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We have successfully litigated claims against
many large, national corporations and prominent employer defense
law firms.
We have the energy, resources, education and training to litigate
your
claim against anyone.
We take the time to listen to the facts and circumstances of your
case and carefully evaluate how we can help you understand and fight
your case.
In California most employees are At-Will under the law. The harsh
reality of this is that the employer can terminate your employment
for virtually any reason, even lie to you about it. Exceptions to
this are when there exists a written contract, oral/implied contract
or other provisions of the law are violated.
A written contract speaks for itself. The terms and limitations are
set out in the agreement. If you have a written agreement we can review
the agreement listen to the facts and circumstances of your situation
and determine whether you have a case and how we can help you prevail.
An oral or implied agreement is much more difficult to prove and will
be based on a variety of circumstances such as promises and representations
of the employer, the existence of progressive discipline policies
and other matters. You need an attorney that is very knowledgeable
and aggressive to litigate a case involving an oral or implied agreement.
We can provide the services you need in this difficult case.
If the employer’s decision to terminate you is in violation
of some other area of law the At- Will nature of your employment may
be irrelevant to whether you have a right to sue and prevail in your
case. Examples are employment decisions based on retaliation for your
complaint to an outside agency regarding working conditions or illegal
activity (ie… Whistleblowing); Discrimination or Harassment
in violation of the law; Specific labor code provisions such as retaliation
for filing a workers compensation claim.
We are experienced lawyers in dealing with these issues and more:
• RACIAL HARASSMENT AND DISCRIMINATION
• SEXUAL HARASSMENT AND DISCRIMINATION
• HARRASSMENT AND DISCRIMINATION
• BASED ON MEDICAL CONDITION OR DISABILITY
• Or OTHER PROTECTED CLASSES
Racial discrimination and harassment; discrimination and harassment
based on sex or gender; discrimination and harassment based on a medical
condition or religious belief or other protected basis are essentially
all founded on the same legal standards.
In order to prove harassment you must be able to prove that the harassment
is “severe” or “pervasive”. It is very rare
that a single incident of harassment will satisfy the requirements
of “pervasive” harassment. A single incident may satisfy
the “severe” standard under the law if it is sufficiently
severe on its own to have altered or affected the workplace, such
that any reasonable person would not be expected to continue working
in that environment. An example of a single incident that may satisfy
the “severe” standard would be a sexual assault or a racially
motivated attack in the workplace.
In order to prove that harassment is “pervasive” you must
prove that the conduct has occurred over a substantial period of time
or more serious acts over a shorter period of time. In any event,
the nature of the acts must be such that the conduct has “permeated”
the workplace. In other words, the conduct has created a hostile environment
to which a reasonable person would not be expected to continue to
be subjected. Examples of things that may satisfy the “pervasive”
standard are jokes and comments demonstrating sexual or racial bias
or aggression. Threats based on sex, race, gender, or any other protected
class. A single joke or comment will not likely give rise to a successful
claim of harassment. The joking, comments or other conduct must be
“pervasive” or repeated significantly such that reasonable
persons would not be expected to tolerate the course of conduct.
While a single incident of harassment may not ordinarily support a
claim, a single incident of discrimination will. Discrimination generally
involves some sort of tangible loss or detriment in your workplace.
A denial of promotion, termination, unwarranted discipline, failure
to hire, demotion, pay differentials are among the type of loss that
could give rise to a discrimination claim. Like Harassment though,
a “motivating factor” in the conduct giving rise to the
action must be discrimination based on a protected class. Examples
again are race, national origin, sex, medical condition, religion
or other lawfully protected basis.
In order to successfully litigate a harassment or discrimination claim
you need an aggressive and committed attorney. We have successfully
litigated harassment and discrimination claims against some of the
top employer defense firms in the country. We are aggressive and committed
trial attorneys. We can help you understand your case and fight for
your rights.
Union Members
If you belong to a Union you may be substantially limited in your
ability to bring an action for wrongful termination based on violations
of your collective bargaining agreement. You will generally be required
to exhaust your Union grievance process before gaining access to the
Courts. The contents of your grievance is very important to whether
you will ever have access to the Courts in the likely event your Union
grievance process terminates unsuccessfully. For this reason it is
important to consult an attorney to ensure you are not unnecessarily
pursuing a grievance claim that will prevent you from later pursuing
your rights in Court on that same claim. If your claim is “foreseeable”
within the context of your collective bargaining agreement you may
be precluded on filing a lawsuit in the Courts. Access to the Courts
under these circumstances may still be available but in order to bring
suit against the employer you will have to overcome a very difficult
hurdle that requires bringing a lawsuit against your Union as well
for intentional misconduct, gross-negligence or discrimination.
