One of the very common issues that plaintiffs have in a wrongful termination case, which might hurt their case and on which the defending employer may capitalize, is anger at the empoyer and the resulting victim mentality on the part of the aggrieved employee, where he/she seesm to act like what happened to him/her is catastrophic, and no one else out there has experienced anything as traumatic as his or her loss of job, discrimination, retaliation, harassment, etc. This kind of attitude will hurt you at a deposition and at trial in front of the jury and its very important to not come across as someone with that kind of mindset.
There are several reasons why the victim mindset is harmful. First, people don't usually feel sorry for those who are very sorry for themselves and who cry to the world about how unhappy they are. The judge, the jury and others have their own problems. Your discrimination or termination case will pale copare to someone who lost a son in a combat in Afghanistan, or even someone who was involved in serious car accident that left that impaired for years. Loss of employment is a very difficult experience, but you must keep things in perspective and not make more out of it than it is, as it will necessarily backfire.
Under the US Supreme Court's holding in Cleveland Bd. of Educ. v. Loudermill, 470 US 532 (1985), public employees who may be dismissed only for cause posess a property interest in their continued employment. The "just cause" limitation in the employer's right to terminate an employee is commonly provided for in the union collective bargaining agreement, memorandum of understanding, the manual of policies and procedures, or in any other kind of agreement between a public employer and employee.
Having a protected property interest in employeement means that any deprivation of such property, such as termination of employment, requires some kind of due process, which should include a notice and an opportunity to be heard at a hearing prior to being terminated. Mullane v Central Hanover Bank & Trust Co., 339 US 306 (1950). Therefore, a public epmloyee with a property interest in his continued employment must be provided with oral or written notice of charges and accusations against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. This kind of process must take place before the termination.
In Calfornia, due process mandates that the employee be accorded certain procedural rights before being removed. At a minimum, these pre-termination safeguards must include a notice of the proposed action against an employee, the reaosns for the action to be taken, a copy of the charges and materials upon which the action is based, and the right to respond to the allegations, either orally or inwriting, to the authroitiy initiating the discipline to be imposed. Jones v Omnitrans 125 Cal.App.4th 273 (2004). Any such post-termination review or hearing alone does not satisfy the due process requirement that must be provided to the above-referenced employees.
One of the advantages that emloyers and their counsel have in defending an employment/wrongful termination lawsuit is the many ways in which they can portray the claimant-employee in a negative light so to turn the jury off and make the jurors reluctant to award any money or any significant amount of compenation to the Plaintiff even if he/she has a vialbe claim and even if the employer has violated the law. This is an extremely important element of the case for any employer and something that every employee who brings a claims should keep in mind.
One common mistake that employee makes is being rude and unprofessional with their co-workers or manager when they feel threatened, harassed and/or discrimination. No matter how justified that conduct might be due to the employer's bad decisions of legal violations, e-mails containing harash language or threats of legal action do not benefit an employee in any way when procesuting a case. While the claimant might have perfectly legitimate reasons to unleash his anger, e-mails and letters reflecting the same look really bad in front of the jury, especially when the employer responds in a more kind and a more diplomatic manner. Blowing up a few such bad e-mails on an overhead will significant reduce or eliminated Plaintiff's credibiltiy and will make the jury, the judge or any other decision maker doubt just about everything else the Plaintiff's says.
If you are harassed or discrimination at work, you might be angry. You might even be outraged, but the jury will not be able to relate to your outrage personally by observing your anger. In fact, that kind of behavior will achieve the opposite result. Showing an anger toward your employer outside or inside the courtroom will not get the jury angry at your employer. On the other hand, being said, somewhat conversvative and reserved in your arguments, and limiting your testimony to a calm recount of facts, leaving the conclusion about how evil your employer is to the audience will usually achive much better results.
One of the mistakes that employers make in the context of disability laws is relying on the determination of their workers compensation administrators too much. One such very common mistake is assuming that just because an employee was determined to be 100% disabled by the workers compensation carrier, he/she is no longer able to work and is not entitled to any accommodations.
In the recenet decision of Couiellette v. City of Los Angeles (2011), the Second Appellate District noted that workers compensation and the disability discrimination protection under FEHA (Fair Employment and Housing Act) require separate inquiries. For FEHA, the question is not whether the Plaintiff is disabled, but whether Plaintiff's medical restrictions prevented him from performing the eseential functions of hte position that he held or that he desired to fill. Deferring to the workers comp administrator and the workers comp medical evaluations when determining an employee's right to a reasonable accommodations, especially when that employee specifically requested to be considered for a modified duty is not an appropriate approach.
Thus, the Couiellette court made it clear that sending an employee home and not allowing her to work on light duty because she was determined to be 100% disabled by the workers comp carrier, when she was already working on a light duty, was likely in violation of her disability rights. Workers comp carrier is simply is not the right body to determine whether an employee can or should be accommodated and remain part of the company's workforce.
Generally, a worker in California who is a member of any SEIU union and who has been wrongfully terminated in violation of state or federal laws can pursue one or the other or both legal routes to redress their termination:
Route I - Union Grievance and Arbitration
The first route is filing a grievance through the union representative for termination in violation of the collective bargaining agreement (most such agreements provide that there must be just cause for termination, which is generally more than a trivial mistake or a problem in performance, and has to be something relatively serious). Sometimes, the parties to a dispute settle a grievance in exchange for compensation or employee's reinstatement or both. If the grievance is not settled, it should eventually be submitted to a binding, out-of-court arbitration, in front of an arbitrator. The arbitration is like a mini trial where the Arbitrator will be the sole decision maker and will rule on the case after listening to the testimony of all parties and witnesses and after considering all the documentary evidence provided by the employer and the aggrieved employee. The employer is represented by counsel and the employee is represented by the labor attorneys appointed/hired by the union.
The advantage of the union grievance and the arbitration process is that the arbitrator has the power to literally order employee's reinstatement and further order that the employee is paid full back wages for the time missed from work since termination, assuming of course that the arbitrator finds in employee's favor. The main disadvantage of this route is that dealing with unions is quite often frustrating as they are not responsive or not aggressive enough about pursuing grievances on behalf of the workers. Having limited resources and personnel, a union must pick and choose which cases to fight for and which cases to let go, which is often not an easy decision. Unfortunately, many unions are not as supportive of their members, and it's not uncommon to hear about corruption and collusion between unions and employers, kickbacks, and other improper, unethical or even illegal conduct.
Route II - Wrongful Termination Lawsuit in Court
The same aggrieved employee can also file a separate action - a civil lawsuit in court if there is evidence of violation of state or federal law (such as discrimination, harassment, retaliation, etc...). This action will be brough in court and will have nothing to do with the arbitration proceedings. The collective bargaining agreement provisions have very little or no weight in that court action. Winning or losing a grievance or a union arbitration also has no binding effect on the court action. In other words, just because you lost the grievance, doesn't mean you don't have a good civil / wrongful termination case. The opposite is true as well - winning a union arbitration doesn't guarantee victory in court.
The advantage of a court action is that the employee is not left to the mercy of the union representative, but can enjoy individual representation and attention from an experienced employment attorney of his/her choice. Hopefully, that attorney can pay a much closer attention to the case than an overwhelmed or corrupt union administration. The disadvantage of a court action is that the court/judge/jury does not have the power to order the employer to take the employee back, like a union arbitrator can under the CBA provisions. This is because state and federal anti-discrimination laws provide for recovery of monetary damages for lost wages, emotional distress, and in some cases for punitive damages, but they do not provide for reinstatement except in limited cases (such as under Labor Code section 132).
Combining Both Routes
Pursuing both of the above routes is often a good idea for obvious, practical reasons. First, having two concurrent actions increases the chances that the employee will prevail in at least one of them. Secondly, having two actions against the employer applies greater financial pressure on the employer, who has to incur legal expenses on both fronts, and is more likely to encourage the empoyer to engage in settlement negotiations sooner than later. Finally, there is really no downside to pursuing both legal routes at the same time.
