Wrongful Termination
Q. Can I have a "wrongful termination" claim if I am employed "at-will"?
A. Yes. Even if you are employed at-will, you cannot legally be fired for certain reasons. Basically, in California at present, it is illegal to terminate or take other adverse action against any employee, even an at-will employee, for a reason which falls within one or more of the following categories: Statutory Discrimination Prohibitions: It is illegal to terminate or take other types of adverse action, against an employee, because of the employee's race, color, religious creed, sex, marital status, age, national origin, physical disability, mental disability, medical condition, ancestry, or sexual orientation. Protected activities: It also is illegal to take adverse action against an employee, because the employee has engaged in protected activities, such as having taken time off for pregnancy leave, family leave, or military leave. For objecting to illegal conduct: It also is illegal to take adverse action against an employee because he or she has objected to illegal conduct at the workplace. There are other restrictions upon an employer's right to fire an at-will employee. Also, some of the laws don't cover all situations: for example, some of the smallest employers are excluded from coverage of some of the discrimination laws. Because the exceptions are very specific, you should obtain legal advice as to your particular situation.
Q. When should I seek advice?
A. The sooner the better. Some people consult an attorney when it looks like they are about to be fired. If not, you should obtain advice as soon after the events as possible, because one of the things you will need to learn is the applicable "statute of limitation" or deadline for filing either a lawsuit or an administrative claim. Make sure that you learn the applicable time limits right away. Sometimes the deadlines in employment cases are relatively short. It is easy to lose track of these deadlines when your circumstances are stressful. Be careful since if you delay in making your claim you may forfeit your rights to proceed.
Q. What courses of action are available if I have been wrongfully terminated?
A. Sometimes it is appropriate for us to attempt to negotiate a severance agreement, under which the client receives some compensation, and is able to get on with his or her life in a relatively short period of time. Sometimes, however, an employer is not willing to enter into a fair resolution of the matter, and a lawsuit is advisable.
Q. What is expected of the Client if there is a lawsuit?
A. Much cooperation and information is needed from the client. Remember, you were there and lived the situation and we were not. You will be expected to provide information informally. You will also have to answer written questions which the defense may ask, and you may have to have your deposition taken, which is where you are called into a lawyer's office and asked questions. You also can expect to be asked to assist in locating witnesses and documents.
Q. What can I get from a lawsuit?
A. Normally, the only remedy a wrongfully terminated employee receives is an award of money damages, which may include contributions into pension accounts as well as back pay and payments for general damages. As a general rule, courts do not reinstate persons to their former jobs. Although money cannot necessarily compensate for all the harm done, it is the most practical method which our system provides for recompense. The damages we usually seek in these cases consist of compensatory damages and punitive damages. Compensatory damages are meant to compensate you, and consist of such things as loss of income, benefits and fixed monetary items, and compensation for your mental stress. Punitive damages are different; they are the same as a fine and are a penalty against the defendant employer. Punitive damages can only be awarded at trial, and not through any settlement.
Q. Are Arbitration Agreements enforceable?
A. Sometimes an employer requires an employee to sign an agreement that the employee will not sue in court, but that if there is any dispute, it must be resolved through arbitration. These agreements usually are enforceable, depending primarily on the specific provisions of the agreement. If you have signed such an agreement, you have not lost your right to seek compensation for your damages. However, you may not be able to bring your case before a jury.
Q. Should I look for other work when I have a wrongful termination case?
A. You should make every attempt to find work. The law requires you to mitigate your damages, i.e., to seek other employment, during the pendency of your lawsuit. While you are not required to take a job which is way beneath your former work, you should obtain all work for which you are reasonably suited by education and/or experience. Keep a careful record of every attempt you make to apply for a job, whether this be answering a newspaper ad, sending a resume, making a telephone call, or an inquiry made to somebody in the supermarket or at a party. Your record can be kept on a simple pad and should include the date, the name of the company, the name of the individual contacted, the position for which you applied, and the company's response (i.e. interview, etc.).
