Employment Law

Top 5 Tips: So You Want to Sue Your Boss?

So you want to sue your employer for racial discrimination, sexual harassment, whistleblower retaliation, failure to pay you your last paycheck, what have you. Now what? Here are five tips all clients should keep in mind before they pick up the phone to call a lawyer.
Tip 1: Write it, don’t say it. People think it’s enough to complain, request or report things orally to their employer. They complain about discrimination to HR over the phone. Or they tell their supervisor about a health and safety code violation. Well, what are you going to do when HR or the supervisor denies you ever talked with them? Don’t believe it? Happens all the time. Avoid the “he said, she said” by communicating with your employer by emails or send letters (certified mail, return receipt requested). By doing this, you create a record.
Tip 2: Keep a journal. Don’t rely on memory, write everything down. The names of witnesses, dates, times, places, what was said, documents involved – the more detailed the better. And be professional about it. Don’t write that your boss is a %*&@! in the journal, because the journal could become evidence. Another thing, don’t leave the journal on your desk or in your desk drawer at work where your boss can find it. You might end up fired and your lawsuit dead.
Tip 3: Get witnesses. Emails, memos and letters are one form of key evidence in a lawsuit. Witnesses are the other. When your boss calls you a racial slur, pats you on the rear, or threatens to fire you because you reported him for illegal activity, talk to whoever witnessed it. Confirm whether they saw it. Try to get them on your side. Do this carefully and your case will have just gotten a lot stronger.
Tip 4: Don’t play lawyer. So you went to the internet and learned that “retaliation”, “hostile work environment” and “whistleblowing” are magic words. That doesn’t mean you should go waving those terms around in your emails and conversations at the workplace like your sword and shield. Don’t play lawyer. Chances are, your employer’s lawyer will be better at it than you are and if, as is likely, you get it all wrong, you’re the one who could come off looking like the bully, not the employer. Get a lawyer instead.
Tip 5: Don’t get mad, get even (or turn the other cheek). You’re being treated outrageously by your co-workers, your supervisors or the owners of your company, or maybe all of them. You’re depressed, scared and . . . spitting mad! To quote Al Pacino in Scent of a Woman, you want to take a flamethrower to the place! That’s fine if you want to end up in jail and without a lawsuit. Otherwise, take a deep breath, follow tips 1 to 4, and call an attorney. That momentary lapse where you curse your boss out like a sailor in front of your entire office could mean you no longer have a case.
More tips to come, but if you follow these five, you will be way ahead of the game. And your lawyer will thank you for it.

REIMBURSEMENT FOR WORK-RELATED PHONE CALLS ON PERSONAL CELL PHONES

In August, a 3-judge panel of the California Court of Appeals for the Second District held that when employees are required to use their personal cell phones for work-related voice calls, the employer must reimburse the employee for those cell minutes at a reasonable rate. Cochran v. Schwan’s Home Serv., Inc., (2014) 228 Cal. App. 4th 1137, 1140.

The plaintiffs in Cochran were employed to deliver meals to customers at their homes. The plaintiffs were required to use their personal cell phones to contact customers regarding order and delivery, but the employees were not reimbursed any money for these calls. The 3-judge panel found that reimbursement of a reasonable percentage of the employee’s cell phone bill for work-related calls is required by Labor Code § 2802 (a rule requiring employers to reimburse employees for necessary expenditures of carrying the duties of the job). Employer reimbursement is required whether the employee has limited or unlimited talk minutes on her cell phone plan.

TIMELY PAYMENT OF EARNED COMMISSIONS

In the realm of commissions on sales, when is payday? Does the law have anything to say about how quickly an employer must pay a salesperson the commission he or she has earned? It does.

The General Rule: Earned Commissions Must Be Paid Semi-Monthly

In July of 2014 the California State Supreme Court confirmed that in fact Labor Code § 204 (which provides the general rule on timely payment of earned wages) commands, “all earned wages, including commissions, must be paid no less frequently than semimonthly.” Peabody v. Time Warner Cable, Inc., (2014) 59 Cal. 4th 662, 668. [emphasis original]. “Semi-monthly” means every two (2) weeks after the commission has been “earned.”

Some exceptions apply. Where a more specific code section exists, it trumps a more general code section. Rose v. State, (1942) 19 Cal. 2d 713, 724. The Labor Code provides a special rule for “executive, administrative and professional” employees. For such employees, California law and Federal law (the Fair Labor Standards Act primarily) may grant slightly longer periods in which the employer can make payment of earned wages (Labor Code § 204c). A special rule of timely payment of earned commission wages applies just to salespersons at vehicle dealerships (Lab. Code § 204.1.).

Additionally, the Labor Code sections following 204 (§§ 204a – 220.2) address a number of specific topics, including payment of regular wages (wages based on time worked) for enumerated industries and to public employees; timely payment of wages when an employee is terminated or resigns; notice; place of payment; releases of wage claims; time off in lieu of cash compensation, etc.

But, What About My Contract? 

Whether you are an employer or a salesperson employee, your reaction to this news that earned commission must be paid semi-monthly will likely be, “Wait a minute, our sales commission contract says commissions will be paid quarterly. So, what about the contract?”

While the Peabody decision is so new that cases applying it have yet to wind their way through the court system, Labor Code § 219 (a) makes timely payment of earned wages a protection that an employee cannot waive by contract:

(a) Nothing in this article shall in any way limit or prohibit the payment of wages at more frequent intervals, or in greater amounts, or in full when or before due, but no provision of this article can in any way be contravened or set aside by a private agreement, whether written, oral, or implied. Consequently, the likely outcome is that a contract term that says an employer may pay an earned at a date later than semi-monthly is void, unless an exception applies.

EXPENSE REIMBURSEMENT: YOUR EMPLOYEE RIGHTS

In our last post, the blog posed the question whether an employee must reimburse an employer for damage or loss during the course of employment (no).  This blog now examines the flip side of that question: must an employer reimburse you for expenses you incur as an incident to your employment?  That is, if you use your cell phone for company calls, dress in a required uniform, or use your car to travel or make deliveries are you entitled to be paid back for those expenses?  Here we have an unequivocal YES.

Labor Code section 2802 mandates that any employee expense incurred carrying out the employer’s duties shall be reimbursed to the employee.  In other words, any expense incurred by the employee that is necessary for the employee to carry out his or their duties for the employer. Labor Code § 2802 states that an employer must indemnify its employees “for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties … ” Lab.Code § 2802(a).The elements of a § 2802(a) cause of action are:

(1) the employee made expenditures or incurred losses;

(2) the expenditures or losses were incurred in direct consequence of the employee’s discharge of his or her duties, or obedience to the directions of the employer; and

(3) the expenditures or losses were necessary.” Cassady v. Morgan, Lewis & Bockius LLP (2006) 145 CA4th 220, 230.

