California Employee Rights Advocate : California Labor Attorney & Lawyer : Southern CA Employment Law : Los Angeles, Orange County : United Employees Law Group

While the law can’t prevent employers from retaliating against their employees, it can offer restitution should you fall victim to retaliation. Retaliation can come in many forms and can be a result of several different types of issues reported.

Often times the employee will report issues such as sexual harassment, unsafe working conditions, workers compensation claims, another employee breaking company policy or even broken laws, also known as Whistleblower. Most commonly discrimination is reported; such as: age, race, gender, sexual orientation, religion, and disability.

As unfortunate as retaliation is, it can be in administered in many different ways. Employers have been known to cut hours or pay, pass employees over for promotions, place people on unpaid administrative leave and even terminate employment. Termination in retaliation for reporting any of the previously mentioned issues would likely be considered a wrongful termination.

It’s also interesting to note that even though there might only one person, perhaps your manager, giving you a hard time or retaliating against you, under the law the company is still liable for that person’s actions. In 1998, the California Supreme Court ruled that individual managers and supervisors can’t be held personally liable for retaliation. However, the California Fair Employment and Housing Act says that it is unlawful for "any employer, labor organization, employment agency or person'' to engage in retaliation.

If you have recently reported some type of illegal or improper activity within the company and your working environment or conditions have been adversely effected you should seek counsel of an experienced California labor law attorney. An experienced attorney can help you understand the legal aspects of your situation as well as offer guidance in seeking recompense.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

• Email This
• Print
• Comments
• Trackbacks

Employers are often concerned with how employees conduct themselves on social networking sites as they are, in a sense, representatives of the company. However employers should be cautious of disciplining employees when it comes to the content of the employee’s posts. More specifically if the post is related to the working conditions the employer should be wary of how they choose to react.

In New York an employee was recently fired from a nonprofit organization for posting a comment about the working conditions. Later an administrative judge ruled this to be a wrongful termination.

Judge Arthur Amchan of the National Labor Relations Board ("NLRB") reviewed statements of five employees of Hispanics United of Buffalo, an entity providing social services to low-income clients. One of the employees created a post on facebook in which she describes the organizations failure to adequately serve their clients. This was followed by other employee’s posts in which they defended their performance. All five employees that participated in this discussion were terminated. According to the employer they were terminated for harassing of the employee of the original post.

Judge Amchan, concluded that these discussions were protected under Section 7 of the National Labor Relations Act, because it was regarding communications among employees about their terms and conditions of employment. As such this ruling set new president for the NLRB. The judge then ordered reinstatement and back pay for the five employees.

There have been other cases in which employers have faced adverse decisions regarding comments made on social media sites. In Connecticut an employee called their supervisor a "scumbag" and derogatory term for male genitalia. The NLRB found a violation of Section 8(a) as the basis of the employee's complaint regarding his supervisor was being denied union representation in connection with filing an incident report. An employee can lose protection under the National Labor Relations Act if they engage in outrageously disgraceful conduct during the course of the protected activity, but the NLRB did not find the employee's conduct to rise to this level.

Employees and employers alike are treading in new waters with regards social media and free speech laws on social media sites. It is important to note the decision in the Hispanics United case and National Labor Relations Act protects both organized and non-organized employees, as well as protects the rights of all employees (unionized or not unionized) to discuss and engage in other concerted activity relating to their working conditions.

If you feel you have been wrongfully terminated due to comments made on a social media Site you should contact an experience labor law attorney to review your case.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

• Email This
• Print
• Comments
• Trackbacks

Due to the expanded definition of the term “disability” under the Americans with Disabilities Act Amendments Act of 2008 employers have been receiving an increasing number of requests for reasonable accommodations under the ADA. Most commonly of these requests are leaves of absence or changes to the employees schedule. The Equal Employment Opportunity Commission ("EEOC") and courts recognize that use of accrued paid leave or additional, unpaid time off from work may be a reasonable accommodation under the ADA.

