California Law Employment Guide

The California Law Employment Guide was created by The Myers Law Group to help residents obtain maximum compensation for their claim. Absolutely no one deserves to feel unsafe or mistreated at their place of work. It is a fact that some people experience harassment, discrimination, retaliation and more in their workplace. This is unacceptable and a violation of labor laws. If you or someone you know is dealing with a problem at work, please call our California employment law attorneys today to talk about getting started. Myers Law Firm is dedicated to supporting their clients through various employment law matters. We want you to be able to efficiently work through your employment law issue, and we aim to make it easy on you. What follows are some of the most common types of employment law cases we handle.

Wrongful Termination

Not every person who is let go will be eligible for a wrongful termination lawsuit, but sometimes employers let go of workers for illegal reasons such as:

• retaliation
• discrimination
• whistle blowing

If you have been let go for one of these reasons, it is best to reach out to one of our California employment law attorneys to see how they can help you recover your rightful unpaid wages, as well as some other possible compensation.

Workplace Discrimination

If you feel you are being treated differently because of your ethnicity, race, gender, age, religion or disability, you may have an employment lawsuit. This is illegal discrimination and you can and should hold your employer responsible for your discrimination. Examples of workplace discrimination include:

• Not getting hired based on your perceived race
• Not getting promoted based on being a female, even though you’re more qualified than they male who was promoted
• Being excluded from opportunities based on your religion
• Excluding disabled applicants from being hired
• Letting someone go based on them being too old, even though their work performance isn’t affected by that

Our California employment law attorneys have handled many discrimination cases in the past.

Workplace Harassment

Harassment makes people feel unsafe at work. The act of harassing can include anything from unwanted sexual advances to being threatened or assaulted and more. Even being told offensive jokes, being ridiculed and having people use slurs against you is harassment and is illegal in the workplace. This creates a hostile work environment for people. Here are some common examples of workplace harassment that our California employment law attorneys have handled:

• A coworker commenting on a woman’s body at work
• Sexual jokes being told to a female coworker
• Calling someone a racial slur
• Ridiculing a coworker for their sexual orientation
• Making snide comments about someone else’s religion
• Making fun of someone’s ethnic background
• Joking about a coworker who is over the age of 40 being old

Wage and Overtime

Anyone who works more than their 40 hours in one workweek period is entitled to overtime pay. Workers also deserve to get the wages they are promised. There have been numerous cases in which our California employment law attorneys have represented workers who are being shorted money they earned by bosses who are trying to cut corners and save money. This is illegal and is referred to as wage theft. Here are some examples of wage theft:

• an employer paying a worker less than federal minimum wage
• offering more paid time off to a worker in replacement of overtime when they work more than 40 hours in a workweek
• making tipped workers pool their tips with workers who do not receive tips (like managers)
• labeling a worker as exempt from paid overtime when they aren’t actually doing a job that would exempt them from receiving overtime (like managers)

Wage theft most commonly happens with job positions such as waiters, sales agents, IT tech workers, mortgage brokers, call center employees, food delivery workers, FedEx drivers and more. If you think you are a victim of wage theft, it is important that you reach out to an attorney right away.

Retaliation

Your employer is not legally allowed to punish you or retaliate against you if you are involved in a lawsuit against them. This is unacceptable behavior and can be punished. While you have the law on your side, this doesn’t necessarily stop your employer from retaliating. Our California employment law attorneys won’t stand for this mistreatment. Some common ways employers retaliate include:

• lowering your salary or wages
• having you demoted
• assigning you to a lower ranking position
• giving you new hours that would disrupt your life outside of work

Do I Need an Employment Law Attorney?

Some of the clients that we talk to during the week are clients that have already started the process of bringing a claim here in California against their employer. Sometimes it’s for a client that’s filed a workers’ comp case, and they’re nervous because they feel like the employer’s putting pressure on them to resolve their case, or the insurance carrier just wants to close out their case and the employee is still injured. In those types of situations, as in most workers’ comp cases, it’s important for you to reach out to an attorney to help you with that process and ensure that somebody’s advocating for you. A lot of times, this is your one shot to become whole, with regards to that injury.

