Wrongful Termination in California

Wrongful TerminationWrongful termination? If you work as an at-will employee, with no union protections or contracts, you can be fired any time, for any reason, right? Wrong! California courts and laws require any terminations to be based on legitimate business reasons. Beyond that, there are several termination procedures that must be followed by law. If you believe your termination was not based on a lawful business rationale, you may wish to discuss it with a knowledgeable employment lawyer.

Legitimate Termination

No termination may violate state or federal regulations, such as those related to anti-discrimination. Beyond that, the firing or layoff must clearly be in the best interests of the company, and employers would do well to consider a number of factors:

  • What written policies regarding dispute resolution, arbitration, discipline, or “just cause” are on the books?
  • What process of progressive discipline was employed, if any? If no process was followed, is there a legitimate reason?
  • Was any contract violated, whether written or verbal? An implied contract deserves consideration just as much as a written one does.
  • Is the employee who is being terminated a long-term employee (five years or more?)
  • Is there previous evidence of job security, such as promotions or commendations?
  • Is the terminated employee pregnant?
  • Has the terminated employee filed a claim with worker’s compensation?
  • Has the employee been involved in “whistleblower” types of complaints?
  • Does documentation exist substantiating misconduct or other reasons supporting a decision to terminate?

Additional Employer Responsibilities Related to Termination

Once the decision to terminate has been made, employers have certain responsibilities toward the terminated individual:

  • Final wages must be paid immediately. This includes unused vacation pay that may have been accrued, any commissions or reimbursements due, and profit sharing or bonus monies.
  • A number of forms must be provided to terminated employees, including Notice to Employee as to Change in Relationship; For Your Benefit, California’s Program for the Unemployed; Health Insurance Premium Notice (HIPP); and any relevant COBRA and Cal-COBRA publications.
  • Discussions regarding the circumstances of termination must be kept confidential. Only those within the company who need to know the details should be privy to them. Information provided during reference checks must also be limited in scope.

Common Wrongful Termination Issues

Terminations that result in lawsuits tend to share one of a handful of particular themes that the courts generally do not take lightly:

  • Discrimination on age, race, sexual origin, gender, religion or other protected area;
  • Employee failure to pass a drug test;
  • Whistleblower retaliation;
  • Engagement in protected activities.

[Read more…]

Retaliation for Reporting Workplace Violations

RetaliationRetaliation in the workplace. California workers are entitled to certain  protected rights. When they are violated, workers may report those violations to the Division of Labor Standards Enforcement (DLSE) to seek reparations. Unfortunately, sometimes employers do not appreciate this reporting, and seek retribution against reporting employees. When that happens, aggressive legal representation can make the difference to the success of your case.

Keep in Mind

Anyone can file a complaint, regardless of immigration status, language, or identification. All workers are protected under California law, and the Labor Commissioner’s office has no interest in your immigration status; nor will they report on immigration issues to other agencies.

Protected Activities

There are specific activities that are protected under California law. Those include:

  • Refusing to work when conditions are not safe, or making complaints about those conditions to bosses, labor unions, or government agencies;
  • Filing a wage claim against employers who do not pay earned wages;
  • Assisting in an investigation or testifying on behalf of co-workers’ claims;
  • Refusing to sign agreements promising not to file claims or divulge information regarding safety conditions in the workplace;
  • Using sick leave to deal with family or domestic partner illnesses;
  • Requesting time and private space to pump breast milk;
  • Taking time off to deal with domestic violence or sexual assault issues relating to yourself of your children.

Possible Examples of Employer Retaliation

Employers may express their displeasure with you for reporting your concerns in a number of unlawful retaliatory manners:

  • Termination;
  • Suspension;
  • Transfer or demotion;
  • Pay or hour deductions;
  • Threats or disciplinary action.

California’s Whistleblower Laws and Retaliation

A whistleblower is defined as a person who reports a reasonable belief that an employer is in violation of state or federal laws or regulations, or who believes that unsafe work practices or working conditions put employees at risk.  California Labor Code Section 1102.5 protects whistleblowers from retaliations and requires employers to reinstate any wage or benefit reductions that may have occurred due to retaliation.