Sexual Harassment
Q. What is Sexual Harassment?
A. In general, sexual harassment is unwelcome conduct of a sexual nature. Under California law, there are two forms of sexual harassment: 1. "Quid pro quo", or "this for that", sexual harassment. This type of harassment happens when the victim is required to accept unwelcome sexual conduct in order to obtain a benefit at work, such as a promotion, or if the victim will suffer a detriment if the conduct is not tolerated. 2. "Hostile environment" sexual harassment. This type of sexual harassment happens when unwelcome sexual conduct interferes with an employee's work performance or creates a hostile, offensive, or intimidating environment. Examples of this type of harassment are sexual gestures, remarks, posters, or pictures, or sexual comments, such as derogatory comments, or "jokes".
Q. How much harassment does there have to be before the conduct is considered unlawful?
A. Unlawful sexual harassment can occur with a single incident, such as quid pro quo harassment where the employee is terminated for refusing to provide sexual favors. For unlawful hostile environment harassment, the conduct must be "severe or pervasive." For example, a one time "severe" incident, such as a rape, would constitute unlawful sexual harassment. Alternatively, for less severe conduct, such as sexist comments or "jokes", there must be much more than one incident to constitute sexual harassment.
Q. Is it sexual harassment if the harasser says that the words or conduct were meant as a joke?
A. Conduct is evaluated from the victim's point of view. The issue is whether the victim found the words or conduct offensive, and if so, were those feelings rational. However, whether the harasser intended the conduct to be offensive might be a factor considered by the company in determining the level of discipline.
Q. Must I complain internally to the company before filing a lawsuit?
A. Your employer should be informed about harassment. First, a complaint might stop the misconduct from occurring again. Second, under some circumstances, the company can escape liability by claiming that it did not know of the harassment. Therefore, you initially should complain to the company, if possible.
Q. Must I tell the harasser to stop before a complaint can be made through the company's internal procedure?
A. Whether the harasser should be told to stop before a complaint is raised internally is a matter of how comfortable you feel about raising the issue with the harasser. Particularly if you think that the harasser might not be aware that conduct is offensive, you should consider addressing the issue directly with the harasser. However, if you believe that telling the harasser that the conduct is offensive will not stop the conduct, or will subject you to retaliation, you should raise your objection to an alternative person. Company policies should contain a provision for an alternative person to whom a complaint can be raised initially, if the victim does not want to directly address the harasser. A failure to offer such an alternative might be a good reason for not making a complaint to the company before going outside the company.
Q. Do I have to wait until there has been a lot of harassment before complaining?
A. One incident need not be ignored. Many companies have policies that complaints may be made for any inappropriate conduct, which should include a single incident. Also, it might be easier to change behavior if caught early. Therefore, you need not wait until the harassment reaches any certain level before complaining.
Q. If I complain, won't there be retaliation?
A. Retaliation for having complained about sexual harassment is unlawful. However, as a practical matter, retaliation is a very real concern. Many people are not able to hear criticism about themselves without becoming angry at the person who criticized them. Also, the fact that you have complained about a co-worker can make other co-workers angry at you. Often this retaliation takes the form of the victim being ostracized from the group. After you have made a complaint, the company should continue to check with you to see whether the conduct has stopped, or if there has been any retaliation. However, employers are not always this careful. If there is retaliation, a new complaint should be brought.
Q. Can I complain anonymously, or must I always give my name?
A. Because of concerns of retaliation, a victim might find it desirable to complain anonymously. However, sometimes a complaint cannot be made anonymously. For example, if the offensive incident is one in which only the victim and harasser were involved, it would be impossible to remain anonymous and still disclose enough information so that the matter can be investigated and disciplinary action taken. On the other hand, if many people observed the offensive incident, such as an offensive joke told at the water cooler or a cartoon hung on a bulletin board, an anonymous complaint might be sufficient.
