Mr. Kazanjian, who represents employers in union labor relations, labor litigation and employment litigation, practiced in Sacramento with Littler Mendelson from 1985 to 2000 before forming his own firm with Mendelson colleague Floyd J. Palmer. Mr. Palmer’s name fronts the new firm’s letterhead in memoriam.

Alvin Wohl is an accomplished trial and appellate advocate who has practiced business litigation for more than 40 years. Matters litigated by Mr. Wohl have included corporate and partnership disputes, fraud claims, contract disputes, construction defect claims, tax issues, fiduciary breaches, real estate litigation, securities litigation, and insurance bad faith claims. Alvin Wohl is of counsel in the firm.

Along with Mr. Kazanjian, PKWP’s other partners are Christopher F. Wohl, a seasoned trial attorney who has practiced business and employment litigation since 1994; Robin K. Perkins, an 18-year veteran of trial and appellate courts who specializes in business and employment litigation; and Treaver K. Hodson, who has represented employers in all aspects of employment law litigation and counseling since 1995.

Rounding out the firm are associates Heather S. Candy and Meriam E. Hamilton, both experienced employment and labor law attorneys, and George F. Cicotte, of counsel, who specializes in ERISA (Employee Retirement Income Security Act) and employee benefits.

PKWP attorneys practice before state and federal courts, trial and appellate, and administrative tribunals in California and Nevada. Their accomplishments include reported decisions of the California Supreme Court and U.S. circuit courts of appeal.

“We are a firm for businesses that demand the best in advocacy and preventive guidance in all the legal matters that impact them,” Mr. Kazanjian said. “We intend to remain a boutique firm for whom expansion is measured by depth of expertise, not number of attorneys.”

California Supreme Court Hands Big Win to Employers In Dore v. Arnold Worldwide, Inc., Case No. S124494 (August 3, 2006) the California Supreme Court held that an “at will” provision in an employment contract is enforceable based on its plain meaning and that an employee can be terminated at any time, with or without cause. This is a major victory for California’s employers. The plaintiff Brook Dore was a manager for defendant Arnold Worldwide, Inc. (“Arnold”). Dore claimed that during the pre-hire interview process she was told that her employment with Arnold was “long term”, that she would be treated like “family”, and that she would play a critical role with the company. Dore later signed an offer letter agreeing to be employed by Arnold as an “at will” employee. The letter stated, among other things, that Dore would have a “90 day assessment” at which time objectives would be set for evaluating his performance at an “annual review.” He would then also have the “opportunity to discuss consideration for being named an officer”of Arnold.  Arnold fired Dore about two years later. Dore sued Arnold alleging, among other things, that Arnold’s conduct established an “implied-in-fact” contract which required “good cause” to terminate his employment.  The trial court disagreed and granted Arnold’s motion for summary judgment ruling that Arnold’s letter was enforceable as an express “at will” employment agreement and that good cause to terminate Dore was not required. The appellate court reversed the trial court’s ruling partly basing it decision on how Arnold defined “at will” in its employment letter (Arnold defined “at will” to mean Arnold had the right to terminate Dore’s employment “at any time”).  The appellate court reasoned that the “at any time” language relinquished its right to terminate Dore unless it had good cause to do so.  Arnold petitioned the California Supreme Court to review the appellate court’s ruling. The California Supreme Court unanimously reversed the appellate court’s decision and dismissed Dore’s claims. The Supreme Court confirmed that a clear and unambiguous “at will” provision in a written and executed employment cannot be overcome by evidence of a prior “implied-in-fact” contract. The Supreme Court also ruled that the verbal formulation “at any time” in the termination clause of Arnold’s employment agreement is not “per se ambiguous,” because “such a formulation ordinarily entails the notion of “with or without cause.” In other words, Arnold had the right to terminate Dore without cause. This case underscores the importance of a carefully drafted “at will” provision in employment agreements.  This case also serves as a reminder that managers and human resource personnel must avoid making statements at any stage of employment that are inconsistent with “at will” employment. Employers should also make sure that their “at will” employment agreements include “integration” clauses to exclude claimed “oral” modification of the employment contract terms. It would be wise to have legal counsel review your employment agreements including your “at will” provisions to ensure they are enforceable. For more information about the topic above, contact Chris Wohl at cwohl@pkwp-law.com or (916) 442.3552. To read Mr. Wohl's professional profile on the Palmer Kazanjian Wohl Perkins website, click here . Return to Top