Outside of workers’ compensation, we also get calls for employees that have gone to the DFEH or the EOC – or another agency called the DLSE, depending on the type of claim – and those agencies are trying to put pressure on them to resolve their case. The employer is offering them money and the employee is saying, “Well, that doesn’t seem like enough.” A lot of times, it’s not enough. I look at the numbers being thrown around and ask, “Do you think that makes you whole?” The employee often says, “No. No way.” The reality is California is set up so that employees can represent themselves, so you don’t actually necessarily need to hire an attorney to bring a claim to a governmental agency. You don’t even need to bring an attorney with you if you want to file a lawsuit in superior court or federal court. In my personal experience, doing this is extremely dangerous. You’re dealing in a venue or a forum that is completely unfamiliar to you. You’re going to be litigating against attorneys that are going to be aggressive and see you as being outnumbered and outmatched. They’re going to wait for you to blow deadlines, and they’re going to wait for you to provide inadequate responses, and then they will take that opportunity to try and get the case dismissed. As to the question of whether you can file a lawsuit by yourself or file a claim with a state agency by yourself, I would encourage you to talk to an attorney to see if they can help you out with that process before doing any of that. They can help you figure out if going to a state agency is actually the best step for you. If you’ve already filed with a state agency and you’ve got questions, I think it’s important for you to talk to an attorney to figure out where you’re at in the process with the state agency, and whether or not your claim has more value or whether or not there’s more claims out there to be added to your ultimate claims to try and fully compensate you for the harm caused to you by the employer here in California. If you are about to file a claim with a state agency or even the superior court, or if you’ve already filed a claim with a state agency, I would encourage you to talk to a law firm about what rights you have. If I can address any of those issues, feel free to give us a call. I’m more than happy to answer any questions that you may have. Thanks.

Choosing an Employment Law Attorney

A question that I got last week from a potential client was, “How do I choose an attorney for my employment law claim?” It was an interesting question because she was calling me, an employment lawyer, and asking what factors she should look at in trying to find the right employment law attorney. We talked for a little bit about the fact that what she should be looking for is somebody that actually specializes in employment law. I told her she should look for a lawyer at a practice where the entire practice is devoted, to some degree and to some aspect, to employment labor law. Especially in California, you want an attorney familiar with an area of the law called the Fair Employment and Housing Act. You need to look for an attorney that really specializes in discrimination or employment law.

The next step I think is really important is to look for an attorney that has the resources. Whether you take on a large corporation or a smaller employer, employers don’t just roll over. They do have the resources to fight you, and they will fight you. I think it’s important that you find a firm that’s big enough and has the resources to go toe-to-toe with the employer and with the employer’s counsel that they hire. Next, I think it’s important that you find attorneys that will be able to take your case to trial. At the end of the day, it’s always surprising to me how many people call themselves civil litigators or trial attorneys. Truth be told, they’ve actually never tried a case. It’s important for you to find an attorney that has routinely tried cases. Lastly, I think it’s important for you to find somebody that you trust and that you trust will tell your story and has your best interests in mind. Sometimes your best interest is going all the way; sometimes your best interest is to go to trial. At other times, your best interest might be to find closure before you go to trial, and that might be pursuant to a settlement agreement, in which you have the peace of mind that you feel that you’re able to resolve the case and move forward. That peace of mind has value to you. Really, those are the factors that I think are important for you in finding an attorney. Find an attorney that has all of those aspects or all of those attributes that you can attribute to them. If you have questions as to what you should look for in an attorney or whether or not my firm could be that firm, always feel free to give me a call. I’m happy to answer any questions that you may have regarding your case or whether or not we’re the right attorneys for you. I appreciate your time and I look forward to hopefully talking to you. Thanks.