Q. Will everyone be told that I have complained?
A. You should expect that the harasser will be informed of the complaint. The company will say that the harasser needs to be confronted in order to effectively correct the matter. The harasser is likely to claim that he or she is innocent, and is entitled to know the details of the complaint in order to make a defense. An investigation should be confidential. However, no investigation is completely confidential. For example, if witnesses are interviewed and give statements, they will become aware that there has been some concern expressed over the conduct. People talk, and it is very difficult to prevent gossip, even if employees are instructed not to talk about the matter. Even if the investigator promises you that the information will go no further, don't count on it. At a minimum the company will disclose the results of the investigation to anyone they believe needs to know the information. Who is told will depend upon the company's policies. You also should be aware that it is very unlikely that you can discuss a matter of inappropriate conduct with someone with authority, such as a human resources or other manager, and not have the matter go further. Many companies have policies that complaints of sexual harassment must be investigated, and that anyone who becomes aware of a complaint must report it to the appropriate person for investigation. This means that if you just want to talk to the human resources manager to ask his or her opinion on what happened or how it should be handled, you might end up with a full investigation of the matter.
Q. What actually happens in an investigation?
A. You should be asked about the incident without the harasser being present. You most likely will be asked to describe what happened, where it happened, when, and who witnessed the incident. You should expect to be asked whether there have been any similar incidents in the past, and if so, to provide detailed information about them. You will probably be asked to give a written statement. You should be asked to provide the names of anyone else whom you believe would have relevant information. You also should be asked what you would like to see happen as a resolution of the matter. After others are interviewed, you might be asked additional questions, or for clarification of some points. At the end of the investigation, a decision should be made about what happened. If there was inappropriate conduct, the next decision to be made is what action will be taken to avoid a recurrence of this conduct.
Q. What should I do if the Company does not respond to my complaints or is taking months to investigate?
A. An investigation should begin as soon as the complaint is made. The company should be permitted a reasonable amount of time to investigate. What is reasonable will depend upon the number of witnesses, their availability, etc. The great majority of investigations should take less than a month. You are entitled to inquire as to the status of the investigation. If there is no investigation, or if it is not be done in a timely manner, you should consider contacting a lawyer.
Q. Won't the investigator find that there was no harassment, since the investigator is hired by the company?
A. In theory, the company wants an honest investigation so that it can correct the situation. However, it is true that there is a tendency for an employee conducting an investigation to find it difficult, if not impossible, to say that another employee has engaged in inappropriate conduct. This is particularly true when the person conducting the investigation is at a lower level than the person being investigated, such as a human resources assistant investigating a vice-president. Because of the risk of bias, the preferred course would be to have an investigation conducted by an outsider.
Q. Can I prove my case if it is only my word against the harasser's word?
A. Yes. Indeed, typically harassment is more likely to occur when the victim and harasser are alone. You each would testify about what happened. An investigator, judge or jury would look for indications as to whose testimony is more believable, such as who is consistent in describing the incident, and whether the testimony is clear or vague and evasive. Also, if it can be shown that the harasser has lied in another part of his or her testimony, this can be considered in determining how truthful his or her testimony is on the particular incident. There often is other evidence which helps establish your credibility. For example, a court can consider whether you told anyone about the incident shortly after it happened. There also might be witnesses who could testify that you and the harasser were alone together (if there is a denial that this happened), or that you later refused to be alone with the harasser. Part of the investigator's and your lawyer's job is to help you identify and present the important evidence.
Q. Shouldn't the harasser be fired?
A. The law requires an employer to take appropriate corrective action to prevent harassment. This means that the level of discipline should be designed to bring about a change in conduct. For example, the first time that someone tells an off-color joke, the offending person might be given a verbal warning. If the conduct continues, the level of discipline should increase, because obviously the harasser has not understood that such conduct is unacceptable. It is rare for someone to be fired for sexual harassment, unless the conduct has been egregious (such as groping the victim), or repeated. How you want the matter resolved is often considered, but ultimately the company makes its own decision as to what action is taken.
Q. Am I entitled to know what discipline has been imposed?
A. Companies often refuse to tell you the exact discipline imposed. You might only be told that appropriate corrective action has been taken. Because companies usually are unwilling to share this information, you should consider whether it is worth the battle to obtain it. For example, if the misconduct was a few comments, which stop after the complaint, you might accept not knowing what discipline was imposed. However, if there has been a very serious incident, such as grabbing your breasts, you may need to know more about the action taken, in order to feel safe in the environment.
