Articles Posted in Wrongful Termination
Contracting Employer’s Liability Under Dual Employment Doctrine
Many employers use temporary staffing agencies and recruiting agencies for hiring workers, in part, in order to insulate themselves from liability for potential discrimination, retaliation, and wrongful termination claims. They believe and are often advised that if their workers are hired through and are paid by an outside agency, then they will be off the hook for any such claims. However, this is not necessarily the case, as California law often finds “dual employment” relationship in these types of situations.
California FEHA (Fair Employment and Housing Act) that governs state discrimination and retaliation claims does not define “employee,” but the administrative agency charged with interpreting FEHA—the Fair Employment and Housing Council (FEHC)—does define the term in Gov. Code section 12935. The FEHC defines “employee” as “any individual under the
direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.” FEHA thus requires an employment relationship, but that relationship need not be direct. Instead, the employment relationship must show the employer’s exercise of direction and control over the employee. Direction and control may be shown by, among other factors, whether the employee must obey instructions from the employer and whether “there was a right to terminate the service at any time.”
How To Decide Whether to File A Case Against Your Present Employer
In order to decide whether to file a case for wage violation or harassment / discrimination against the employer that you are still working for, you should take into account not only the legal aspects of your potential case but also the practical factors. In the short audio recording below, I talk about three key questions you should ask yourself when deciding whether to bring a case against your present employer. I also bring examples of two different situations to illustrate the point:
How To Make Your AWOL Termination Case Stronger
One of employers’ most common defense in AWOL termination cases is claiming that the employee was not fired but he “automatically resigned”. The video below talks about one strategy on how this defense can be effectively defeated:
Three Common Misconceptions About Wrongful Termination Cases
It’s important to be aware of the following three typical misconceptions that many wrongful termination claimants have, so that you don’t have the same incorrect ideas about the process of pursuing your case:
1.”This is not about money, but about justice”. I hear this statement quite often. Clients really want to emphasize that they are not greedy and that they have a higher goal in pursuing their case. However, you must remember that whether you win your case, or lose, or settle out of court, your employer is most likely not going to admit that they made a mistake, and they are not going to apologize to you. They are also not going to be forced by court or anyone else to change their practices except for in very special circumstances. This is means that the only remedy you have for the violation committed by the employer is monetary compensation. In other words, it is about money now – it’s about you seeking monetary compensation for your job loss and any related losses. This is a perfectly legitimate goal, even if it doesn’t sound as noble as seeking “justice”.
The same applies to the idea of pursuing a case because you don’t want your employer to “get away with what they have done.” Your managers are not going to go to jail for terminating you and they are otherwise unlikely to be punished, since the employer usually believes that they are right and you are wrong, just as strongly as you believe that the opposite is true. And if they end up paying a settlement or a court verdict, their operations will continue as usual. Your case is not about punishing your former employer, but about seeking maximum reward and benefit for yourself. This is a good time to be selfish and worry about how you can benefit from your case, rather than how much you are going to make the other side lose.
Wrongful Termination To Avoid Paying Bonuses or Commissions Due
Many employers, especially in the tech / start-up world often fire an employee right before his bonus or commissions in order to avoid paying that bonus. Of course this is more likely to happen if the bonus due is significant. If there is sufficient evidence that avoiding to pay bonus was the reason or one of the reasons for termination, this can support a claim for wrongful termination in violation of public policy. This type of claim is particularly strong if (1) the employee to be terminated was a high performer (2) he was terminated for a petty reason and/or (3) the company didn’t follow its normal disciplinary, investigation and termination procedures that are in place; and (4) the termination took place right before the bonus would have been due or paid.
Many employers do not realize that bonuses earned (as opposed to discretionary bonuses) are to be treated as wages as per California Labor Code Section 200. Neisendorf v. Levi Strauss 13 & Co. (2006) 143 Cal.App.4th 509. It is also established that an employer cannot terminate an employee and refuse to pay that employee the bonus he or she earned simply because the involuntarily terminated employee was not employed on the date bonuses were paid. McCollum v. Xcare.net, Inc.,212 F.Supp.2d 1142 (N.D. Cal 2002) (employee was terminated two weeks before she would have been entitled to $75,000 in commissions); Ellis v. McKinnon Broadcasting Co. (1993) 18 Cal.App.4th 1796.