Evidence that Engaging in Protected Activity Resulted in Retaliation

Demonstrating a causal connection between your activity and the employer’s unlawful retribution will be important in exonerating you. That connection may be shown in a number of ways:

  • By looking at the time frame in which protected activity and disciplinary action occurred;
  • By examining written and verbal communications made by your employer;
  • By comparing the treatment of employees who engaged in protected activity with the treatment of employees who did not engage in such activity.

[Read more…]

COBRA Insurance for California Workers

COBRA InsuranceWhat is COBRA insurance? Let’s say you have enjoyed employer-provided health care benefits for some time, but suddenly find yourself without a job, and therefore without health insurance. What do you do now? An experienced employment attorney can help you to understand the filing requirements and options associated with continuing coverage utilizing state or federal resources.

California Continuation of Benefits Replacement Act

Federal provisions for health insurance coverage provide options for employees who previously worked for a company with 20 or more employees and lost coverage due to a qualifying event.  Federal law left a gap in coverage for employees of smaller companies. Thus, in 1997, California legislators expanded federal Consolidated Omnibus Budget Reconciliation Act (COBRA) coverage for California workers. The legislation requires health maintenance organizations (HMOs) and insurance carriers to provide COBRA-type benefits to employees of smaller companies that employ two to 19 workers. Employees who were enrolled in a healthcare plan within one day prior to a qualifying event are entitled to these benefits.

COBRA Insurance Qualifying Events

Several occurrences may result in a loss of health care coverage with corresponding COBRA insurance coverage options. Those include:

  • Retirement;
  • Entitlement to Medicare;
  • Divorce/remarriage;
  • Termination for a reason other than “gross misconduct;”
  • Reduction in a covered employees’ hours at the employer’s behest;
  • Death of a covered employee.

Additionally, a dependent child whose covered parent dies is entitled to coverage until age 26 as outlined by the Affordable Care Act.

Defining  COBRA Insurance Coverage

Insurance benefits, deductibles and limits must be identical to “similarly situated active plan participants” according to COBRA requirements. If or when plans change for active participants, COBRA insurance recipients’ plans will experience like changes.

Qualified beneficiaries are entitled to the same notices as active employees and are allowed to make modifications during the same open enrollment windows that active employees have.  Additionally, beneficiaries may expect to know then coverage begins and end, and when they are ineligible for coverage. Pre-existing conditions will not impact your ability to receive coverage.  Additionally, you are eligible to receive access to the same dental and vision coverage plans as working employees under COBRA (though not necessarily under Cal-COBRA).

Employees have the responsibility to notify employers when a qualifying event occurs according to employer notice procedures.

If You Choose COBRA Insurance

If, after a qualifying event, you elect to obtain COBRA insurance coverage, your have 60 days from the time you receive notice to enroll. If you do not get a notice about your coverage opportunities, it is important to speak with your former employer or health plan administrator quickly, as these deadlines are pretty hard and fast.

After enrolling, your first premium must be paid within 45 days. You are able to keep your COBRA plan for at least 18 months, and can switch over to Cal-COBRA for another 18 months after that. For employees from smaller companies, Cal-COBRA plans allow you to stay enrolled for up to 36 months. Premium payments will be your responsibility. [Read more…]

Paid Sick Leave, Breaks and Employer Responsibility

Paid Sick LeaveEmployees of all stripes have certain rights with regard to breaks and paid sick leave. When employers fail to provide the required breaks and/or leave, a knowledgeable employment attorney can help ensure you enjoy the benefits required by law.

Breaks During the Work Day

California labor law requires employers to provide an employee a meal period or rest period. A 2012 California Supreme Court ruling provided specificity to that law, ruling that employers are required to “…relieve employees of all duty, relinquish control over their activities, and permit them a reasonable opportunity to take an uninterrupted 30-minute break.”

