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.

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:
Non-competition agreements are provisions contained within an employment contract which restrict the activities of an employee after leaving the service of the company. Courts treat non-competition agreements with suspicion—with an eye toward preventing unnecessary and unreasonable interference with a person’s livelihood after severance of the employer/employee relationship.

The Courts will often decline to enforce “unreasonable” non-competition agreements. A non-competition clause in the agreement under which a used car lot employs an auto mechanic will likely be summarily rejected by the court as unreasonable. The agreement must be reasonable in duration. A non-competition agreement barring the sales manager of a used car lot from engaging in the used car business for the rest of his or her life, or for 50 years, would probably be denied enforcement, while one with a 2-year term might well be enforced.  Non-competition agreements must be reasonable in the area covered. If the agreement precludes the sales manager from engaging in the used car business anywhere in North America, it will almost certainly be denied enforcement as unreasonable. If the area is limited to San Francisco, for example, or even to !!REGION!!, it would probably withstand court scrutiny.

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.”

Workers’ Compensation:
Workers’ Compensation is a state-run system under which employees receive various types and levels of compensation for on-the-job injuries. Generally speaking, the dollar amount of compensation in Workers’ Compensation cases is much lower than in ordinary civil actions to recover damages for personal injuries. On the other hand, the level of proof required is much lower than in a personal injury case. The claimant in a Workers’ Compensation case is not required to prove that the employer was negligent or otherwise at fault. All the claimant need establish in a Workers' Compensation case is that the employee was injured in the course of his or her employment, and that the injury was not the result of the employee's own willful misconduct.

If you or someone you know needs the help of an experienced San Francisco Employment attorney, call Gay Crosthwait Grunfeld of Rosen, Bien & Galvan, LLP today at 866-435-0727, or complete the contact form provided on this site to schedule a free consultation.

If you or someone you know needs the help of an experienced San Francisco Employment attorney, call Gay Crosthwait Grunfeld of Rosen, Bien & Galvan, LLP today at 866-435-0727, or complete the contact form provided on this site to schedule a free consultation.

ADDRESS OF THE FIRM:
Rosen, Bien & Galvan, LLP
PO Box 390
San Francisco, CA 94104
Phone: 866-435-0727
Hours: M-F, 8:00AM-5:00PM
Services provided after-hours

MEMBERS OF THE FIRM:

• Attorney Gay Crosthwait Grunfeld

Practice Focus:

• Constitutional and civil rights law
• Employment law
• Commercial and other complex litigation

Reported Cases:

• L.H. v. Schwarzenegger, 519 Supp.2d 1072 (E.D. Cal. 2007)
• AFL-CIO v. Deukmejian, 212 Cal.App.3d 425 (1989)
• Patel v. Quality Inn South, 846 F.2d 700 (11th Cir. 1988)
• International Union, United Automobile, Aerospace and Agricultural Implement Workers v. Brock, 816 F.2d 761 (D.C. Cir. 1987)
• County of Los Angeles v. State of California, 43 Cal.3d 46 (1987)

Professional Experience:

• Associate:
  • Rosen, Bien & Galvan, 2005-2007
  • Bryant, Clohan & Baruh, 2001-2005
  • Fenwick & West, 1996-1997
  • Dickson-Ross, 1989-1991
  • Altshuler Berzon, 1985-1989
• Consultant, Judicial Council of California, 1993-1995
• Law Clerk to the Honorable Jack B. Weinstein, Chief Judge, United States District Court for the Eastern District of New York, 1984-1985
• Martindale-Hubbell AV rated

Publications and Presentations:

• Presenter, LH v. Schwarzenegger, Judicial Council of California, Administrative Office of the Courts, Beyond the Bench Conference (December 2008)
• Editor, Judicial Council of California, Achieving Equal Justice For Women and Men in the California Courts (1996)
• “Some Reflections on Conflicts Between Government Attorneys and Clients” 1 Touro L. Rev. 1 (1985) (with Jack B. Weinstein)
• “Article III Problems in Enforcing the Balanced Budget Amendment” 83 Colum. L. Rev. 1065 (1983)

Education:

• Columbia Law School, J.D., Articles Editor, Columbia Law Review, 1984
• Wellesley College, B.A., Phi Beta Kappa, 1981

Admissions:

• California, 1985

Community Service:

• California Women Lawyers, 1995 Fay Stender Award, for Work in Establishing Children’s Waiting Rooms in Bay Area Courthouses.
• Past President and Board Member, San Francisco Women Lawyers Alliance and Alliance Foundation.
• Past Board or Committee Member for several community organizations, including the San Francisco Chronicle Community Advisory Board, Northern California Service League, Walter Hays School Site Council, and Equal Rights Advocates.