Filing an Employment Claim After Quitting Your Job

A lot of employees that we represent throughout the year are employees that have been fired. There’s a smaller subset of employees that we get that quit their jobs, and they wonder what affect quitting their job in California has on any claims they may or may not have. For employees that feel like they’ve been subjected to wage violations, what affect does quitting your job have on your claim? Not much. Any rights that you had as an employee will survive either termination or quitting. If you have a wage claim of some kind – an underpayment of overtime, unpaid wages, meal rest breaks – whether you quit or get fired for any reason, you’re always going to be able to assert your claims.

If you’re an employee that quits and you’ve been subject to what you believe is unlawful conduct – discrimination, harassment, or retaliation – and you quit, that can be a harder question as to whether or not the courts are going to allow you to proceed in court. This has to do with what we in California call ‘constructive discharge.’ Without getting too legal about it, constructive discharge is the court or a jury will determine whether a person in your setting had no other choice but to quit, that a reasonable person in your situation had to quit or else face additional discrimination, harassment or retaliation. Before anybody quits, I think it’s extremely important that you talk to an attorney. If you’re trying to make a decision as to whether or not you quit, please don’t make that decision based off of something you read on the internet. It’s very important that before you quit your job in California because of retaliation, discrimination, or harassment that you talk to somebody, whether that’s my firm or another one. If you have questions and you think our firm can help you answer those questions, please reach out to us. We’re more than happy to discuss what options you may have as a current employee. Thanks, and we look forward to talking with you.

Settling an Employment Law Claim Before Trial

At the firm, I think I can divide my clients up into two groups. The first group is ready to go to trial, ready to take time off and try the case. They are ready to tell their story to a jury. The other groups of clients want their story to be heard, but they don’t need for a jury to actually return a decision. What they want to do is make sure that their story is told to the employer, that the record is set straight, and that the employer is held accountable for what happened to them and the damage that was caused. For these clients, they’re happy with telling their story, resolving their case, and settling their case.

The reality is that even for those that are in the first group, they want to try their case, they want their story to be told, but they’re also okay with ultimately resolving the case because a lot of cases do so – not all cases, but a lot of cases do so. The reality is if you bring a lawsuit, a lot of these cases settle, so you don’t have to be committed to actually taking the case all the way to trial. I will say what’s important is for you to make sure that you find a firm that are actually litigators and can actually take the case to trial, so if push comes to shove, the case can be tried. Of course, that decision as to whether or not we try the case would always be up to the client – is that what they want to do? It’s really important for the other side to know that the case can settle on terms that we are okay with or that the employee has hired a firm that will try the case. That ultimately will drive settlement up. The fear of litigation will ultimately drive the settlements up because the employer wants peace of mind. If you believe that you’ve been wronged here in California by your employer, and you want to know whether or not if you brought a suit how far you would have to take that suit and whether or not settlement would be a viable option for you, I encourage you to talk to a law firm, especially one that practices employment law. If that’s this firm, that’s great. Give us a call, and I’m happy to walk you through those issues. I wish you the best and look forward to talking to you.

Recovering Damages in an Employment Law Claim

I was talking to a client for whom we’d already filed an action, and we were sitting down, and I was having her go through a lot of questions as to what attorneys would refer to as damages. She asked a question: “Actually, I’ve never thought about it, but what damages am I entitled to as a result of bringing an employment claim in California?” We sat down and I talked to her about how she’s entitled to the damages that determination had on her, and I discussed with her that one of the big damages that we look at is emotional distress.