An employer may satisfy this reimbursement requirement by paying an increased salary or commission but only if it is clearly defined what monies are being paid for labor performed and what amount is being paid as reimbursement for business expenses. Gattuso v. Harte–Hanks Shoppers, Inc. (2007) 42 C4th 554, 559.  Importantly, an employer may be required to pay for an employee’s defense as well as any settlement or judgment if the employee is sued for conduct arising within the course and scope of employment.  For example, an employee sued for discrimination may be entitled to a defense paid for by the employee.  On the other hand, an employee who punches somebody while “on the job” may not receive a defense.  See, Grissom v. Vons Cos., Inc. (1991) 1 CA4th 52, 55.; Freund v. Nycomed Amersham (9th Cir. 2003) 347 F3d 752, 765–760.  (Section 2802 allows indemnification for employees’ defense costs when sued for actions arising out of their employment). At least one case clearly states: “The statute requires the employer not only to pay any judgment entered against the employee for conduct arising out of his employment but also to defend an employee who is sued for such conduct.” Jacobus v. Krambo Corp. (2000) 78 CA4th 1096, 1100, 93 CR2d 425, 428.  Other cases have held that the employer need only reimburse the employee for legal expenses after a determination that the employee was in the course and scope of employment at the time of the incident being sued on. As a practical matter, an employer will invariable provide a defense for claims made against an employee.  If they do not, there are several options available to the employee.

Labor Code Section 2802 may also require an employer to indemnify employees for attorneys’ fees and costs incurred in successfully defending against criminal charges arising out of acts performed in the course and scope of employment. See Los Angeles Police Protective League v. City of Los Angeles (1994) 27 CA4th 168, 177, 32.  (Note:This is not well established by case law and remains something of an open question.)

On-the-Job Injury: Laws that protect you

As everyone knows, if you suffer an on the job injury you are entitled to Worker’s Compensation benefits. The injury may cause you to miss work or even suffer a permanent disability.  California has two statutory systems in place to protect you from retaliation or discrimination as a result of your industrial injury.  One statutory protection is enforced by the Workers Compensation Appeals Board (WCAB); another statute gives you the right to sue your employer if you are targeted because your injury has caused you to miss work or to become disabled. (The statutes also protect you from retaliation because you filed a claim for benefits.  Irrational as it may seem, employers all too often “blame the victim” of an accident because the injury may drive insurance costs higher.)

1. Administrative Remedies

The WCAB is empowered to redressviolations of Labor Code § 132a which expressly prohibits an employer from discriminating against an employee because that employee:

●    Applied for or intends to apply for workers’ compensation benefits; or

●    Received a rating, award or settlement in a workers’ compensation action; or

●    Testified or intends to testify on behalf of another employee in his or her case.  (Labor Code § 132a(1)(3).)

Because workers’ compensation claims are often handled by the employer’s insurance company, the penalties available under Labor Code § 132a apply equally against an insurer who advises an employer to fire or otherwise take action against an employee because he or she filed a workers’ compensation claim.  Labor Code § 132a(2).

“Discrimination,” as used in Labor Code § 132a has been defined as “treating injured employees differently, making them suffer disadvantages not visited on other employees because the employee was injured or had made a claim.”  Department of Rehabilitation v. WCAB (2003) 30 Cal.4th 1281, 1300; Crown Appliance v. Workers’ Comp. Appeals Bd.(200 115 Cal.App.4th 620, 626 (substantial evidence supported Workers’ Compensation Appeals Board’s (“WCAB”) finding that employer fired employee in retaliation for the worker filing a workman’s compensation claim).  In order to state a claim under Labor Code § 132a, you “must show that [you] suffered an industrial injury, that the employer caused [you] to suffer some detrimental consequences as a result, and that the employer singled [you] out for disadvantageous treatment because of [your] injury.”  Gelson’s Markets, Inc. v. Workers’ Comp. Appeals Board (2009) 179 Cal.App.4th 201, 210.

While employers are not required to reinstate or retain injured workers where “business realities” make that impossible, the employer still may not discriminate “in any manner” against employees who remain able to perform job duties if their former positions are still available.  See Labor Code § 132aJudson Steel Corp. v. WCAB (1978) 22 Cal.3d 658, 667. One example of discriminatory treatment is making an employee who has been injured on the job use vacation time rather than sick leave to attend medical appointments for work-related injuries.

Labor Code § 132a does not give you the right to bring a civil action against your employer.  The way the statute works is that you must file a worker’s compensation claim and then, if you are discriminated against, seek appropriate penalties and protections from the WCAB which include:

●    Criminal prosecution of the employer;

●    Reinstatement and reimbursement for lost wages and work benefits;

●    Increasing the employee’s workers’ compensation award by 50% (up to a total of $10,000); and

●    Reimbursement for any costs and expenses (up to $250) incurred in proving the discrimination.

The appropriate law firm to assist you in prosecuting a Labor Code § 132a action is a firm that practices workers’ compensation.  These attorneys specialize in obtaining recoveries for workers  injured on the job.  Ainley Law does notpractice in the field of workers’ compensation. You may find a list of practitioners in the Bay Area by clicking here. However, we provide this information to the general public, as all employees should be aware of these important rights.

2.  Civil Lawsuits

If you have suffered retaliation or discrimination resulting from your industrial injury you have the right to bring a lawsuit in civil court even if you have also sought administrative remedies.  You have protections both under Labor Code § 132a(recovery through an administrative process), and you also have protections under Government Code § 12920 et seq. In a landmark decision, the California Supreme Court in City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, held that a worker who suffers an on-the-job injury is protected from discrimination both by Labor Code § 132a and also by the general prohibition against discrimination because of disability set forth in the Fair Employment and Housing Act (FEHA) (codified at Government Code § 12920, et seq.) The court expressly found that “section 132a does not provide an exclusive remedy and does not preclude an employee from pursuing FEHA and common law wrongful discharge remedies.  We disapprove any cases that suggest otherwise.”  Id. at 1158.  The court did go on to note that “disability” has a special meaning under workers’ compensation law which is not the same as “disability” under the FEHA.  Therefore, an injured worker may pursue disability discrimination claims under Labor Code § 132a and under the Government Code (FEHA) only if he or she meets the statutory definitions of disability under the respective code sections.  For example, Government Code § 12926 subdivisions (i) and (k) have extensive definitions of physical and mental disability which an injured worker may or may not fall within even though he or she has a “disability” within the meaning of the Labor Code.  Finally, you should be aware that if you obtain a recovery for discriminatory treatment under Labor Code § 132a, you cannot also obtain a recovery for the same injury under FEHA:  “To the extent section 132a and the FEHA overlap, equitable principles preclude double recovery for employees.  For example, employees who settle their claims for lost wages and work benefits as part of a section 132a proceeding could not recover these damages as part of a subsequent FEHA proceeding.”  City of Moorpark, supra, at 1158.

Thus, you may potentially recover remedies under both the workers’ compensation system and in a civil lawsuit.  However, you should bear in mind that bringing your claim in one forum may compromise your claim in the other.  Injured workers often have civil and administrative claims pending simultaneously.  Generally, workers’ compensation remedies are smaller than the potential awards in a civil action; handled properly, there is no reason that a worker who is both injured and discriminated against should not recover in both forums.

MASSIVE STUDY FINDS NO BENEFIT TO “AT WILL” EMPLOYMENT

California presumes that the employment relationship is “at will” which in effect means that unless you have a contract that states otherwise (e.g. belong to a union with a Collective Bargaining Agreement) your employment may be terminated for any lawful reason, or for no reason, by your employer.  See Cal. Labor Code section 2922.  The “at will” presumption is not accidental.  It reflects a deliberate and quite Victorian view of the world.  The theory goes that society a whole prospers when labor markets are flexible.  Therefore, employers must be free to shed workers in downturns and hire them in upturns.  The increasing gap between the very rich and everyone else seems to make this notion suspect.  At the very least, however, one would think that there must be dozens of academic studies that have empirically validated the premise that “at will” employment leads to greater job creation and a more efficient labor force.  Surprisingly, there are no academic studies of any kind that show “at will” employment leads to greater economic growth and/or efficiency than employment with job protection.