Employers have several ways to accommodate employee requests for time away from work. For example, they can allow the employee to use accrued paid-time-off benefits like paid vacation or sick time. The employee can use the unpaid Family and Medical Leave Act during while also using accrued paid-time-off benefits or receive payments to a disability or workers' compensation benefits plan at the same time. Or the employer can also provide paid or unpaid leave according to company policy. All of these efforts are usually viewed as a form of reasonable accommodation under the ADA.

Often, employers mistakenly believe that their accommodation obligation ends once these efforts have been exhausted. Recently, this mistaken belief has been challenged by the EEOC, and at a very high cost to employers.

In 2009 a retailer settled for $6.2 million after the EEOC challenged the company policy to terminate all employees that had not returned to work after 12 months of being out on disability due to workers compensation claims.

A national communications company also settled for $20million after the EEOC alleged they had violated the ADA by holding the employees accountable for all their absences due to their disabilities. The company would fire the employees for excessive absences even though those absences were directly related to their disability.

Recently a Grocery Store Chain also settled at $3.2million after the EEOC disputed the employer's policy to terminating employees at the end of a fixed medical leave period instead of allowing the employees to return to work with reasonable accommodations.

Lastly, the EEOC Challenged a national airline company regarding it's company policy to not issue reduced work schedules for any of the employees. Instead the company required employees to either take a leave of absence or to take early retirement. The company eventually settled as well.

In short, regardless of what your company policy is you may be entitled to further accommodation of your disability. If you have been terminated or being asked to resign due to your disability you should contact an experienced labor law attorney to examine your case.
 

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

• Email This
• Print
• Comments
• Trackbacks

California labor law attorneys have been noticing a trend in terminations during medical leaves of absence. Often times the cause for termination is the employee’s failure to return to work within the time period allowed by the company. Employers usually set a policy that specifies that employment will terminate if an employee fails to come back from a medical leave of absence within a given period of time. Usually, those periods appear to be munificent, sometimes as long as a year. Companies reason that the employee took advantage of the full FMLA benefits and thus the employee lacks statutory job protection. By the time the leave has expired, the employee may have exhausted workers' compensation leave benefits. Employers sometime set the time limit to correspond with the commencement of long-term disability benefits, if they are available. Despite the seemingly long period of time, the employer must still recon with the ADA and its state and local equivalents.

California labor law attorneys and the EEOC has been insistently pursuing companies that implement rigid medical leave policies, despite of the length of the leave or whether medical leaves are treated in the same manner as other non-medical leaves.

California labor law attorneys and the EEOC have taken the position that the ADA requires companies to offer a reasonable accommodation to employees with disabilities and reasonable accommodation must be determined on a case-by-case basis. Because the courts have recognized that granting a leave of absence could be a reasonable accommodation, the company must engage in the interactive process, including taking into account requests for an extension of the leave or returning to work with an accommodation. The employer may then evaluate whether the requested accommodation imposes an undue hardship. The EEOC contends that inflexible leave policies ignore the obligation to make reasonable accommodations on a case-by-case basis.

Instead of sustaining a rigid medical leave policy, employers should consider:

• Institute a flexible or target end dates for medical leave.
• Inform employees within a reasonable period of time prior to the end date of the leave period that the leave is going to expire.
• Appraise whether the employee's request for accommodation is reasonable and whether it can be granted without an undue burden.
• Questioning if the employee needs additional time off and, if so, how long. The employer may want the employee to provide a statement from a physician supporting the need for additional leave and the amount of additional time off required.

If you have been terminated while out on medical leave or for failure to return according to company policy and you feel it was unreasonable given your circumstances please contact an experience California labor law attorney to examine your case.

• Email This
• Print
• Comments
• Trackbacks

Proving age discrimination has never been an easy thing to do, let alone proving age discrimination. There is a common misconception that being terminated at the age of 40 or above is grounds to file a wrongful termination based on age discrimination. However if this were all that is need to prove the age case, every person over 40 who was terminated would have had a discrimination claim. This would of course be ridiculous.