She had been working for this company for years. She had been working for the company for 17 years, and she had gotten injured and told her employer that she had an upcoming surgery. After 17 years, within four weeks, about two weeks before the surgery, they had written her up three times and then terminated her. I talked to her about the emotional stress of losing a job that she really, really enjoyed. She really enjoyed doing the work that she was doing. Also, in addition to having that loss of actually something that you enjoyed, we talked about the stress of not being able to pay rent on the apartment that she was at. She talked about the fact that her son was going into junior high football, and that they would have a fundraiser where each family was expected to raise $250 per kid. She talked about the stress of going back to her family and trying to fund-raise that money because she had already gone to her family the month before to pay for rent. We talked about that embarrassment. She talked about waking up at two o’clock in the morning and feeling inadequate as a mom, and being a breadwinner for 17 years and that stress. We talked about the stress of going forward and what kind of stress she will have in looking for a job and the fact that she was on track to actually get a job about a week later, but would be making less, but she was just happy to have a job. That’s all she ever really wanted. We talked about that stress of not having that kind of money to do small things and that impact. We talked about that emotional stress of losing a job. We also talked about the wages and that she would be entitled to back wages between the termination up through a jury trial, as well as economic damages going forward. She would be making about four dollars less an hour in her job that she’s about to take versus what she used to make. Four dollars an hour, roughly, is $8,000 a year and that’s going to play out for a good number of years as she tries to be compensated and to receive the same compensation that she used to receive. Those are the two main factors involved: you have emotional stress, both back and front emotional stress, and you have benefits – wage loss, loss of medical benefits – both in the past and going forward. Depending on the employer, you also might be entitled to punitive damages, which is literally a number to punish the employer to say that their behavior was despicable and, as a result of that, they should be punished by having to pay money. Our system isn’t perfect. All we can ask of a jury is that they compensate you for the stress and anxiety of not having a job, and for feeling inadequate and angry. All we can do is ask for money to punish them, to get their attention that something went wrong. Lastly, we’d also seek attorneys’ fees and costs. If it goes all the way to trial, we ask the court that you, as the injured party, shouldn’t have to pay for the attorneys’ fees and costs. Most of our cases do so. We do try cases, and in those cases that we try we do ask the court that the other side pay attorneys’ fees and costs. Most of our cases settle, and from that we would take our attorneys’ fees from a lump sum. That lump sum is to compensate you for your back wages and your front wages, and for your emotional stress, and for you to hopefully be made whole. If you have a question as to what type of damages you should be able to seek against your employer for what they’ve caused to you, feel free to give us a call. I’m more than happy to discuss any questions you may have regarding your underlying claim and also to include any damages that you would be entitled to. I look forward to hopefully talking to you. If you have questions, always feel free to give us a call. Thanks.

Statute of Limitations for an Employment Law Claim

I was doing a training seminar about two weeks ago and one of the questions that was asked by an audience member was, “How long do I have to bring an employment claim in California?” I sort of laughed and gave an answer that is typical of an attorney, which was, “Well, it depends.” Some of the statutes are extremely short. Some of the time frames to bring a lawsuit will depend on the type of claim that you’re going to bring. Some require that you do something within six months of termination. Some of the same statutes or very similar statutes will allow a time period greater than that – a year, and arguably up to three years.

As to whether or not you have six months, a year, or three years, depends on the type of claim that you’re bringing and on the type of employer you’re going to sue. Some of the factors involved include the size of the employer. How many employees does it have within a certain geographical area? Is that employer a public entity or a private entity? There’s a lot of questions in determining how long you have to bring an employment claim in California. It’s a very fact-intensive inquiry. I think it’s important that, regardless of what type of claim you’re going to bring, you reach out to an attorney as soon as you can to make sure that no timelines are being blown. I also think it’s important for you to understand that the statute will change depending on various factors. The sooner that you can bring your claim, the more likely the evidence will be there. Your co-workers are still there, so we can talk to them. Documents are still around and haven’t been destroyed. Again, how long it takes to bring a claim will depend on the type of claim, but sooner is always better. If you have a question about the type of claim that you want to bring or when you can bring it, give us a call. If you think too much time has gone by, still give us a call. We might not be able to bring a lawsuit under one area of the law, but still might be able to bring in another area of the law. Again, if you have questions about your type of claim or the timing of your claim, give us a call. We’ll be more than happy to help. Thanks.

Social Security Disability Benefits

Disability Retirement Benefits

One issue we sometimes run into is what kind of benefits an employee is entitled to if they’ve been injured at work and are unable to return. In addition to the benefits that you’re entitled to under California Workers’ Compensation law, including permanent disability, you also may be entitled to benefits outside of Worker’s Compensation.