Many of the EU countries have employment policies in which an employee cannot be fired after a given period of employment without a showing of “good cause” in a full round of trial like hearings.  (In the U.S. the closest example may be unionized teachers or other Civil Service employees who enjoy much greater protections than the rest of us.)  Britain’s coalition Government recently sought to reduce the job protections that apply in that country.  Before acting, Parliament commissioned an exhaustive study, called the “Beechcroft Review” whose goal was to collect and collate academic studies from around the world.  The Report would show conclusively the effect that “at will” employment had on economic activity and job creation when compared to the more regulated economies of the Continent.

Everybody expected a definitive, massive report detailing the negative effects of job protections on market economies.  Instead, the report, weighing in at 15 pages, meekly concluded that there is no data available that shows any benefit at all to an “at will” employment policy.  The BBC put up a great pod on the issue at: http://www.bbc.co.uk/programmes/b01hxtmp.  The hosts interviewed leading academics from around the world for their view on the benefits of “at will” employment.  The conclusion?  There is likely no benefit at all given the corresponding cost of sudden and severe unemployment.  Simply put, there is no proven benefit to “at will” employment and every reason to believe that it does more harm than good to a society as a whole.

Pregnancy Disability Leave Law: The Special Protections of Pregnancy Related Disability

Some of the most obvious discrimination in the workplace is taken against pregnant women.  In response the Legislature has enacted a powerful set of protections embodied in the PDDL which creates special statutory protections for employees who become disabled as a result of pregnancy, childbirth, or a related medical condition. Gov.C. § 12945(a). These amount to “super protections” and if you are disabled by pregnancy related issues or by childbirth you can benefit from the special protections afforded under the law.  The salient features include the following:

  • Employees are entitled to 4 months of unpaid protected leave (your job – or a comparable position) must be preserved for four months if a doctor certifies that you are unable to carry out your essential job functions.  For example, a woman suffering morning sickness is considered disabled by pregnancy, as is a woman who must take time off for prenatal care. 2 Cal.C.Regs. § 7291.2(g)
  • The disability extends to 4 months even if your employer has a policy of providing less than 4 months leave for similarly situated employees with other temporary disabilities (illness, injury , etc. ). 2 Cal.C.Regs. § 7291.7(a).
  • Unlike protections under the Federal Family Medical Leave Act (FMLA), 29 USC § 2611(4)(A)(i), or the State California Family Rights Act (CFRA), Gov.C. § 12945.2, there is no requirement that you have worked at least 1250 hours ( e.g.FMLA) or have been employed at least one year (CFRA ) before taking PDDL leave. 2 Cal.C.Regs. § 7297.0(e)(2)
  • Because the statute is part of the broad Civil Rights protections of the Fair Employment and Housing Act (FEHA) Gov.C. § 12940 et seq., your employer must make efforts to reasonably accommodate your pregnancy related disability including offering you a transfer, adjusting your duties and schedule, and entering into good faith discussions with you regarding accommodating your disability. (Remember though that if you cannot perform your “essential job duties” the employer does not have to accommodate you – the PDDL leave benefits still apply, however.)
  • An employee may, but is not required, to use accrued vacation time during her disability period. See 2 Cal.C.Regs. § 7291.11(b)(2). On the other hand, an employer may require that the employee use accrued but unused paid sick leave prior to using the PDDL leave. 2 Cal.C.Regs. § 7291.11(b)(1).
  • The PDDL runs concurrently with the FMLA but importantly runs consecutively with the CFRA.  Thus, if you take 4 months of PDDL leave, you may take another 12 weeks of protected leave under the CFRA. This allows you a total of 7 months protected leave in which to prepare for childbirth and bond with your baby once he or she is born. 2 Cal.C.Regs. § 7291.13(c).
  • PDDL leave may be taken intermittently or on a reduced work schedule “when medically advisable as determined by the health care provider of the employee.” 2 Cal.C.Regs. § 7291.7(a)(3).  Thus, the leave may taken incrementally and on an hourly basis.  If, for example, an employee misses two hours of work due to morning sickness, only those two hours may be counted against the time available for her PDDL leave of 4 months. 2 Cal.C.Regs. § 7291.7(a) (2)(B).
  • An employee returning from PDDL leave is entitled to all the same benefits that she had before the leave began. Leave does not constitute a break in service and she may not be deemed to have forfeited any earned seniority. 2 Cal.C.Regs. § 7291.11(c)(2).

The PDDL is a statute that confers special status on pregnancy disability.  It is uniquely flexible and generous.  Perhaps most important is that it can be tacked to leave available under CFRA.  Working women have a powerful set of statutes that can provide up to 7 months of leave for pregnancy and childbirth.  Any working woman considering taking leave due to pregnancy or to bond with their newborn should consider the benefits of invoking this statute.

Do not be a misclassified independent contractor

Many employers seek to avoid liability for Payroll taxes, Social Security taxes, Medicare taxes, and the payment of health care benefits by classifying employees as “Independent Contractors” instead of employees. These workers receive 1099 forms instead of W-2’s and generally receive no benefits beyond their hourly rate.
This is bad for the Government and bad for you if you are misclassified as an independent contractor.

Under the tax code, your employer pays half of the social security tax that is due on your wages. As an independent you pay all of it. Although social security may not seem like a heavy tax burden, remember that it is not subject to reduction through credits or deductions; it is a flat tax and you pay 15% of your income (or the applicable rate) as an independent contractor. As an employee, you pay only 7.5%; the employer pays the other half. In addition, the usual benefits of health insurance, dental insurance, etc. that may be available to employees will not be available to you. Self employment has many rewards, but you pay a price to be your own boss. When you are not your own boss and you still pay the price as if you were then it is just unfair.

Starting January 2012, the Legislature enacted an extraordinarily tough new enforcement sanction against the misclassification of employees as independent contractors. Codified at Labor Code Section 226.8, this little known provision imposes a penalty of between $5,000 and $15,000 per violation (one pay period is one violation). If the court or jury determines that the violations are part of a pattern or practice then the penalty imposed is $10,000 to $20,000 for each violation. So, if ten waitresses, for example, are misclassified as contractors the penalty is $200,000 per pay period against the employer. This is effectively a death sentence for the business operation and so a group of misclassified workers have an extraordinary degree of leverage over their employer. The law looks to many factors in deciding whether a person is an employee or an independent contractor. The IRS has a set of criteria and California courts apply what is known as the common law test. In each case the dispositive factor is the degree of control exercised by the boss over the person performing his or her job. Typically, the factors relevant to control include the degree of management and supervision; mandatory schedules; dress codes; direction and choice over the task or work to be performed and how it is to be done. Other factors include the nature of the worker’s task and whether it is part of the general operations of the company. If for example, a law firm hires a paralegal, that is closely related to the practice of law. Someone who repairs the elevators, or patches the roof is in a different line of work entirely and is unlikely to be an employee. Also important is whether you bring your own equipment to work and whether you work at the site of the employer. How you are paid (1099 or W-2) is also a factor that courts weigh in analyzing a worker’s status.

