Sacramento Employment Lawyer

Employment Termination in California - Wrong v. Wrongful

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The California employment and wrongful termination law is one of the areas of law which the typical employee have the greatest misunderstanding about. Many employees believe that just because they feel they are treated unfairly, or their boss is rude to them, they suffer from "hostile" work environment, not realizing that the term "hostile" has a specific meaning in the world of employment law, which is very different from the ordinary meaning of the same word.

On the street, anyone or anything that is non-friendly, can be classified as hostile. In the world of California employment, having a hostile work environment claim requires a showing of specific, repeated and sufficiently severe misconduct by an employer or his agents that objectively and significantly alters the working conditions of the victim. The same applies to the term "harassment." The non-legal definition is much broader, as any (repeated) act to irritate, annoy, or threaten some may be legitimately called harassment. Under California Fair Employment and Housing Act, however, the standard required to show harassment is much higher. Among other things, the conduct complained of has to be sufficiently "severe and pervasive" by the objective standard, and must also be motivated by the fact that the victim belongs to one of the protected classes (ethnic, religious or sexual orientation group, disability or medical condition, etc.)

The above are just few examples of typical misconceptions about the worker rights laws in California. The same applies to employment terminating claims. The vast majority of firings, as cruel and unfair as they might be - do not violate the law and thus are not wrongful (although might very well be wrong). A typical example of wrong termination which is not "wrongful" is termination caused by the personal animosity of a manger toward the terminated employee. Being mistreated or being disliked by your supervisor and even being terminated because of personality conflict between you and your superiors is usually not illegal, unless you have a contract of employment for a set period of time, which hasn't yet expired at the time of your termination, or unless you a member of the union, and are thus likely covered by the collective bargaining agreement, that usually limits the employer's ability to terminate an employee, requiring showing good cause or just cause for termination. 

Employee Medical Leave - Notice Requirements under FMLA

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Under FMLA (Family Medical Leave Act), an employee must provide the employer with enough information and notice for the employer to reasonable suspect that the employee may qualify for FMLA leave (or CFRA - California Family Rights Act). The employee can do this by stating that the reason he needs the leave is because of the serious medical condition or the impending medical treatment. 

Employer, who terminate an employee who would otherwise qualify for FMLA, often justify termination by arguing that firing an employee was legal because he did not specifically request FMLA or CFRA leave. However, this defense has no merit, as the California regulations are clear that an employee does not need to specifically mention the words FMLA or CFRA to meet the notice requirement. All that an employee needs to do to qualify for such leave is to state the reason why the leave is needed. In fact, the courts have found that notice may be sufficient when employees call employers to tell them that they or their children are sick and they will be absent from work. Once such notice is provided, it is the responsibility of the employer to inquire further whether the same employee is actually qualified for FMLA leave. 

Medium size employers in the Sacramento area are particularly prone to violating FMLA, as they are large enough to be bound by the FMLA provisions, but often do not have the infrustracture in place to educate their supervisors and managers on handling requiest for medical leave.

Violations of FMLA may give rise to other claims, including retaliation for asserting FMLA rights, disability discrimination and failure to accomodate, if FMLA leave is requested in connection with the serious medical condition which may be considered a disability and other actions. 

Protected Activity and Discrimination

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Many employees misunderstand the concept of being "protected" or engaging in a "protected" activity. The believe that just because they belong to a protected group of workers, they cannot be terminated under any circumstances under California law. This is not correct. Generally, "protected" means protected against being singled out, discriminated, retaliated or treated different because of being a member of the protected class. However, this protected employee status doesn't grant an employee absolute immunity from termination. The two major  and very common examples where being a protected employee doesn't prevent an employer from terminating the same workers and doesn't violate the law are a legitimate lay-off or terminated for valid reason/cause. 

For example, suppose you are an employee who sustained an injury and you requested and received an FMLA/CFRA Leave. While on leave, the employer found out that you stole merchandise or money from the company. The employer can easily and lawfully terminated you without violating the law, as the employer had a legitimate reason to terminate you, irrespective of your FMLA leave, and would have terminated you for theft, whether or not you requested and received the above medical leave. 

In the alternative, if the employer decides to lay off a number of workers, including you, it will be legal if it complies with other laws regarding lay-offs and if you are not chosen for a lay-off among other employees, becuase of requesting leave or due to your medical condition.

