves money and aggravation for both sides. Severance agreements commonly include such provisions as "mutual non-disclosure of terms," an agreement that the employee will not compete against the employer, and that neither the employer nor the employee will make negative comments about the other.

Trade Secrets Agreements:
Employment contracts frequently contain provisions for the protection of the employer’s “trade secrets”.  These may range from customer data of one kind or another, to company designs, or even “secret recipes”.  Typically, the Trade Secrets clause of an employment contract will provide for “liquidated” damages in the event of disclosure of the information.  Liquidated damages are a set dollar figure agreed-upon in advance, to be paid in the event the contract clause is violated.

Non-competition Agreements:
In California, with very few exceptions, non-competition agreements are illegal and will not be enforced by the courts. It is the policy of the State of California that every person should be free to practice any occupation or profession that he or she is qualified for.

Whistleblower Claims:
Whistleblower Claims involve employer retaliation, sometimes to the extent of Wrongful Termination, against an employee who reports the improper or unlawful conduct of another employee or of management itself to government authorities.  It is illegal for an employer to retaliate against a “whistleblower.” In some instances California will protect whistleblowers who report major violations to their own employer.

Administrative Law:
Administrative Law is a system of justice outside the judicial system that is designed to bring resolution to conflicts arising within a detailed and technical structure of regulations.  Administrative Law Courts have a reputation for resolving issues with greater speed and efficiency than the judicial system.  Final Administrative Law decisions can be challenged in the Courts, but not until all administrative remedies have been exhausted.  Final Administrative Law decisions can also be converted to Court Judgments and then enforced by any of the traditional remedies available for the enforcement of civil judgments.

Injunctions:
Injunctions are a type of Court Order that either requires or prohibits specified conduct or behavior.  Injunctions are remedies frequently used in employment cases.  They involve such situations as injunctions requiring striking public employees to return to work, or injunctions requiring someone to stop engaging in an unlawful employment practice.  Willful failure to comply with an injunction can lead to a citation for contempt of court, and can result in significant money sanctions or even time in jail for the purpose of coercing compliance.

Employment Policy Manuals & Employee Handbooks:
An extraordinarily high percentage of Employment Law conflicts arise because there simply is no established company policy on a particular issue or the existing policy is either unknown or poorly understood.  Competent Employment Law counsel can help draft and put together a company policy manual that is both comprehensive and understandable, and an employee handbook that leaves no doubt as to what is expected from each employee, and what he or she can expect from the company.

Preparation and presentation of employee/management classes covering California Sexual Harassment & Employment Discrimination Issues:
Most Sexual Harassment and Employment Discrimination cases these days are the result of ignorance of and lack of sensitivity to these issues at various levels of management.  Arranging for formal classes concerning these matters can be both expensive and inconvenient, but the results of employee/management education about these matters will usually pay enormous dividends in terms of smooth employer/employee relations, and also in the peace of mind associated with avoiding expensive litigation and exposure to civil liability.

If you or someone you know in California needs the assistance of an experienced Berkeley Employment Lawyer, call Attorney Paul Glusman today at 866-610-8576, or complete the contact form provided on this site to schedule your free consultation.

• University of California, Berkeley, B.A., 1972
• Golden Gate University School of Law, J.D., 1975

• All California state and federal courts, including 9th Circuit Court of Appeal

• Executive Committee, State Bar of California Labor and Employment Section and Co-Chair of its 2007 Annual Conference
• San Francisco Trial Lawyers Association
• Bar Association of San Francisco
• California Employment Lawyers Association
• National Employment Lawyers Association
• Berkeley-Albany Bar Association
• Judge Pro Tem, Alameda County Small Claims Court 
• Assigned arbitrator, Marin County Superior Court
• Speaker on numerous panels on employment law issues such as Free Speech in the Workplace (BASF 2007); Insurance Issues in Employment Law (CELA 2005); Summary Judgments in Employment Law (BASF 2003); Discovery issues in Employment Law (CELA 2004 and 2005.)