The determination is fact intensive and turns on the specific merits of each case. If you believe that you may be misclassified it may be worth your while to examine the issue closely because the rewards may be substantial if you have been willfully misclassified.

Victory for Plaintiffs in Wage and Hour Class Action

The recent decision of the Second District Court of Appeal in Harris v. Superior Court (2012) 207 Cal.App.4th 1225 ends a long battle over the classification of thousands of claims adjusters employed by Liberty Mutual Insurance Company. Plenty of money was at stake. In Bell v. Farmers Insurance Exchange (2001) 87 Cal.App.4th 805, plaintiff insurance adjusters recovered in excess of $170 million in unpaid overtime. Accordingly, the parties in Harris had a great deal at stake, which fueled an epic battle. The specific issue at stake was whether insurance adjusters may be classified as exempt from the overtime laws under the so-called “administrative” exemption. This exemption has been the subject of a number of cases in recent years, largely because of what is known as the “administrative/production” dichotomy. In short, that legal theory attempts to distinguish between those employees who are engaged in producing the goods and services of the employer as opposed to those who are employed to run the business. Federal regulation 29 C.F.R. section 541.201 puts it this way:

“To meet the [administrative exemption] requirement, an employee must perform work directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment.” Id.

Employees engaged in an activity that constitutes the company’s primary purpose are production workers. Martin v. Cooper Elec. Supply Co. (3rd Cir. 1991) 940 F.2d 896, 903. However, there has been a recent trend, in cases where the plaintiffs are white collar workers, to limit or reject out of hand the administrative/production dichotomy. These new cases conclude that the purpose of this analysis is to distinguish between those who work on a factory floor and those who effectively run the business from an office. In today’s service-dominated economy, the theory goes, it is an artificial distinction to differentiate between those who run the business and those who provide the service or product of the business.

In Harris, as in Bell, plaintiffs argued that claims adjusters, by definition, perform duties and provide services which are the essential product of the insurance company. The employers argued that claims adjusters do not produce the employers’ product because employers’ product is the “transference of risk,” not claims adjusting. Round one went to the employers, with the Court of Appeal siding with Liberty Mutual in 2007. On petition to the Supreme Court, plaintiffs emerged victorious. In Harris v. Superior Court (2011) 53 Cal.4th 170, the court held that the Court of Appeal had misapplied the administrative/production dichotomy and remanded the case back to the Court of Appeal for further proceedings consistent with its direction. Grudgingly, the Court of Appeal applied the criteria specified by the Supreme Court and found in favor of plaintiffs.

This case is significant (as is the Supreme Court’s reversal) not only because it reaffirms the viability of wage and hour class actions, but also because it clearly establishes that the administrative/production dichotomy is alive and well in the field of white collar employment: a conclusion that a number of courts have in recent years urged is not the case. Although the plaintiffs here were claims adjusters, the reasoning applies to any office or “white collar” employment.

California Employment Law: News You Can Use

A Handy Guide to Your Leave Rights

What are your leave rights? Everybody at some point gets sick, has an emergency, gets called for jury duty, has military service commitments, or has to care for a ill relative or friend.  In what situations can you leave and still protect your job.  If you have been refused leave or told that you may not return, is your boss breaking the law? These are questions that all of us have asked ourselves at some point in time.  Most of the time, we never find the answer and the HR department is often as clueless.

To assist workers in better understanding their Leave Rights, Ainley law is making available a complete chart of every leave statute in California  The chart comprehensively outlines the eligibility and coverage for your rights when pregnant, when baby arrives, when you have a sick relative, when you become sick or disabled or are injured, when you are in the Armed Forces, at school, or are required for jury duty, emergency duty, and your right to leave work to vote.  The chart identifies each specific statute along with the Agency responsible for administering it.  The statutes covered are Pregnancy Disability Leave (PDL), California Family Rights Act (CFRA), Family Medical Leave Act (FMLA), Reasonable Accomodation Leave (R/A), Paid Family “Leave” (PFL), “Kin Care Leave” (KCL), and company disability leave policy (CoDL).  This chart outlines the rights available under each statute and compares them in a succinct 4 pages.

Statute Comparison Chart

Ainley law also makes available a comprehensive Powerpoint presentation assembled by the Department of Fair Employment and Housing called “Leave Laws and Disability Discrimination”.  Here you will find a wealth of clear and concise information about your rights under the Fair Employment and Housing Act (FEHA) and other statutes that protect us from illegal leave practices and discrimination.

Guide to Disability Discrimination

Employment Law for The People

The touchstones of our practice are integrity and experience. We practice employment law exclusively on behalf of wrongfully treated employees. We never represent the employer. We are one of a very few firms to do so. Most firms dabble in employment law (on behalf of employees and employers) while practicing personal injury law and/or business law. In our judgment this is not a recipe for success. We are passionate about employee rights. Our job is to vindicate you; to right the wrong that has been done, and to make you whole again. Whatever the wrong to you may have been ( wrongful termination, non payment of overtime/ break time, age or gender discrimination, leave violation, retaliation, failure to accommodate, sexual harassment, etc.) we have the knowledge, experience, and proven ability to maximize your recovery. Employment law is complex; it is filled with pitfalls for the inexperienced and the unwary. For example, the differences between the Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) are so great that one state Agency has published a matrix illustrating the differences that is 12 pages long. We will guide you through this maze (you won’t even know it‘s there) and resolve your case either through settlement or, in rare cases, trial. Although few cases actually go to trial, it is essential that your counsel have trial experience so that your claim is taken seriously at the negotiating table. We have such experience, having successfully litigated numerous trials and recovering substantial verdicts for our clients. Corporations and business associations spend literally billions of dollars to limit employee rights and reduce the recoveries available to a wronged employee.

Simply put: your best hope for a recovery is to retain high quality, experienced counsel who are specialists in the field of employment law and who know how to maximize the value your case. We are such counsel. While we do not guarantee success, you may be assured that no effort will be spared to obtain the best possible recovery for you.

Labor code and your paycheck stub

LABOR CODE SECTION 226: THE INFORMATION THAT MUST BE INCLUDED ON YOUR PAYCHECK OR PAYSTUB

California law requires nine (9) specific pieces of information to be included on the paycheck or paystub of every employee. Failure to comply with each and every requirement of this code section (Labor code section 226) is a misdemeanor.  The employer is liable for $50 for the first violation, and $100 per pay period for each violation thereafter up to a total per employee of $4,000. Individually, the claim may not be large but collectively it can be very large indeed. (Note that if you have a claim for unpaid overtime or break time, you likely also have a claim for pay stub violations. For hourly employees, the overtime hours you worked but were not paid for almost always are missing from your pay record -i.e. you worked 55 hours but were told to put down 40 hours because the company doesn’t pay overtime, your overtime wasn’t approved etc.-  That is an inaccurate record and therefore a pay stub violation.)  Frequently, employers put the wrong address or no address.  Small businesses sometimes provide no information on the pay stub or pay out of a personal account with no record at all.  If you sue and win you get your damages plus attorneys fees and costs. If you lose your case, the employer does not get attorneys fees but can recover costs (filing fees etc.).  The following is the text of the statute(with minor changes)

Every employer shall, semimonthly or at the time of each payment of wages, furnish each of his or her employees, either as a detachable part of the check, draft, or voucher paying the employee’s wages, or separately when wages are paid by personal check or cash, an accurate itemized statement in writing showing

“(1) gross wages earned;

(2) total hours worked by the employee, except for any employee whose compensation is solely based on a salary and who is exempt from payment of overtime; [this is a critical requirement; if you worked 50 hours you deserve to be paid for 50 hours. False documentation of hours worked provides penalties in addition to the overtime monies owed].

