Unjustly Terminated?

unjustly terminatedWhen Barnes & Noble fired chief executive officer Demos Parneros, he fought back with a lawsuit claiming he was unjustly terminated. That the bookstore made up reasons to get rid of him, and by firing him after just over a year of employment, they breached their contract with him and harmed his reputation. He went after the company in court, asking for over $4 million in severance pay and additional damages.

Unjustly Terminated? Barnes and Noble’s Side

Barnes and Noble, on the other hand, contends that Parneros was no unjustly terminated. They stand by their decision to fire the executive, and has filed a countersuit claiming they should be able to recoup the money already paid to him during his 14-month stint with the company due to his “disloyal conduct.” His lawsuit, they claim, is simply an attempt by Parneros to extort money from the country’s largest chain bookstore.

The termination, they say, was the result of serious allegations of sexual harassment. A female employee reported that Parneros engaged in unwanted comments and touching, telling her in one incident that she seemed the type of woman who would “put out” if she were “wined and dined.”

Parneros is also accused of bullying CFO Allen Lindstrom.

In addition to the sexual harassment and bullying claims, Parneros is impugned for trying to sabotage a major sales deal involving Barnes & Noble and an unknown entity.

Unjustly Terminated? The Denial

Parneros denies the claims, and contends that he never sexually harassed female employees; nor did he bully subordinates, or in any way behave in a way that could be interpreted as disloyal to the company. In terms of his treatment of Lindstrom, Parneros attests that the treatment was appropriate in light of Lindstrom’s subpar work performance.

The idea that Parneros attempted to interfere with any sales deals is totally false, according to him. The sales deal fell apart, and the company founder, Leonard Riggo, blamed Parneros unjustly. According to Parneros, he was unjustly terminated soon afterward, and his severance package was withheld.  Beyond that, Barnes & Noble put out a press statement that made Parneros seem to be leaving due to gross sexual misconduct, something he says the company knew was patently false. His lawsuit claims breach of contract and defamation.

What Now?

With both cases pending, the outcomes remain to be seen. Barnes & Noble is reconfiguring its management team, and both sides seem to be preparing for a fight to the end. [Read more…]

Wrongfully Terminated in California

wrongfully terminatedWhen the Director of Facilities for a Napa Valley resort executed the duties required by his job, he claims he was wrongfully terminated. Instead of rolling over and accepting his fate, Daniel Philbin took the case to court. The property owner, Carneros, sees things quite differently from the story Philbin tells.  As with most employment disputes, only with the help of an experienced local attorney will the plaintiff be able to successfully present a case.

Wrongful Termination and Job Expectations

Being in charge of the resort facilities encompassed many responsibilities, among them three key duties;

  • Ensuring the facility met ADA compliance regulations for disabled guests;
  • Reporting resort water usage;
  • Procuring necessary permits.

According to Philbin, his attempts to execute these obligations met with dissatisfaction from his employers, and resulted in his untimely termination. Specifically, he contends that when new owners took over the property and began renovations, they declined to install the ADA required ramps and lifts in the patio and spa areas. Additionally, Philbin asserts that when management sought to drill a new well on the property, they neglected to apply for the permits to enable water and electrical connections, despite Philbin repeatedly urging them to do so.

Instead of the new owners appreciating Philbin’s knowledge and expertise as a property manager, they ignored his overtures to follow legal procedures, and started holding meetings without him. Ultimately, he found himself without a job.

Wrongfully Terminated – The Other Side of the Story

Not true, claims the resort. As far as the ADA concerns, those were addressed immediately upon discovering there were issues. Yes, water issues were problematic, but the resort was fully cooperating with the County on that matter.  

In fact, the new owners were so intent on handling the water issues properly that they ultimately hired an outside contractor to handle it exclusively. Philbin was presented with an offer to deal with other property issues for a monthly salary. Instead, according to Carneros, Philbin lost his cool in a tense meeting and resigned. The company accepted the resignation immediately.  

Wrongfully Terminated? The Court Must Decide

Philbin says he received a letter from Carneros accepting his resignation, even though he never resigned. He is now seeking damages, attorney’s fees, and associated court costs. California’s Labor Code section 1102.5 provides strong protections for employees who are fired because they fail to join in unlawful activity. Was Philbin cut out because he insisted on proper procedures?  Did Carneros exact retribution? Was Philbin wrongfully terminated? The court will now have to decide. [Read more…]

Termination Considerations for At-Will Employment

terminationEmployee termination without cause. Can California workers be terminated without cause? California is an at-will state, meaning that either the employer or the employee may terminate the relationship at any time. Even so, California courts look at a number of factors when employees claim that a wrongful termination has occurred. If you find yourself without a job and believe the termination was unlawful, a local employment attorney can help.

