Sacramento Employment Lawyer

Harassed or Discriminated at Work? Remain Civil and Polite with Your Co-Workers and Management at All Times!

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One of the advantages that emloyers and their counsel have in defending an employment/wrongful termination lawsuit is the many ways in which  they can portray the claimant-employee in a negative light so to turn the jury off and make the jurors reluctant to award any money or any significant amount of compenation to the Plaintiff even if he/she has a vialbe claim and even if the employer has violated the law. This is an extremely important element of the case for any employer and something that every employee who brings a claims should keep in mind.  

One common mistake that employee makes is being rude and unprofessional with their co-workers or manager when they feel threatened, harassed and/or discrimination. No matter how justified that conduct might be due to the employer's bad decisions of legal violations, e-mails containing harash language or threats of legal action do not benefit an employee in any way when procesuting a case. While the claimant might have perfectly legitimate reasons to unleash his anger, e-mails and letters reflecting the same look really bad in front of the jury, especially when the employer responds in a more kind and a more diplomatic manner. Blowing up a few such bad e-mails on an overhead will significant reduce or eliminated Plaintiff's credibiltiy and will make the jury, the judge or any other decision maker doubt just about everything else the Plaintiff's says.  

If you are harassed or discrimination at work, you might be angry. You might even be outraged, but the jury will not be able to relate to your outrage personally by observing your anger. In fact, that kind of behavior will achieve the opposite result. Showing an anger toward your employer outside or inside the courtroom will not get the jury angry at your employer. On the other hand, being said, somewhat conversvative and reserved in your arguments, and limiting your testimony to a calm recount of facts, leaving the conclusion about how evil your employer is to the audience will usually achive much better results. 

How Relying too Much on Workers Comp "100% Disabled" Determination gets Employers in Trouble

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One of the mistakes that employers make in the context of disability laws is relying on the determination of their workers compensation administrators too much. One such very common mistake is assuming that just because an employee was determined to be 100% disabled by the workers compensation carrier, he/she is no longer able to work and is not entitled to any accommodations.

In the recenet decision of Couiellette v. City of Los Angeles (2011), the Second Appellate District noted that workers compensation and the disability discrimination protection under FEHA (Fair Employment and Housing Act) require separate inquiries. For FEHA, the question is not whether the Plaintiff is disabled, but whether Plaintiff's medical restrictions prevented him from performing the eseential functions of hte position that he held or that he desired to fill.  Deferring to the workers comp administrator and the workers comp medical evaluations when determining an employee's right to a reasonable accommodations, especially when that employee specifically requested to be considered for a modified duty is not an appropriate approach.

Thus, the Couiellette court made it clear that sending an employee home and not allowing her to work on light duty because she was determined to be 100% disabled by the workers comp carrier, when she was already working on a light duty, was likely in violation of her disability rights. Workers comp carrier is simply is not the right body to determine whether an employee can or should be accommodated and remain part of the company's workforce. 

Filing a Wrongful Termination Lawsuit v. Union Grievance and Union Arbitration in California

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Generally, a worker in California who is a member of any SEIU union and who has been wrongfully terminated in violation of state or federal laws can pursue one or the other or both legal routes to redress their termination: 

Route I  - Union Grievance and Arbitration

The first route is filing a grievance through the union representative for termination in violation of the collective bargaining agreement (most such agreements provide that there must be just cause for termination, which is generally more than a trivial mistake or a problem in performance, and has to be something relatively serious). Sometimes, the parties to a dispute settle a grievance in exchange for compensation or employee's reinstatement or both. If the grievance is not settled, it should eventually be submitted to a binding, out-of-court arbitration, in front of an arbitrator. The arbitration is like a mini trial where the Arbitrator will be the sole decision maker and will rule on the case after listening to the testimony of all parties and witnesses and after considering all the documentary evidence provided by the employer and the aggrieved employee. The employer is represented by counsel and the employee is represented by the labor attorneys appointed/hired by the union. 

The advantage of the union grievance and the arbitration process is that the arbitrator has the power to literally order employee's reinstatement and further order that the employee is paid full back wages for the time missed from work since termination, assuming of course that the arbitrator finds in employee's favor. The main disadvantage of this route is that dealing with unions is quite often frustrating as they are not responsive or not aggressive enough about pursuing grievances on behalf of the workers. Having limited resources and personnel, a union must pick and choose which cases to fight for and which cases to let go, which is often not an easy decision. Unfortunately, many unions are not as supportive of their members, and it's not uncommon to hear about corruption and collusion between unions and employers, kickbacks, and other improper, unethical or even illegal conduct.    

Route II - Wrongful Termination Lawsuit in Court

The same aggrieved employee can also file a separate action - a civil lawsuit in court if there is evidence of violation of state or federal law (such as discrimination, harassment, retaliation, etc...). This action will be brough in court and will have nothing to do with the arbitration proceedings. The collective bargaining agreement provisions have very little or no weight in that court action. Winning or losing a grievance or a union arbitration also has no binding effect on the court action. In other words, just because you lost the grievance, doesn't mean you don't have a good civil / wrongful termination case. The opposite is true as well - winning a union arbitration doesn't guarantee victory in court. 