(3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis;

(4) all deductions, provided that all deductions made on written orders of the employee may be combined and shown as one item;

(5) net wages earned;

(6) the inclusive dates of the period for which the employee is paid;

(7) the name of the employee and his or her social security number, except that by January 1, 2008, only the last four digits of his or her social security number or an employee identification number other than a social security number may be shown on the itemized statement;

(8) the name and address of the legal entity that is the employer, [this is very important] and

(9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.

The deductions made from payments of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement or a record of the deductions shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California.”

Be sure to check your paystub for compliance with California law.  Aside from the statutory damages it’s a good idea to know who your employer actually is and what type of business they are (corporation, partnership, and so forth). In addition, violations are potent tools to gain leverage in other disputes you may have with your employer.

Your employer MUST show you your payroll records within 21 days of your request. (Labor Code section 226 (c),(f),and (g). If the employer does not show you the records within that time you may sue to compel the employer to produce them to you.  Again, if you win, you get attorneys fees and costs.  If you lose the employer does not get attorneys’ fees. (Note: if your request is in writing and is dated, whether by certified mail or by an email, losing this claim if records are not produced would be almost impossible.) Cross refer: Right to inspection of personnel file.

HOW TO CALCULATE YOUR OVERTIME WAGES

Overtime is paid either for any hours worked over 8 on any given day during a week, or for all hours worked over 40 in one workweek which is defined as any consecutive 7 day period. You can receive overtime which is calculated per week for work in excess of 8 hours in any or all of the 7 days in a week, or the total number of hours worked over 40 in any 7 day period. It is usually to your advantage to calculate on a per day rather than a per week basis but not always. The following is how to calculate your overtime.

1. First, determine your hourly rate. If you are an hourly employee, that is obviously your hourly wage. If you are a salaried employee or are paid a combination of salary, commission, or piecework, Labor Code Section 515 provides a simple formula. Take your total pre-tax annual wages, divide that by 52 and divide again by 40. Because a workweek is by law 40 hours, the product of that equation is the hourly rate.

Example 1. Jack made a straight salary of $52,647.00 a year as an internet technician. Dividing by 52 gives a weekly salary of $1012.44. Divide again by 40 to get an hourly rate of $ 25.41. This is the baseline to use when multiplying for overtime.

Example 2. Jack is now working at inside sales. His total compensation is $59,563, $40,000 of this is his base draw, and $19,563 is the commission he earned selling internet services. Again, this figure is divided by 52 producing a weekly rate of $1145.44. Divided by 40, Jack’s hourly rate is now $28.63.

2. Next, calculate the total hours worked over the course of one work week which is defined by statute as 40 hours over any period of seven consecutive days regardless of the starting day. (Labor Code Section 515(d)). Subtract 40 from this amount and you have the overtime worked. Labor Code Section 510 requires that any hour worked over 40 in a week be compensated at a rate of not less than 1.5 times the ordinary hourly rate.

Example 1: Bob works 5 days in one week, putting in three 8 hour days and two 10 hour days. Bob has worked 44 hours and so is entitled to 4 hours of overtime at 1.5 times his hourly rate.

Example 2: Bob works 6 days in one week, putting in 7 hours each day. His total hours worked are 42. Although he did not work more than 8 hours in one day, Bob is still entitled to 2 hours of overtime.

If the number of hours left after subtracting 40 is greater than 0 then the only step left is to ensure that you have the proper hourly overtime multiplier. The first 4 hours of overtime per day (8-12 hours) must be paid at 1.5 times the hourly rate. After 12 hours, they are computed at 2 times the hourly rate.

Example 1: Jack puts in a 60 hour week. Subtract 40 hours to find Jack’s overtime of 20 hours. Jack’s hourly rate is $25.00 an hour. If Jack worked three 14 hour days and three 9 hour days he would be entitled to 6 hours at $50 an hour (double time) and 14 hours at $37.50 (time and a half). Jack’s base pay is $1,000. His overtime is $825. However, if Jack’s overtime were calculated on a weekly rather than a daily basis he would only have 20 hours of overtime for a total of $750.

3. If the number of hours worked in a workweek is less than 40 (> 0) you are still entitled to overtime on a daily basis.

Example 1: Work is slow for Sheila with the recession and she is only able to work one day during the week. Business is good that day and Sheila works 14 hours at $30.00 an hour. She has no work for the rest of the week. Sheila is entitled to 4 hours at $45 and 2 hours at $60 for a weekly total of $300.

Example 2 : Jeff earns $10 an hour and works 16 hours a day for 5 days for 80 hours total during the week. Jeff is entitled to 20 hours at 1.5 times his hourly rate and 20 hours at 2 times his hourly rate, $700. If Jeff’s overtime were computed on a weekly basis he would earn only $600.
If you have not been paid overtime you can demand payment according to either method. You cannot however add the two (this is called pyramiding and is effectively double counting). It is usually, but not always more profitable to add your time on a daily basis. Because the unit of calculation is the week you can choose the most profitable method for each week that you are owed overtime.

Essential Termination Checklist

Ainley Law provides 5 things that you need to know before you go. Preparing oneself for the event of termination is important if you ever exercise legal recourse. California labor and employment law can be tricky to navigate. Solid preparation by prudent record keeping can be your key to success. The following are KEY PROVISIONS THAT EVERY EMPLOYEE SHOULD TAKE IF THEY BELIEVE THAT THEY MAY BE TERMINATED.

THE ESSENTIAL TERMINATION CHECKLIST

1. Obtain a copy of your personnel file and do so on a regular basis. Think of it as checking your credit: you don’t know who is putting what in that file until you actually
look. Once you leave, that file may be of critical importance to you. Many employees are “evaluated out” of the company and you need to be on top of the contents. This file is likely the first thing that a good Plaintiff’s employment attorney will ask for. Code of Civil Procedure section 1198.5 gives you the right to “inspect” the file at any time whether a lawsuit is pending or not.

2. If medical records are relevant in your matter you should obtain copies of your records from your doctor. Doctors hate to comply with these requests and will usually try and put you off with high prices and long wait times. Cite them to California Health and Safety Code section 123110. This statute requires a health care provider to copy your records for you. They may not charge more than $0.25 a page ($0.50 for x-rays). The records must be given to you within 15 days. If you just want to inspect the records then they must be made available within 5 days.

3. Send a “freeze” letter to your former employer. California law does not require that an employer maintain records (especially electronic records) for any length of time and the
civil discovery act allows the destruction of potential evidence. Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 CA4th at 1414, 1419. You must be particularly careful with electronic records which may simply vaporize.
Always send a “freeze” letter to your employer demanding the preservation of relevant evidence (e.g. sales records, customer lists etc,). This “freeze letter” prevents the destruction of documents, particularly electronic ones. Make dure that you specify that the demand extends to electronic documents in their “native format” with “metadata” intact. This prevents cutting and pasting of documents. If you send this letter, you are far more likely to have relevant documents survive to be used in your case.