So what is needed to prosecute a lawsuit for age discrimination? In Stephens v. Coldwell Banker Commercial Group, Inc. the First Appellate District offers useful direction. The court analyzed the jury's verdict by noting that in most employment discrimination cases, lack solid evidence of the employer's intent to discriminate or it is difficult to disprove, and so an indirect method of proof is necessary. Thus, in order to initiate a claim for age discrimination the employee has responsibility to prove that not only was he/she over 40 but also, that he/she was performing adequately, and was fired or demoted due discrimination. After the initial case is presented, the employer has to prove that the plaintiff was terminated or demoted for valid, non-discriminatory reasons. At which point the plaintiff will then be given the opportunity to prove that the employer was motivated by discrimination or that the employer's explanation for termination or demotion is no more than a smoke screen for discrimination. It is now the employer turn to do its best to show that they have a reasonable explanation for taking action against the employee. The employer can claim the reasons for their actions are: performance related, misconduct, insubordination or even reduction in force. Often time’s employers try to justify the termination by stating poor performance due to its subjective nature; law allows the employer discretion when determining if they are satisfied with the employee's performance. Although employer argues that the employee wasn’t a good employee it doesn't mean the employer wins the case.

There are few things the employee can present to the court to show that the employers claims of poor performance are refutable.

1. Length of employment will be a big determining factor in showing that the employee was likely not terminated because of poor performance. The augment is “Why did you keep this employee for so long if they were performing poorly?”
2. Documentation of good performance, such as promotions, awards, bonuses, positive performance reviews etc.
3. The most beneficial information you could present would be proof that a younger person was given your position or promotion.

Lastly, age discrimination can be shown in the form of statements that show the employer making issue of the employee’s age. Or suggesting the employer wanted older employee out, for instance encouraging the employee to retire, by asking about the employees plans for retirement OR calling names such as "old times," "father," "old man," "grandpa" and alike.

If you feel that you have been a victim of age discrimination you should contact an experienced California labor law attorney to discuss your case.  

• Email This
• Print
• Comments
• Trackbacks

A simple yet common question in the regard to California Sexual Harassment has to do with whocan sue. The simple answer is that any employee who works for a company can sue for sexual harassment. Furthermore, sexual harassment does not have to be perpetrated by a member of the opposite sex. California sexual harassment laws protect victims of same sex harassment whether or not the perpetrator is homosexual or not. If you feel that you have been the victim of sexual harassment, it is important that you contact a California Labor Law Attorney immediately.

A second common area of question is the myth that there must be touching to be sexual harassment. Nothing could be farther from the truth. California sexual harassment can include a large range of inappropriate behaviors that include but are not limited to not only touching, but promotion of retaining of employment in exchange for sexual favors, unwanted sexual comments, leering or other visual harassment, offensive materials, posters and jokes.

A third misconception is that sexual harassment must occur only in the workplace. In actuality, sexual harassment may occur in a wide variety of business, professional or service relationships. Employees should become familiar with California Civil Code of Procedure 51.9 to be clear on which relationships are covered.

A fourth misconception is that an employee must be the direct victim of sexual harassment in California in order to potentially file a claim. This is incorrect. If the sexual harassment permeates the work place of the employee even if the harassment is not directed at the employee, but rather happens in the presence of the employee. An important point, however, is that the harassment must be severe and happened to interfere with the employees work performance. This “severe” standard is typically upheld if there is sexual touching.

A final misconception is that an employee cannot win a sexual harassment case without witnesses or hard evidence. This is untrue. While, witnesses and evidence help a case, “he said, she said” cases have been decided in favor of the plaintiff if the court feels the plaintiff is more credible than the defendant.

If you feel that you have been the victim of sexual harassment, it is important that you contact a California labor law attorney immediately. The statute of limitations is strict in this area of labor law, so it is imperative to talk to a California labor lawyer at the earliest possible time so that your case can be assessed.

