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Recently, I had a chance to talk to one of the HR managers at Kaiser. I couldn’t help but ask him why is it that Kaiser tends to fight their terminated employees’ claims for unemployment benefits. Having had at least a dozen of clients who were terminated from Kaiser in the Sacramento area alone during the past six months, and who needed help reversing their denial of benefits, I couldn’t help but be curious. After talking to him, I realized that at least one of the major reasons that Kaiser tries to have their fired nurses and cna’s benefits denied is because they think that if they win in front of the Unemployment Appeals Board, the fired employee will be discouraged from taking any other legal action and will be less likely to sue for wrongful termination.

In reality, however, the exact opposite is often true. Managers don’t seem to realize that by trying to strangle a victim after shooting it, they only increase the chances of the employee getting angrier at them, more desperate for income, and thus having no other resort but at least try and bring a lawsuit against the employer. A terminated employee who feels that he was treated unfairly gets approved for unemployment benefits, might feel better in part because of having at least some income while he is looking for a new job. On the other hand, the same employee who has to fight to get his unemployment benefits will be much more likely to get even more angry at his employer and will be much more eager to sue.

It’s important for both the employers and employees to remember that the outcome of the unemployment appeal hearing has no bearing on an employee’s legal claims and has marginal relevance at best to the employee’s ability to prove his claims in court. In other words, just because the employee is not eligible for unemployment benefits, doesn’t mean that he won’t win his case in court. The opposite is true as well – getting unemployment benefits awarded is no assurance to winning a lawsuit.

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Besides other federal and California workplace anti-retaliation laws available to different groups of employees, nurses and other medical professionals working at hospital, clinics, and other healthcare facilities have additional law in California that protects them from retaliation. Under section 1278.5 of California Health and Safety Code, the employers may not prohibit against any employee who complains to an employer or a governmental agency about unsafe patient care or conditions.

Unfortunately, this kind of retaliation is not uncommon. The persons in charge who are afraid that the medical safety complaints are not only directed to them but they are also in part or in whole might be their responsibility will likely make it their first priority to terminate the complaining employee or otherwise shut him up.

nurses-retaliation-california.jpgIn Mendiondo v. Centinela Hospital Medical Center, 521 F.3d 1097 (2008), the employee complained about compromised patient care, including unnecessary catheterizations, refusing to use the safest drug for heart attacks because of cost reasons, and using outdated cardiac equipment, among other things. Her manager informed her outright that she should either stop complaining or she will be fired. The ninth circuit allowed the case to proceed forward after it was found to be improperly dismissed by the district court.

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Most labor and employment attorneys know that their client’s deposition testimony is likely the most important part and stage of the case. Few aggrieved employees win a case just because they do well at a deposition, but many lose their case or substantially decrease the value of their case because of how they testify or how they present to the opposing counsel. This is exactly why it is so important that you understand how the deposition works and learn to do well.

depo-testimony.jpgIf your attorney does not plan to spend at least a few hours with you before your deposition because he doesn’t think it’s necessary or because he is too busy, request that your deposition be postponed, so your attorney can thoroughly prepare you for your testimony. Your attorney should explain to you the purpose of deposition, the basic rules, what to expect from the opposing side, and the common mistakes that deponents make that you should avoid.

My experience suggests that the most confident and calm people become very nervous during their deposition, especially if they testify for the first time. One of the best ways to eliminate the nervousness is for a client to see a video of a deposition, so he/she knows exactly what’s going on during those proceedings, and what kinds of questions are being asked.

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I was glad to find out yesterday that yet one more of my clients won the appeal of the denial of unemployment benefits in Sacramento County. In that case, I represented a nurse who was an outstanding and dedicated employee for Kaiser for over 13 years before she was diagnosed with major depression that lead to her being late to work on occasions and seeking treatment.

My client was summarily terminated under the blanket absenteeism policy of Kaiser that completely disregards state and federal disability laws and obligations that employers have toward disabled workers. At a hearing, the employer represented by the managing nurse of the department admitted that she was aware of the claimant’s diagnosis for several years prior to her termination. Being a medical professional, the employer’s representative didn’t even dare to suggest that she did not know that some of the common symptoms of depression are anxiety, fatigue, inability to focus and thus – the resulting tardiness.

The administrative law judge ruled in my client’s favor as I expected, concluding that even though she violated the employer’s policy, because the violation was caused by the common symptoms of depression, she should not be disqualified from unemployment benefits under section 1256 of the unemployment insurance code.

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For years, I believed that since the whole purpose of establishing and running non-profit companies in California is providing some kind of service for the public good and not for profit. As a result, I assume that working in non-profit organizations must be a fulfilling experience on more levels and that the relationships between employees and the way the employees are treated by their management is also superior to the for-profit sector.