4. Prepare a list of witnesses with phone numbers, addresses and emails before you go. This is invaluable to you and to your attorney who may need to corroborate your version of events.

5.Identify key documents; for example, documents in a wage and hour case that prove you have been working late and/or coming in early can be critical to the success of your case. If the company’s policy manual or employee handbook is on line consider preserving a copy to share with –and only with– your counsel.
You may possess key documents necessary for your case where you reasonably fear that they may be destroyed. However, you must share these only with your counsel. Fox Searchlight Pictures v. Paladino (2001) 89 Cal. App. 4th 284. Great care should be exercised in retaining information from an employer. Unless it is critical and likely to be destroyed the prudent course is to consult with your counsel first.

These guidelines should help you when the case iS at its most critical phase:

the beginning.

Choppy Seas: California Supremes sink Bell II while NLRB tacks left

To call wage and hour law in California unsettled is like saying Mike Tyson was a pretty good boxer.  Two recent decisions, one by the National Labor Relations Board (NLRB) and one by the California Supreme Court  illustrate the lack of any consistency in decisions and the political tensions between left and right.  Perhaps more than any other field of employment law, wage and hour litigation is overtly political.  Conservatives and evangelicals view meal and break time claims as “Extortion cases” while other more moderate views consider the right to overtime as a fundamental legislative barrier to barrier to worker exploitation.  The two views took new twist and turns in the NLRB decision D.R. Horton, Inc. Case No. 12-CA-25764( January 3, 2012) and the California Supreme Court Decision in Harris v. Liberty Mutual, SI56555 (December 29, 2011).  In Horton, the NLRB ruled that workers could not be forced to waive their right to bring class actions by means of compulsory arbitration agreements which explicitly require arbitration and forbid class actions either before a court or in arbitration.  Conversely, the California Supreme Court essentially reversed its landmark ruling in Bell v. Farmers Ins. Exchange (2001) 87 Cal. App. 4th 805 in finding that insurance adjusters working for Liberty Mutual were exempt employees.  In so doing, our local Supremes effectively subordinated California law to Federal regulation; an act of judicial capitulation that will likely have profound consequences.  An analysis of the se two decisions and links to them follow.

In Horton, the NLRB considered whether the defendant employer violated the National Labor Relations Act (NLRA)by requiring all workers, as a condition of employment,  to waive the right to file class actions for wages and other benefits whether at arbitration or in court. The Board found that such coerced agreements violate section 7 of the NLRA, which gives employees the right to act together for mutual aid or protection.  The Court rejected the claim by the Defendant that the agreement –in the context of employees subject to the NLRA – did not violate the Federal Arbitration Act (FAA) which tends to make all employment-related arbitration provisions, no matter how onerous or one-sided–  enforceable.  The Board clearly found that the employees had the right to bring “employment-related claims on a classwide or collective basis in court or before an arbitrator.” Slip. op at 3.

In Horton, Plaintiffs sought relief under the Fair Labor Standards Act (FLSA) for unpaid overtime.  The key to the decision is that the prohibition against class actions violated the right to “collective action” under the NLRA.  Plaintiffs’ counsel wisely chose to challenge the anti class action clause under the NLRB rather than argue a right under the FLSA to collective action or to try to persuade a court that the agreement was unconscionable.  The reason for this round about route is the United States Supreme Court (SCOTUS).  This court, in its majority conservative makeup embraces vigorously any limitation on collective action and virtually rubber stamps restrictive arbitration agreements.  In particular, SCOTUS is a huge fan of the Federal Arbitration Act (FAA) and routinely strikes down States’s efforts (usually by California) to moderate the use and misuse of arbitration agreements.  Recently, in a much criticized case, AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011), the Court struck down a decision of the California Supremos in Discover Bank v. Superior Court (2005) 30 Cal.Rptr.3d 76 which has applied California’s judge made unconscionability test to arbitration clauses.  According to SCOTUS, the FAA is the supreme law of the land and no consumer contract (including employment) is ever likely to be unconscionable by barring class actions and by mandating arbitration.  Plaintiffs in Horton recognized the roadblock and made a very neat end-run around it through the NLRA.  However, the battle is not over: next stop is either the 11th Circuit or the D.C. Circuit and then most likely the supremes once again.  If Scalia and Thomas still hold the whip hand then all the work may have been in vain.

But while the Feds moved to the center, a chastened California Supreme Court headed right. Harris v. Liberty Mutual (supra) is a major disappointment to the Plaintiff’s bar.  In 2001 the Bell decision allowed white collar functionaries –people with no real power and very limited independence – to receive overtime benefits.  The industry in question –insurance – re-tooled and went back for a do-over.  This time they won.  This case is troubling for two reasons.  First, it follows the lead of Federal courts which have limited the principles of the “Administrative Exemption” to the traditional factory setting and have rejected overtime claims unless the employee(s) have been engaged in some form of manual labor (c.f. United Parcel Service v. Superior Court (2011) Cal. App.4th 57. ).  Second, it follows Federal regulation where that regulation is more restrictive than state regulation or case law.  It has long been the most basic principle of construction that Federal regulation, in the overtime context, is followed or is persuasive, only where it is more beneficial to the employee than the State variant.  While California looks to federal regulation for guidance, it does so only where the regulation is consistent with, or is more protective of, the worker than California law.  The courts are bound to follow whichever law or regulation  provides the greatest protection.  Aguilar v. Association for Retarded Citizens (1991) 234 Cal. App. 3d 21, 34-5.  Where a federal regulation limits or reduces the protections offered under California’s statutes and wage orders, the federal rule or regulation is disregarded.  E.g.  Department of Labor Standards Enforcement (DLSE) rule 51.1.5.1 (“DLSE will disregard the language of 29 CFR §541.107 and rely upon the language of 29 CFR §541.207 to define the term ‘discretion and independent judgment’ in each of the exempt classifications.”)  In short, while federal regulations can provide guidance to California courts, that guidance is no longer persuasive (or even relevant) where California statutes, regulations, or public policy differ from the federal by providing greater protections: “Federal regulations are of little if any assistance in construing state regulations which provide greater protections to workers.” Morillion v. Royal Packing Co. (2002) 22 Cal. 4th 575, 593-94.

Unfortunately, Harris seems to ignore this well settled precedent and rely exclusively on restrictive Federal interpretations.  The clear implication of this case is that the California Supreme Court will be looking east for direction rather than leading the way as it has done in years past.  Harris has to be chalked up as a major victory for those who feel that the right to overtime is “extortion”. Choppy seas indeed.

Board finds that certain mandatory arbitration agreements violate federal labor law

See the case document: Frances Harris v. The Superior Court of Los Angeles County

Joseph Ainley on Kelley v. Conco Companies

Kelley v. Conco Companies (2011) 196 Cal.App.4th 191.

This interesting and recently decided case clarifies the distinction between obnoxious and defensive behavior on the job, which is not actionable, and sexual harassment in the workplace, which is actionable.  The distinctions are subtle and legalistic.  There is no doubt that the plaintiff in this case suffered greatly at the hands of his abuser, and yet he had no remedy under Government Code § 12940 (the Fair Employment and Housing Act).  This is the type of cutting-edge analysis that attorney Joseph Ainley applies to every case based upon developments in the law as they occur.