The case involved Brinker Restaurant Corporation, Brinker International, Inc, and Brinker International Payroll Company, L.P. The claim was that Brinker either failed to provide breaks, or required employees to take “early lunching” followed by six to eight hours of shift work with no breaks. It resulted in Brinker paying out a $10 million settlement to employees who claimed to have suffered between 1999 and 2001.

While the court did require a work-free break be provided, it did not require employers to ensure that no work occurred during the break. In other words, if employees chose to work during a break it was not the employer’s responsibility to clamp down on that work.

Breaks must, however, allow for employees to leave the premises. Otherwise, the law does not consider it a legitimate break. The law provides for one hour’s pay at an employee’s regular wage for every missed off-duty break.

On the other hand, a voluntary agreement may be signed for on-duty meal breaks, provided the breaks are paid and the type of the work being done fits with criteria set out by the law. An employee may revoke this agreement at any time.

Mandatory Paid Sick Leave

In 2014, lawmakers in California determined that many California workers had inadequate paid sick leave. Hence, legislation was enacted to provide workers with paid time off to deal with the health care needs of themselves and their families. The rationale was that when workers had paid time off when ill, they would recover more quickly and would be less likely to spread illness to fellow workers and/or the public.

As of 2014, California employers are required to provide one hour of paid sick leave for every 30 hours worked, with no less than 24 hours of sick leave per year. Sick days may be used after 90 days of employment. The responsibility for enforcement of this law lies with the California labor Commissioner, who must investigate potential violations and impose fines on behalf of employers whose rights have been violated. [Read more…]

National Origin Discrimination

national origin discriminationNational origin discrimination in the workplace. Angry rhetoric and fear surrounding immigration are all over the current news headlines. What impact does it have on individuals from foreign countries, particularly those countries called out as dangerous? With all the debate on immigration, many individuals who have legal status in California are worried that they are bound to face national origin discrimination in the workplace. If you believe your national origin has impacted employer’s decisions toward you, you may need an experienced employment attorney.

Legal protections exist for individuals from every country. Title VII of the Civil Rights Act of 1964 was designed to protect both applicants and employees from employment discrimination, whether they or their ancestors hail from France or Somalia, Australia or Sudan.

What Does National Origin Discrimination Look Like?

This type of discrimination, which is based on a person’s heritage, or cultural, physical or linguistic attributes associated with a particular national origin, can display itself in many ways:

  • Refusing to recruit or hire workers based on surname, traditional attire, or nationality;
  • Requiring workers to stay behind the scenes, or out of the public eye due to appearance or national origin;
  • Segregating workers of one background from those of another;
  • Harassing or teasing workers about their food, attire, habits, etc.;
  • Disciplining workers more frequently or severely based on nationality;
  • Failing to provide equal wages and benefits, or failing to promote due to national origin;
  • Transferring, or refusing to transfer, based on national origin;
  • Terminating or laying off employees based on national origin.

National Origin Discrimination – Overlapping Issues

Multiple issues frequently intersect when discrimination based on national origin occurs. For instances, prejudice toward someone of Somali descent may be predicated on issues surrounding religion. Perhaps discrimination associated with Asian ancestry may be connected to racial sentiments. Gender, religion, race, color, and national origin may all be involved in a single discrimination complaint.

Inappropriate Job Screening

Practices that create a disparate impact on particular groups by screening out individuals on the basis of national origin are unlawful. The elimination of obstacles that either inadvertently or purposefully limit applicants based on national origin must be removed. Even when recruiters or temporary job placement agencies are involved, equal access to employment is required.

Conflicting Motives in Employment Decisions

Often employers make decisions based on multiple factors, and contend that a given outcome would have occurred regardless of national origin. While there may be merit to such a claim, it is incumbent upon an employer to make this showing.  If the employer can make a case for the employment decisions, the employer may still be on the hook for declaratory and injunctive relief, as well as attorney’s fees. [Read more…]

Defamatory Job Reference from Former Employer?

Defamatory Job ReferenceIs your former employer going to decimate any chance you have for future employment with a defamatory job reference? Let’s say that you left your previous job under less than favorable circumstances. Obviously, you need to find a new job, and any potential employer is going to want a list of previous work experience, including the last place you worked.