Implied-in-Fact Contracts

Sometimes employers and employees have unspoken agreements that take precedence over an employer’s ability to fire at will. California courts do consider whether or not there is an implied contract. These determinations rest on the totality of several factors, including the employee’s length of employment with the company, employment practices within the industry, company policies, and employer actions that would give an employee a reasonable expectation of continued employment. One such case involved Wayne Pugh vs. Sees Candies. When Pugh was fired from his Palo Alto job without explanation, the courts found that, absent a written contract, the implied contract between employee and employer negated any right to fire without cause.

Express Contracts

When an employee’s contract expressly states that termination may only occur with cause, employers must have legitimate reasons documented for a termination. Often these contractual obligations are through a labor union, although oral agreements may be just as valid.

Statutory Protections from Termination

Despite being able to fire at-will employees without cause, employees cannot be terminated for a number of protected reasons.

  • Federal law calls out several protections, including race, gender, age, religion, and disability. California law piggybacks federal statutes, and adds additional protections for sexual orientation.
  • Public sector workers generally have termination policies and civil service laws that protect them from random terminations;
  • Union activity is also protected, so employees may join a union and exercise any collective bargaining rights without threat of termination.
  • Employees are also entitled to certain types of leave without fear of termination. Employees may miss work to vote in a state election, may take leave under the Family Medical Leave Act to care for sick family members, and may miss work to serve as a juror. Maternity leave is also protected for women. These are common reasons for which employees are entitled to take leave without fear of termination.
  • Federal whistleblower protections exist for individuals who report safety violations, discrimination, or other violations of either state or federal law.
  • Employees cannot be fired for their behavior or activities that occur outside of work. If the behavior is legal, employers cannot consider it in a termination.

[Read more…]

Teacher Tenure and Job Security

teacher tenureTeacher tenure is one of the most controversial issues in education today. Teacher tenure proponents claim that tenure provides educators a needed safety net. That more expensive teachers with time in the system will not be terminated in favor of cheaper, less experienced teachers. Nor will experienced teachers feel pressured to keep their opinions to themselves, fearing political or personal vendettas.

On the other hand, opponents of teacher tenure argue that ineffective teachers get locked into classroom positions that do not benefit students and schools. Regardless of where you stand on the issue, the California Supreme Court has upheld current tenure laws, refusing to hear Vergara vs. California appeal, a case that challenged teacher tenure. That being said, under what circumstances can teachers be fired? If you are a California educator who is facing dismissal, but feel it is unjustified, an experienced employment attorney may be helpful.

What is Teacher Tenure?

Tenure is essentially an unspoken, and literally unnamed in the law, policy giving professors and teachers a permanent contract. Educators prefer the term permanent status. But what does permanent mean? Well, permanent means permanent—assuming no severe misconduct or evidence of incompetence occurs, the job is guaranteed.  But that caveat is an important one:  Teachers may still be fired for just cause, meaning that if there is a clear reason, termination proceedings may be undertaken.

While opponents to the tenure system cite red tape and bureaucratic nightmares as impediments to ousting poorly performing teachers, the law really just requires due process. If administrators can prove that a teacher is not performing the job at acceptable levels, the tenure system requires that evidence of the shortcomings is well documented and that an impartial study of the facts of each individual case occurs.

What is Due Process With Regards to Teacher Tenure?

Due process was developed in order to protect students and schools from anything that interferes with students’ rights to a quality education. Due process exists to ensure that decisions relating to schools / teacher terminations are based on educational goals, not personal or prejudicial reasons. Every year, tenured teachers are dismissed when clear evidence makes termination defensible.

Teacher Termination Procedure

State law requires that teacher firing decisions be based upon behavior, performance, and overall fitness for the job. The process is necessarily lengthy and detailed:

  • Specific examples of concerns must be documented;
  • Teachers must be given written notice of the concerns and have 90 days to correct any problems;
  • If issues are not resolved, written dismissal charges must be approved by the school board;
  • Teachers may then request a hearing to be held within 30 days;
  • The school board must serve the employee with an accusation as per the Administrative Procedure Act (APA);
  • Teachers may then request a second hearing with the State Office of Administrative Hearing within 60 days;
  • A three-person commission consisting of one administrative judge and one appointee from the district and one from the teacher hears the case;
  • Teachers may further appeal to the state Court of Appeals.

[Read more…]

Employment Lawsuit VS FEHA 1 Year Statute of Limitations

Employment LawsuitCan I file an employment lawsuit even after the one year Fair Employment and housing act one year statute of limitations? Let’s say you are an employee working for a business in California, and you develop a physical disability. Your employment is terminated shortly thereafter. 15 months go by, and then you decide you want to file a wrongful firing claim.