In Kelley, plaintiff was an apprentice iron worker assigned to a specific job site operated by his employer, Conco.  For reasons unknown to him, plaintiff became the object of hostility and abuse from his supervisor, a man named Seaman.  On one occasion, Seaman told Kelley to move some rebar and not to mix up pieces of different lengths.  Kelley apparently failed in this task and suffered abuse from Seaman, who called him a “bitch” and a “f**cking punk.”  He said Kelley had a “nice ass” and he wanted to “f**k [Kelley] in the ass,” Kelley’s pants “made [his ass] look good,” Kelley “would look good in little girl’s clothes,” he would “f**k the shit out of [Kelley’s ass] …”  The litany of abuse like this in the case was detailed in paragraphs and was shocking in its strangeness and intensity.

Plaintiff brought suit, alleging sexual harassment in violation of Government Code § 12940.  Specifically, Kelley alleged that he was being sexually harassed on the job by his supervisor, Seaman.  The court, while agreeing that Seaman’s conduct was unacceptable, found that there was no cause of action under the Government Code.  First, the court analyzed whether plaintiff had suffered “discrimination” based on sex.  In that regard, the court required plaintiff to show that had he not been a man, he would have not been treated in the same manner.  In this case, the court concluded that although there was harassment, there was no evidence that the harassment was caused by the fact that Kelley was a man.  In other words, there was no evidence that the abuser was abusive to Kelley on the basis of the fact that he was a man rather than a woman.  As the court said: “While Kelley was undoubtedly subjected to grossly offensive comments and conduct, he did not produce evidence which would support a claim that he suffered discrimination in the workplace because of his gender.” Id. at 207.

The court next turned to whether Kelley had suffered “severe and pervasive harassment” in the workplace sufficient to allege a cause of action for sexual harassment.  The court found that the “harassment” was not essential insofar as the comments were intended to be offensive, demeaning and hostile.  The court found that they were not “sexually motivated or otherwise, by Seaman or by any other supervisor.”  In other words, the court was willing to consider the comments made by the plaintiff’s supervisors to be merely offensive, harsh and unpleasant “rough language” which is part and parcel of the rough work environment of an iron worker.  The court went on to explain, rather prissily, that “to establish liability in a FEHA hostile work environment sexual harassment case, a plaintiff must show that [he] was subjected to sexual advances, conduct, or comments that were severe enough or sufficiently pervasive to alter the conditions of [his] employment and create a hostile or abusive work environment.” [citations omitted.]  Here, the court essentially held that plaintiff could not state a claim because the harassment was insufficiently severe and was not “sexually motivated.”  Reading between the lines, the court essentially made a policy judgment.  That is, that no matter how offensive language might be, if it is made by a member of one sex to another and intended as insulting and demeaning rather than as a demand, solicitation or request for sexual favors, the conduct does not rise to the level of sexual harassment for purposes of liability under FEHA.

This is a conservative ruling and appears clearly designed to distinguish unpleasant workplace disputes in which facially sexual insults are exchanged but where the intent is to insult rather than to seek some sexual favor or accommodation.  In a nutshell, the ruling holds that employees may be as rude as they like to one another, so long as the behavior does not constitute a genuine sexual advance.  Given the facts of this case, however, one would imagine that had Kelley been a woman instead of a man, the result would be very different.  It is perhaps only that distinction that prevented Kelley from obtaining a recovery.

Quite frankly, we disagree with the holding of this case.  The language used is clearly sexually charged and displayed what any reasonable psychologist would call homoerotic tendencies on the part of Seaman.  Kelley suffered severe depression as a result of the verbal assault, and it seems odd that the defendant should escape liability based upon the court’s, perhaps outdated, notion that men who state a sexual desire for another man are simply jousting rather than expressing a desire for sex with the victim of the harassment.  Further, the notion that the language and behavior of Seaman did not amount to “severe and pervasive” behavior is remarkable.  The transcript in full is truly shocking in the vulgarity of the language and the use of jailhouse argot.

Nevertheless, this case indicates a continued conservative trend in the law towards limiting employers’ liability based on violations of FEHA.  As the window of liability closes, it is ever more important to frame the case properly to survive challenges such as those made in this case.  At  the law offices of Joseph Ainley and Ainley Law, we pride ourselves in being current with all relevant case law and that we are able to frame cases in such a fashion and not to fall victim to badly reasoned precedent.

Joseph Ainley, employment attorney, on Defamation

The Law Offices of Joseph H. Ainley provide services to cover all of your employment-related legal needs. The bulk of our practice is devoted to litigation in cases, for example, where the employee has been wrongfully terminated, or an individual or a group of people have been denied overtime benefits. We also offer employment counsel. Frequently, employees face a situation at work which potentially has profound consequences for them, but they are unsure how best to act. In this context, one issue that is repeatedly of concern is where an employee is offered a severance package in exchange for a release of claims that they employee may have against his or her former employer. In this situation, legal counsel can be invaluable in maximizing the amount of any severance package.  Some of the specific areas in which we are pleased to offer services are the following:

Defamation

The Ainley Law Firm is particularly skilled in defamation, having litigated many cases in which employees have been defamed by management during their employment. An employee may be defamed in one of two ways: by a false statement in writing (libel), and by a false spoken statement (slander). In the employment context, the most common defamatory statement is one which is made in writing. As with other employment-related matters, libel in the employment context is complex and must be pursued carefully with a clear plan of attack. In essence, libel is any false statement in print which has a tendency to injure a person in their occupation or which falsely accuses them of dishonesty. It does not matter whether the statement is phrased as an opinion or as a statement of facts. (Defense lawyers always contend that a statement of opinion cannot be sued upon, only a statement of fact. At Ainley Law, we have succeeded in persuading the courts on every occasion in which the issue has arisen, that a statement of opinion is just as libelous as a statement of fact.) In a case called Jensen v. Hewlett-Packard (1993) 14 Cal. App. 4th 958, the court held that statements in an employeeís performance review could not be libelous because those statements were ìprivileged.î Accordingly, it is important that any claim for libel or slander arise from statements that are made outside the context of a performance review. Recent case law allows plaintiffs to pursue libel claims for false statements made in termination letters, emails, and other documents which are not part of a ìformalî performance review.

Defamation is a powerful weapon because, in most cases, damages are presumed to have been incurred by the plaintiff. That means that a jury is free to award whatever damages it deems appropriate. A defendant, faced with that possibility, has no reliable way to gauge its risk: it all depends upon the jury selected. For that reason, a well-articulated libel or slander claim can be an extremely valuable tool in leveraging the value of a case. However, expertise in the law of defamation in the employment context is hard to find. Even experienced employment attorneys are often unaware of the nuances of defamation. For example, one of the requirements to maintain a claim for defamation is that the statement be published; that is, that the statement be shown to somebody or read by somebody. If the statement is written and then given only to the employee, the defense usually argues that there has been no ìpublicationî for purposes of defamation. However, there is a legal theory called the ìdoctrine of self-publication,î which essentially means that where an employee is given reasons for termination which he or she is likely to have to repeat in a subsequent job interview, then the publication element has been met. At Ainley Law, we always review an employeeís file with great care and, wherever possible, assert claims for libel and slander.