If you work for an employer that has disability, long-term disability or short-term disability or disability retirement, it’s important for you to understand the role that your injury has on your entitlement to benefits down the road. If you’ve been injured at work and you’re no longer able to work, it’s important for you to understand that you may be entitled to access your pension or retirement benefits early. If you have a question as to what impact not being able to work has on your retirement benefits, including disability retirement, feel free to give us a call. We’d be happy to walk you through that.

Docking Pay as a Form of Discipline

Last week, we had an issue regarding an employee in which the employer made a decision to dock their pay. The employee had an issue that had come up, and the manager was upset. The manager contended that, as a result of my potential client’s misconduct, the employee’s pay would be docked one time. The employee only noticed it after the employee received their paycheck, realized it wasn’t full, and saw a $150 deducted from their pay. He had a question, and he went to the employer.

The employee went up to the manager and said, “You can’t do this! You can’t do this!” The manager said, “I can, and if you don’t like it, go to HR.” The employee went to HR and said, “They can’t do that. You can’t dock my pay because you don’t like how I did it,” and Human Resources sat everybody down and, sure enough, they restored the pay of $150. In California the question comes up, “Can my employer dock my pay as a form of discipline?” Lo and behold, this employee was right, that under California law you can’t dock pay as a form of discipline, especially for conduct in the past. If the employee does the work, pursuant to the hourly rate or the yearly salary negotiated, you can’t deduct pay from that employee. An employer is prevented from going back in time and docking pay. It was interesting, too, because ever since the employee had gone to the employer and complained about what they thought was unlawful conduct, the employee was concerned that they were going to be retaliated against for going to HR and raising those issues. The employee actually called about that and asked if they can be retaliated against. I told the employee that, at this point, you did what was right, you stood your ground, and, sure enough, you were right that an employer can’t dock pay of an employee as a form of discipline. I encouraged the employee that they hadn’t been retaliated against and that they shouldn’t be retaliated against. Hopefully they’ll continue to have a long, great career with that employer, but if an issue came up in the future, then they should make sure that they keep our name and number and that we could assist and answer any questions that they have at that point. I tell a lot of my potential clients that you need a job more than you need a lawsuit. I’m more than happy to walk through with them what the current law is on any topic, including whether or not you can dock pay for a current employee for misconduct, and also what steps you should take in case you do complain as a current employee to make sure that your rights are protected. If you have any questions as a current employee as to what’s happening at work, or you’re a former employee and you feel like you got retaliated against because you raised issues at work that you believe were unlawful, I encourage you to talk to a law firm. If that’s us, that’s great. Give us a call, and we’re more than happy to discuss those issues with you. Thanks.

Available Damages Under FEHA

This morning I met with a new client of ours, here at the Myers Law Group. She had a question as to what type of damages we would be seeking. She had a claim under an area of the law called the Fair Employment and Housing Act. Like most of the laws in California regarding employment, California laws try to make an employee whole, addressing the damage that was caused by the employer’s decision that adversely affected the employee. I told the client that, as a result of being terminated for what I believe was unlawful conduct, we would be asking for a couple things in the lawsuit and then, ultimately, the jury, if we went that far.

