Month: February 2014

Sexually Harassing Conduct Need Not Be Motivated by Sexual Desire


California has expanded protection from sexual harassment to include sexually harassing conduct that is NOT motivated by sexual desire.

In 2011, a California appellate court decided that a set of excessive egregious comments and conduct by male co-workers against another male co-worker did not constitute sexual harassment because the harassment was not motivated by sexual desire. This decision left a lot of people baffled. If the harassor and the victim were not of the same sex, we suspect the court would have had no trouble finding the behavior constituted unlawful sexual harassment.

However, a couple of months ago, California’s Fair Employment and Housing Act was amended to specifically include that “Sexually harassing conduct need not be motivated by sexual desire.”

This concise and direction addition will protect more employees from sexual harassment.

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Are you or anyone you know been sexually harassed at work? Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit if you have any questions regarding your rights at the workplace.

Associational Disability Discrimination


Employees may now have a claim against an employer that discriminates an employee because of his or her association with a disabled person.

In a recent case, when an employee was hired, he informed the employer that he planned to donate a kidney to his physically disabled sister. When the employee learned that the Donation Protection Act (DPA) would take effect on January 1, 2011, he requested paid leave to do so. The employee received satisfactory performance reviews and posed no disciplinary problems. Just 2 days before the DPA became effective, the employee was terminated for poor performance. The employee sued the employer for discrimination on the basis of his association with his physically disabled sister. The trial court dismissed the case but the appellate court upheld the associational claim.

As the Court of Appeals noted, associational discrimination has been the subject of very little litigation. The 7th Circuit identified 3 types of associational discrimination:

1. Expense– for example, when an employee is fired because his spouse has a disability and is covered by the company’s health plan.

2. Disability by Association– for example, when an employee’s homosexual companion has HIV and the employer fears that the employee also has been infected.

3. Distraction– for example, when the employee is somewhat inattentive at work because his child has a disability that requires his attention.

PRACTICAL TIP: An employer that discriminates against an employee because of his or her association with a disabled person is liable even if the motivation is purely monetary.

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If you or anyone you know has any questions regarding discrimination by association, Call the Law Offices of Payab & Associates at (800) 401-4466 or visit our website at:

Top 6 Ways to Get Yourself in Trouble as a Supervisor


1. Making unlawful inquiries before employment. Inappropriate questions during interviews are a primary source for claims of discrimination. The courts generally assume that if you asked a question, you intended to use the answer as a factor in your hiring decision.
ie: “That’s an interesting accent you have. Where were you born?”

2. Delivering dishonest evaluations. Many supervisors avoid giving poor performance evaluations to their employees and instead cop out with a “satisfactory” rating. This conduct could ultimately create murky situations for the employer.
ie: “I’m giving you a ‘satisfactory’ rating, and I think we both know what that means in this company.”

3. Too vague in discipline and performance write-ups. Supervisors often write something on performance evaluations like “needs improvement.” That’s too vague. Always be specific with performance reviews.
ie: “I’m making a note here that we talked about your performance.”

4. Making rash disciplinary decisions. Firing an employee may be the appropriate action but firing an employee instantly in anger is not the way to do it. You should never fire without carefully reviewing the circumstances with HR.
ie: “That’s it, I’ve had it, you’re fired.”

5. Making uninformed responses to medical leave requests. The best way to deal with this problem is to contact HR before making decisions on medical leaves.
ie: “You’re going to take every Friday off? That’s not going to happen.”

6. Not realizing the “power” of the supervisor. Supervisors are agents of the company, and when they engage in behavior that may be considered harassment, it is especially grievous because of the power they have over their employees.
ie: “Let’s go out for a drink after work. Then maybe we can hang out afterwards.”

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Questions about your rights at the workplace? Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit

Am I Entitled to Holiday Pay?


With today as Presidents’ Day, you may question whether the law requires employers to pay employees for holidays. The short answer is NO. Neither California nor federal laws require employers to pay employees for holidays. Some employment contracts may require paid holidays, but otherwise it is up to the employer to decide whether employees are paid on holidays. Typically, employer handbooks will identify which holidays employees will be compensated for the holidays.

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Questions about your rights at the workplace? Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit

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Under An “At-Will” Contract, Are Employers Required to Conduct An Investigation Before Firing An Employee For Misconduct?

Even under an “at-will” contract, are employers required to conduct an investigation before firing an employee for misconduct?

Short answer: unless an employer’s policies require an internal investigation, the employer does NOT have to investigate before discharging an at-will employee.

The Alaska Supreme Court recently held that the covenant of good faith and fair dealing, an exception to the employment-at-will rule, does not require an employer to conduct an investigation before terminating an employee. The court suggested that the result would have been different if the employer’s policies required it to investigate allegations before filing an employee for misconduct. If there is no such requirement in the employer’s employee handbook, then the employer does not have such responsibility and can terminate at will.

PRACTICAL ADVISE: although these cases clarify that employees are not required to investigate before at-will employees, you are advised to investigate before making a termination decision. Furthermore, an investigation might reveal facts that support claims such as unlawful retaliation or discrimination which could be damaging to the employer. By conducting an investigation, you will be taking the best legal course of action.

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Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit if you have any questions regarding your rights at the workplace.

How Much of Your Deposit Can Your Landlord Keep?


Under California law, you are entitled to 1. the entire deposit amount or 2. your landlord must provide you with a written letter explaining all of the expenses that will be deducted from your deposit.

In general, a landlord may reduce the deposit for 3 reasons:
1. The cost of damages to the apartment. This does NOT include charge for improvements or for “reasonable wear and tear.” Moreover, the landlord may only charge you the cost of replacing the item you broke and may not use the opportunity to upgrade that fixture.
2. The cost of cleaning the unit to get the apartment back to the condition it was when you first moved in. It is common advise to take pictures of the apartment BEFORE you move in so the landlord would not be able to charge you later for this purpose.
3. Unpaid rent. This makes sense- a landlord can deduct any unpaid rent from your deposit.

Some other notes:
• In California, the landlord is required to refund your security deposit within 21 days of moving out.
• It is always good practice to take pictures of the entire apartment before you move in.
• It is always practical advice to clean out your apartment before you move out.
• Take more pictures of the apartment after you have cleaned it out and moving out.
• Make sure all of your rent is paid before you move out.
• Ask your landlord for a receipt.

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Questions? Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit

And the Best Courtroom Selfie goes to…


A tipster told reporters that he “spent like a minute trying to get the perfect selfie — with flash, without, adjusting his tie, changing the angle. His selfie diligence was impressive! It was quite amusing!”

Where is the most awkward location you have seen people take a selfie at? Let us know!

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Questions? Contact the Law Offices of Payab & Associates @ (800) 401-4466

Court Rules: YELP Critics Must Be Identified

In a decision that could reshape rules for online consumer reviews of products and businesses, a Virginia court has ruled that Yelp critics must be identified. The court found that critic comments are not protected First Amendment opinions if the Yelp users were not customers and thus making false claims.


This decision could curtail peer reviewed sites such as Yelp offering anonymous reviews on their site. Do you find this to be fair and reasonable? Let us know!

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Questions? Contact the Law Offices of Payab & Associates @ (800) 401-4466