Joseph H. Ainley on Harassment

The Law Offices of Joseph H. Ainley provide services to cover all of your employment-related legal needs. The bulk of our practice is devoted to litigation in cases, for example, where the employee has been wrongfully terminated, or an individual or a group of people have been denied overtime benefits. We also offer employment counsel. Frequently, employees face a situation at work which potentially has profound consequences for them, but they are unsure how best to act. In this context, one issue that is repeatedly of concern is where an employee is offered a severance package in exchange for a release of claims that they employee may have against his or her former employer. In this situation, legal counsel can be invaluable in maximizing the amount of any severance package.  Some of the specific areas in which we are pleased to offer services are the following:

Harassment

It is unlawful for an employer to harass an employee on the basis of that employeeís age, race, gender, orientation, or mental or physical disability. Except in the special case of sexual harassment (discussed below), unlawful harassment is unlawful when the conduct rises to such a level that it creates a ìhostile work environmentî for the employee. Thus, for example, somebody who is harassed because of his or her gender may hold the employer liable for such harassment if the actions rise to the level of creating a hostile work environment. There is no set test for this, and the level of harassment necessary to create a cause of action ranges from one or two serious incidents to a multitude of small incidents that, taken together, create a hostile working environment.

Sexual Harassment

This is by far the most common, and there are two types of sexual harassment: (1) Hostile workplace harassment, and (2) quid pro quo sexual harassment. In the first case, as with any other form of harassment, this becomes actionable when the harassment rises to a level that creates a hostile working environment. Again, this can consist of one single event, or a series of relatively minor events. Whether or not the activity rises to the level of ìharassmentî is determined on a case-by-case basis. At Ainley Law, we are expert at determining whether or not any specific set of circumstances rises to the level needed to prevail on a claim of sexual harassment based on hostile work environment.

The second type of sexual harassment, quid pro quo harassment, is harassment in which the employer requires an employee to submit to some form of sexual demand in exchange for an employment-related benefit, including continued employment.

Cases of sexual harassment are highly fact-specific and require a great deal of sensitivity and care in how they are handled. The plaintiff in a sexual harassment lawsuit also enjoys special protections against intrusion into her private life. For example, her prior relationships, history, proclivities, and interests are off limits during discovery, whereas similar questions may be legitimate in other types of cases.

Joseph H. Ainley on Leave Violations and Illness/Injury

The Law Offices of Joseph H. Ainley provide services to cover all of your employment-related legal needs.  The bulk of our practice is devoted to litigation in cases, for example, where the employee has been wrongfully terminated, or an individual or a group of people have been denied overtime benefits.  We also offer employment counsel.  Frequently, employees face a situation at work which potentially has profound consequences for them, but they are unsure how best to act.  In this context, one issue that is repeatedly of concern is where an employee is offered a severance package in exchange for a release of claims that they employee may have against his or her former employer.  In this situation, legal counsel can be invaluable in maximizing the amount of any severance package.  Some of the specific areas in which we are pleased to offer services are the following:

Leave Violations and Illness/Injury

A complex set of federal and state laws and regulations control the leave that must be granted to employees when they or a loved one becomes ill. Most people are familiar with the Family Medical Leave Act (FMLA) and the California Family Relief Act (CFRA), each of which provides specific leave periods for particular events. The statutes are not identical, however, and employers often confuse rights under one or the other statutes. More problematic is the frequency with which adverse action is taken against those who exercise their rights under these statutory protections. (A good reference for the rights provided under each of these statutes is at www.dfeh.ca.gov/publications_StatLaws.htm. We are intimately familiar with the intricacies of these statutes and are very familiar with assisting those who have been discriminated against or retaliated against because they took leave under these statutes.

In addition to the two statutes referenced above, Government Code ß 12940 (prohibiting discrimination) also prohibits discrimination on the basis of disability. That means that an individual who has suffered an injury, illness, or is otherwise disabled must be accommodated if such accommodation can be provided without ìundue hardshipî being caused to the employer. All too often, employees suffer on-the-job injuries and are unable to return to work for an extended period of time. In such case, the employee is entitled to the protections of FEHA and/or CFRA for a twelve-week period of time. After that, the Government Code continues to require that the employer make a reasonable accommodation for the ill or injured employee. That reasonable accommodation includes, according to relevant California case law, affording the employee time to recover from the injury or illness. Unlike the CFRA or FEHA, the obligation to make reasonable accommodations for a disabled employee continues indefinitely; that is, there is no fixed time period after which the employer has the right to terminate the employee.

Once the employer is aware of an employeeís injury or disability, it is required to engage in an ìinteractive processî with the employee. The purpose of that ìinteractive processî is to discuss ways in which the employer might accommodate the disability of the employee. Failure to engage in this ìinteractive processî is itself an independent violation of the Government Code and is a separate and distinct cause of action from the discrimination or retaliation by the employer.

Joseph H. Ainley on Employment Discrimination

The Law Offices of Joseph H. Ainley provide services to cover all of your employment-related legal needs. The bulk of our practice is devoted to litigation in cases, for example, where the employee has been wrongfully terminated, or an individual or a group of people have been denied overtime benefits. We also offer employment counsel. Frequently, employees face a situation at work which potentially has profound consequences for them, but they are unsure how best to act. In this context, one issue that is repeatedly of concern is where an employee is offered a severance package in exchange for a release of claims that they employee may have against his or her former employer. In this situation, legal counsel can be invaluable in maximizing the amount of any severance package. Some of the specific areas in which we are pleased to offer services are the following:

Employment Discrimination

Discrimination in California on grounds of age, sex, race, age, ethnicity, disability or sexual orientation is prohibited by Government Code ßß 12926 and 12940. Each discrimination claim is unique, and whether the claim is provable or not often turns upon specific facts. It is a rare employer who openly acknowledges some form of discrimination, and the evidence of discrimination is therefore evidence from which one must usually infer a discriminatory intent by the employer. For example, an employer rarely tells an employee that he or she is being let go because ìyou are too old.î Instead, the usual process of discrimination is that the employer ìevaluates outî the unwanted employee by generating bogus negative performance reviews.

This discrimination can be combated in several ways. One of the most common means of fighting discrimination is to use statistical evidence to show an imbalance in the employees who are either being let go or who have been hired into the company in the first place. For example, an employment work force which is only 5% female may be suspect if the available work force in the relevant job category is 50% female. Statements that are not directly related to the performance of an employee can be used the discriminatory mindset of the employer. If, for example, a manager makes a general comment about a specific ethnic group, that can be used to show a discriminatory mindset towards that particular group. In cases where there is an event such as illness, extended leave of absence, or pregnancy, the plaintiff can prove his or her case by showing a reasonably close proximity in time between an adverse employment action, such as termination, or a negative performance review and the development of the illness or notification of pregnancy, for example.

In the absence of direct evidence, discrimination claims are rarely easy to prove and require a good deal of skill and effort to overcome the employerís usual claim that it did not discriminate at all, rather, the adverse employment action was merely a neutral business decision. At Ainley Law, we have the resources, skill and experience to successfully prosecute your discrimination claim, be it on grounds of age, race, gender, or other protected group.