In California, an employment relationship may be generally terminated by either the employer or the employee for any reason or no reason (except not for discriminatory or retaliatory reasons). This means that, unless they agree otherwise by contract, no reason has to be given for terminating the employment relationship by either party. (Cal. Labor Code section 2922). However, sometimes employers abuse the at-will rule by firing employees for reasons contrary to public policy as expressed in statutory and constitutional provisions. In response, courts have created an except to to at-will employment principle: an employer may not terminated an at-will employee for a reason that violates fundamental public policy. This exception is enforced through a civil lawsuit for wrongful discharge in violation of public policy.
The first California court decision to recognize the wrongful termination in violation of public policy was Petermann v. International Brotherhood of Teamsters (1959). In that case, the plaintiff sue his employer after he was fired for refusing to lie and perjure himself during the investigative hearing before the Legislature. The Court of Appeal noted that it would be obnoxious to the interests of the state and contrary to the state's public policy to allow an employer to terminate an employee on the ground that that employee refused to commit perjury. The court further stated that California Penal Code section 118, prohibiting perjury, derives from the general principle that the presence of false testimony tends to interfere with the proper administration of public affairs and carrying out of the justice.
In 1980, the California Supreme Court addressed the public policy claim in its landmark Tameny v. Atlantic Richfield Co. decision. In that case, the employer was found to be liable for terminating an employee for refusing to participate in an illegal scheme to fix retail gasoline prices, reaffirming that an employer's obligation to not discharge an employee who refuses to commit a criminal act reflects a duty imposed by law upon all employers in order to implement the fundamental public polices embodied in the state's penal statutes.
The state Supreme Court went further to define the framework of the public policy claim in Gantt v. Sentry Insurance (1920), finding that it is against public policy for an employer to terminate an employee for resisting the employer's pressure to lie during the investigation of a co-worker's sexual harassment compliant.
Today, the public policy claim is an important weapon in the hands of employees of were demoted or fired for refusing to engage in activity which is either criminal or otherwise against the fundamental public policy of this state.
It seems that workplace retaliation by managers against employees who complain about their superiors' violations is almost part of human nature - at least for some people, who feel both angered and threatened by the complaints against them, and can hardly restrain themselves from seeking revenge, by making their subordinate's life harder in so many obvious and not so obvious ways, such as increasing work load, issues bad performance reviews or warning, attempting to relocate them to a less desirable location, trying to demote them or false accusing them of misconduct. There are different ways in which the law addresses retaliation, some of which are more effective than others. Documenting evidence of retaliation and having witnesses to at least some retaliatory actions can be critical in either proving a retaliation claim or making it stop.
Under California law, to establish a claim for workplace retaliation, the employee must show (1) that he engaged in a protected activity (such as complaining about harassment or discrimination, exercising rights under FMLA or disability laws, filing a workers compensation claim, participating in a union related activity, taking time off to serve on a jury duty, testifying in court, etc...); (2) the employer subject the employee to an adverse employment action (demotion / termination / transfer to a less desirable position or location); and (3) there exists a causal link between the protected activity and the employer's action. Colarossi v. Coty US Inc. (2002).
While the first two elements of a retaliation claim can be usually demonstrated by the aggrieved employee's own testimony, the third element is naturally a challenge to prove. In other words, an employee can testify to the fact that he complained and was terminated shortly after, but proving the critical elements that complaining was the reason for termination is difficult because direct evidence of the link is, of course, rarely, if ever, available. No employer in his right mind will admit that he actually retaliated against an employee. Therefore, most retaliation claimants must rely on circumstancial evidence of proving their case. Circumstantial evidence typically related to such factors as the plaintiff's job performance, the timing of events, and how the plaintiff was treated in comparison to other workers. Flait v. North American Watch Corp. (1992). Thus, excellent performance reviews before the protected activity, followed by poor performance reviews shortly after the protected activity can be one piece of evidence of retaliatory motive. Being a long-term employee and being terminated shortly after engaging in a protected activity is even stronger evidence of employer reprisal. Finally, when the discipline imposed on one employee is harsher than the discipline imposed on other workers for the same violation (for instance: verbal warning for being late once vs. suspension for the same violation against a victim of retaliation) can be also used to support a retaliation claim.
I have been involved in two cases by a group of non-exempt managers against their employers over the past two years. The cases were remarkably similar but the outcome was just as remarkably different. In both claims, the non-exempt managers, whose duties were almost identical to the job duties of their subordinates felt helpless and frustrated due to having to work far longer hours than 8 hours per day, due to not being allowed to claim overtime hours, and yet at the same time also not being allowed to work off-the clock.
Under the recent case law, this kind of practice of not paying for hours worked but not claimed is unlawful if the employer has actual or "constructive" knowledge of its employee working off the clock.
Interesting enough, I had a friendly conversation with one of the top executives of one of the companies at the end of litigation, which in itself is not a typical experience, and he told me that according to some of his finance people, imposing set expectations while trying to save on payroll expenses by not allowing employees to claim overtime or work off the clock is the only way to make their business profitable or even survive, especially in these economic times. As sympathetic as I was to that argument, I found my co-counsel's argument much more compelling - if the company is unable to do business and be profitable by complying with California labor laws, then it should not operate until it figures some other way to do business, outside of engaging in exploitation of its workforce.
I hope to be involved in more collective actions by employees against the employers who violate wage and hour laws. As cliche as it might sound, being involved in such cases makes me feel like I and my clients truly make a difference by changing the work environment one company at a time.
Some California employers place their employee in a physically and mentally challenging predicament by, on one hand, prohibiting to work overtime (more than 8 hours per day or 40 hours per week) and at the same time expecting them to complete the amount of work that's virtually impossible to do withing an 8-hour work day. Store managers are often in that position since they have to perform both the duties of their suborindates and their managerial duties.
Generally, it is illegal for the employer who has actual or "constructive" knowledge that its employees work off the clock, to not pay for the time worked off-the-clock. A number of companies have had class-action lawsuits filed against them for such violations over the past few years, including major, national retail, hospitality and food chains. Some classes of employees were as small as 50 to 100 employees, while others included thousands of class members.
According to at least one California court, to have a legitimate claim the aggrieved employee must have informed his superior/s of the fact that he works off the clock, so that they are on notice of that violation.
One of the common mistakes that I see employees with disabilities or serious medical condition make is failing to not only request reasonable accommodations to their disabilities, but not even informing their employers that they have a condition that might need accommodation. It is unfreasonable or even unfair to expect a supervisor or a higher rank management to provide reasonable accommodations to an employee if they are not aware that such need exists.
While the California courts have repeatedly held that no magic words are needed to be said by the employee to trigger the employer's obligation to engage in interactive process to provide accommodations, informing the employer of that need is necessary.
Some employees are afraid to approach their boss and discuss their disability due to a fear of being disciplined or fired. However, there is simply no upside to not disclosing your need for accommodations, especially if your condition is serious and is likely to aggravate if you continue working without accommodations. If for whatever reason you do not feel comfortable discussing your disability and need for accommodations with your immediate supervisor, approach your human resources department directly or contact them by phone/e-mail if they are located at a different branch of your company. Make it clear that you would like to discuss what can be done to address the challenges you experience in performing your job duties.
It is often considerably harder to pursue a wrongful termination action against the employer which is a public entity / government agency than a private company due to a number of privileges and immunities that may reduce or even complete insulate a government employer from liability. However, at the same time, public employees also enjoy certain protections and have a number of important rights that their peers in the private sector don't. One such great protection is afforded by the U.S. Constitution.