Verifying Work History With Your Former Employer

Your current application is likely going to undergo scrutiny that includes some investigation into previous job performance. Supervisors are legally allowed to share both positive and negative information about a former employee if it is done correctly under the legal doctrine of “qualified privilege.” That means, among other things, that information must be shared in good faith; it must be based on facts, not suspicions, suppositions, or generalizations.

Defamation

A defamatory job reference occurs during background checks when information shared is not necessary for the inquirer to have, especially regarding reasons for resignations or terminations. There are legal doctrines for individuals who provide a reference, and if a former employer goes outside those guidelines, you may have grounds for a defamatory job reference libel suit. A good labor law attorney can help you to determine the validity of your case. Here are some general guidelines:

Relevance: Information shared must be directly related to questions asked and pertinent to the position being applied for. If you were formerly a classroom teacher with horrible classroom management, and are now applying in for a sales position, you ability to control children is not relevant.

Critical to job performance: Minor issues that did not have a serious impact on job performance need not be shared with a potential employer. If applying for an accounting position, and serious calculation errors were a problem in the previous position, by all means, that is information that should be shared. On the other hand, if you had a disheveled desk but produced flawless accounting reports, the desk issue would be unimportant to relay.

Truthfulness: Accurate statements about observable behavior are appropriate; generalizations or personal musings about those behaviors are not. Your former employer may legitimately share a record or excessive tardiness; drawing a conclusion that you are lazy is another matter.

Information shared must be job-related:  Information about your marriage or other non-work issues is inappropriate.

Proper manner of dissemination: Information should always be provided in a proper setting and manner. Chatting at the water cooler in the office where unauthorized ears are lurking would be problematic. Discretion is the bottom line. If it is lacking, the potential for a legal remedy arises.

Defamatory Job Reference? Next Steps

If your reputation is harmed and you are brought into disrepute, you may have been defamed.  The criteria for defamation includes that those statements made about you were either false, or made with malice; the statements were slanderous (made verbally) or libelous (made in written form) to a third party; and the statements damaged your reputation or character. [Read more…]

The Private Attorney General Act of 2004

private attorney general actBinding Arbitration and the Private Attorney General Act. Suppose, as a condition of employment, you signed an arbitration agreement, waiving your right to litigate future disputes or join class action suites. But then, after securing employment, you have an experience that causes you to consider filing a civil claim against your employer. What are your rights?

The intricacies of this situation and the use of the Private Attorney General Act may require the experienced guidance of California labor and employment attorneys; you want the aggressive team at Beck Law P.C., on your side.

Private Attorney General Act and the Uber Case

The situation described above is not unlike the position that Uber drivers found themselves in. Despite signing an arbitration agreement prior to hire, many drivers joined together to attempt to get the courts to support their efforts to be reimbursed for costs, such as gasoline, and to object to the company’s policy of telling customers that tips are included in the price of a ride.

What empowered these drivers to think they could bypass a signed arbitration agreement and go straight to the courts for relief? The Private Attorney General Act (PAGA) allows private citizens, or workers, in California to pursue legal remedies that might otherwise be initiated by the state itself.  In other words, aggrieved employees may file a civil claim against employers who violate California employment law. Uber drivers filed suit, reasoning that PAGA would outweigh arbitration requirements. The final outcome in the courts is yet to be determined; at present the 9th Circuit Court is siding with Uber on the arbitration issue. But if drivers are able to get traction with their PAGA suit, what can they expect?

How Does Private Attorney General Act Work?

Private Attorney General Act has two requirements:

  • The complainant must notify the California Labor and Workforce Development Agency (LWDA) of alleged violations;
  • The LWDA does not itself pursue the case or issue citations.

If these criteria have been met, the employee is essentially “deputized” and may file suit, with the understanding that any civil penalties will be split, with the LWDA receiving the lion’s share of 75%, and the employee taking the remaining 25%.

