Ainley Law has breadth of expertise and deep experience in most legal disciplines affecting employees:
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Stock Broker/ FINRA Arbitration
Breach of Contract
Stock Broker/ FINRA Arbitration
Breach of Contract
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 employee's performance review could not be libelous because those statements were privileged. 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 doctrine of self-publication, 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 employee’s file with great care and, wherever possible, assert claims for libel and slander.
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 they are too old. Instead, the usual process of discrimination is that the employer evaluates out 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 in 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 employer’s 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.
It is unlawful for an employer to harass an employee on the basis of that employee’s 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 hostile work environment 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.
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.
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 hardship 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 process with the employee. The purpose of that ìinteractive process is to discuss ways in which the employer might accommodate the disability of the employee. Failure to engage in this ìinteractive process 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.
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.
The right to overtime is fundamental in California. Many people erroneously believe that only hourly employees are entitled to overtime. This is not true. The presumption for all employees, whether salaried or hourly employees, is that they are entitled to overtime. Labor Code section 510 guarantees every employee the right to overtime for hours worked in excess of eight per day or forty per week unless the employee falls into a special exemption from application of that right.
For hourly employees, the right to overtime, in all but a few circumstances (notably, certain highly paid computer professionals), hourly workers are entitled to overtime at the rate of 1.5 times their hourly rate for each hour of overtime worked. With salaried employees, the right to overtime is presumed to exist unless the employee falls within a specific exception. The three primary exceptions are known as the managerial, administrative, and professional exemptions. For each of these exceptions, the law imposes multi-step tests. In all cases, the law is construed strongly in favor of the employee. It is the employer’s burden to prove that a salaried employee is not entitled to overtime because he or she is exempt as an executive, administrative or professional person.
It is beyond the scope of this brief outline to describe in detail the exemptions. As a general rule, however, the less authority, independence and education you have, the more likely it is that you do not fall within an overtime exemption. Unlike federal law, California imposes a strict quantitative standard for determining the right to overtime. If an employee spends more than 51% of his her time engaged in activities which do not meet the test of exemption, then he or she is entitled to overtime. In all cases, a job description is irrelevant to the determination of overtime. What you do, not what your employer says you will do, determines your right to overtime. Ainley Law has a great deal of experience in this field and has had the good fortune to represent clients on the cutting edge of overtime issues. Overtime is an increasingly important issue in todayís workplace as companies attempt to leverage greater profits from a smaller workforce. As you may have noticed, publicly traded companies are reporting record profits, while the unemployment rate has increased. Healthy companies are laying off employees, and across the board, companies are trying to extract more labor from fewer workers. Inevitably, this has resulted in a dramatic increase in overtime violations. Many people are afraid to step forward and raise the issue for fear of losing their job. Any communication with our law firm, however, is in strictest confidence, and we encourage you to come forward if you believe that you may be entitled to overtime benefits and are not receiving them.
Any employee entitled to overtime benefits is also entitled to meal and break time. Labor Code section 512 requires that at least one thirty-minute meal break be given to every non-exempt employee every eight hours, and that a ten-minute break be given every four hours. Frequently, meal and break claims arise as class actions or as claims that are filed along with overtime claims and other violations of the Labor Code.
A particularly significant subset of discrimination is pregnancy discrimination. We have found that pregnancy discrimination is rampant in many different fields. Employers who pride themselves on egalitarian practices often fall short when it comes to this particular form of discrimination. A software company, for example, that has specific milestones to meet may unhesitatingly fire an employee who announces that she is pregnant and will be taking a temporary leave of absence as guaranteed by statute. All too often, milestones in development schedules take precedence over rights guaranteed by statute. In this particular instance, the event causing the discrimination is apparent: it is the pregnancy. It is therefore relatively easy to demonstrate when an attempt to evaluate out a pregnant employee begins. Our experience with these cases allowed us to compile a database of cases involving pregnancy discrimination which is a very useful tool in litigating this particular type of a case.
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 Section 1102.5); (2) files a worker’s compensation claim or testifies on behalf of a person who files a worker’s compensation claim (Labor Code Section 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 Section 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 closely tethered 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.
The whistleblower claim is a subset of the doctrine of retaliation. In some instances, statutes specifically authorize actions against companies that have defrauded government or otherwise violated state or federal law. An employee who reports illegal conduct to a superior within the company may also state a whistleblower claim if the company subsequently acts against him or her.