Under the 5th Amendment Due Process Clause, a state may not deprive a person from life, liberty or property without due process. Although the above rule sounds somewhat abstract and even esoteric, it has a very specific and practical application in the context of employment law, that has been developed during the past few decades, that can allow a public employee to bring a claim whether other claims would fail as a matter of law. A person has a liberty interest in employment protected by the Due Process Caluse if the dismissal effectively precludes future work in the individul's chosen professiona. Merrit v. Mackey, 827 F.2d 1368, 1373 (9th Cir. 1987). More simply put, if the circumstances of termination are such that they preclude a public employee from obtaining future employment in his area of work / licensure, and he was not afforded at least some kind of pre-termination hearing and an opportunity to challenge it, that employe might have a legitimate due process claim as he was deprived of the liberty to pursue work in his profession. An individual has a liberty interest in employment protected by the Due Process Clause if the dismissal is for reasons that might seriously damage his standing in the community Bollow v. Federal Reserve Bank, 650 F.2d 1093, 1100 (9th Cir. 1981), or if the dimissal effectively precludes future work in the individual's chosen profession. Greene v. McElroy 360 U.S. 44 (1959). As stated, to establish a violation of such a liberty interest, Plaintiff must show that his dismissal destroyed his freedom to take advantage of other employment opportunities and that because of the dismissal, it is virtually impossible for him to find new employment in a chosen filed. Engquist v Or. Dep't of Agric., 478 F.3d 985, 998 (9th Cir. 2007). This means that "poor performance" or "insubordination" or "tardiness" or other trivial issues will not give rise to this constitution claim unless the discharge renders the public employee / holder of a professional license unemployeable. On the other hand, the more extreme accusations against a public employee such as "unfit for duty" or "violent" or "dishonest and unethical" that lead to discharge are likely to be a constitution violatin of pre-termination hearing was not provided.
How does an employee prove that he is virtually unemployable. In Braswell v. Shoreline Fire Department (2010), it was sufficient for a plaintiff to get his supervisor to admit under oath that he does not think any other fire department would hire the plaintiff given the allegations that lead to his termiantion, in order to prevent the dismissal of his constitution claim and allow the jury to hear the case.
The due process claim is particularly helpful where the defamation claim which can be effective against private employer fails as a matter of law due to the absolute privilege against defamation claim that many public offices enjoy. Immunity doess not apply where the conduct exceeds the scope of the manager's authority and when a manager violates plaintiff's clearly established constitutional rights. When the law is clearly established, the qualified immunity defense fails since a reasonably competent public official should know the law governing his conduct.
One of the arguments the employers use in justifying why they did not or should not have known of their employee's disability is confidentiality. When confronted with a claim for failure to accommodate a disability, the employer will often say that they were legally not allowed to access the disabled employee's medical records and therefore they could not have known what was that employee's medical condition. Since the employers only have the duty to accommodate the disability they know of or should be aware of, the issues of access to this information becomes critical during litigation of disability discrimination and disability related wrongful termination claims.
The courts are do not find this argument to be persuasive. Thus, the Northern District noted that although an employer cannot ask an employee for documentation unrelated to establishing the existence of disability and the necessity of accommodation, it surely has the ability to review an employee's record for more information concerning the employee's medical condition in determining whether she possesses a disability and requires accommodations. Rowe v City and County of San Francisco 186 F.Supp.2d 1047, 1054, fn8 (2002). Further, under Cal. Labor Code section 3762(c), a third party workers compensation claims administrator can disclose medical information that is necessary for the employer to have in order for the employer to modify the employee's work duties.
Although somewhat outdated, the 2008 statistics from the California Department of Fair Employment and Housing indicate, as illustrated below that in the context of employment, disability claims represent a significant majority of all other discrimination complaints filed with the agency. This is not surprising in part because so many people sustain all kind of injuries at workplace and mostly industrial injuries and repetitive injuries (tendinitis, carpal tunnel, disc bulges). Many of such workers are retaliated against after they take disability leave or file a workers compensation claim. I worked with several managers who appeared to believe that because one of their employees was found to have exaggerated his injuries, all the others who request disability fake their condition. This is a dangerous generalization and mindset on the part of the employer which may result in significant liability in court, especially if the worker who claims disability discrimination is terminated.
Looking at the statistics below, I was surprised to see that age claims represent such a small minority of claims. I am pretty sure that one of the reasons that a relatively small number of age claims is filed is because they are so hard to prove. Unless there is a clear patter at a company of replacing older workers with the younger ones, or statements by the employer toward the victim that indicate age bias, such as encouraging an older worker to retire, calling him names such as "old time," "father," "old man" and making statements like "we need fresh blood in here" age discrimination is really hard to prove.
Whether the State Personnel Board finds that a public employee's discipline or termination was justified has little, if any, bearing on that employee's potential discrimination and retaliation claims under FEHA (Fair Employment and Housing Act). One of the recent cases discussing this issue is the Fifth District's decision in George v. Cal. Unempl. Insurance Appeals Board 179 Cal.App.4th (2009). In that case, the court noted that despite the fact that the service civil proceedings within SPB and the FEHA action seek to redress the same primary right - the right to maintain employment a certain work place, the law recognizes two distinct rights or interests at stake when civil service employee challenges discipline or termination on discriminatory or retaliatory grounds. While the primary right protected by the state civil service system is the right to continued employment, the primary right protected by FEHA is be free from discrimination and retaliation for engaging in a protected conduct. It was also held that state employees may pursue their claims of employment discrimination with either the SPB or DFEH or both. Ruiz v. Dept. of Corrections 77 Cal.App.4th 891 (2000).
The Board's responsibilities are directed at ensuring that state employment is based on merit, while FEHA was implemented to eliminate discrimination and vindicate civil rights in both private and public employment. These are distinctly different rights with different harms even though there may be overlap in the two statutory schemes. For this reason, there is no requirement that a state employee raise the FEHA issue at the SPB hearing.
On May 24, 2010, the 9th circuit published it's decision in Anthoine v. North Central Counties Consortium"The first amended shields a public employee if he speaks as a citizen on a matter of public concern." Huppert v. City of Pittsburg, 574 F.3d 696, 702 (9th Cir. 2009). However, "when a public employee makes statements pursuant to his official duty, the employee is not speaking as a citizen for first amendment purposes, and the Constitution does not insulate his communications from employer discipline. Garcetti v. Ceballos, 547 U.S. 40, 421 (2006). The courts employ a five-step analysis to determine whether an employer impermissibly retaliated against an employee for protected speech: 1. whether the plaintiff spoke on a matter of public concern - matter of political, social or other concern to the community (as opposed to a personal interest); (2) whether the plaintiff spoke as a private citizen or public employee - where the speaker had no official duty to make the questioned statement, or if the speech was not the product of performing the tasks the employee was paid to perform; (3) whether the plaintiff's protected speech was a substantial or a motivating factor in adverse employment action - such as proximity in time between the speech and adverse employment action and/or employer's expression of opposition to the subject speech; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public - the employer must demonstrate actual, material and substantial disruption, or reasonable predictions of disruption in the workplace. Robinson v. York, 566 F.3d 817, 824 (9th Cir. 2009); and (5) whether the state would have taken the adverse employment action even absent the protected speech. (fed docket 2:06-cv-01169-JAM-KJM) - an opinion that discusses government employees' protection against retaliation in California.
Considering the various privileges and immunities available to public employers, first amended rights represent a significant protection to state and other governmental workers, exercising free speech. First amendment right usually becomes an issue when a public employee complains about mismanagement, fraud, theft of public funds or other criminal or other egregious violations that he/she witnesses at workplace.
In the recently decided case, mentioned above, the court found that the above elements are satisfied or at least might be satisfied to demonstrate first amended violation, where a low level public employee jumped the chain of command and reported directly to the department chairman that his immediate supervisor misrepresented the status of the employer's compliance with certain legal obligations.
One of the favorite tactics of defense attorneys during taking plaintiff's deposition is to attempt to impeach or "corner" the aggrieved employee on issues that are of at best marginal importance. It typically starts with reminding and employee that he/she was on "at-will" status and could have been terminated for any reason or no reason. Then, the deposing lawyer will point at minor inconsistencies in dates, times and other data between your lawsuit, your DFEH/EEOC charge and your responses to written discovery.