• Email This
• Print
• Comments
• Trackbacks

California Labor Laws have been implemented to protect the employees’ rights against their current or former employers.

I am reminded of the situation in which a wife is abused and instead of walking out on the abuser she will blame herself and return to the same abusive situation until she is thrown into the street.

The only difference is that this is happening to employees every day. These employees are systematically underpaid, overworked and then fired. Why would someone put up with this abuse rather than demand what is rightfully theirs by law? This is probably because they are unaware that the law has powerful protections built in.

 Contrary to what you might think, if someone is at risk of losing their  job they should immediately consult with a Labor Law attorney. If they  have a legitimate claim they should act quickly. If the company then  attempts to retaliate because the employee exercised his or her right  to seek unpaid wages, the company is then at risk for substantial  damages. In order to avoid incurring a loss from a retaliatory claim, the  company usually will choose to act responsibly toward the employee.

 Both State and Federal labor laws have strong protections built in to deal with employers who threaten employees for pursuing their rights.

 A Los Angeles County jury on Nov. 2, 2011 awarded Richard Romney an 18-year veteran Los Angeles police officer, nearly $4 million in his case against the LAPD, concluding the officer was fired in retaliation for testifying against the department in a labor dispute. You can read the full story in the Los Angeles Times at “L.A. County jury awards $4 million to former LAPD officer”.

As far back as the early 1900's the labor code recognized the disparity in power between employee and employer which gave rise to these strong protections built into the law.

California Government Code section 12940(h) provides that it is an unlawful employment practice "[f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part."

The Federal law under the Fair Labor Standards Act’s (FLSA) anti-retaliation provision makes it unlawful “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under [the FLSA] . . . .” 29 U.S.C. §215(a)(3).

Any employee, who is discharged, threatened with discharge, demoted, suspended, or in any manner discriminated and/or retaliated against in the terms and conditions of his or her employment for engaging in a "protected activity" is protected under the law.

Some examples of "protected activity" under the California Labor Code include:
1. Filing or threatening to file a claim or complaint with the Labor Commissioner.
2. Taking time off from work to serve on a jury or appear as a witness in court.
3. Disclosing or discussing your wages.
4. Using or attempting to use sick leave to attend to the illness of a child, parent, spouse, domestic partner, or child of the domestic partner of the employee.
5. Engaging in political activity of your choice.
6. For complaining about safety or health conditions or practices.
The following is a letter taken from an actual case warning an employer that it is at serious risk if it continues to engage in any action against our client that is retaliatory.

"Dear Mr. (Atty for Employer):

We have been advised by our client, JW ("John"), who is one of the named plaintiffs in connection with the above-entitled lawsuit, that he believes that XYZ , Inc. (the "Company") intends to retaliate against him for being involved in this lawsuit.

The concern regarding retaliation first arose shortly after you were served with a copy of the lawsuit and no doubt provided a copy to the Company). John received a telephone call from Human Resources and attempted to obtain information from our client regarding the case, including, most ominously, who "instigated" the lawsuit. John replied that he did not feel comfortable discussing the case until he spoke to his attorney.

On the very next day, John was asked by his supervisor to train another technician. This appeared to John to be a poorly disguised attempt to mask the fact that Mike wanted Steve trained to do John's job because the Company intended to terminate John.

Mr. X telephoned John again, but John was not available to take the phone call and X left a message to call him back. Several hours later, X again telephoned John and left another message that since John had not returned the earlier call and was not communicating with him, he was guilty of "insubordination". After John received these messages, he did telephone X and advised X that his attorneys had advised him not to discuss the matter with him.

Based upon the above, we believe that the Company may be attempting to create "grounds" in order to either terminate John or take other adverse employment action against him, in retaliation for John's participation in the lawsuit. Any such action taken against John on "pretextural" grounds (such as "insubordination") would, of course, be unlawful. If the Company is foolish enough to engage in such conduct, we will immediately institute a lawsuit against it for wrongful termination and/or such other causes of action as may be appropriate. This, of course, will only exacerbate the situation and expose the Company to further damages, costs and expenses.