Void Promises: Employment Agreements Not To Compete In California As many California employers and employees face transitions in the workplace, a common question that arises is whether the employee who leaves has the right to compete against the former employer and, if so, to what extent the competition may be restrained. By statute, California law purports to answer this questions as follows: “Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” California Business and Professions Code section 16600 The referenced exceptions are limited to situations in which an ownership interest is being transferred and these exceptions have no application to the employment relationship. Thus, according to the language of section 16600, it would appear that any contract, including an employment contract, that restrained a former employee from engaging in a lawful profession, trade or business would be void. Notwithstanding the apparent clarity of the statutory language, this prohibition against restraining trade has been the subject of considerable litigation and appellate court analysis. Unfortunately, the courts have not always consistently analyzed or clearly applied the statutory prohibition, which has resulted in decisions and analyses that are difficult to reconcile. This, of course, is problematic for employers who wish to prepare lawful agreements that protects their business interests to the fullest extent legally per mitted. A recent case, Edwards v. Arthur Andersen LLP, considers these various interpretations of section 16600 and ultimately seeks to limit the available exceptions to this statutory prohibition against trade restraint. Briefly the facts of the case are as follows: Edwards was an employee of Arthur Anderson and during the course of his employment signed an agreement that prohibited him from (i) performing services for Arthur Andersen clients; (ii) soliciting Arthur Andersen clients; and (iii) soliciting Arthur Andersen employees following his employment relationship. Several years later, Arthur Andersen was sold in part to HSBC. In order to obtain employment with HSBC, Edwards was required to sign a second agreement releasing all his potential claims against Arthur Andersen. In exchange for his release, Arthur Andersen agreed to release Edwards from the terms of the previous agreement restraining Edwards’ performance of service and solicitation of clients and employees following his employment. Edwards’ refusal to sign the second agreement and subsequent withdrawal of the employment offer from HSBC raised issues about the validity of the earlier Arthur Andersen agreement restraining Edwards ability to perform services and solicit Arthur Andersen clients and employees. In analyzing the issues related to the dispute, the California appellate court spent considerable time reviewing the historical background of section 16600. It reviewed the statutory exceptions and the significant case law produced regarding the provision. Ultimately the court concluded that, other than the statutory exceptions, only protection of trade secrets and confidential information could limit the statutory prohibition of section 16600. In particular, the court rejected several federal courts’ analyses of California law which attempted to create a “narrow restraint” exception to section 16600. Under this line of federal cases narrow or partial restraints on an individual’s ability to engage in a lawful profession, trade or business would fall outside the parameters of section 16600 and would be enforceable. However, this California appellate court soundly rejected the federal courts’ analyses as a misapplication of California law. The Edwards v. Arthur Anderson LLP case illustrates the difficulty associated with preparing lawful and enforceable employment agreements that attempt to restrain an employee’s ability to compete with the employer following employment. The federal cases noted above permitted such agreements to be more restrictive and restrain competition from former employees more effectively. However, this California appellate court rejected the more favorable federal analysis. According to this court, in the employment relationship only agreements that protect an employer’s trade secrets and confidential information remain enforceable. Still, if carefully prepared, such agreements can assist an employer in protecting its business interests to the fullest extent permitted by California law. Alternatively, overly broad agreements that attempt to restrain an employee’s ability to engage in a lawful profession, trade or business will not only be deemed null and void by California courts, but may also subject the employer to additional unintended liability. For example, in the Edwards v. Arthur Anderson LLP case, the unenforceable agreement may result in liability against the employer for tortious conduct based in a claim of intentional interference with prospective economic advantage. Section 16600 establishes a strong California public policy against restraints of trade. Based upon this court’s analysis, all employment agreements attempting to restrain an employee’s ability to solicit clients or perform services following employment should be carefully reviewed and consideration should be given to limiting such agreements to the protection of employer trade secret and confidential information.