A poorly prepared witness will react emotionally, will get defensive and might even get into an argument with the opposing counsel, in an attempt to justify the discrepancies in an aggressive manner, coming across as a hostile person. This can be very damaging to the case, especially if the deposition is videotaped, as the defense counsel will later at least try to get the most "dramatic" parts of the employee's deposition on a big screen for the jury's viewing pleasure.
You must absolutely not allow the deposing attorney to get you out of your emotional cool and balance. You must not react to any of the accusations. You either concede that you might have done something wrong, if the issue is not critical to your case, or you concede and then explain your answer to justify your actions, if possible. For example, if the opposing lawyer is stuffing a write-up in your face that says that you were 20 minutes late for work on some random day and asks you whether it is your signature on the write up and whether you were late, don't let it intimidate you. That "gun" that he is pointing at you is most likely a harmless "water gun," unless of course you were terminated for excessive tardiness. It's perfectly fine to agree that you were late, and explain why you were late, if possible.
Today, for example, I was really proud to see how my client was acting and answering questions at a deposition. The deposing attorney was very good and very detail oriented. It was obvious to me that she did a very good job digging as much dirty on my client as she could - from traffic tickets and criminal and civil records, to her Facebook activity and her volunteer work in the community. The lawyer spent the first 2 hours of the deposition nailing down the fact that my client knew about certain policies and that he signed a memorandum of understanding of those policies, namely - limitations on medical leave. My client was well prepared for this attack. I explained to her well in advance that an employer may not circumvent state and federal disability laws by creating its own "blanket" polices on the same issues, so just because her medical leave extended beyond the period allowed by the company, doesn't mean that she wasn't entitled to more leave due to her disability under Fair Employment and Housing Act, and thus she should not hesitate to conceded that she was in fact absent for longer than the company's internal policies allow.
This is yet another example why preparation is such a crucial part of your successful testimony as a plaintiff in your deposition. Most defense attorneys consider plaintiff's deposition to be the most important part of the case. The longer I practice and more I realize how true it is.
If you are plaintiff in a wrongful termination action, it is crucial that your employment attorney prepares you thoroughly for your deposition testimony and makes you feel confident about what you are going to say, and how you are going to handle the difficult questions that will surely come your way.
Lying or submitting false information leads to harsh consequence in just about any legal or quazi-legal proceeding. Unemployment related hearings and procedures are not an exception. Under unemployment insurance code section 1257, an individual is disqualified from unemployment benefits if he knowingly submits a materially false information with an intent to mislead the department in order to be awarded benefits. This means that even if you would otherwise be qualified for unemployment benefits, the mere false statement on a material issue may lead to disqualification.
Here is a very recent, real-life example. A potential client contacted me stating that she told EDD that she was laid off when in fact she was fired due to performance issues. Normally, she would be qualified for unemployment benefits, unless her performance issues involved gross, intentional, willful violations of policy. However, because she told the department determined that lying about the circumstances of separation was a sufficient reason to deny benefits. We are appealing that decision and I have a few ideas on how to convince the appeals judge to reverse the denial, but I am not very optimistic about the outcome. This should be a lesson for each applicant for unemployment benefits in California to submit only truthful information in the initial phone interview with the EDD representative and at any time later in the process.
Mediation becomes a progressively more popular way of resolving just about any civil dispute in California in general and in the Sacramento area specifically, especially when it comes to employment and wrongful termination cases, and for a good reason. Mediation is an informal, and usually relatively inexpensive way of finding a resolution through mutual compromise. It's an opportunity for both parties to close the gap through a neutral (the mediator) between what the claimant believes he should settle his case for and what the corporate defendant is willing to pay. The courts all over California encourage the parties to all civil disputes to resolve their case through mediation or some other kind of alternative dispute resolution (such as arbitration).
I believe that picking the right mediator for your employment case is crucial to the successful outcome of your mediation. There are at least three qualities that I am looking for when choosing the right attorney to mediate an employment case:
1. The mediator must be experienced in employment law. Employment and wrongful termination law is a very specialized area of law. The best mediator of injury or business cases might not be the right person to handle a workplace claim. If your case involves allegations of discrimination, harassment or retaliation, it is important that your mediators knows what it takes to prove and defend these claims and what the fair settlement value of your case is considering all the strengths and weaknesses that every employment claim has. Although the attorneys for both parties will draft mediation briefs explaining the mediator the law and the facts from their perspective, it really helps when the mediator can rely on his own experience prosecuting employment cases and on his own research and analysis as part of his efforts to resolve the claim.
2. The mediator must be at least somewhat aggressive. By law, the mediators are "neutrals." They do not have the authority (nor do they usually have the desire) to force any of the parties into a settlement. But many mediators take this neutrality concept to the extreme, acting like messengers. They run from one room to the other, simply delivering the message of one party to the other, and going back to the first party with the response. I very much prefer mediators who are more aggressive. In fact, I encourage a mediator long before the mediation date that I expect them to be aggressive at least with me. If I and/or my client pay $1,000 or more for a mediation, and we hire someone who we believe is experienced in employment law and knows how cases similar to my client's play out, I want the mediator to alert me in a very straightforward way as to the weaknesses of my case that I am unable or unwilling to see due to my bias in favor of my own client. I often go as far as to tell the mediator: "Hey, if you think my clients does not have a case, I want to hear it from you." I am not afraid of disagreeing with the mediator, but I very much appreciated an educated, candid "second opinion." Ideally, the mediator will be at least somewhat aggressive with the opposing party as well.
3. Your mediator must be likable and charismatic. There is no way around it. We like to listen to and we pay attention to the words of those who sound eloquent and persuasive. This plays a major role in elections, in a courtroom and at a mediation. At the end of the day, the parties at the mediation want to feel that they have accomplished something. They want to feel that even if they didn't get the best deal, they got a fair deal at the settlement table. No one can be better at creating that feeling that a mediator that possesses charisma and personality coupled with experience and knowledge of employment law. I have made the mistake of paying $3,500.00 fee to a mediator who had all the ivy league credentials, but whose excessively low key demeanor and a very scholarly approach to the process proved to be very ineffective, and I know that I will not make that mistake again. I learned it the hard way that when it comes to mediators, you don't always get what you pay for.
Your attorney might be very well aware of the qualities that make a great mediator in my view, but it can't hurt reminding him/her that the best mediator for your case should be experienced in employment law, aggressive, and charismatic.
I was happy to receive the decision in one of my recent unemployment benefits appeals hearings in Sacramento. In that case, the employer - Kaiser of Sacramento - appealed my clients eligibility for unemployment benefits after terminating a nurse with a 13-year career at Kaiser for not returning to work after being on medical leave due to symptoms of severe anxiety and depression, which were diagnosed, well documented and known to the employer for years several years prior to my client's termination. Kaiser tried to argue that my client's absenteeism was "misconduct" within section 1256 of unemployment insurance code. I was happy to learn that the judge made a correct ruling, pointing out that since the absenteeism was caused by the typical symptoms associated with depression, the terminated nurse should not be disqualified from benefits.
I was surprised that my client's former manager - a supervising nurse at a major hospital with many years of experiencing taking care of patients and managing other nurses - knew so little about the workers disability rights. If a hospital, charged with care for those who are sick, is unable or unwilling to comply with disability laws, what kind of example does it set to other employers?
Employees who are union members often face a situation where they sustain an industrial or repetitive motion injury and upon request for medial leave or reasonable accommodation, they are informed by their HR department that they have a set amount of weeks or months of leave, upon expiration of which they will be terminated regardless of the circumstances. This practice is a common mistake on the part of the employers and the unions as it often fails to take into account the fact that state and federal disability laws cannot be circumvented by the collective bargaining agreement or any other agreement. Workers who are otherwise qualified for certain protections, do not waiver those protections just because they become members of a labor union.