However, a number of claims I worked on reflect a different reality. Workplace Retaliation in non-profit agencies is quite common. One of the more common forms of retaliation is against a mid-level managers. A manager might suspect or even witness how funds provided to the employer by the government agencies or through other fund raising efforts are mishandled or even embezzled. That manager makes an internal complaint to his boss. That superior manager might be involved directly or indirectly in the unlawful and unethical handling of the funds and thus he tries to push the issue under the rug or starts building a paper trail of unsubstantial allegations of performance issues or insubordination to “lawfully” terminate the whistleblower.

Such retaliation claims are not easy prove that the year certainly worth investigation, as with proper documentation and witnesses to both – the unlawful activity and the retaliation, such claims can result in both substantial settlement or trial verdicts and changes in the company that assure fair proper management of funds.

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Most employers are well aware that if they terminate an employee for any reason of if it’s a lay-off, they must pay that employee’s wages (which includes vacation and sick time if applicable) in full immediately upon discharge. But, what if an employee works for a certain company on per assignment basis, where upon completion of one assignment of a certain duration, the employee might have to wait a shorter or a longer period of time till he receives the next assignment, where having such future work is not even guaranteed.

Recently, my client’s employer tried to argue that because my client was expected to receive a new work project within a few months, they did not have to pay him his outstanding, accrued vacation time which accumulated to nearly 500 hours. The employee was out of work for several months, and there was no real assurance that the employer was going to put him on a new project.

At the labor board hearing in San Francisco, the commissioner was persuaded by my argument that under the California Supreme Court ruling in Smith v. Superior Court 39 C4th 77 (2006), “discharge” includes not only termination from ongoing employment relationship, but also release of an employee upon completion of a specified job assignment or time duration for which the employee was hired. In Smith the court determined that a fashion model, who was hired for one-day assignment, had to be paid at the end of that day.

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Recently, the Second District Court has ruled in Johnson v. United Cerebral Palsy, 173 Cal.App.4th 740 (2009) on an important issue of admissibility of evidence of discrimination against a number of employees in a discrimination and wrongful termination case brought by a former employee. In that case, a pregnant employee was terminated for allegedly falsifying time records shortly after she notified her supervisor of her pregnancy. The employer defended against pregnancy discrimination allegations by introducing evidence of the claimants substandard job performance as well as falsification of time records on her part.
The court, after pointing out that the timing of termination alone or providing false reasons for termination alone are not sufficient reasons to disprove that the termination was not discriminatory, pointed out that declarations by some employees that the employer fired shortly after they got pregnant, and statements by other employees that the same supervisor made their job far more stressful after they notified him of their pregnancy, in addition to the negative comments that the employer made to the same women about their pregnancy were sufficient evidence to allow the case to be heard in front of the jury.

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Workplace harassment is a source of tremendous stress for many employees in California. Some of them confront their harassers in one way or the other, while others take a passive approach, feeling helpless or not believing that anyone can help them, including their human resources management.

Unless the harassment is very severe (such as unwanted touching, violence or threats of violence, repeated racial or sexist slurs, etc), most attorneys will advise you that suing the employer or the harasser is not a great option if you are still employed with the company where you are subjected to harassment. This is because any recovery of damages in employment related cases is to a great degree proportionate to the loss of wages. If you are still employed and have not been terminated, you are not losing any wages, which makes your case “smaller.”

This doesn’t mean however that you should remain helpless and do nothing to protect yourself and your position at workplace. Here are a few simple, practical and important steps you can and you should take if you are subjected to harassment, but no action such as suspension and termination has been taken against you:

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You are a consultant who travels from one work site to another serving the needs of your employer’s customers, or you are a support service provider for one of your company’s products and your travel all day from one office to another to repair or provide other on-site services. Are you entitled for compensation for the time you commute from one job site to another?

The answer is yes. The Industrial Welfare Commission Orders specifically define the term “hours worked” as the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not he or she is required to do so. In other words, under California law, if the travel time is subject to and under the employer’s control and it’s time for which the employee should be compensated at his regular rate of pay or at overtime rate of pay if applicable.

Of course, the commute in the beginning of the workday to the first job site and the commute at the end of the day – from the last job site back home – is not a compensable time, as it essentially the same kind of time as any other employee would spend who travels to and from one work site (his office) every day.

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Retaliation against employees for exercising their rights or complaining about unlawful conduct of their employer is common. However, proving retaliation in California presents unique legal and factual challenges, as employers almost never simply admit that they retaliated against an employee.

One California court discusses and provides excellent guidance on proving retaliation in California Fair Employment & Housing Commission v. Gemini Aluminum Corp. 122 Cal.App.4th 1094 (2004). In that case, the court noted that to establish the necessary causal link between an employee’s protected activity and the adverse employment action by the employer (such as termination, demotion, or transfer to a less desirable position/location) the employee needs to show that he/she engaged in a protected activity, that the employer was aware of that protected activity, and that the adverse action against that employee was taken shortly after the employee engaged in the subject protected activity.

The court emphasized two very important points with regard to retaliation. First, even informal complaints to management about discriminatory employment practices are considered sufficient opposition to trigger prohibition against retaliation. Secondly, the court noted that even threatening to file a discrimination complaint without actually filing it is a protected activity.

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