How to Find the Best Lawyer for Your Case

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Finding the right lawyer to represent you in your employment/wrongful termination case or in any other civil claim can make a big different to both, the outcome of your case and your experience working with an attorney. There are over 200,000 active attorneys in California, and chances are that there are hundreds of lawyers in each area of law in your locality. So, how do you decide who to contact and who you should be represented by? Well, first let's talk about how not to choose an attorney and what are the common mistakes that consumer make when trying to find a lawyer for their case: 

1. Choosing a Random Attorney from Yellow Pages. choosing a random lawyer from the list is like playing a lottery. Chances are that anyone who you call is admitted to practice law in California and is in good standing. However, these are not sufficient qualifications to effectively represent you especially if you have a more challenging case, requiring specialized knowledge of certain aspects of employment law. You need an attorney who has a thorough understanding or your particular legal issues. 

2. Choosing an Attorney Who Has the Sharpest Website. While many great lawyers have really nice website, just because an attorney hired a great web design firm who did an excellent job for him, doesn't mean that his legal knowledge and litigation skills are just as advanced.     

3. Choosing an Attorney Who Says that He is the Best. Bragging is rarely a reliable source of information. Legal profession is not an exception. A truly great lawyer has no need to brag about how good he is, because his skills and his reputation do the job of conveying to the public how good he is.  

4. Choosing the Cheapest Attorney. Your decision should never be motivated by trying to save $50 on an hourly fee or a few percent on a contingency arrangement, if this means retaining an attorney who is less qualified or less committed to his work and your case, as in the end it will necessary cost you more than any money you might have saved when your attorney-client relationship was initiated.

So, what are the qualities that the best lawyer for your case must have? 

First, he/she has to have the knowledge of the are of law into which your claims fall. This means that if, for example, you have been wrongful terminated, discriminated or retaliated against, you need an employment lawyer and not a general practice lawyer or someone who "does everything." 

Secondly this attorney has to be available and not overloaded with work. There is very little value for you in the best attorney, if he is too busy and he is simply unable to put as much work into your file as necessary to reach a good result.

Lastly, your attorney must be responsive to your communication. If you are unable to get in touch with your attorney for weeks or months (it does happen), or if you are only able to speak with the secretary/paralegal, you are going to feel alienated and removed from your case, and you should never feel that way. 

So, how do you find a great lawyer. Well, like in virtually every other business, you should ask around and find people or lawyers who had an employment case that was successfully prosecuted or who know someone who was happy about an employment attorney's services. You should then contact that attorney. If he is unable to help you or if he is too busy to represent you, you should ask him to give you a few names of other trusted employment lawyers in the area who might be available for representation. A referral from another professional in the same area, who already has great reputation, is a much more reliable source of finding a good attorney for your case than any advertisement or directory.

Workplace Retaliation and Wrongful Termination in Sacramento

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One of the most common reasons that managers and supervisors retaliate against their employees is because they complain about harassment by the same manager/supervisor to higher ranked executive.
None of us like the complainer - someone who goes "behind our back" to tell on us to someone who has power over us. However, while in social situations saying negative things about someone might be rude and unacceptable, an aggrieved employee who feels helpless to resolve his issues at workplace with his/her immediate supervisor usually doesn't have a choice - the only person who he can and must turn to, as per the company's policies, is his boss' boss. This often leads to attempts by the worker's supervisor to retaliate against the complainant. Most supervisors no that retaliation (one kind of retaliation is taking adverse action against an employee because he complained about sexual or gender harassment, or harassment due to one's race or disability) at workplace is illegal in California, and therefore they will try to make the worker's life harder in more subtle but equally painful ways, such as issuing unfounded negative performance reviews, falsely accusing an employee of misconduct or even violence at workplace and otherwise trying to build a record or a paper trial to get rid of the employee. 

If you enjoy your work and your workplace, and there is only one or two "rotten apples" that try to retaliate against you for your complaint, it is important that you discuss this situation with an experienced employment lawyer, with whom you would be able to come up with a strategy to deal with your specific situation, considering all the unique facts and circumstances of your career and workplace. Even though I am making a living out of both suing and defending employers, I firmly believe and convey to my clients that a job is better than a lawsuit a no job.