A classic California case on the issue is Jimeno v. Mobil Oil Corp., 66 F.3d 1514 (1995). In that case, an employee who suffered from an injury and a degenerative disc disease was dismissed after exhausting his limited medical leave rights under the union bargaining agreement. At trial, the employer argued that the employee's claims under FEHA for disability discrimination, failure to engage in interactive process and provide reasonable accommodation were completely preempted by the signed agreement, and therefore the employee couldn't sue under FEHA. The ninth circuit court disagreed, analyzing the legal issue extensively and eventually holding that the agreement did not preempt FEHA disability discrimination claims.
Thus, employees should be aware that their disability rights, and the right to reasonable accommodations due to their physical or mental condition might be more extensive than those provided in the booklet provided by the union.
The main source of interpretation of what "reasonable accommodation" duty is, imposed on the employers with regard to the workers who are disable or who are perceived as having a serious medical condition is Cal. Admin Code, title 2, section 7293.9. This regulation provides that any employer shall make reasonable accommodation to the disability of any individual with a disability if the employer or other covered entity knows of the disability, unless the employer can demonstrate that the accommodation would impose an undue hardship.
The examples of such reasonable accommodations include but are not limited to making the existing facilities used by employees readily accessible and usable by individuals with disabilities; job restructuring, reassignment to a vacation position, part-time or modified work schedules, acquisition or modification of equipment or devices , adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters and other similar actions.
An employer does not have to provide reasonable accommodations if the it can prove that doing so would impose undue hardship on its operations. Under the same regulation, "under hardship" means an action requiring significant difficulty or expense, when considered in light of several factors, including (1) the nature and cost of the accommodations needed; (2) the company's overall financial resources and the size of the employer; (3) the type of operations involved; and (4) the administrative or fiscal relationship of the facility. By Arkady Itkin, San Francisco Employment and Wrongful Termination Lawyer
Once an employer is informed of the sexual harassment, the employer must take adequate remedial measures. The measures need to include immediate corrective action that is reasonably calculate to (1) end the current harassment and (2) to deter future harassment. Sarro v. City of Sacramento (E.D.Cal. 1999) 78 F.Supp.2d 1057, 1061-1062. The employer's obligation to take prompt corrective action requires (1) that temporary steps be taken to deal with the situation while the employer determines whether the complaint is justified and (2) the permanent remedial steps be implemented by the employer to prevent future harassment once the investigation is completed.
An employer has a wide discretion in choosing how to minimize contact between the two employees (the alleged harasser and the alleged victim), so long as it acts to stop the harassment. The reasonableness of an employer's remedy will depend on its ability to stop harassment by the person who engaged in potentially unlawful conduct at workplace. Ellison v. Brady (9th Cir. 1991) 924 F.2d 872, 882.
In Bradley v. California Department of Corrections 158 Cal.App.4th 1612 (2008), one of the claims by the employee was that the employer, the State agency, failed to prevent sexual harassment to which she was subjected by her co-worker. The court noted that while it recognized that things move slowly in the state government, the lack of action by the employer in that case was "startling." Id. at 1633. The court noted that very little investigation was done and nothing was done by the employer to make sure that the harassment stops. Each manager that the victim would approach for help would refer her to someone else over and over. The court further made an important point that an employer may be required to take remedial action even when harassment is not corroborated. Id. at 1634. This means that it's generally proper for employers to at least temporarily suspend or transfer the accused shortly after receiving a complaint before the investigation even begins, to avoid the risk of continuing to expose the victim to harassment.
Under California Labor Code section 2929 it is unlawful for an employer to discharge an employee for the payment of one judgment of threatened garnishment. The law defines "garnishment" as any judicial procedure through which the employee's wages are required to be withheld for the payment of any debt. The term "wages" includes "all amounts for labor performed by employees of every description," whether the amount is fixed or calculated on the basis of time, task, piece, commission, or other method. Cal. Labor Code 200(a) & 2929(a)(2).
If the employee is fired in violation of section 2929, his wages continue until reinstatement or until 30 days have elapsed. Generally, the recovery is limited to the wages the employee would have earned during the 30 days preceding the levy of execution on the garnishment order. An employee who wants to have the Labor Commissioner take an assignment of the claim must file it with the Commissioner within 60 days after discharge. However, a discharged employee cannot sue the employer if a criminal prosecution based on the same discharge has been commenced under the federal Act. Section 2929 does not affect any other rights that the employee may have against the employer for wrongful termination, including claims for discrimination, retaliation, harassment and alike.
Suppose you are a non-exempt employee (i.e. employee who is entitled to overtime) who was ordered by his employer to attend a training class in another city or another states, which requires you to take long drives or overnight flights to the training destination outside your work hours. Should you be compensated for that time? Many employers include in their policy (employment handbooks, etc...) a clause that provides that their employees will not be paid for any commute outside working hours. This policy usually violates California employment law with regard to the non-exempt employees. Time spent traveling to an event, attending which is required by the employer must be paid for whether the traveling takes place during the normal work hours or outside the normal work hours and regardless of whether the business trip includes overnight stay.
The California high confirmed that the "hours worked" as defined by California labor law don't make a distinction between the "normal" hours worked and those hours worked outside the "normal" time. This actually makes sense. After all, why would an employee not be entitled to wages for work performed or commute related to work during the hours when he expected to or is normally supposed to enjoy his free time. No private policy of an employer can override these state laws.
If you are an hourly employee, your employer can establish a different rate of pay for any travel time before and after performing work, as long as that rate to doesn't fall below the state minimum wage rate. In fact, many companies pay their employees minimum hourly wage for all travel time in addition to reimbursing those traveling employees for all necessary and reasonable expenses associated with the business trip under California Labor Code section 2822, thereby properly complying with the state law.
An employee whose wages are based in part on commissions may face a situation where he is being terminated or laid off, shortly after a transaction (or a number of transactions) that result in earning his commissions take place and before he is paid or where the transaction falls through after he earns his commissions but before he is paid. At that point, the employer may refuse to pay the employee commissions due and argue that the subject employee is not entitled to those commissions.
Although, the law is not fully clear on the issue of when the employer has the right to withhold commissions, the are certain useful guidelines that the courts have prescribed in the decided cases. In one leading case on the issue of chargebacks against commissions - Harris v. Investor's Business Daily, Inc. 138 Cal.App.4th 28 (2006) - the Second District deal with the issue of withheld commissions. In that case, the employer argued that the company was entitled to withholding commissions because they constituted "advance" to the telemarketers whose job was to sell monthly newspaper subscriptions, because the subscribers had the right to terminate the subscription after signing up, and thus, the company believed, the loss of the business should have been carried on to the employees in charge of obtaining that business.
The court has rejected the above argument. The court started its analysis by noting the fundamental presumption that the employer shall not take any wages back from the employer after they are earned. Cal. Labor Code section 221. Wages are defined broadly to include all amount for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard time, task, piece, commission basis, or other method of calculation. Cal. Labor Code section 200. The court further held that in order to chargebacks to be legal in that case, (a) the commissions must be specifically identified as "advance" in the company's stated policy or compensation agreement. In addition, (2) the employees must expressly agree to the chargeback policy in writing.
The Edwards v. Anderson decision has recently further liberalized competition, holding that almost all non-compete agreements between an employee and the employer are invalid and unenforceable.
However, a number of significant exceptions to this rule remain in effect. One such exception is that it is illegal for a former employee of a company to engage in unfair competition, including using trade secrets or proprietary information of their former employer. This exception is often applied to the situations were the sales people who leave a company, take the company's customer lists, and start their own company, using the subjects lists of customers in order to solicit business from them.
In 1985, California adopted a Uniform Trade Secret Act for misappropriation of trade secrets. It defines a trade secret as "information, including a formula, pattern, compilation, program, device, method, technique, or process that (1) derives independent economic value from not being generally known to the public..., and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. The legislature meant to codify that a customer list procured by substantial time, effort, and expense is a protectable trade secret. Thus, one case held that a list of customers or subscribers "built up by ingenuity, time, labor and expense of the owner over a period of many years is property of the employer," and "knowledge of such a list, acquired by an employee by reason of his employment, may not be used by the employee as his own property or to his employer's prejudice." Greenly v. Cooper (1978) 77 Cal.app.3d 382, 392.