For more information about the topic above, contact Treaver Hodson at thodson@pkwp-law.com or (916) 442.3552. To read Mr. Hodson's professional profile on the Palmer Kazanjian Wohl Perkins website, click here . Return to Top

San Francisco Mandates Paid Sick Leave On November 7, 2006, the voters of San Francisco passed Measure F, which mandates paid sick leave be provided by all employers, including employee staffing companies, to all full- and part-employees and temporary workers employed within the geographic boundaries of the city of San Francisco. This Measure is extremely broad and applies to essentially all employees employed in San Francisco. It defines an employee as a person who is “employed within the geographic boundaries of the City by an employer” and an employer as “any person, as defined in Section 18 of the California Labor Code, including corporate officers or executives, who directly or indirectly or through an agent or any other person, including through the services of a temporary services or staffing agency or similar entity, employs or exercises control over wages, hours, or working conditions of an employee.” Therefore, employers located outside of the geographic boundaries of San Francisco, but who employ employees in the geographic boundaries of San Francisco, must provide paid sick leave to their employees. Measure F allows an employee to take paid sick leave for their own “illness, injury, medical condition, need for medical diagnosis or treatment, or medical reason.” It is also available for an employee to take time off work “for the purpose of providing care or assistance to other persons with an illness, injury, medical condition, need for medical diagnosis or treatment, or other medical reason.” “Other persons” are defined as “child (adopted, step-child, foster child or child of a domestic partner); parent; legal guardian or ward; sibling; grandparent; grandchild; and spouse, registered domestic partner or designated person.” The employee can use some or all of their paid sick leave to care for this “other person.” If the employee does not have a spouse or registered domestic partner he or she may designate one person to whom the employee may use paid sick leave to care for or provide assistance to. The employee must designate this “other person” within 10 work days after the date on which the employee has worked the 30 hours to begin accruing paid sick leave. If the employee fails to designate at this time, the employee may be allowed to designate on an annual basis within the 10 work days after the 30-hour anniversary date. Employers may require reasonable notice when sick leave is going to be used. The employer may only take “reasonable measures to verify or document that an employee’s use of paid sick leave is lawful.” The ordinance does not define what is “reasonable.” The following are the paid sick time requirements: For employees who are currently working for an employer on the operative date of the ordinance, which is 90 days after the November 7, 2006 election, will begin to accrue sick pay on that date. For those who are hired after the operative date, employees begin to accrue three months after commencement of employment with the employer. Employees accrue one hour of paid sick leave for every 30 hours worked. New hires shall start accruing sick leave after a three month probationary period. Maximum accrual of paid sick leave is 72 hours (9 days) for businesses with more than 10 employees. For businesses with 10 or fewer employees, the maximum accrual of paid sick time is 40 hours (5 days). Employers who already provide sick leave in an amount provided for in the ordinance, the employer is not required to provide additional paid sick leave. Employees may use sick hours to miss part of a shift in order to attend medical appointments. In the case of employees covered by a union contract, Measure F has a collective bargaining opt-out, but any opt-out must be expressly waived in the collective bargaining agreement. Accrued leave carries over from year to year, but the accrual of sick time is capped at the above accrual rates, i.e., 72 or 40 hours. Employees may not cash-out or be reimbursed for unused hours upon termination or resignation of employment. Employers must post a notice regarding paid sick leave in a conspicuous place. Measure F requires that the Office of Labor Standards Enforcement (“OLSE”) to publish and make available this notice. Employers are required to retain records documenting hours worked by employees and paid sick leave taken by employees for a period of four years. There is an anti-retaliation provision and taking an adverse action against a person within 90 days of the person’s filing a complaint with the OLSE raises a rebuttable presumption that such adverse action was taken in retaliation for the exercise of his/her rights under the ordinance. If paid sick leave is unlawfully withheld there is a penalty of the dollar amount of paid sick leave withheld from the employer multiplied by three or $250, whichever is greater. Please note that if harm results to the employee or “any other person,” such as discharge from employment, there is a $50 daily penalty for each day or portion thereof that the violation occurred or continued.

For more information about the topic above, contact Heather Candy at hcandy@pkwp-law.com or 916.442.3552. To read Ms. Candy's professional profile on the Palmer Kazanjian Wohl Perkins website, click here. Return to Top

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