We request that you advise your client in the strongest possible terms that California law protects employees against retaliation for enforcing their legal rights. In this regard, it would also be helpful for you to advise your client not to discuss the case with any of our clients."

If for any reason you think that you are owed unpaid wages but are concerned about retaliation it is important that you seek legal advice with a California Labor Law Attorney as soon as possible. It just may save your job.

• Email This
• Print
• Comments
• Trackbacks

No one wants to walk into work one day and hear the words, “I’m sorry, but we have to let you go.” Although always upsetting, depending on the circumstances, these words may be lawful or unlawful. Generally, California follows the “at will” employment doctrine, which means the employment relationship may be terminated by either party for any reason as long as it does not violate any state or federal law. If there is a violation of law, the termination will be considered “wrongful.” Illegal reasons for termination include the following:

• Refusing to break the law
• Filing a discrimination, sexual harassment, or workers’ compensation claim
• Taking leave under the Family and Medical Leave Act
• Failing to comply with labor laws, including collective bargaining agreements
• Failing to comply with oral and written employment agreements

When faced with termination, it is easy to think that the situation is hopeless. On the contrary, there are steps you can take to protect yourself. Here are some tips for weighting the scales in your favor:

• Do not take any retaliatory actions against your employer
• Review your employment contract to determine your rights
• Inquire as to the specific reason for your termination
• Determine who made the decision regarding your termination
• Request a copy of your personnel file
• Return all company property and follow all post-employment procedures stipulated in the employee manual.

 If you believe you have been wrongfully terminated, you should immediately contact a California labor law attorney. As long as a claim is made within the statute of limitations, you may be able to be reinstated or recover lost compensation and/or damages. By consulting an experienced California labor law attorney they may be able to procure the following remedies:

• Reinstatement of employment
• Back pay
• Compensation for emotional stress
• Punitive damages to prevent further wrongdoing by the employer
• Mandated changes to the employer’s policies

While it may seem that your employer is holding all the cards, do not forget that you also have cards to play.

• Email This
• Print
• Comments
• Trackbacks

The involuntary termination of employment by the employer is controlled by specific rules which if violated entitles an employee to recover damages.

Employment in California is presumed to be “at will.” This means either party may terminate the relationship for a good reason or no reason at all. Nevertheless, as with most such general rules, there are exceptions.

If you have suffered retaliation in the form of being fired, demoted, suspended, or denied an employment benefit because you complained about what you reasonably perceived as a violation of law, such as late or non-payment of wages, failure to receive overtime pay, filing a worker’s compensation claim, or workplace safety issues, or suffered discrimination on the basis of age, race, religion, sex, nationality, medical condition, disability, sexual orientation, or marital status you have a right to recover damages for wrongful termination.

There are exceptions to the “at will” provisions. These include a situation where your employer promises long term employment. Such a promise may be set forth in a written contract, an employee handbook or it may simply be implied through an employer’s actions such as continued promotions, raises, or positive performance reviews.

Furthermore, an employer may not take an adverse employment action against an employee for complaining about or generally opposing discrimination or harassment directed against themselves or another employee. Employers are also prohibited from retaliating against an employee for reporting information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal law. 

The two main remedies for wrongful termination are reinstatement and monetary compensation. Juries are generally sympathetic to someone wrongly treated and therfore employers are exposed to substantial awards for economic damages as well as penalties.  In addition to an action for wrongful termination, you may also have a claim against your employer for damages for defamation or invasion of privacy as well as for final payment of wages, accrued vacation time, and overtime. 

Wrongful termination cases are fact-specific; therefore, documentation is critical. If you believe you have been or about to be wrongfully terminated first seek counsel from a labor law attorney especially if your employer wants you to sign a release or other agreement. Many labor attorneys will offer an initial meeting without charge and in many instances may take your case on contingency. So finding out your rights costs you nothing. Not finding out your rights could cost you dearly.