The advantage of a court action is that the employee is not left to the mercy of the union representative, but can enjoy individual representation and attention from an experienced employment attorney of his/her choice. Hopefully, that attorney can pay a much closer attention to the case than an overwhelmed or corrupt union administration.  The disadvantage of a court action is that the court/judge/jury does not have the power to order the employer to take the employee back, like a union arbitrator can under the CBA provisions. This is because state and federal anti-discrimination laws provide for recovery of monetary damages for lost wages, emotional distress, and in some cases for punitive damages, but they do not provide for reinstatement except in limited cases (such as under Labor Code section 132).  

Combining Both Routes 

Pursuing both of the above routes is often a good idea for obvious, practical reasons. First, having two concurrent actions increases the chances that the employee will prevail in at least one of them. Secondly, having two actions against the employer applies greater financial pressure on the employer, who has to incur legal expenses on both fronts, and is more likely to encourage the empoyer to engage in settlement negotiations sooner than later.  Finally, there is really no downside to pursuing both legal routes at the same time. 

Being Fired for Refusing to Commit a Perjury or a Crime at Workplace is Illegal

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In California, an employment relationship may be generally terminated by either the employer or the employee for any reason or no reason (except not for discriminatory or retaliatory reasons). This means that, unless they agree otherwise by contract, no reason has to be given for terminating the employment relationship by either party. (Cal. Labor Code section 2922).  However, sometimes employers abuse the at-will rule by firing employees for reasons contrary to public policy as expressed in statutory and constitutional provisions. In response, courts have created an except to to at-will employment principle: an employer may not terminated an at-will employee for a reason that violates fundamental public policy. This exception is enforced through a civil lawsuit for wrongful discharge in violation of public policy.  

The first California court decision to recognize the wrongful termination in violation of public policy was Petermann v. International Brotherhood of Teamsters (1959). In that case, the plaintiff sue his employer after he was fired for refusing to lie and perjure himself during the investigative hearing before the Legislature. The Court of Appeal noted that it would be obnoxious to the interests of the state and contrary to the state's public policy to allow an employer to terminate an employee on the ground that that employee refused to commit perjury. The court further stated that California Penal Code section 118, prohibiting perjury, derives from the general principle that the presence of false testimony tends to interfere with the proper administration of public affairs and carrying out of the justice.  

In 1980, the California Supreme Court addressed the public policy claim in its landmark Tameny v. Atlantic Richfield Co. decision.  In that case, the employer was found to be liable for terminating an employee for refusing to participate in an illegal scheme to fix retail gasoline prices, reaffirming that an employer's obligation to not discharge an employee who refuses to commit a criminal act reflects a duty imposed by law upon all employers in order to implement the fundamental public polices embodied in the state's penal statutes.   

The state Supreme Court went further to define the framework of the public policy claim in Gantt v. Sentry Insurance (1920), finding that it is against public policy for an employer to terminate an employee for resisting the employer's pressure to lie during the investigation of a co-worker's sexual harassment compliant.  

Today, the public policy claim is an important weapon in the hands of employees of were demoted or fired for refusing to engage in activity which is either criminal or otherwise against the fundamental public policy of this state. 

The Importance of Choosing the Right Mediator for Your Wrongful Termination Case

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Mediation becomes a progressively more popular way of resolving just about any civil dispute in California in general and in the Sacramento area specifically, especially when it comes to employment and wrongful termination cases, and for a good reason. Mediation is an informal, and usually relatively inexpensive way of finding a resolution through mutual compromise. It's an opportunity for both parties to close the gap through a neutral (the mediator) between what the claimant believes he should settle his case for and what the corporate defendant is willing to pay. The courts all over California encourage the parties to all civil disputes to resolve their case through mediation or some other kind of alternative dispute resolution (such as arbitration).

I believe that picking the right mediator for your employment case is crucial to the successful outcome of your mediation. There are at least three qualities that I am looking for when choosing the right attorney to mediate an employment case:

1. The mediator must be experienced in employment law. Employment and wrongful termination law is a very specialized area of law. The best mediator of injury or business cases might not be the right person to handle a workplace claim. If your case involves allegations of discrimination, harassment or retaliation, it is important that your mediators knows what it takes to prove and defend these claims and what the fair settlement value of your case is considering all the strengths and weaknesses that every employment claim has. Although the attorneys for both parties will draft mediation briefs explaining the mediator the law and the facts from their perspective, it really helps when the mediator can rely on his own experience prosecuting employment cases and on his own research and analysis as part of his efforts to resolve the claim. 

