Disabled Employees Rights

Disabled EmployeesDisabled employees facing discrimination. If you or a loved one has experienced workplace discrimination due to a disability, it is indefensible. When one employee with emphysema, asthma, and chronic obstructive pulmonary disease (COPD) requested accommodations in order to complete necessary tasks on the job, the company responded by discharging that employee. That act of dismissal has resulted in a lawsuit against that San Francisco company, InsideUp. If you have experienced workplace discrimination due to a disability, a local employment attorney may be able to help.

Disabled Employees and Federal ADA Regulations

The Americans with Disabilities Act (ADA) protects the civil rights of people with disabilities.  The law addresses all aspects of public life, ranging from school and employment to transportation and dining out. Essentially, the law ensures that people with disabilities have the same opportunities and rights as people without disabilities. Title I of the ADA deals specifically with employment.

Employment Opportunities

This piece of the ADA calls for employers to provide opportunities and benefits to people with disabilities that are equivalent to the opportunities and benefits of their non-disabled counterparts. Additionally, reasonable accommodations and/or modifications must be provided to employees when essential to help the employee perform necessary functions of the job.

Disabled Employees and Reasonable Accommodations

Specific accommodations should be designed around individual circumstances in the workplace.  Examples of sensible accommodations include:

  • Adapting facilities to make them accessible for all employees;
  • Restructuring job requirements so as to provide opportunities for employees who might otherwise be limited by a disability;
  • Procuring specialized equipment or modifying existing equipment as needed;
  • Adapting tests, policies, or materials used in training employees;
  • Providing part-time positions or modified work-schedules when possible;
  • Reassigning employees to vacant positions when qualified.
  • Providing interpreters, readers, or similar assistance.

When and How to Request Accommodations for Disabled Employees

If you require workplace accommodations due to a medical disability, you simply need ask your employer. The request does not have to be in writing, although having documentation of your request can not hurt. It is not necessary to disclose your disability and ask for modifications during the hiring process. You may make your request at any time.

Documentation of Your Disability

Employers do have the right to request documentation for a disability that is not obvious. Be advised, however, that your employer is not entitled to your entire set of medical records. Just the documentation necessary to establish the need for reasonable accommodations must be provided.  Employers should be specific in their requests for information related to functional limitations and the types of accommodations that may be necessary. Employers may sometimes ask an employee with disabilities to provide a limited release of their medical information. Appropriate professionals who might provide information may include doctors and nurses, mental health professionals, occupational therapists, and other authorities on your medical condition. [Read more…]

Employers: Will Your Liability Insurance Cover Discrimination Lawsuits?

Business Liability InsuranceAs a business owner, will you be covered by your general liability insurance policy if an employee sues for discrimination? It seems at first glance that you ought to be covered if there are no exclusions specified in the policy, so many employers are surprised to find that insurers may deny coverage.  If you find yourself in this situation, an experienced employment law attorney may be able to help.h0Hey

Reasons for Liability Insurance Claim Denials

Liability insurance claims may be denied for any number of reasons, but three very particular issues may come into play with a discrimination case: The lack of coverage for economic issues, requirements associated with mental health claims, and the purposeful nature of discriminatory acts.

Let’s say an employee purports to have been passed over for a promotion due to race, age, or other protected status. He seeks compensation for multiple economic losses, including past and future earnings and benefits. Additionally, he is claiming psychological injury, as the entire incident caused a serious blow to his confidence and mental health. Your general liability policy does not cover those things: it covers three key areas:

  • Property damage;
  • Bodily injury;
  • Personal/advertising injury.

Now, while some might think the mental health piece of the claim to be covered under the bodily injury portion of the policy, in practice those types of problems are covered only if associated with a physical injury.

Coverage may not kick in for another reason: The injury to your employee was not due to an accidental occurrence. General liability policies do not cover intentional actions.