On the other hand, if the information about potential clients is generally available to the public, and the compilation process of the subject list that the employer used is neither sophisticated not diffcult or particularly time consuming, then there will likely not be a violation. This may include making cold calls or consulting phone directories in a competitive industry, where many other business target the same customers the same way. (See American Paper & Packaging Products, Inc. v. Kirgan 183 Cal.App.3d 1318 (1986)). For more information about non-compete agreements and their validity in a specific situation, feel free to contact San Francisco & Sacramento Employment Lawyer.
California Labor Code provides significant protection to employees who sustain an industrial injury and whose employer failed to secure a workers compensation insurance coverage. Under Labor Code section 3706 such an employer will be liable for employee's injuries in tort. That is, under the circumstances, the employer may be sued in negligence for injuries sustained by the employee. While some injuries at work are relatively light, some injuries can be permanent and debilitating (assembly line type and alike machinery), exposing employer to significant exposure for the injured employee's damages.
This is yet another reason why the employers who are subject to the provisions of the workers compensation laws are urged to have that kind of insurance coverage.
Although the vast majority of the private sector workers in California are at-will employees and can be terminated for any reason, no reason, or arbitrary reason, as long as it's not an illegal reason, a number of employees have a contract with their employer which limits the employer's rights to terminate and require showing of "cause" or "good cause" for termination. Thus, practically all union members can be only terminated for "just cause" as their collective bargaining agreement provides. In addition, some employment contracts provide that the employee will be employed for a specified term and cannot be terminated except for cause. Usually "cause" means gross and/or intentional misconduct, such as fraud, theft, willful violation of company policy, competition or disclosing confidential information to competitors, etc.
The law on the meaning of "good cause" termination is ambivalent. On one hand it provides significant protection to employees whose employment is governed by this term. On the other hand, it gives a significant leverage to the employer. It is important to understand that the employer does not need to prove that the misconduct giving ground to contract termination actually took place. It only needs to show that in discharging the employee, it was acting for a purpose relating to its business needs or goals, rather than for a wrongful motive or reasons. Cotrans v. Rollins Hudig Hall Int'l (1998). The courts generally defer to the employer's good faith exercise of its managerial discretion, although that discretion is not unlimited.
Under the leading on the issue Cotrans case standard, three factual determinations are relevant to the question of employer's liability in good cause discharge claims:
(1) whether the employer acted in good faith in deciding to terminate the employee;
(2) whether the decision followed an adequate investigation; and
(3) whether the employer had reasonable grounds for believing the charges against the employee were true.
"Adequate investigation" means that at a minimum, the employer should listen to both sides. That is - give the employee a fair opportunity to preset his position and to correct or contradict relevant statements or information. It is also important that any investigation taking place is conducted by neutral, unbiased personnel members who have no interest in the outcome of that investigation. Interviewing a large number of co-workers and other witnesses of the alleged misconduct will also make the investigation more valuable and complete, protecting the employer from liability and assuring that the results of the investigation are more reliable.
It is not uncommon for employers to claim that a certain employee is exempt from overtime compensation benefits because of his title. The California Courts and the Department of Labor have consistently held, however, that the employee's job title has little, if anything to do, with his exempt status. This makes perfect sense. Many people have a title of a "director" or a "manager" when in fact they duties are very simple and basic and where they are clearly entitled to overtime. A classic example is a receptionist who has a title of "Front Office Manager." Some janitorial workers have a title of "Maintenance Directors."
Recently, I have representing an employee of a software company in her overtime claim. The employer claimed that her "Accounting Manager" title and her high salary ($100k per year) alone made her an exempt employee. I drew the employer's attention to numerous cases that clearly suggest that an employee's title or a salary do not determine her status, but it's ultimately the level of duties that makes a difference between exempt and non-exempt status. To be exempt, an employee must be primarily engaged in exempt/executive duties where she exercise a certain degree of control and discretion/creativity. In this case, the employer had to agree that the employee was performing the most basic bookkeeping duties rather than being an "Investment Analyst" as they tried to initially characterize her job description, and the claim settled before the hearing in front of the Labor Board.
Recently, I had represented an employee at a hearing in front of the unemployment appeals board in Contra Costa County. She was a hard worker, who was an unfortunate victim of the timing of certain events in her employment that lead to the denial of her employment benefits, which is a lesson to other employees who may find themselves in a similar situation.
The employee held two jobs: one full time and the other one was a part time position. Having worked 60 hours per week without any days off, the employee has made the decision to quit her part time employment and keep her full time job. On day A, she gave her part time employer a two-week notice of resignation and has informed the part time employer than she will resign on date C. A week from Date A (let's call that date - Date B), the employee was unexpectedly laid off from her full time position. The employee continued working at her part time job for a week from Date B till Date C - which was the last date of her employment as per her resignation notice. When the employee applied for benefits, she was formally denied, because she actually voluntarily quit her last place of employment (her part-time job), and from the EDD's standpoint, the fact that she was laid off a week before by her full-time employer and would have clearly qualified for benefits, had that employer was her last employer and had she not continued working for her part time employer after the lay-off did not make a difference.
At the appeal hearing, the administrative law judge emphasized the rule that an employee is not entitled to benefits if he voluntarily quits his last employment, unless there is good cause. As I expected, the main issue on appeal was whether the employee invested sufficient effort into rescinding her resignation and trying to keep her part-time job after she was laid of from her full time employment. The main question was whether the employee approached her part-time employer and asked whether she could continue working or, if her position was already filled, apply or hold another position or a different shift at the same position.
In this case, the employee did not sufficiently inquire into her ability to continue working for her part-time employer. Even though I argued that it is usually embarrassing and uncomfortable for an employee to ask for her job back after resigning, I don't think the judge was impressed by that argument and I expect that he will affirm the denial of unemployment benefits.
California Labor Code section 6399.7 states that no person shall discharge or in any manner discriminate against any employee because of protected conduct, nor shall any pay, seniority, or other benefits be lost for exercise of any such right. This protection extends to filing any complaint or testifying in any matter related to occupational safety.
This provision is a powerful protection in those relatively common situations where a production/assembly plant employee complains to his boss about a certain dangerous condition or safety violation at workplace. After not having those concerns addressed, the employee contacts OSHA or any other governmental agency in charge of enforcing specific safety regulations. Shortly after the management is contacted by the agency, the employer is likely to feel "back-stabbed" and will engage in a campaign of discrimination, harassment and creating hostile work environment for the employee that only wanted to make sure that his workplace is safe for himself and his co-workers.
It is important to note, that the protection against retaliation extends to those employees who "reasonable believe" that safety violations take place. This means that the employee does not have to prove that the workplace is unsafe or in violation of any code, but only has to "reasonably believe" that such violations take place. Thus, in many cases, even though the employer proves that no violation took place and that the employer was in compliance with all the rules, the employee still prevailed on his retaliation claim, after the employer suspended, demoted, or terminated the complainant.
Under FMLA (Family Medical Leave Act) and its California counterpart - CFRA (California Family Rights Act), the employer may require the employee to submit a certification by the employee's health care provider, which "shall be sufficient if it includes all of the following: (a) the date on which the serious health condition commenced; (b) the likely duration of condition; and (c) a statement that, due to the serious health condition, the employee is unable to perform the function of his/her work position. Cal. Gov. Code section 12945.2(k)(1). Clearly, this law contemplates that the privacy rights of the employee's medical conditions have to be protected and that the FMLA/CFRA certification should be general enough to avoid disclosure of sensitive medical information, such as an employee's specific medical condition and diagnosis. This can be particularly important if the employee is about to undergo a politically/socially controversial procedure such as vasectomy or abortion, for instance. No employee would be interested in having his relationships with co-workers and superiors affected by undergoing a procedure that some people oppose on moral, political or religious grounds. After all, it is not uncommon that revealing such sensitive information give rise to conflicts at work place and even harassment and discrimination.