Notably, when an employee brings this type of action against his employer, he does so on behalf of all employees who experienced the violation. For example, in the Uber case, if the employee sues on the basis of gas reimbursement costs, the final judgment would take into account the total number of Uber employees who had a similar experience.

Employer violations fall into three classes:  

  • Serious violations.
  • Health and Safety violations.
  • All other labor code violations.  

Each category of violations has its own set of procedures and prescriptions. [Read more…]

Employment Breach of Contract in California

breach of contractEmployment breach of contract in California. Contracts are drafted, negotiated, and signed every day in this country.  Employment contracts in California are sometimes designed to cover a precise time period, with or without options to renew the contract at a particular point. In other situations, teams are involved in collective bargaining for entire groups. What happens when one party does not live up to his or her end of the bargain? That is precisely when having an experienced contract law attorney in your court can make a huge difference.

What is Meant by Breach of Contract?

When one party fails to live up to a legally enforceable contract, or promise, it is breach of contract. In California labor law, an employee handbook or other policy statements might be considered contracts, in addition to more formal documents drawn up between particular parties.  In the case of employee handbooks and written policies, the courts generally have found that statements within them are express promises. Even though California is a right to work state, these express promises must be adhered to.

Implied promises might be based on past history or length of service. It is the type of promise most California employers have with employees who have not negotiated individual contracts.

In determining wrongful discharge, the California Supreme Court ruled that employers must act in good faith when firing a contracted employee. The case of Cotran v. Rollins Hudig Hall International, Inc., 948 P.2d 412 (Cal. 1998) involved an employee who was terminated on the grounds of sexual harassment. Even though the employee denied the accusations, it was found that since the employer had acted based on a true and sincere belief that the harassment had occurred, the termination was not a breach of contract. The foundation for the court’s decision revolved around the idea that an implied contract, or promise, existed between the parties, wherein the employer’s “reasonable” belief in a good cause for termination was sufficient for termination procedures to take place.

In contrast, contracts obtained through collective bargaining are held to a different standard.  Here, employees may not be terminated without proof of guilt. There are seven tests for just cause in due process hearings for these types of employees:

  • The employee must be afforded adequate notification of rules and sufficient warning that the employer is aware of a problem;
  • The issue must be one defined as real by a reasonable person;
  • There must be a complete investigation;
  • The investigation must be impartial and objective;
  • There must be conclusive proof of an infraction;
  • Rules and consequences must be administered uniformly,
  • The discipline or consequences must be reasonable.

[Read more…]

Workplace Discrimination Based on Mental and Emotional Conditions

Workplace DiscriminationWorkplace discrimination. For an employee with a mental or emotional disability, navigating the demands of the workplace can be especially perplexing.  Unlike physical disabilities, which are often visible, mental challenges are visible only through the behaviors of the afflicted individual. Sometimes these behaviors carry with them social stigma and fear, which can actually exacerbate the underlying problems.

Employers may not wish to deal with the challenges of mental or emotional disabilities, but the law does not give them that choice. If you suffer from a diagnosed disability, you are entitled to workplace accommodations to give you every opportunity for success in the workplace. Absent those accommodations, a good employment law attorney may be necessary.

Common Mental Health Impairments and Workplace Discrimination

  • Bipolar disorder: Over 6 million individuals suffer from this disorder, which is characterized by shifting moods and energy.
  • Borderline Personality Disorder (BPD): 4-5%t of adults in this country suffer the instability in behavior, self-image and moods, impacting many aspects of the person’s life.
  • Obsessive Compulsive Disorder (OCD): Over 2 million Americans experience compulsions regularly that interfere with life functions;
  • Panic Disorder: 6 million people in the US have anxieties resulting recurrent panic attacks.
  • Post Traumatic Stress Disorder (PTSD): Nearly 8 million Americans experience decreased function and excessive emotions due to this disorder.
  • Seasonal Affective Disorder (SAD): Millions suffer recurrent depression, generally associated with winter weather.