Generally speaking though, if you have been subjected to harassment
or discrimination in a workplace, and the basis for the harassment
or discrimination is racial, sexual, medical, religion, ethnic or
other protected basis you will still have access to the Courts. This
is likely true even if your collective bargaining agreement contains
language to the effect that the workplace is an equal opportunity
workplace free from discrimination. This can however be a trap to
the unweary. The law generally requires that you pursue whatever grievance
process is available to you under your collective bargaining agreement,
however, if you do pursue for example a “racial discrimination”
claim under the collective bargaining grievance process even though
it may not be required, you may be held to that remedy and denied
access to the Courts. This is why it is a good idea to take a moment
to speak to a knowledgeable attorney when you have been subjected
to wrongful conduct in the workplace under any circumstances.
In any case where an employee makes a claim against an employer the
Courts are generally going to be considering the course of conduct
during the term of employment. Courts generally are not going to look
favorably on single isolated acts and in any event such conduct will
likely not give rise to substantial damages unless the single incident
is quite severe. As such, it is important to any employee to document
the history of conduct.
For example:
- Submit grievances in writing.
- Do not suffer in secret. You must give the employer an opportunity
to take appropriate corrective action. In many instances if you fail
to bring the conduct to the attention of the employer you may be precluded
from bringing an action against the employer.
- Maintain notes detailing specifics when conduct occurs.
- Maintain conduct with employees who may support your position if
they leave the workplace.
Know your rights in your workplace. Review your employee handbook
and the policies regarding the specific conduct involved. If you work
for a larger company there should be an 800 number or some other access
to your human resources department to make a complaint or just to
resolve in any issues you may be having in your workplace.
Take immediate action. If you wait too long you may waive your right
to bring a claim. The statute of limitations will vary depending on
the nature of your claim and the entity with whom you are employed.
Contact an attorney or government agency for advice. In California
for example there is the Department of Fair Employment and Housing
(DFEH). In every state there is a similar state agency and the Equal
Employment Opportunity Commission (EEOC).
Most conduct in the workplace will not justify a lawsuit. The reason
may be that the conduct is not sufficient to support a claim under
the law or that although the conduct is clearly unlawful it does not
give rise to sufficient damages to justify a lawsuit. For example,
let’s say you have been wrongfully terminated based on a breach
of contract and you make $20.00 per hour. Under the law you are required
to take reasonable steps to mitigate your damages. (ie… get
another job). Let’s say you get a job after two weeks. The damages
in your lawsuit would be 80 hours x $20.00 or $1,600.00. Employment
litigation is very expensive. A $1,600.00 claim will not be sufficient
to justify a lawyer’s involvement.
Different types of cases give rise to different types of damages.
Under some circumstances even though you have little or no wage loss,
you may still have a claim for damages sufficient to support legal
action. Your claim must be evaluated by a knowledgeable and experienced
employment attorney on a case by case basis.
When a lawyer evaluates your claim he has to evaluate at least three
elements:
• First, whether there is liability or wrongful conduct under
the law.
• Second, whether damages exist that may justify a lawsuit.
• Third, whether there are defenses the employer may have to
negate your damages or liability claim.
Be prepared to discuss all these issues with the lawyer you consult.
Be prepared to speak to several lawyers. Employment litigation is
generally very expensive. The cost, coupled with the fact that many
of the laws and legal decisions favor the employer necessitates attorneys
being very selective with the cases they choose to take.
Agreements with attorneys for representation are negotiable and the
facts of the case may dictate the nature of the agreement the attorney
is willing to take. Hourly agreements, Contingency Agreements and
Partial Hourly/Partial Contingency agreements are all common in employment
law.
Be careful about becoming too emotionally vested in litigation. You
may have already suffered emotionally from the workplace conduct.
In many situations the litigation may be as emotionally taxing or
even more so than the workplace conduct.
When consulting an attorney discuss with the attorney whether the
attorney has a history of taking cases to trial. When you hire an
attorney you should expect that your attorney will support you and
fight your case all the way through trial. While it may often be in
your interest to resolve your matter prior to trial, many cases cannot
be resolved in the client’s interest prior to trial. When this
occurs you need to know you have a trial attorney. We are trial attorneys.
We will fight your case all the way through trial and have a history
of success in trying cases.
The foregoing is a brief and incomplete synopsis of only a small facet
of the area of employment law. The areas discussed above have only
been presented in a very summary fashion. Nothing presented here is
meant to be an exhaustive discussion of the area of law addressed
herein, and should not be relied on in determining what action you
should take in your specific situation. Please consult an attorney
if you are having difficulty in your workplace.
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