Umbrella Policies and Employment Practices Liability Insurance Coverage

In some instances, discrimination claims may be with protected with umbrella coverage under Personal And Advertising Injury Liability. In other cases, Employment Practices Liability Coverage (EPL) may be necessary. This type of coverage kicks in when a lawsuit is filed, not when an alleged incident occurs. Of note, while such policies typically cover situations involving discrimination, they often do exclude intentional acts of wrongdoing. In discrimination cases, the claim is typically surrounding intentional behaviors. In other words, if the jury finds that an employer purposefully discriminated against an employee, the policy may not cover damages.  Even so, court costs may still be covered up until a finding of intent is delivered. Having those costs covered often makes holding a policy of this kind worthwhile.

Liability Insurance – Other Considerations

As an employer, there are other factors to be aware of when purchasing liability insurance of this kind:

  • Lawsuit Decisions: Who chooses the attorney? If the insurer has someone in mind but you have your own ideas as to counsel, who gets to make the final decision? It is not something you want to haggle over in the face of a lawsuit.
  • Settlement issues: The insurance company may not see eye-to-eye with you when it comes to settlement decisions. You need to know just how much control you will have over final pronouncements when discussions like this are underway before they occur

[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…]

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…]

Reverse Discrimination? The Court Says No

Reverse DiscriminationReverse discrimination? Male prison guards performing strip searches on female inmates is an issue just asking for a lawsuit, right? The Washington Department of Corrections (DOC) needed a strong response to the lack of female correctional officers, and to a growing number of lawsuits involving the abuse and harassment of female inmates by their male prison guards. Complaints ranging from privacy breaches to sexual abuse were not uncommon. Authorities assigned the primary cause to the severe deficiency of female correctional officers in women’s prisons. The result was that male officers were responsible for sensitive duties, including supervising showers and performing pat-downs and other potentially delicate duties.

In response to this problem, officials designated 110 corrections positions as female-only, only to be slapped with a lawsuit from the Teamsters Union, claiming discrimination against male corrections officers. The Teamsters claimed that creating positions specifically for female officers was a violation of Title VII of the Civil Rights Act, in that males were denied jobs purely based on gender.

Reverse discrimination? The 9th Circuit Court found that the deliberation behind the decision to create female positions was sound. Because the DOC had undergone extensive study, including consultation with other states, expert soundings, case law reviews, and Human Rights Commission reviews, the decision to make the gender-specific positions was ruled not discriminatory, as gender was, indeed, a bona-fide occupational qualification (BFOQ) for the positions created.

Bona-Fide Occupational Qualification in Federal Law

Clearly, gender cannot be a disqualifier for hiring, promotion, or advancement in the majority of cases. On the other hand, a clear exception to Title VII regulations exists when sex is essential to a particular job. Hence, the BFOQ stipulations: They are narrowly applied, but deemed necessary in cases such as the corrections department scenario.

Employers need note that BFOQ is not an easy way out of hiring women for jobs that may traditionally be considered “men’s work.” Stereotypes, assumptions, or simple preferences are not acceptable arguments to use in denying employment based on gender.

Reverse Discrimination and Affirmative Action Programs

Many companies may have affirmative action goals designed to encourage a diverse workforce.  These may be used to strive for parity, but actual quota systems are unlawful unless specifically court-ordered to rectify discriminatory practices.

It is noteworthy, however, that the Supreme Court has found that merit-based evaluations may, in fact, reflect evaluator bias. In an affirmative action plan that gave promotional preference to a woman who had scored marginally lower than her male counterpart, the court found that since the interviewers were all male, and one had a history of sexually degrading speech, the promotion was proper.

In truth, although there are detractors who believe reverse discrimination is a serious problem in our country, fewer than 2% of discrimination cases pending before the Equal Employment Opportunities Commission might be categorized as such. That is because affirmative action plans are designed to assist individuals who already have germane qualifications. [Read more…]

Workplace Race Discrimination – Stanley Wilson v. CNN

Race DiscriminationRace discrimination in the workplace? What would you say if someone told you “there is no biological reality to human race.” That is right: Anthropologists have believed for years that there is no such thing as variation in biological races. Despite these scientific conclusions on race, racism itself continues to be pervasive in America. U.S. courts are working overtime to protect the rights of Americans who face discrimination due to their skin color, heritage, or culture. If workplace discrimination due to race has impacted you, an experienced employment law attorney can help.

