Ex-Nanny Sues Usher for Wrongful Termination, Unpaid Wages

Usher’s ex-nanny, Cecilia Duncan, is claiming the singer failed to pay her overtime, she complained to him, blowing the whistle, and then was terminated in retaliation.  Now she is suing for wrongful termination, and failure to pay wages.  A source connected to Usher said this is a frivolous lawsuit and all the allegations made by the former nanny are completely false.   

The case highlights the need for documentation on each side.  Usher will need accurate time cards to refute the claims that Duncan was not paid properly.  Duncan will need accurate records showing how many hours she worked, and what she was paid.  Duncan will also need records proving that she complained to Usher about the hours that she worked.  If Duncan does not have good documentation, then she is in for a difficult battle. 

In today’s digital age, there is no excuse for not amassing proper documentation.  If you are working for someone and you feel like you are being treated unfairly then you should call an employment lawyer.  An employment lawyer can help you build a  wage case, or build a discrimination case because once you get fired it is a lot tougher to build and gather evidence and even the best wrongful termination lawyer may not be able to help. 

John McCarthy is a San Diego employment lawyer handling wrongful termination, discrimination, and wage and hourissues.  He counsels, and represents employees, and writes a California Employment Law Blog.

Arbitration Fairness Act of 2013 Introduced

The Arbitration Fairness Act of 2013 (S. 878/H.R. 1844) was just introduced to the House and Senate. The AFA seeks to limit forced arbitration where a company requires a consumer or employer to agree to submit any dispute that may arise to arbitration. The individual is required to waive their right to sue, to participate in a class action lawsuit, or to appeal.  The below is taken from www.fairarbitrationnow.org/ because I could not have said it better myself. 

“Forced arbitration generally binds the consumer—not the company. The way most mandatory binding arbitration clauses are written, the seller or employer retains its rights to take any complaint to court while the consumer can only initiate arbitration.”

“Forced arbitration severely limits consumer and employee options for resolving a dispute. Before any problem arises, you lock yourself into only one option—binding arbitration—for resolving all future disputes or problems. The contract typically also names the arbitration company that must be used.”

“Arbitration does not follow clear, well-established, consistent rules and procedures such as those required for litigation in the court system. The company or employer generally picks the arbitration company—”the judge, ” which is not how the legal system works.”

“Forced arbitration frequently costs more than taking a case to court.”

“Most Americans don’t know that they are bound by forced arbitration. Buried in the fine print of employment, cell phone, credit card, retirement account, home building, and nursing home contracts are mandatory arbitration clauses. Just by taking a job or buying a product or service, individuals are forced to give up their right to go to court if they are harmed by a company. Because the private system of forced arbitration benefits companies – and disadvantages consumers and employees – more and more industries are using forced arbitration to evade accountability.”

“In arbitration, there is no judge, jury or right to an appeal. The arbitrators do not have to follow the law, and there is no public review of decisions to ensure the arbitrator got it right. Moreover, contracts typically name the arbitration that must be used – the one preferred by the company.”

“Forced arbitration frequently costs more than taking a case to court, and can cost thousands of dollars. Individuals often have to pay a large fee simply to initiate the arbitration process. Then in order to arbitrate, individuals sometimes have to travel thousands of miles on their own dime. In the end, the loser (usually the individual) often pays the company’s legal fees.”

“Forced arbitration strips our most basic rights and makes many employee and consumer protections unenforceable. The laws that protect us from discrimination based on age, sex, religion, race, disability, and unequal pay for equal work, such as the Civil Rights Act and the Equal Pay Act, become meaningless and unenforceable in arbitration. Employees lose important protections for blowing the whistle on waste or fraud or for fighting retaliation for taking the family medical leave, for example.”

“Consumers cannot sue for negligence, defective products or scams. Even if a retirement account disappears, a home is dangerous and defective, or a loved one suffers harm in a nursing home, a forced arbitration clause means there is no right to take the company responsible to court.”

“People who have been harmed by discrimination, negligence, defective products or scams should not be forced into arbitration: they should have a choice.”

For more information about the dangers of mandatory arbitration check out: http://www.fairarbitrationnow.org/hr-1020-arbitration-fairness-act-2009-protect-consumers-abusive-mandatory-arbitration-clause

You’ll see that these arbitration clauses rob people of their Constitutional right to trial by jury in wage cases, discrimination cases, sexual harassment cases, and even wrongful termination cases.    

I’m a member of the National Employment Lawyers Association.  The National Employment Lawyers Association (NELA) advances employee rights and serves lawyers who advocate for equality and justice in the American workplace.  NELA joins 44 other public interest organizations in urging Congress to pass this legislation without delay. 