The first issue that we’ll seek is emotional distress, the emotional distress of being terminated, as well as the emotional distress that this employee suffered prior to termination as a result of unlawful harassment. We’ll ask a jury or we’ll make a demand upon the employer that they compensate the employee for the emotional distress and unlawful harassment that occurred prior to the termination, and then we’ll seek emotional distress after the termination. A lot of employees that come to me, or clients that come to me, have similar stories, but every story is unique. The uncertainty of having a job going forward is devastating, wondering how you’re going to pay for your mortgage or your rent, how you’re going to put food on the table. A lot of my clients have never been terminated. A lot of my clients have never been out of work. A lot of my clients are angry, angry that the employer didn’t do the right thing, angry for the position that they are now in. They’re nervous and scared about going forward and having to tell future employers as to what happened and why they’re no longer working for a company that they truly enjoyed working for originally. We’ll seek emotional distress from a jury as well, including past emotional distress and future emotional distress. In addition to emotional distress, the employee is also entitled to back wages as well as front wage, or the difference between what they would’ve made at the previous employer that terminated them and what they’re currently making. If it took them time to find a job, we’d seek compensation for that period, too. If the new job that they found pays less or doesn’t have benefits as good as those offered by their previous employer, we’ll look for those benefits. The second type of damages that we’ll be seeking is wages and benefits. Some employers are subject to punitive damages, as well. We’ll be asking a jury, ultimately, to award punitive damages for the conduct of the employer, to truly punish the employer to make sure that they never to that again. Lastly, if you get to trial, we’d also be asking for attorneys’ fees and costs for bringing the litigation. Those are the types of damages we’ll ultimately be asking a jury for. As we litigate your case, a lot of cases do settle. The demand that we put out there, or what an attorney will ask for, sort of contemplates all that – back wages, front wages, past emotional distress, future emotional distress, punitive damages if the employer is subject to attorneys’ fees and costs. Most cases settle, typically for a lump sum, and that lump sum is to address all of those damages. If you have a question as to what damages you would be entitled to if you brought a lawsuit under the Fair Employment and Housing Act, or any other California laws, it’s important that you talk to an attorney who can describe or explain those damages to you. If I can answer any questions regarding those damages, or any other aspects of California employment law, feel free to give me a call. I’ll be happy to answer any of those questions.

Retaliation in the Workplace

Employer Is Retaliating Against Me for Filing a Claim

I was meeting with an attorney in my office this morning about a call that he received in which an employee of a company here in California told him they had filed a claim against their employer and felt like they were being retaliated against for making those complaints. The attorney and I sort of walked through those issues as to what the employee actually complained about and to whom. My questions were, did they complain just internally? Did they complain just locally, or did they complain to Human Resources? Did they complain verbally? Did they complain to a hotline? Did they complain in writing?

We sort of walked through all those issues. I don’t want to get too specific into this person’s claim, but all of those questions are relevant as to what the next steps should be. Sometimes we have claims in which the employee actually went outside of the employer, contacting OSHA, the EOC or DFEH. I set up a meeting with this potential client because I think it was important for them to understand that just because you complain to your employer doesn’t mean that your employer’s conduct towards you is going to be unlawful. The first step is to determine what you complained about. Is it protected? Did you complain about conduct that’s unlawful, and who did you complain to? That’s the first step, ensuring that your complaint is going to be protected under California law or federal law. The next step is, assuming that what you complained about is protected under the law, how to document that. How do you ensure that at the end of the day there won’t be a dispute as to whether or not what you complained about was lawful. There’s a lot of cases in which the employer throws up their hands and says, “No, there’s no record of them ever complaining,” and my client will say, “I raised it to three people in the same meeting, and now you’re denying it.” It’s always helpful to figure out who you complain to and how you complain. If it’s just you against the world, if it’s just you against three managers, that doesn’t mean you didn’t complain. It also doesn’t mean that you can’t win your case. A lot of our cases have facts in which there is no written documentation. I’ll be honest, it’s always easier if there’s some contemporariness notes or some contemporariness email that goes out. This is to confirm the conversation we had in which I raised these issues. That’s one issue. One, again, making sure what you’re complaining about is protected under the law, and, two, that it’s always helpful to have some kind of documentation that you did call. If all that is happening and you’re still being retaliated against, then the question is what’s the next step. That next step you should take in California is to talk to an attorney. If you feel like you need to talk to an attorney to assist you in that, I would encourage you to talk to an attorney, especially an attorney that practices employment and labor law. If I could answer any of those questions for you, feel free to give us a call. I’m happy to talk to you about all three steps – whether or not the conduct that you’re complaining about is unlawful; two, how you should complain; and, three, how you should address any discrimination, retaliation, or harassment as a result of those complaints. If you have questions, always feel free to give us a call. We’re more than happy to help.

Call Our California Employment Law Attorneys Today

If you or someone you know has been mistreated by an employer, please get in contact with us right away. You deserve to have someone on your side protecting your rights. Call our California employment law attorneys today to discuss your legal options. Like Us on Facebook