Articles Posted in Wrongful Termination

There is a number of benefits to pursuing both, the arbitration of your union grievance and a wrongful termination lawsuit (if there are grounds to bring such a claim). One of the main such benefits is the fact that losing one does not really affect the other, so in a way you get to have two shots of handling the same problem. This is because the two proceedings are fundamentally different.

First, a union arbitration takes place before an arbitrator and outside of court, while a wrongful termination lawsuit is pursued in court (State or Federal). More importantly, the standard of proof in both proceedings is very different. Generally, at a union grievance arbitration, the issue will be whether there was just cause for a discipline imposed against the aggrieved employee, and whether the discipline imposed was proportional to the alleged violation. In court, however, whether there was just cause for employee’s termination has no legal relevance, because a wrongful termination plaintiff needs to present evidence of discrimination or retaliation – to prove that he/she was either (1) treated differented due to being a member of protected class (i.e. age, religion, disability, familial status, gender, sexual orientation) or (2) suffered an adverse employment action due to engaging in a protected activity (i.e. complaining about unlawful discrimination or harassment, complaining about safety violations, engaging in political activities, reporting embezzlement of public funds, etc…)

Thus, if an employee loses at arbitration and fails to prove that there wasn’t just cause of discipline imposed, he can still be able to prove in court that the true reason for the discipline was discrimination or retaliation. Or, if an employee loses his case in court and fails to prove discrimination or retaliation, he still has an opportunity to prove that there was no just cause for discipline or tetermination.

It appears that employers become progressively more creative in trying to cover up unlawful discrimination and wrongful termination as a lay-off. Because the employer’s motive for terminating an empoyee is inherently hard to prove, this is a temptingly easy way for employer to replace older workers with younger ones, females with men, and workers of color with white employees.

Here is a common situation, especially in the tech industry: a high level employee, who happened to be an Asian female with a distinct accent, whose postion is being “eliminated” is being demoted to a lower position or to the position she had previously, before being promoted to her most recent positon. A few months later, due to the alleged restructuring in the company, the above-mentioned eliminated position becomes open again, and a white male who is less qualified in every way, is being hired to fill that position. A few months or so later, the demoted female is being advised of the company’s cuts in workforce, and is handed a severance offer and a lay-off notice. The employer then rushes the employee to sign the release within a strict time limit so that she remains eligible for her severance.

Whether this kind of lay-off is discriminatory depends on many facts, but it surely is worth considering all the evidence available to support a discrimination claim, including the timing of events, and all the documents and e-mails suggeseting that the lay-off does not make sense and does not look right financially for the company. This would be useful not only in taking a legal action against the employer, but it can be just as useful in negotiating a higher severance, which any employee who is offered one should at least try to do directly or through an attorney.

Few wrongful termination, harassment, and discrimination cases are “clear cut.” No matter how strong the evidence of unlawful conduct by the employer is in the hands of the aggrieved employee, the employer always has its own side to the story, which usually says “We did nothing wrong, and the plaintiff is lying.” No employment case is perfect, and every case has its strengths and weaknesses.
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One of the most important elements of any civil case, especially wrongful termination cases is maintaining your credibility as a claimant. Being credible usually means relying on facts rather than on unsupported beliefs and speculation, not lying and not exaggerating. The less commonly mentioned by equally important element of credibility, which plays a crucial role during your testimony is accepting responsibility for something that you have done wrong while working for the employer-defendant. Here is a classic example: suppose you were an outstanding employee with numerous awards for your performance and promotions, but like everyone else – you were not perfect, and a few suggestions were made to you as to how you could improve your performance throughout your tenure with the company. The employer’s attorney chooses to focus on that specific issue during your testimony at the deposition or at trial, going over and over something relatively insignificant and belaboring the issue in part in order to destabilize your emotionally. It is very important that instead of getting angry and defensive, or justifying the common deficiencies in your performance, you accept at least some responsibility and admit that certainly things could have been done better by you. This will allow you to impress both the attorney, the judge and the jury, and send a strong message that not only you are a level-headed rational individual, but you are also responsible, recognize your mistakes when you make them and you deserve even more sympathy than you otherwise would.

Terminating an employee can be a difficult and even devastating experience to the terminated worker, but it’s also not an easy decision for the manager / employer charged with the duty of retaining and discharging employees. It’s not uncommon for an employee termination to seem unfounded or irrational. For example, an employer might decide to discharge a more senior employee or a good performer while retaining another worker who has performance issues or even many unexcused absences because the latter has a closer relationship with the employer, or compensates for his deficiencies in other ways.

If the aggrieved employee is an at-will employee, this kind of seemingly unfair preferential treatment is only illegal if the reason for it is the fact that the adversely affected employee either (1) belongs to the protected category, such as gender, sexual orientation, disability, religion, ethnicity, familial status; or (2) because the employee exercised protected rights, such as complaining about workplace harassment or unsafe working environment (internally or to the outside government agencies), reporting criminal conduct, filing a workers compensation claim, participating in a union/political activity, serving on a jury, etc.

Since the at-will employment doctrine states that an employee can be terminated for any reason, no reason, or arbitrary reason, except illegal reason, terminating one employee and keeping the other because the employer likes the second employee better for his own, personal reason, assuming that no sexual favoritism is involved, generally does not violate California of Federal employment laws.