An employer who "has a reason to doubt the validity of "the employee's health certification "may require, at the employer's expense, that the employee obtain the opinion of a second healthcare provider, designated or approved by the employer, concerning any information certified. If there is a difference in opinion between the two evaluations, the employer may require, at the employer's expense, that the employee obtain the opinion of a third health care provider, designated or approved jointly by the employer and the employee. In that case, the opinion of the third provider will be binding on the employer and the employee. Cal. Gov. Code section 12945.2(k)(3)(D).
During the employee's medical leave, the employer must continue to provide the employee with health benefits, and upon return to work, the employee must be given the same seniority as before the leave. Cal. Gov. Code section 12945.2(g).
An employee is "eligible" for leave under the FMLA if she has been employed for at least 12 months by an employer covered under the code, and has worked at least 1,250 hours for the employer during the previous 12-month period. 29 U.S.C. 2611(2). Eligible employees are entitled to a total of 12 workweeks of leave during any 12-month period for a serious health condition that makes the employee unable to perform the functions of the position of such employee. A serious health condition is an illness, injury, impairment, or physical or mental condition that involves ... inpatient care in a hospital ... or continuing treatment by a health care provider. Once the employee returns from leave, she must be reinstated to her previous position or an equivalent one.
The are two main ways in which an employer may violate FMLA rights. One is a retaliation or discrimination claim which arises when an employer discharges or in any other manner discriminates against any employee who asserts her FMLA rights or who complains about her inability to assert said rights due to the employer's conduct.
The other kind of violation is an interference claim which makes it unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under FMLA. Under this theory, a denial, interference, or restraint of FMLA rights is a violation regardless of the employer's intent. Thus, the fact that an employer innocently dismissed the employee because that employee exercised her FMLA rights does not absolve that employer from liability.
An employer can defend the claim, however, by showing that "the dismissal would have occurred regardless of the employee's request for or taking of FMLA leave. An employer would have the burden of proving that an employee would have been laid off during the FMLA leave period in any event, and therefore would not be entitled to restoration. See 29 C.F.R. section 825.216(a)(1). In fact, this is one of the most common defense that the employer use in defending FMLA claims. Here is a typical scenario: an employee goes on FMLA leave, is being terminate shortly after, and then the employer argues that the employee was terminated for tardiness/excessive absenteeism or for performance issues. At this point, the employee has the burden of demonstrating to the court that the reasons for termination are not true or pretextual, by showing such inconsistencies or contradictions in the employer's arguments that make those arguments sound untruthful or at least suspiciously non-credible.
Thus, although the time of termination alone might not be sufficient to prove FMLA violation, whenever termination occurs while the employee is on leave, that time is of significance. Thus, in Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 061 (10th Cir. 2002) the court observed that the timing of the employee's termination, which occurred during leave, indicated causal relation between her FMLA leave and her dismissal. The timing is particularly suggesting when termination occurs shortly after the employee notifies her employer that shoe would need to take FMLA leave.
California employees' rights to meal breaks are governed by Labor Code section 512 and the applicable wage orders of the Industrial Welfare Commission. It is important to note that the right to meal periods and penalties is non-negotiable and cannot be waived in a collective bargaining agreement. Thus, the employee's membership in a union is immaterial to his right to meal breaks.
On the one hand, the law only requires that an employer make a meal period available and does not obligate employers to actually ensure that employees take advantage of the rights made available to them. Brown v. Federal Express Corp (2008). On the other hand, an employer has to make sure that the breaks are actually available and assuming that alone is not sufficient. Thus, the employer does not satisfy his obligation to provide meal breaks to truck drivers by merely assuming that they take breaks, because an employer has an affirmative obligation to ensure that workers are actually relieved of all duty at such times, and employers also have a duty to record their employees' meal periods. Cicairos v. Summit Logistics, Inc. (2005).
This means, that to avoid liability for failure to provide meal breaks, employers are advised to both (1) make sure that their employees are aware that they have meal breaks (signing an acknowledgment form to that effect might be one effective way to acquire evidence of compliance); and (2) make sure that the employees do not have to do any work while on a break (such as answering occasional work related phone calls, responding to the manager's inquiries while on a break, etc.)
It is not uncommon for an employer to fight the terminated employee's right to unemployment benefits, especially if the termination was contentious and involved personal animosity. The law is clear that the otherwise eligible employee can be only disqualified from benefits if he voluntarily quits or if he was terminated for "misconduct." There is usually no dispute over whether the employee quit on his own or was forced out. However, whether the termination was for "misconduct" has been a subject of dispute on many, if not most, appeal hearing at the unemployment appeals board. Under the unemployment insurance code, "misconduct" is a term of art that means more than an ordinary negligence or less than satisfactory performance. To be disqualified from unemployment benefits, the employee's misconduct must be somewhat severe or willful, such as substantial and intentional deviation from the company''s policy, theft, threats of violence, harassment and alike.
Also, the termination must be causally linked to misconduct. In other words, an employer should not prevail on appeal if the employer's argument is that an employee was terminated for misconduct that took place a while before termination, as this does not establish that the employee was terminated because of misconduct (temporal proximity of misconduct and termination is an important element of the employer's case). Misconduct leads to immediate termination, and if the termination is delayed and takes place a while after "misconduct," the appeals board will rightfully suspect that the employee was terminated for reasons other than misconduct, and will award an employee the benefits.
California employees who suffer from asthma and other respiratory diseases that make them hypersensitive to tobacco smoke might be protected by the California Fair Employment and Housing Act ("FEHA") and entitled to the same protections against discrimination based on medical conditions as other qualifying disabled workers.
In County of Fresno v. Fair Employment and Housing Commission 226 Cal.App.3d 1541 (1991), the Fifth District reiterated that the California disability laws are to be liberally construed and include protections to workers who suffer from a wide range conditions that limit their life activities, which also includes respiratory activities - functions that affect a person's basic ability to breathe. In that case, the employer - County of Fresno - argued that an employee's hypersensitivity to smoke is merely an "environmental limitation" and not a physical handicap. The court rejected that argument, holding that the Tobacco smoke in the environment may simple be an environmental limitation to those who do not suffer from severe respiratory disorders. However, someone who suffers from respiratory disorder and whose ability to breathe is severely limited by tobacco smoke is physically handicapped within the meaning of the Act.
The above findings triggered the employer's obligations to provide reasonable accommodations as required by FEHA. These accommodations may include, according to court, having smokers use desk top air filtration machines, keeping the windows open, separating the desks for smokers and non-smokers, and alike.
California law prohibits sexual harassment in the workplace. Originally enacted in 1980, Government Code section 12940 is part of the Fair Employment and Housing Act. The prohibited conduct ranges from expressly or impliedly conditioning employment benefits on submission to, or tolerance of, unwelcome sexual advances to the creation of work environment that is "hostile or abusive to employees because of their sex." Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.
It's important to note that the California courts have consistently held that the hostile work environment from sexual harassment is actionable only when the harassing behavior is pervasive or severe. This means that to prevail on a hostile work environment claim, an employee must show that the harassing conduct was "severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. There is no recovery for harassment that is occasional, isolated, sporadic, or trivial. Thus, the existence of a hostile work environment depends upon the totality of circumstances. Generally, the more severe the conduct is, the less pervasive it has to be in order to be actionable. Thus, a single harassing incident involving physical violence or a threat thereof may qualify as severe and extreme. Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 151.
Generally, however, to be actionable - a sexually objectionable environment must be both objectively and subjectively offensive. Therefore, an employee who subjectively perceives the workplace as hostile or abusive, will not prevail if a reasonable person considering all the circumstances, would not share the same perception.