CNN Race Discrimination Lawsuit is Not Going Away

A California Appellate court found that CNN was not off the hook in the case of Stanley Wilson v. CNN. In a 2014 suit, Wilson claimed that after years of being passed over for promotions, he was ultimately fired from CNN. While CNN asserts the firing was a result of plagiarism, Wilson contends that race discrimination was at the root of the termination.

In an anti-SLAPP (strategic lawsuit against public participation) motion against Wilson, CNN argued in favor of its “protected activity” in the free speech arena. The trial court granted CNN’s motion, and Wilson’s claims were dismissed.

But in December of 2016, the Second Appellate Court essentially found that free speech does not trump an employee’s right to a discrimination-free workplace, nor the does it give employers the right to retaliate against employees. Wilson’s suit is alive and well and will proceed.

What Constitutes Race Discrimination?

Race discrimination is a violation of the Civil Rights Act of 1964, and comes in many variations. Some markers of this type of unlawful activity include:

  • Job Accessibility: Not being recruited, hired, or being fired, due to race;
  • Segregation: Experiencing physical isolation or exclusion from positions, responsibilities, or relationships; even having one’s employment files coded according to race;
  • Being passed over for promotions despite experience, seniority, or qualifications, particularly if specific groups are disparately impacted;
  • Harassment: Exposure to derogatory or unflattering racial comments or labels causing one discomfort in the workplace;
  • Lower Pay: Experiencing significant pay differentials which appear to be based on race;
  • Duties: Being assigned to tasks which are more menial in nature, with less authority or impact;
  • Fewer Training Opportunities: Being excluded from opportunities for professional development.

How Common is Race Discrimination in the Workplace?

Unfortunately, discrimination occurs more often that many Americans would like to admit. In fact, the number of complaints received by the Equal Employment Opportunity Commission (EEOC) since 2011 based on race is approaching 50,000. [Read more…]

Transgender Employees Health Plan Discrimination

Transgender EmployeesRobinson v. Dignity Health When does a health plan discriminate against transgender employees? A complaint has been filed against the San Francisco-based company Dignity Health on behalf of one of its employees, a transgender nurse. The complaint alleges that his employer categorically discriminates against transgender employees on the basis of their gender by denying coverage of their health care expenses related to gender dysphoria.

The plaintiff, Josef Robinson, works as a nurse at a medical center in Arizona operated by Dignity Health. Robinson was assigned the sex of female at birth, but identifies as male. He sought coverage through his employee health plan for health care related to gender dysphoria, including hormone therapy treatments and double mastectomy surgery.

However, the Dignity Health Plan denies “treatment, drugs, medicines, services and supplies for, or leading to, sex transformation surgery.” As a result, Robinson has paid out of pocket for his hormone therapy treatments, and his request for pre-authorization for double mastectomy surgery was denied. The denial letter stated that the Dignity Health Plan’s exclusion of expenses related to sex transformation surgery means that all treatments related to the diagnosis of gender dysphoria are excluded. After learning about this denial, Robinson cancelled the surgery.

Allegations of Transgender Employees Discrimination                          

After Robinson was denied coverage, Dignity Health was asked to revise its policies regarding medical expenses related to gender dysphoria. The company responded that it would look into the matter, and later issued a statement expressing that it determined that there was no evidence of discriminatory practice in the health plan. Robinson then filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging that these policies discriminate against transgender employees on the basis of gender. This led to the ACLU filing a complaint against Dignity Health in the U.S. District Court in San Francisco on June 6, 2016.

The ACLU’s complaint argues that denying coverage for health care related to gender dysphoria is a form of gender discrimination in violation of Title VII of the Civil Rights Act of 1964 because it discriminates based on gender nonconformity. The complaint also argues that the denial of coverage is a violation of the Affordable Care Act, which states that covered entities providing health insurance may not categorically exclude all health services related to gender transition.

