Wrongful Termination

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.

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

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.