Both the California and United States Constitutions guarantee the right to trial by jury.  Why wouldn’t you support a law aimed at taking back that right? 

John McCarthy is a San Diego employment lawyer handling wrongful termination, discrimination, and wage and hourissues.  He counsels, and represents employees, and writes a California Employment Law Blog.

EEOC Wins $240 Million for Disability Discrimination Victims

On Wednesday, a Davenport, Iowa jury awarded the U.S. Equal Employment Opportunity Commission (EEOC) damages totaling $240 million - the largest verdict in the federal agency's history - for disability discrimination and severe abuse.

The jury found that Hill County Farms subjected 32 men with intellectual disabilities to severe harassment, abuse and discrimination for a period between 2007 and 2009, after 20 years of similar mistreatment.  EEOC presented evidence to the jury that Henry's Turkey exploited these workers, whose jobs involved eviscerating turkeys, because their intellectual disabilities made them particularly vulnerable and unaware of the extent to which their legal rights were being denied.

Specifically, the EEOC presented evidence that for years and years the owners and staffers of Henry's Turkey subjected the workers to abusive verbal and physical harassment; restricted their freedom of movement; and imposed other harsh terms and conditions of employment such as requiring them to live in deplorable and sub-standard living conditions, and failing to provide adequate medical care when needed.

Verbal abuses included frequently referring to the workers as "retarded," "dumb ass" and "stupid."  Class members reported acts of physical abuse including hitting, kicking, at least one case of handcuffing, and forcing the disabled workers to carry heavy weights as punishment.  The Henry's Turkey supervisors, also the workers' purported caretakers, were often dismissive of complaints of injuries or pain. 

Stories like this are why Plaintiff’s Employment Lawyers do what they do.  The treatment clearly violates the Americans with Disabilities Act (ADA) and would clearly violate California’s Fair Employment and Housing Act (FEHA).  If you, or anyone you know, are suffering from harassment, discrimination, or retaliation, in the workplace you should contact an experienced employment discrimination lawyer to help you gather evidence to prove discrimination.  You should do so soon because the lawyer might even help save your job so you don’t need a wrongful termination lawyer later on.   

John McCarthy is a San Diego employment lawyer handling wrongful termination, discrimination, and wage and hourissues.  He counsels, and represents employees, and writes a California Employment Law Blog.

Oprah’s OWN Hit with Pregnancy Discrimination, Wrongful Termination Lawsuit

Oprah Winfrey’s Oprah Winfrey Network (OWN) was hit with a pregnancy discrimination lawsuit by Carolyn Hommel, former senior director of scheduling and acquisitions.  Hommel claims her job duties and responsibilities were reassigned to a temporary employee because of “her pregnancy and pregnancy-related medical conditions.” Hommel further says that before she became pregnant, she had received positive performance reviews and was told that she was “on track to become a Vice President at OWN.” But after she went on maternity leave in February 2012, not only was her job eliminated, but she was passed over for the vice president's position, which instead went to the temporary employee. 

Pregnancy discrimination is illegal.  After Harris, Hommel will have to prove that her pregnancy was a “substantial motivating factor” leading to her wrongful termination.  However, even if Hommel does that, she will not be entitled to any damages if OWN can prove they would have reached the same result absent discrimination. That means employees suspecting they are the victims of workplace discrimination should hire a discrimination lawyer to help them build a discrimination case.  Otherwise, an employer, who has hired a team of defense attorneys will likely argue that they did not discriminate, but even if they did, they would have fired this person anyway and therefore, this person is not entitled to any damages.   

John McCarthy is a San Diego employment lawyer handling wrongful termination, discrimination, and wage and hourissues.  He counsels, and represents employees, and writes a California Employment Law Blog.

Hooters Wrongful Termination Lawsuit

Hooters is facing a wrongful termination lawsuit.  Sandra Lupo had been a waitress at Hooters since 2005.  She’s 27 years old.  Recently, she had to undergo brain surgery to remove a cranial mass.  When she was cleared to return to work last July she met with her manager.  Her manager said she had to wear a wig now during her shifts.  Under the Americans with Disabilities Act (ADA) “qualified individuals” are protected from discrimination based on their disability.  Under the ADA, a “qualified individual” is one who, with or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires.  Under the ADA a disability is any of the following:

·         A physical or mental impairment that substantially limits one or more of the individual’s major life activities;

·         A record of such an impairment; or

·         Being regarded as having a such an impairment. 