2. The mediator must be at least somewhat aggressive. By law, the mediators are "neutrals." They do not have the authority (nor do they usually have the desire) to force any of the parties into a settlement. But many mediators take this neutrality concept to the extreme, acting like messengers. They run from one room to the other, simply delivering the message of one party to the other, and going back to the first party with the response. I very much prefer mediators who are more aggressive. In fact, I encourage a mediator long before the mediation date that I expect them to be aggressive at least with me. If I and/or my client pay $1,000 or more for a mediation, and we hire someone who we believe is experienced in employment law and knows how cases similar to my client's play out, I want the mediator to alert me in a very straightforward way as to the weaknesses of my case that I am unable or unwilling to see due to my bias in favor of my own client. I often go as far as to tell the mediator: "Hey, if you think my clients does not have a case, I want to hear it from you." I am not afraid of disagreeing with the mediator, but I very much appreciated an educated, candid "second opinion." Ideally, the mediator will be at least somewhat aggressive with the opposing party as well. 

3. Your mediator must be likable and charismatic. There is no way around it. We like to listen to and we pay attention to the words of those who sound eloquent and persuasive. This plays a major role in elections, in a courtroom and at a mediation. At the end of the day, the parties at the mediation want to feel that they have accomplished something. They want to feel that even if they didn't get the best deal, they got a fair deal at the settlement table. No one can be better at creating that feeling that a mediator that possesses charisma and personality coupled with experience and knowledge of employment law. I have made the mistake of paying $3,500.00 fee to a mediator who had all the ivy league credentials, but whose excessively low key demeanor and a very scholarly approach to the process proved to be very ineffective, and I know that I will not make that mistake again. I learned it the hard way that when it comes to mediators, you don't always get what you pay for. 

Your attorney might be very well aware of the qualities that make a great mediator in my view, but it can't hurt reminding him/her that the best mediator for your case should be experienced in employment law, aggressive, and charismatic.

California Employment Law: Terminating Employees Whose Wages are Garnished is Illegal

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Under California Labor Code section 2929 it is unlawful for an employer to discharge an employee for the payment of one judgment of threatened garnishment. The law defines "garnishment" as any judicial procedure through which the employee's wages are required to be withheld for the payment of any debt. The term "wages" includes "all amounts for labor performed by employees of every description," whether the amount is fixed or calculated on the basis of time, task, piece, commission, or other method. Cal. Labor Code 200(a) & 2929(a)(2). 

If the employee is fired in violation of section 2929, his wages continue until reinstatement or until 30 days have elapsed. Generally, the recovery is limited to the wages the employee would have earned during the 30 days preceding the levy of execution on the garnishment order. An employee who wants to have the Labor Commissioner take an assignment of the claim must file it with the Commissioner within 60 days after discharge. However, a discharged employee cannot sue the employer if a criminal prosecution based on the same discharge has been commenced under the federal Act. Section 2929 does not affect any other rights that the employee may have against the employer for wrongful termination, including claims for discrimination, retaliation, harassment and alike.

California Employment Law: Good Cause Termination Explained

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Although the vast majority of the private sector workers in California are at-will employees and can be terminated for any reason, no reason, or arbitrary reason, as long as it's not an illegal reason, a number of employees have a contract with their employer which limits the employer's rights to terminate and require showing of "cause" or "good cause" for termination. Thus, practically all union members can be only terminated for "just cause" as their collective bargaining agreement provides. In addition, some employment contracts provide that the employee will be employed for a specified term and cannot be terminated except for cause. Usually "cause" means gross and/or intentional misconduct, such as fraud, theft, willful violation of company policy, competition or disclosing confidential information to competitors, etc.

The law on the meaning of "good cause" termination is ambivalent. On one hand it provides significant protection to employees whose employment is governed by this term. On the other hand, it gives a significant leverage to the employer. It is important to understand that the employer does not need to prove that the misconduct giving ground to contract termination actually took place. It only needs to show that in discharging the employee, it was acting for a purpose relating to its business needs or goals, rather than for a wrongful motive or reasons. Cotrans v. Rollins Hudig Hall Int'l (1998). The courts generally defer to the employer's good faith exercise of its managerial discretion, although that discretion is not unlimited.  

Under the leading on the issue Cotrans case standard, three factual determinations are relevant to the question of employer's liability in good cause discharge claims: 

(1) whether the employer acted in good faith in deciding to terminate the employee;

(2) whether the decision followed an adequate investigation; and

(3) whether the employer had reasonable grounds for believing the charges against the employee were true. 

"Adequate investigation" means that at a minimum, the employer should listen to both sides. That is - give the employee a fair opportunity to preset his position and to correct or contradict relevant statements or information. It is also important that any investigation taking place is conducted by neutral, unbiased personnel members who have no interest in the outcome of that investigation. Interviewing a large number of co-workers and other witnesses of the alleged misconduct will also make the investigation more valuable and complete, protecting the employer from liability and assuring that the results of the investigation are more reliable.

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. 

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.