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.

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.

Ainley Law: 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.

Joseph H Ainley, employment attorney, on Retaliation

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:


The law prohibits employers from retaliating against employees, by taking any adverse employment action against them, for a wide variety of activities. It is unlawful, for example, for an employer to retaliate against an employee who: (1) reports illegal activity to a government entity (Labor Code ß 1102.5); (2) files a workersí compensation claim or testifies on behalf of a person who files a workersí compensation claim (Labor Code ß 132a); (3) reports suspected illegal activity to their superior; (4) files a claim for discrimination or harassment, or who testifies or otherwise supports a claim of discrimination and/or harassment (Government Code ß 12940); (5) reports unsafe working conditions; (6) complains of or reports overtime or other wage and hour violations; (7) exercises any right permitted by statute; (8) retains legal counsel and/or files administrative complaints or lawsuits against his or her employer.

Broadly stated, an employee has the right to complain of illegal behavior by the employer or conduct by the employer which violates the public policy of California. The public policy of California is generally any policy which is articulated by statute or is otherwise ìclosely tetheredî to a statute or to an otherwise clearly articulated policy of the State of California. Again, identifying the policy at stake and putting together the facts of the case so that the action can be readily identified as retaliatory are tasks that require considerable skill and experience. At Ainley Law, we pride ourselves in having exactly such skill and experience.