You plan on arguing that your termination amounted to illegal discrimination based on your disability and that your employer’s action violated California’s Fair Employment and Housing Act (FEHA). As it happens, however, FEHA has a one year limitations period, and your firing took place over a year ago. Can you still file a valid claim?

If you guessed that filing a valid claim would be impossible, a California Court of Appeal would beg to differ. In the case of Prue v. Brady Company/San Diego Inc., it ruled that a plaintiff’s lawsuit could proceed, despite the expiration of FEHA’s statute of limitations, because it was a common law tort claim alleging violation of the public policy laid out in FEHA.

The Facts of the Employment Lawsuit Case

Adam Prue worked for Brady Company/San Diego Inc., and was injured on the job. His employer was informed about the nature of his injuries, and he was later terminated. He filed a claim over a year later, arguing that his termination was a violation of California public policy. Prue alleged that his manager told him that the hernia he suffered was the reason for his firing.

At trial, Brady Company filed a motion for summary judgment. The motion argued that Prue’s claim was barred by a one-year statute of limitations, which had expired. The trial court granted the motion, and dismissed Prue’s case.

On appeal, the Court of Appeal reversed the trial court’s decision, and allowed Prue’s claim to proceed. The Court held that Prue was permitted to a file his claim, because he was not actually filing a claim under FEHA, but rather a common law tort claim arguing that his termination violated California public policy, with FEHA being the statute that set forth the fundamental public policy in question.

The ruling stated that the relevant statute of limitations was the two-year statute of limitations under section 335 of the California Code of Civil Procedure. Prue’s claim was filed in April 2013, less than two years after his termination in July 2011, so the Court concluded that his filing was timely. [Read more…]

Does Former USC Coach Sarkisian Have A Discrimination Case

discrimination caseDoes former USC Football Coach Steve Sarkisian have a discrimination case? Steve Sarkisian was fired from his position as head coach of the University of Southern California (USC) football team in October, after incidents during which he allegedly appeared at events intoxicated. Sarkisian has now filed a wrongful termination suit against USC, alleging (among other claims) that the university discriminated against him on account of his alcoholism.

The circumstances of the firing are unclear. Sarkisian claims that he asked athletic director Pat Haden for time off to seek treatment for alcoholism, and in response Haden placed him on indefinite leave. According to Sarkisian’s complaint, he was then “kicked to the curb” less than a day later, when he was notified of his firing via email while he was traveling to a rehabilitation program.

However, USC issued a public statement in response to Sarkisian’s allegations that portrays the matter differently. According to USC, Sarkisian never acknowledged that he had a problem with alcohol and refused help when the university offered it. USC also claims that it provided Sarkisian with written notice that he would lose his job if there were further “incidents.”

Was Sarkisian’s Firing Justified or is a Discrimination Case a Possibility?

The discrimination case deals with some complex issues surrounding discrimination law. Under both the Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA), alcoholism is a protected disability. It is illegal under both statutes to discriminate against an employee based on the stigma of alcoholism or based on past alcohol use. However, an employee is not protected when it comes to current alcohol abuse or misbehavior that arises from alcohol abuse.

Sarkisian’s complaint acknowledges that he “appeared” inebriated at a USC fundraising event called Salute to Troy and that he uttered an obscenity at the event. Sarkisian claims that he drank two beers and then took two prescription anxiety medications, and that his behavior stemmed from the mixture of the medication and the alcohol in his system. This event could prove to be crucial to the case. If the finder of fact determines that this constituted Sarkisian being intoxicated at work, then the incident could be seen as a justifiable reason for termination.

However, if the finder of fact determines that Sarkisian was fired for seeking treatment for alcoholism, then his termination could be seen as discriminatory. It is generally considered a violation of the ADA as well as FEHA to fire an employee under such circumstances. [Read more…]

California Unlawful Discrimination Precedent Set By “Desperate Housewives” Case Ruling

unlawful discriminationCalifornia unlawful discrimination precedent established. In 2004, actress Nicollette Sheridan signed a contract with Touchstone Television Productions to play the role of Edie Britt on the television series Desperate Housewives. In 2008, she complained to Touchstone that the show’s creator, Marc Cherry, physically assaulted her during a rehearsal. When she learned that her contract was not being renewed for another season, she filed a complaint against Touchstone.

Sheridan’s original claim stated that she had been fired because she complained about the alleged assault, and argued that her firing was a wrongful termination in violation of public policy. Her claim went to court, where a mistrial was declared after the jury was unable to make a unanimous decision.