The California employment and wrongful termination law is one of the areas of law which the typical employee have the greatest misunderstanding about. Many employees believe that just because they feel they are treated unfairly, or their boss is rude to them, they suffer from "hostile" work environment, not realizing that the term "hostile" has a specific meaning in the world of employment law, which is very different from the ordinary meaning of the same word.
On the street, anyone or anything that is non-friendly, can be classified as hostile. In the world of California employment, having a hostile work environment claim requires a showing of specific, repeated and sufficiently severe misconduct by an employer or his agents that objectively and significantly alters the working conditions of the victim. The same applies to the term "harassment." The non-legal definition is much broader, as any (repeated) act to irritate, annoy, or threaten some may be legitimately called harassment. Under California Fair Employment and Housing Act, however, the standard required to show harassment is much higher. Among other things, the conduct complained of has to be sufficiently "severe and pervasive" by the objective standard, and must also be motivated by the fact that the victim belongs to one of the protected classes (ethnic, religious or sexual orientation group, disability or medical condition, etc.)
The above are just few examples of typical misconceptions about the worker rights laws in California. The same applies to employment terminating claims. The vast majority of firings, as cruel and unfair as they might be - do not violate the law and thus are not wrongful (although might very well be wrong). A typical example of wrong termination which is not "wrongful" is termination caused by the personal animosity of a manger toward the terminated employee. Being mistreated or being disliked by your supervisor and even being terminated because of personality conflict between you and your superiors is usually not illegal, unless you have a contract of employment for a set period of time, which hasn't yet expired at the time of your termination, or unless you a member of the union, and are thus likely covered by the collective bargaining agreement, that usually limits the employer's ability to terminate an employee, requiring showing good cause or just cause for termination.
Under FMLA (Family Medical Leave Act), an employee must provide the employer with enough information and notice for the employer to reasonable suspect that the employee may qualify for FMLA leave (or CFRA - California Family Rights Act). The employee can do this by stating that the reason he needs the leave is because of the serious medical condition or the impending medical treatment.
Employer, who terminate an employee who would otherwise qualify for FMLA, often justify termination by arguing that firing an employee was legal because he did not specifically request FMLA or CFRA leave. However, this defense has no merit, as the California regulations are clear that an employee does not need to specifically mention the words FMLA or CFRA to meet the notice requirement. All that an employee needs to do to qualify for such leave is to state the reason why the leave is needed. In fact, the courts have found that notice may be sufficient when employees call employers to tell them that they or their children are sick and they will be absent from work. Once such notice is provided, it is the responsibility of the employer to inquire further whether the same employee is actually qualified for FMLA leave.
Medium size employers in the Sacramento area are particularly prone to violating FMLA, as they are large enough to be bound by the FMLA provisions, but often do not have the infrustracture in place to educate their supervisors and managers on handling requiest for medical leave.
Violations of FMLA may give rise to other claims, including retaliation for asserting FMLA rights, disability discrimination and failure to accomodate, if FMLA leave is requested in connection with the serious medical condition which may be considered a disability and other actions.
Many employees misunderstand the concept of being "protected" or engaging in a "protected" activity. The believe that just because they belong to a protected group of workers, they cannot be terminated under any circumstances under California law. This is not correct. Generally, "protected" means protected against being singled out, discriminated, retaliated or treated different because of being a member of the protected class. However, this protected employee status doesn't grant an employee absolute immunity from termination. The two major and very common examples where being a protected employee doesn't prevent an employer from terminating the same workers and doesn't violate the law are a legitimate lay-off or terminated for valid reason/cause.
For example, suppose you are an employee who sustained an injury and you requested and received an FMLA/CFRA Leave. While on leave, the employer found out that you stole merchandise or money from the company. The employer can easily and lawfully terminated you without violating the law, as the employer had a legitimate reason to terminate you, irrespective of your FMLA leave, and would have terminated you for theft, whether or not you requested and received the above medical leave.
In the alternative, if the employer decides to lay off a number of workers, including you, it will be legal if it complies with other laws regarding lay-offs and if you are not chosen for a lay-off among other employees, becuase of requesting leave or due to your medical condition.
Finding the right lawyer to represent you in your employment/wrongful termination case or in any other civil claim can make a big different to both, the outcome of your case and your experience working with an attorney. There are over 200,000 active attorneys in California, and chances are that there are hundreds of lawyers in each area of law in your locality. So, how do you decide who to contact and who you should be represented by? Well, first let's talk about how not to choose an attorney and what are the common mistakes that consumer make when trying to find a lawyer for their case:
1. Choosing a Random Attorney from Yellow Pages. choosing a random lawyer from the list is like playing a lottery. Chances are that anyone who you call is admitted to practice law in California and is in good standing. However, these are not sufficient qualifications to effectively represent you especially if you have a more challenging case, requiring specialized knowledge of certain aspects of employment law. You need an attorney who has a thorough understanding or your particular legal issues.
2. Choosing an Attorney Who Has the Sharpest Website. While many great lawyers have really nice website, just because an attorney hired a great web design firm who did an excellent job for him, doesn't mean that his legal knowledge and litigation skills are just as advanced.
3. Choosing an Attorney Who Says that He is the Best. Bragging is rarely a reliable source of information. Legal profession is not an exception. A truly great lawyer has no need to brag about how good he is, because his skills and his reputation do the job of conveying to the public how good he is.
4. Choosing the Cheapest Attorney. Your decision should never be motivated by trying to save $50 on an hourly fee or a few percent on a contingency arrangement, if this means retaining an attorney who is less qualified or less committed to his work and your case, as in the end it will necessary cost you more than any money you might have saved when your attorney-client relationship was initiated.
So, what are the qualities that the best lawyer for your case must have?
First, he/she has to have the knowledge of the are of law into which your claims fall. This means that if, for example, you have been wrongful terminated, discriminated or retaliated against, you need an employment lawyer and not a general practice lawyer or someone who "does everything."
Secondly this attorney has to be available and not overloaded with work. There is very little value for you in the best attorney, if he is too busy and he is simply unable to put as much work into your file as necessary to reach a good result.
Lastly, your attorney must be responsive to your communication. If you are unable to get in touch with your attorney for weeks or months (it does happen), or if you are only able to speak with the secretary/paralegal, you are going to feel alienated and removed from your case, and you should never feel that way.
So, how do you find a great lawyer. Well, like in virtually every other business, you should ask around and find people or lawyers who had an employment case that was successfully prosecuted or who know someone who was happy about an employment attorney's services. You should then contact that attorney. If he is unable to help you or if he is too busy to represent you, you should ask him to give you a few names of other trusted employment lawyers in the area who might be available for representation. A referral from another professional in the same area, who already has great reputation, is a much more reliable source of finding a good attorney for your case than any advertisement or directory.
One of the most common reasons that managers and supervisors retaliate against their employees is because they complain about harassment by the same manager/supervisor to higher ranked executive. None of us like the complainer - someone who goes "behind our back" to tell on us to someone who has power over us. However, while in social situations saying negative things about someone might be rude and unacceptable, an aggrieved employee who feels helpless to resolve his issues at workplace with his/her immediate supervisor usually doesn't have a choice - the only person who he can and must turn to, as per the company's policies, is his boss' boss. This often leads to attempts by the worker's supervisor to retaliate against the complainant. Most supervisors no that retaliation (one kind of retaliation is taking adverse action against an employee because he complained about sexual or gender harassment, or harassment due to one's race or disability) at workplace is illegal in California, and therefore they will try to make the worker's life harder in more subtle but equally painful ways, such as issuing unfounded negative performance reviews, falsely accusing an employee of misconduct or even violence at workplace and otherwise trying to build a record or a paper trial to get rid of the employee.
If you enjoy your work and your workplace, and there is only one or two "rotten apples" that try to retaliate against you for your complaint, it is important that you discuss this situation with an experienced employment lawyer, with whom you would be able to come up with a strategy to deal with your specific situation, considering all the unique facts and circumstances of your career and workplace. Even though I am making a living out of both suing and defending employers, I firmly believe and convey to my clients that a job is better than a lawsuit a no job.