Many comp plans provide employers with discretionary power to forfeit a bonus otherwise due. California law is clear, however, that “where a contract confers one party with discretionary power affecting the rights of the other, a duty is imposed to exercise that discretion in good faith and in accordance with fair dealing.” Locke v. Warner Brothers, Inc., 57 Cal.App.4th 354 (1997). Therefore, if one party exercises its discretionary authority in bad faith for the purpose of frustrating the other party’s legitimate expectations, it has breached the implied covenant. Commercial Union Assurance Cos. v. Safeway Stores, Inc., 26 Cal.3d 912 (1980). In other words, an employer must have a good reason for bonuses forfeiture, if so allowed by the comp plan, and it can’t just be any reason.
The Importance Of Witness Statements In Winning An Employment Case
The importance of witnesses and witness statements in an employment or a wrongful termination case cannot be overstated. Even one witness can make a difference between having a no case and having a case, and between having a weaker case and having a very strong case. This is especially true in harassment case, which often come down to he-said-she-said situation, i.e. where the victim of harassment makes certain allegations against his or her manager, while the alleged harasser denies all or most of the allegations. Although the words of a victim count for something, this puts the judge / potential jury in a predicament: who should they believe?
However, if there was even witness who is willing to come out and testify or sign a one page document stating what he saw, this will likely make a critical difference in your ability to prove your case. This is as important at trial as it is during any type of settlement discussions. Here are a few common examples where a witness can turn a potentially weak case into a strong case:
(a) Harassment case – an employee claims that her manager was grabbing her by her buttocks and was refer to her on multiple occasions as “cute enough to eat.” That manager denies ever doing or saying the above. However, one witness – co-worker is willing to testify or sign a declaration that she saw that manager grab the complainant by her rear on at least two occasions.
How To Present Your Wrongful Termination Case To A Lawyer
Here are my top three tips on presenting your potential employment case or wrongful termination case to a lawyer:
I. Be able to explain the basics of your case in just a few sentences to capture a lawyers attention right away. For instance the following would be an excellent way to initially describe your case: “I have been employed with company x for 10 years and received mostly good reviews. 3 weeks after returning from medical leave or after filing a workers comp claim, I was terminated for not being a “team players” or based on false accusations.” There is no reason with telling the lawyer that your case is very complicated, because lawyers believe that “complicated” case all too often means no case.
When describing the employer’s actions against you, be specific and do not use generic adjectives. For instance, “verbal assault” or “harassment” doesn’t really tell your lawyer about what happened. But, “I am going to kill you” or “he grabbed me by my breast” gives that specific information that would be really useful to your lawyer.
Can You Be Fired While On Disability Leave Or Medical Leave?
“Can I be fired while on disability leave?” – this is one of the most common questions that I hear from employees, who have suffered an injury and have to be off work due to that injury or some other illness. The answer to this question is twofold:
(1) The reality is that you can be fired at any time regardless of your disability, disability leave or any other circumstances. No one can force the employer to continue employing you if they don’t want to, except in limited circumstances (i.e. employment relationship covered by a labor union agreement, employment with a public agency and a few other limited circumstances). Otherwise, if you are an at-will employee at a private company, you can leave at any time and you can be terminated at any time.
(2) The more correct question is whether firing you while on disability leave or medical leave would be illegal and could be a basis for a disability discrimination and wrongful termination case. The answer to this question depends on the specific circumstances of your employment and your termination. However, the most important factor is whether the employer had a legitimate reason for terminating you, or there is sufficient evidence that the reason given is just an excuse or a pretext for terminating you because of your disability and disability leave.
Top Five Misconceptions About California Employment Laws
Here are five very common misconceptions that many employees have about California employment law, including discrimination, retaliation, and wrongful termination laws:
- “If I file EEOC of DFEH charge, my employer cannot terminate me.” – This is not correct. Your filing of a charge with one of the agencies might or might not be a protected activity depending on, among other things, whether you have a good faith, reasonable belief that you are being discriminated or retaliated against. However, the employer can still choose to terminated you, if they want to, and then deal with any type of legal consequences of that termination if you decide to pursue a claim against them. In other words, submitting a discrimination or retaliation complaint does not grant you immunity against termination.
- “EEOC / DFEH will be fighting for my rights.” Equal Employment Opportunity Commission and Department of Fair Employment and Housing receive thousands of complaints every year. They have limited resources and they have to pick very few cases which they would look closely into and pursue. With regard to the vast majority of cases, they close their files and issue a right to sue letter to the complainants, informing them that they can hire a private attorney and proceed with their case in court, if they wish. Thus, you should not be expecting those agencies to pursue a case against your employer.