In the absence of an agreement otherwise a worker in California is generally presumed to be an “at-will” employee. This means that an employee can be terminated for any reason, no reason or arbitrary reason as long as it’s not an illegal reason (such as discrimination, harassment, retaliation, etc.) Once an employee establishes that he/she might have been terminated for unlawful reason, an employer will be required to defend its termination by demonstrating “just cause.” Employers covered by collective bargaining agreements are also typically required to demonstrate “just cause” for any disciplinary action involving a covered employee. Thus, it is important to understand the “just case” term of art. In determining whether the employer had just cause for terminating an employee, the following questions should be asked:

* Did employer’s action violate any statute or policy?

* Did the company investigate to determine whether the employee actually violated the rule for which he was disciplined or terminated?

Under California Law, “sick leave” means “accrued increments of compensated leave” provided by an employer for an employee’s use because of:

* the employee’s physical or mental condition that makes the employee unable to perform his duties;

* the employee’s need to obtain a professional diagnosis or treatment for a medical condition; or

FEHA (Fair Employment and Housing Act) prohibits disability discrimination and pregnancy based discrimination in California. To prove a wrongful termination claim based on pregnancy discrimination and failure to provide reasonable accommodations to a pregnant employee at workplace, first she has to prove that her condition constitutes disability within the meaning of the statute Cal. Gov. Code section 12940(m) which prohibits employment discrimination based on actual or perceived disability, as normal pregnancy itself is not considered disability entitling an employee to special accommodations.

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Under California Fair Employment and Housing Act (FEHA) physical disability is defined as a condition that limits a major life activity. Thus, the female worker must show that a condition arising out of her pregnancy limited one or more of her major life conditions. An employee must specific state which of her daily functions was impaired by the condition arising out of pregnancy and what exactly she was not able to do in a course of her daily life that she would have otherwise been able to do.

In one case, the court rejected the employee’s argument that her morning sickness during pregnancy constituted disability entitling her to the protection of pregnancy and disability discrimination laws. The court stated that according to Fair Employment and Housing Commission regulation 7291.2(g) a woman is “considered to be ‘disabled by pregnancy’ if she is suffering from severe ‘morning sickness’.”

The most significant immediate measure and employer may and should take in response to sexual harassment or another kind of harassment allegation by one employee against the other or against his or her supervisor is to launch a prompt and fair investigation to determine whether the complaint is justified. The employer must take temporary steps to deal with the situation while it determines whether the complaint is justified. Swenson v. Potter (9th Cir. 2001) 271 F3d 1184. The greater the potential injury to the complaining employee, the greater care the employer must take in investigation harassment allegations and preventing the alleged harassment from recurring or escalating.

The employer must conduct an investigation even if the alleged harasser denies the accusation and the victim wishes to drop the matter. The employer must investigate from “worst case scenario” in order to avoid exposing other employees to the alleged misconduct. Malik v. Carrier Corp. (2nd Cir. 2000) 202 F3d 97. A reasonable investigation does not require a trial-type proceeding. The inquiry may be conducted informally in a manner that will not unnecessarily disrupt the company’s business.

If you believe that you are or have been a victim of harassment at work place in San Francisco, San Mateo/South Bay or East Bay regions, you might be entitled to legal protection. If you would like to discuss your situation at workplace, feel free to contact us by phone or by filling out the form on this page.

Once an employer becomes aware of the need for accommodation for a qualifying disabled employee, that employer has a mandatory obligation under the law to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. An appropriate reasonable accommodation must be effective in enabling the employee to perform the duties of the position.

The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees, and neither side can delay or obstruct the process. A party or an employer that obstructs or delays an interactive process may be found liable for acting in bad faith.

san francisco bay area employment law wrongful terminationThe duty to accommodate disability is a continuing duty that is not exhausted by one effort. The EEOC Enforcement Guidance notes that an employer must consider each request for reasonable accommodation, and that if a reasonable accommodation turns out to be ineffective and the employee with disability remains unable to perform an essential function, the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship. This rule fosters the framework of cooperative problem solving contemplated by the law, by encouraging employers to seek to find accommodations that really work, while preventing employees from requesting the most drastic and burdensome accommodations possible.

Alameda county is one of the most ethnically diverse areas, which brings lots diversity into workplace. With all wonderful benefits of having a variety of people from different backgrounds and cultures at workplace, this sometimes inevitably leads to animosity and conflicts between different racial groups and claims of race discrimination, racial harassment, and wrongful termination claims based on racial conflicts and claims of retaliation.

Employers who employ two or more large groups of workers from different racial backgrounds are likely to find themselves in situations where members of two or more racial minority groups of employees complain that the members of the other ethnic group engage in unlawful racial discrimination and harassment. For instance, it is not uncommon for the County of Alameda government agencies in Oakland, Alameda and surrounding cities to face these kinds of issues. An employer may find itself in a predicament in such circumstances. On one hand, the employer has an affirmative obligation to conduct a prompt and thorough investigation of harassment and discrimination complaints as FEHA (Fair Employment and Housing Act Requires), and take all appropriate measure to remedy harassment/discrimination. On the other hand, if the employer takes action against the alleged harasser, such as suspension, administrative leave, or termination, the company/agency runs the risk of being sued for racial discrimination by the disciplined employee.

This is one of the major reasons why it is so important for an employer to make sure that the conducted investigation is as thorough, unbiased and well documented as possible, as it will serve as a strong defense against discrimination and harassment allegations, showing that the employer too all reasonable steps to prevent/remedy discrimination and harassment.

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