Sheridan then amended her claim, arguing that her firing amounted to retaliation under Section 6310 of the California Labor Code. In 2013, her case was dismissed, on the grounds that she was required to exhaust her administrative remedies under Sections 98.7 of the California Labor Code before she could sue under 6310. However, on October 20, 2015, a California Court of Appeal overturned that ruling.

The Appellate Court Weighs in

The Court of Appeal ruled only on the issue of whether Sheridan was permitted to file a lawsuit under Section 6310 without first exhausting her administrative remedies under Sections 98.7 and 6312. The decision held that she was not obligated to exhaust these remedies and allowed her complaint to proceed.

Section 6312 states that an employee may file a claim with the California Labor Commissioner under 98.7 if he or she alleges unlawful discrimination under 6310 or 6311. 98.7 states that an employee may file a complaint with the Labor Commissioner within six months of an alleged violation of any law under the Labor Commissioner’s jurisdiction.

The Court of Appeal’s decision holds that the use of the word “may” in Sections 98.7 and 6312 (as opposed to “shall”) indicates that filing a complaint with the Labor Commission was permitted, but not mandatory. In addition, the ruling points to the language used in subdivision (g) of Section 98.7, which states that the law has no requirement that a complainant exhaust administrative remedies.

The decision also cites the case of Lloyd v. County of Los Angeles, in which a public employee argued that he was wrongfully terminated in violation of Section 98.7. In that case, an appellate court rejected the County’s argument that the plaintiff was obligated to exhaust his administrative remedies. The Lloyd ruling stated that plaintiffs suing under the California Labor Code do not have an administrative exhaustion requirement.

What Does This Mean for Future Unlawful Discrimination – Wrongful Termination Lawsuits?

Since Sheridan filed her complaint, the California Legislature has amended the Labor Code to explicitly state that complainants do not have a requirement to exhaust their administrative remedies. The ruling described above asserts that there is no such requirement even for a complaint that was filed before these amendments went into effect in January 2014. [Read more…]

California Job Retaliation and Wrongful Termination Laws

job retaliation, wrongful terminationCalifornia job retaliation and wrongful termination laws. Under California state law, it is illegal for an employer to retaliate against any employee who has provided information to law enforcement or government agencies, or engages in other protected activities. Employment retaliation can take a variety of forms including an employer’s decision to demote, terminate, fire or conduct some other negative act against an employee because that employee has exercised an activity protected by federal or state law. Most often employment retaliation occurs when an employee becomes a whistleblower by reporting an employer’s activities that are in violation or public policy or law, or is otherwise considered illegal. Under the California Labor Code, an employer is prohibited from taking any adverse, negative action, or any other form of discrimination in response to an employee:

  • Reporting discriminatory acts and other illegal activity that have occurred in a workplace controlled by the employer;
  • Participating in a labor union and other activities related to collective bargaining and/or an employee’s right to freedom of association and expression;
  • Complaining about the state of the workplace facilities and/or working conditions;
  • Participating in investigations and/or filing suit against an employer;
  • Filing a complaint against an employer with California’s Division of Labor Standards and Enforcement (DLSE).

CA Law Regarding Job Retaliation and Wrongful Termination

The most common form of employer retaliation is the wrongful termination of an employee who has engaged in activities protected by the federal and state government. Here in California, employment relationships are presumed to be at will, which means that the employment relationship can be terminated by both the employer and employee at any time without the consent of the other party. However, there does exist an exception to the at-will employment presumption, which provides that employers can be found guilty of wrongfully terminating an employee when that employee has been discharged for “performing an act that public policy would encourage or for refusing to do something that public policy would condemn.” Under this exception, a California employee who is discharged because of these reasons can bring suit against the employer in order to receive damages and compensation for the wrongful discharge. However, this exception does not apply when the parties have a pre-existing employment contract that allows employment termination based on cause or because of specific reasons previously outlined in the employment contract.

An employee can bring a wrongful termination claim by asserting that the employment discharge violated federal law, public policy or California state law. Typically, wrongful termination suits are brought under the California Fair Employment and Housing Act (FEHA), which allows employees to bring suits against employers. However, the FEHA cannot be used to bring suit against an organization’s managers, supervisors and other employees. A complaint alleging discrimination or retaliation in the workplace must be filed within six months following the occurrence of the alleged activities. However, complaints filed under California Labor Code section 230.1 and 230 (c) can be filed within one year following the alleged retaliation or discrimination. Complaints of employment retaliation and discrimination are filed with the DLSE.

If you believe you have been the victim of employment retaliation or discrimination you should contact one of the labor and employment attorneys here at Beck Law P.C. here in Santa Rosa, California today.

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.