In May 2016, a judge in Minnesota dismissed a federal lawsuit filed against an employer by an employee whose teenage son was denied health care coverage related to gender dysphoria. In that case, the complaint was rejected on the grounds that the employee was the wrong defendant because she did not personally suffer discrimination. [Read more…]

Wrongful Termination Complaint Thomsen v. Georgia-Pacific

Wrongful Termination ComplaintWrongful termination complaint Thomsen v. Georgia-Pacific Corrugated, LLC. How far must an employer go to accommodate a worker’s disability? Jan Thomsen worked at a corrugated container plant in Madeira, California for approximately 23 years. He sustained a shoulder injury on the job in 2012 and returned to work in 2013 after undergoing surgery. He informed his employer, Georgia-Pacific Corrugated, LLC, that he was now unable to perform the responsibilities of his previous position as a cut and die operator. He also provided verification from his doctor that his condition prevented him from performing certain responsibilities such as carrying anything that weighs more than 30 pounds.

Thomsen was then assigned a position as an assistant end gluer, which he believed would be a good match for his capabilities. However, after performing the job, Thomsen told his employer that the duties of the new position would need to be modified to accommodate his disability. He was told by an HR employee to return to his doctor, to determine whether additional restrictions were necessary.

Thomsen did not return to his doctor. He was fired shortly afterward, for refusing to work an overtime shift. Thomsen then filed a wrongful termination complaint against Georgia-Pacific. One of his claims was that his employer violated California’s Fair Employment and Housing Act (FEHA) by failing to provide reasonable accommodation for his disability. At trial, Georgia-Pacific moved to dismiss this claim.

Many employers would look at these facts and conclude that Georgia-Pacific clearly had the law on its side. After all, when Thomsen was unable to perform his old job due to his injuries, Georgia-Pacific assigned him a new one – one that Thomsen agreed was within his capabilities. And when Thomsen asserted that he was unable to perform his new job, Georgia-Pacific’s response was to ask for documentation, rather than firing or suspending him.

But according to a federal court, it is not that simple. The U.S. District Court for the Eastern District of California rejected Georgia-Pacific’s motion to dismiss Thomsen’s claim that Georgia-Pacific failed to accommodate his disability. The court found that a reasonable jury could find that Georgia-Pacific was obligated to engage with Thomsen to assess whether modifications to the position were possible.

Wrongful Termination Complaint – An “Interactive Process”

In reaching its conclusion, the court pointed to two particular allegations of Thomsen’s wrongful termination complaint.

  • Thomsen’s wrongful termination complaint alleged that his new position required him, at times, to lift more than 30 pounds – which his doctor had already confirmed was too much for him to handle.
  • Thomsen’s wrongful termination complaint also alleged that a machine operator he worked with refused to accommodate his needs, and kept the machine running even when it was backed up.

Under FEHA, an employer must “engage in a timely, good faith interactive process with the employee or applicant to determine effective reasonable accommodations, if any” after an employee requests reasonable accommodations due to a disability or known mental condition. The court held that a reasonable jury could conclude that after Thomsen expressed concerns about the requirements of his new position, Georgia-Pacific was obligated to engage in a dialogue with him before deciding that he must return to his doctor. [Read more…]

Employment Discrimination Case Davis v. Farmers Insurance Exchange

Employment Discrimination CaseWhat happens in an employment discrimination case, if a jury finds that the employer had a discriminatory motive for firing an employee, but also finds that the employer had legitimate reasons and would have fired the employee even without the discriminatory motive?

Courts have long struggled with how to properly resolve these types of cases. The Supreme Court of California laid out its standard in 2013, in the case of Harris v. City of Santa Monica, in which Wynona Harris, a bus driver, alleged that the city improperly fired her because of her pregnancy. The Court ruled that if illegal discrimination is a substantial factor motivating an employee’s firing, but the employer can prove that it would have made the same decision without that motive, then it is improper for a court to award the employee with damages or back pay – or to require the employee’s reinstatement.

However, the Court also held that employers in such cases may still be on the hook for their employees’ attorneys fees and costs. Also, it may be appropriate for a court to take action against the employer to prevent further discrimination in the future by issuing an injunction or declaratory relief.