Workplace Discrimination Legal Protections

Mental disabilities, including psychological conditions, cognitive disabilities, emotional and mental illnesses, and mental conditions are all protected under the California Fair Employment and Housing Act. This law provides even broader protections than those afforded by the Federal Americans With Disabilities Act (ADA), and were designed to prevent discrimination based on an individual’s history of mental illness. Conditions limiting major life activities (as opposed to the ADA’s substantial limitation requirement) are eligible for consideration.

What Does the Law Require of Employers?

Essentially, employers must accommodate these conditions to a reasonable degree in the workplace. That means assisting the employee to perform the most crucial aspects of the job.  Appropriate modifications in the workplace will depend on the mental condition being addressed, but might include:

  • Reducing distractions by providing sound absorption panels;
  • Providing full spectrum lighting or more natural lighting;
  • Providing flexible scheduling;
  • Providing memory aids or organizers;
  • Allowing support animals on the premises;
  • Providing a supportive mentor;
  • References to Employee Assistance Programs or counseling;
  • Reducing triggering stimuli;
  • Providing disability awareness training for coworkers;
  • Providing various forms of feedback.

Supervisors can accommodate employees by creating an inclusive culture that values all employees. Open communication, regular feedback, and clear written goals are always helpful.  Additionally, developing strategies to deal with conflicts and emotions may be essential in creating a positive work environment. [Read more…]

Whistleblower Protection

WhistleblowerWhistleblower protection? Suppose you know that your place of employment engages in practices that contravene public policy or that are outright illegal. Let’s say you blow the whistle, and before you know it you are experiencing retribution for your actions, or perhaps are even fired? What are your options now?

Employees may not be retaliated against for being a whistleblower, but if retaliation does occur, an attorney who is schooled in labor law can be a lifesaver.

Whistleblower Case in Point

After a month-long whistleblower trial, Melody Jo Samuelson was rewarded a $1 million dollar verdict in her favor.

The case revolved around Samuelson’s claim that, as a state employee charged with evaluating the fitness of patients to stand trial, she was pressured into “returning patients to court to stand trial” even when they might not be ready. The complaint stated that the hospital’s chief of psychology compelled her and other staff to lower standards used in patient evaluations and otherwise depend on unreliable methods in order to taint the evaluations in favor of  competence. The goal was improved outcome statistics, but , Samuelson believed this resulted in patients facing trials that they were simply not competent to stand.

After Samuelson answered questions about the egregious practices under subpoena, she endured a backlash of retaliation ranging from the manipulation of her credentials file to outright false statements about her. She also claimed  the peer-review process was used to “extort” her.

After months of such retaliation, Samuelson was eventually fired, purportedly for committing perjury while testifying in a patient’s criminal case. On appeal to the State Personnel Board, she was reinstated a year later.

Upon her return to work, Samuelson found herself in an entry-level position, rather than in a clinical job. Her pay was shorted, false documents remained in her file, and insurance deductions were taken for the months when she had no coverage.

Samuelson took the state hospital and three of its employees to court with a claim of whistleblower retaliation. The Department of State Hospitals was found liable for the lion’s share of damages, with an order to pay $890,000. Her immediate supervisor was ordered to pay $50,000, and two other employees were ordered to pay $30,000 each.

California Whistleblower Law

Under California statute, employees cannot be fired for refusing to break the law, for exercising any constitutionally protected right or privilege, or for reporting violations of statute for the public benefit.

What if your employer enacts a policy stating that you are not allowed to disclose violations that you suspect are occurring? Is it possible to be terminated for cause if you break the contract?  The answer is no! Policies of this nature are unlawful to begin with, and you are not required to follow them. [Read more…]

Disclaimer

The information on this website should not be considered to be legal advice, nor construed to be the formation of any manner of attorney client relationship. Prior to taking any form of legal action, please consult with an attorney experienced in the appropriate area of law germane to your situation. Case results and testimonials presented on www.californialaborandemploymentlaw.net or any of its related websites are germane to the facts present for each individual case and is not a promise of similar outcomes for any other cases. This website is not intended to solicit clients for matters outside of the State of California.