You should also take time to compile the following evidence:

• Request a copy of your personnel file from the human resources department. This file will include vital information such as rate of pay, promotions, performance reviews, awards, and recommendations. Remember that you are entitled to any and all documents you have signed in relation to your employment.
• Collect all correspondence with your employer including letters, emails, and text messages.
• Obtain a copy of your employee handbook and any other written company policies.
• Create a list of individuals who witnessed your termination or the circumstances leading up to your termination. Be sure to obtain their personal contact information so you can reach them after you leave your job.
• Record all instances of comments or behavior you believe constituted discrimination or other illegal activity.
 

Once you have collected the above documentation, contact an experienced California labor attorney for an evaluation of your situation.
 

• Email This
• Print
• Comments
• Trackbacks

An Orange County Superior Court judge has ruled that the former maid, Maria Jimenez, of Kobe Bryant and his wife Vanessa Bryant, may continue with her Wrongful Termination case, but may not continue her claim for emotional distress or her claim for invasion of privacy since she knew cameras were installed in the Bryant home.

In addition, the Bryant’s are able to continue pursuing their counter claim against the maid for violating a confidentiality agreement for allegedly talking to reporters.

Wrongful termination cases in this economic climate are becoming more and more prevalent. Employers are faced with making hard choices regarding profitability and unfortunately employees get the short end of the stick sometimes since employers have the power.

Strategy:
It is important to document your issue with your employer and seek the legal advice of a California labor law attorney.

• If you have been hurt at work, immediately file a workers compensation claim.
• If you require FMLA (Family medical leave) be sure to place such in writing to your employer.
• If you are pregnant, document such immediately to your employer.
• If you become disabled, inform your employer in writing.
• or experience any other situation that may be protected under California labor law
 

• Email This
• Print
• Comments
• Trackbacks

Good news is on the forefront. According to Reuters, the U.S. House of Representatives voted on September 22 to extend jobless benefits for those who risk exhausting them.

Idled workers are typically eligible for up to 26 weeks of payments to cover expenses as they look for another job. Some workers are now eligible for up to 79 weeks of unemployment benefits.

The extension of benefits bill, if passed, would extend benefits by 13 weeks in states where the unemployment rate is above 8.5 percent. This extension would include California’s unemployed, where the unemployment rate was 12.2 as of August 2009.

In California, unemployment benefits are granted in the event of layoff or downsizing, or other limited circumstances. If an employee simply quits a job, and there are no extenuating circumstances, i.e. documented harassment, documented violence in the workplace, it is likely that the employee will not be awarded unemployment benefits.

California Unemployment Insurance Code 1256, reads, inpart:

An individual is disqualified for unemployment compensation benefits if the director finds that he or she left his or her most recent work voluntarily without good cause or that he or she has been discharged for misconduct connected with his or her most recentwork.
 

In addition, if an employee is terminated for willful misconduct, that employee may also be ineligible for unemployment benefits. I have seen on more than one occasion, an employer “blackball” an employee they wish to terminate in order to possibly avoid a potential wrongful termination lawsuit and unemployment insurance. 

Strategy:

1. If you are an employee, and believe you are being “railroaded” and on the way to being terminated or were terminated for what your employer deems “misconduct,” it is important to gather witness statements and other evidence to refute the employer’s contentions.   
2. You should have these witness statements and other evidence readily available for your hearing with the Employment Development Department.
3. Should you not win your unemployment insurance hearing, you do have the right to appeal, however appeals are difficult, and must be filed timely.

If you feel that you have experienced wrongful termination or feel you are the victim of discrimination, it is important to talk to a California labor law attorney  to find out what your options are. Keep in mind that there is a statute of limitations to file your claim and protect your rights.

• Email This
• Print
• Comments
• Trackbacks