Q. Isn't it just easier to quit, and pursue a lawsuit, if harassed?
A. First, quitting usually is not an option. Unless you have another job lined up, you usually cannot afford financially to quit your job. Second, the courts have set a very high standard for a victim to prove that he or she was forced to quit because of harassment. This means that you cannot count on being able to recover your lost wages for time out of work if you quit and file a lawsuit.
Q. How much time do I have to file a lawsuit?
A. If the sexual harassment charge is brought under California state law, a complaint must be made to the California Department of Fair Employment and Housing within one year of the harassment. However, if conduct has been continuing over a period of time, it might be possible to include earlier incidents under a theory of "continuing violation". To be cautious, you should act as soon as the conduct occurs. Different deadlines apply for claims under Federal law, and also for claims in other states.
Q. Where can I get legal advice on this type of problem if I'm not in California?
A. The information provided here is of a general nature and should not be construed as legal advice or as a legal opinion for any specific situation.
Overtime Pay Claims
Q. What is overtime pay?
A. Overtime pay is additional compensation for working long hours. Usually, overtime pay is one and a half times your hourly rate for every hour over eight in one day or forty in one week. There also is premium pay, usually twice the normal rate, for the seventh day of work in a week.
Q. Who is entitled to overtime pay?
A. Most employees are entitled to overtime pay, and many of them are unaware of their rights. Employees are entitled to overtime pay unless they fit into a specific exemption excluding them from such pay. In general, the exemptions are for "executive," "administrative" and "professional" positions. There are technical definitions for these terms which are not simply what most people expect, so it is best to get an attorney's advice on this matter.
Q. What if I have agreed to be paid a salary, without extra compensation for extra hours?
A. By law, you cannot waive your right to overtime pay. You are entitled to overtime pay, even if you have accepted a salary or agreed that you will not be paid extra for overtime hours.
Q. Doesn't receiving overtime pay indicate that I have little responsibility or importance?
A. No. Many employees, although operating at a high level with significant responsibilities, are not exempt from the overtime requirements. The overtime laws provide broad coverage, and many higher level employees are entitled to the extra compensation.
Q. My employer insists that I am exempt. Wouldn't It know best?
A. Not necessarily. At times, employers deliberately fail to pay legally required overtime pay in order to save money. Often, however, employers are confused about the laws, and have not obtained appropriate legal advice.
Q. Can I prove a claim if I have not kept time records?
A. Yes. Indeed, in many cases daily time records are not kept, particularly if an employee has erroneously been considered exempt. Although time records help, claims can be supported by other evidence, such as your personal recollection of your work hours, or inferences from work product.
Q. Should I file a claim against my current employer, or wait until after I've left?
A. Don't wait. You should assert your right to compensation as soon as possible, to avoid a limit on your claim due to passage of time, to be able to gather the best evidence, and to begin receiving your appropriate compensation. Employees are often concerned about retaliation for having brought a claim. The law prohibits retaliation, and provides legal remedies if there is such retaliation.
Q. How far back in time may I go in making a claim?
A. In general, you can make a claim for wages earned during the four years preceding the filing of the overtime claim.
Q. What should I do if I suspect that I am entitled to unpaid overtime pay?
A. Seek legal advice. The laws are complicated, and an opinion should be given only by someone knowledgeable about the issues. You should have a specific analysis done for any job in which you suspect you were denied overtime pay. The initial consultation with our law firm is free. Let us know if you are interested in hiring us on a "no fee if no recovery" basis.
Q. What are the most common errors in classifying employees?
A. Employees often do not spend sufficient time on exempt duties to be exempt. For the "executive" and "administrative" exemptions from overtime, you must spend more than half of your work time actually doing exempt duties. For example, someone with the title of "supervisor" who spends little time in performing actual supervisory duties is not exempt and is entitled to overtime pay. Another common misunderstanding is that the legal definition of "professional" is very narrow. It does not include many employees who consider themselves or are considered by others as exempt "professionals." Examples of frequently mischaracterized employees include:
assistant managers
trainee managers
supervisors also doing the same work as subordinates
computer programmers and analysts
web page designers
accountants
Frequently Asked Questions