Employment Discrimination Case – The Davis Ruling

While some forms of relief are available for plaintiffs like Harris, they are not guaranteed. This was reinforced in the 2016 case of Davis v. Farmers Insurance Exchange, in which a California appeals court has applied the rules of the Harris decision.

William A. Davis filed a complaint against Farmers after being terminated from a district manager position. He alleged that Farmers had discriminated against him on the basis of his age, in violation of public policy. When his case was pending, the Harris decision was issued, which led the trial court to instruct the jury that Farmers is not liable for damages if Davis would have been fired even without the presence of age discrimination.

The jury found that age discrimination was a substantial motivating factor in his firing, but also found that Farmers would have fired him anyway for legally permissible reasons. Accordingly, the trial court dismissed the case without awarding Davis any damages. The court also ruled against Davis’s requests for declaratory relief, injunctive relief, and attorney’s fees.

On appeal, the Supreme Court of California ruled that the jury instructions were proper under Harris. Davis had argued that Harris only applied to cases under California’s Fair Employment and Housing Act (FEHA), but the Court held that the jury instructions related to causation and motivation apply to both FEHA cases, and cases involving wrongful termination in violation of public policy.

The Court held that Davis was ineligible for declaratory or injunctive relief because he failed to seek these forms of relief in his complaint, and there was no threat that the wrongful conduct would continue to harm Davis in the future. The Court held that Davis was not entitled to attorney fees, either, because the jury’s verdict did not “result in the enforcement of an important right affecting the public interest,” and it did not provide a significant benefit to others. (The case was remanded for retrial, however, on a separate wage claim.)
[Read more…]

Disability Discrimination Clarified By CA Appeals Court

Disability DiscriminationWallace v. County of Stanislaus: A California appeals court clarifies what counts as disability discrimination. Dennis Wallace filed a complaint against Stanislaus County, California after he was fired from his job with the sheriff’s department after suffering a knee injury. He alleged that he was fired due to a disability, even though he could have performed his job with proper accommodations – and thus the county violated the California Fair Employment and Housing Act (FEHA).

At trial, the jury found that the county treated Wallace as a person with a disability, and that Wallace was capable of performing his job with or without the proper accommodations. But despite these findings, the jury sided with the county, and Wallace’s complaint of disability discrimination was dismissed.

Why? Because the judge had instructed the jury that Wallace had a burden to demonstrate that the county regarded or treated him “as having a disability in order to discriminate.” In other words, the jury was told that Wallace needed to show that the county was motivated by ill will toward Wallace and used disability as an excuse to fire him. The jury found that this burden had not been met, and so the disability discrimination claim was resolved in favor of the county.

Wallace appealed, arguing that the jury instructions were incorrect, and that FEHA prohibits disability discrimination even when an employer has no animus against the employee. The Court of Appeal for the Fifth Appellate District of California agreed and remanded the case to the trial court for further proceedings.

The Court’s Reasoning

The Supreme Court set a well-known standard for employment discrimination cases in McDonnell Douglas Corp. v. Green. Under McDonnell Douglas, there is a three stage test for complaints.

  • First, the burden is on the plaintiff to make a prima facie showing that employment discrimination took place.
  • If the plaintiff meets this burden, then the burden shifts to the employer, who must provide a legitimate reason for taking the negative employment action in question (such as a firing),
  • If the employer meets this burden, then the burden shifts back to the plaintiff, who can prove that discrimination took place by providing evidence that the employer had a discriminatory motive. This often involves demonstrating that the reason given by the employer was just a pretext for discrimination.

In Wallace, the appeals court clarified that the McDonnell Douglas test is only to be used if the plaintiff has no direct evidence of discrimination. In Wallace, there was direct evidence of discrimination, being as the employer acknowledged that Wallace’s disability was the reason he was fired.

The court held that when there is direct evidence of discrimination based on disability, the focus should not be on the employer’s motivations. Rather, the focus should be on whether the employee was able to perform essential job functions, whether a reasonable accommodation would allow the employee to perform these functions, and whether the accommodation would impose too much of a hardship on the employer. Thus, the court held that the instruction given to the jury was in error. [Read more…]


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