Answers to our Clients’ Most Frequently Asked Questions
Have a question? We probably have answered it in one of our many informative frequently asked questions (FAQ’s). To find the answers you’re looking for, you can click on “Show Answer.” You can also select a specific category from the drop-down box to narrow the results, or use the search box at the top or bottom of the page to access relevant information from anywhere on the site.
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What Training Is Available for Supervisors on Their Reporting Obligations and Best Practices for Defensible Documentation?
Sherman Law Corporation offers several different training courses for supervisors of California based Employers on the types of conduct that requires reporting and best practices for documentation to withstand legal challenges.
Please visit our Teaching & Trainings page for sample courses we offer employers.
What are Cost-Effective Methods to Comply with Obligations to provide Supervisors with Required Harassment Training?
Like everything else in life, you get what you pay for. On-line courses and webinars are likely the least expensive method in terms of dollars and cents, but are also the most generic and least likely to do what it is supposed to do – train supervisors to comply with federal and state laws to minimize employer liability.
Further discussion on the pros and cons of live training are addressed in our Teaching & Trainings age.
Can California Employers Require All Employees upon Separation to Execute Severance Agreements Not to Sue the Company?
While severance agreements are not required by law, employees cannot be required to execute a severance agreement as a condition of releasing their employment rights. While it is smart to use severance agreements as a tool to avoid the risk and expense of litigation, it is important to tailor severance agreements to address each employee and matter.
Is an Attorney Demand Letter Conditioning Payment of Six Figure Settlement Extortion?
You state, "We just received a letter from an attorney representing one of our current/former employees/contractors/workers claiming violations of employment laws and demands that we pay a six figure settlement in seven days or he will file a civil lawsuit. Is this extortion?"
The California Courts of Appeal have generally concluded that an attorney’s pre-litigation communications — including demand letters — constitute extortion if they threaten to file a criminal complaint or otherwise report criminal activities to government authorities.
But Courts have recognized that threats to file non-sham civil litigation are not extortion under California law, as any conclusion to the contrary would likely violate the First Amendment.
How Can An Employee Prove They Were Constructively Discharged?
Yes. This is one of the most common misperceptions which is covered in our videos. An employee can claim that s/he was constructively discharged. A constructive discharge occurs when the employer’s conduct effectively forces an employee to resign. Although the employee may say ‘I quit,’ the employment relationship is actually severed involuntarily by the employer’s acts, against the employee’s will; a constructive discharge is legally regarded as a firing rather than a resignation.
A California employee must prove the following elements to show that s/he was constructively discharged:
- Intolerable work conditions existed at the time of the employee’s resignation;
- The work conditions were so unusually adverse that a reasonable employee would have felt compelled to resign;
- The employer intentionally created or knowingly permitted these intolerable work conditions; and
- A reasonable employer would have realized that a reasonable person in the employee’s position would be compelled to resign.
The bar to proving intolerable work conditions is high. California courts have found that the following situations alone do not result in intolerable work conditions:
- A reduction in pay.
- A demotion.
- A transfer to a different branch.
- Single incidents of mistreatment.
- Reassignment to graveyard shifts.
- A former subordinate’s promotion over the employee, requiring the employee to answer to a person they used to supervise.
- Unfair performance evaluations.
Can California Employees be held Personally Liable for Violations of Employment Laws?
Generally, employees can be held personally liable for conduct that is outside the scope of their employment. This includes, unlawful harassment on the basis of any of the protected characteristics under federal and state law, such as, sexual or racial harassment; intentional conduct, such as, assault, battery, intentional misrepresentation (fraud), intentional interference with contract, misappropriation of trade secrets; or aiding and abetting. Employees cannot be held personally liable for discrimination, retaliation, negligence or wrongful termination claims, however, if the overlapping evidence can provide support individually for both harassment and discrimination claims, then the jury could find personal liability against the employee who engaged in the conduct.
On October 11, 2015, California Governor Jerry Brown signed into law the “A Fair Day’s Pay Act,” which expands liability for willful wage and hour violations to owners, directors, officers, and managing agents of the employer. Any employer or “other person acting on behalf of an employer” “may be held liable as the employer for” violations of the directives in the California Wage Orders and in various provisions of the California Labor Code. Thus, the Labor Commissioner may now hold individuals liable for certain wage and hour violations, including California’s big six: unpaid overtime, unpaid minimum wage, denied meal/rest breaks, untimely termination compensation, inadequate wage statements, and failure to reimburse for employee business expenses.
An employee can only be held personally liable for punitive damages if s/he is an officer, director, or a “managing agent” which requires much more than just acting as a supervisor.