Hooters does not seem to care about discriminating against “qualified applicants”:

·         In 1997, three men from the Chicago area sued Hooters after being denied employment at an Orland Park, Illinois, restaurant. Each of them was awarded $19,100. Four men who filed a similar lawsuit in Maryland received $10,350 each. The settlement allows Hooters to continue attracting customers with its female staff of Hooters Girls. The chain agreed to create other support jobs, like bartenders and hosts, that must be filled without regard to sex.

·         In 2009, Nikolai Grushevski, a man from Corpus Christi, Texas, filed a lawsuit because Hooters would not hire him as a waiter. Grushevski and Hooters reached a confidential settlement on April 13.

·         In September 2009, the U.S. Equal Employment Opportunity Commission filed a lawsuit against a North Carolina charter airline (formerly Hooters Air) on behalf of Chau Nguyen, an Asian flight attendant fired three years prior after complaining only white workers were being promoted.

·         In May 2010, a lawsuit was filed against Hooters in Michigan after an employee was given a job performance review and was told "that her shirt and short size could use some improvement" by two women who held positions at the headquarters in Atlanta. Michigan is the only state that includes height and weight as bounds for non-discrimination in hiring. The plaintiff alleges that the women made the offer of a free gym membership and that if she did not improve in 30 days, her employment would be terminated.

Hooters has argued that offering its customers the look of the “All American Cheerleader, Surfer, Girl Next Door” is the “essence of the business operation” and that essence would be “undermined if the business eliminated its discriminatory policy”.  Hooters has gone so far as to require female employees to sign that they “acknowledge and affirm” the following:

1. My job duties require I wear the designated Hooters Girl uniform.
2. My job duties require that I interact with and entertain the customers.
3. The Hooters concept is based on female sex appeal and the work environment is one in which joking and entertaining conversations are commonplace.
4. I do not find my job duties, uniform requirements, or work environment to be offensive, intimidating, hostile, or unwelcome.

So basically, Hooters has tried to get employees to sign that they “acknowledge and affirm” that they will not sue for sexual harassment. 

Ms. Lupo’s case is a little different than other Hooters discrimination cases.  Ms. Lupo is not some guy alleging gender discrimination because Hooters wouldn’t hire them to be a waiter wearing those orange shorts.  Hooters settles those cases for little because they know a jury is not going to take the case seriously.  However, Ms. Lupo is alleging wrongful termination on the basis of harassment and discrimination, namely disability discrimination. 

Allegedly:

·         Ms. Lupo went through a horrific event and tried to return to work. 

·         The Company required her to wear a wig. 

·         The Company refused to pay for a wig so Ms. Lupo had to borrow one. 

·         When Ms. Lupo borrowed a wig it exacerbated her condition. 

·         Rather than get rid of the wig requirement, Hooters responded by cutting her hours to point where Ms. Lupo had to quit. 

Some people will ask, “Well, if she quit how can she allege wrongful termination?”  Typically, the law provides for “constructive discharge.”  The California Supreme Court has held that an employee who leaves a job because of intolerable working conditions may state a claim for wrongful termination based on a “constructive discharge.”  But, in California, the employee must prove that the employer either intentionally created, or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation, a reasonable employer, would realize that a reasonable person in the employee’s position would be compelled to resign.  It’s awfully tough to prove that in a down economy.  But, quitting to find a better paying job when your employer has slashed your hours tends to resonate with jurors.      

John McCarthy is a San Diego employment lawyer handling wrongful termination, discrimination, and wage and hourissues.  He counsels, and represents employees, and writes a California Employment Law Blog.

Whistleblower Coach Files Wrongful Termination Lawsuit against University

Whistleblower Coach Files Wrongful Termination Lawsuit against University

Ex-Rutgers assistant coach Eric Murdock filed a wrongful termination lawsuit against Rutgers University claiming he was fired after he blew the whistle on head basketball coach Mike Rice’s abuse of players.  The lawsuit, which also names Rice, ex-athletic director Tim Pernetti, Rutgers president Robert Barchi and former president Richard McCormick as defendants, seeks unspecified damages, attorneys’ fees and legal costs. It also asks the court to order Rutgers to take steps to prevent future bullying and harassment of members of the university community. The suit also seeks an order requiring Rutgers to discipline anyone who condones or tolerates abuse.

Murdock faces an uphill battle.  Retaliatory discharge claims are difficult to prove.  Basically, the employee must prove to a judge or jury that they were truthful when they complained about harassment, or workplace discrimination, or some other illegal activity occurring before the termination and that the employer took action to terminate the employee in retaliation for the complaints.  Most employees assume that if they complain in person to an HR director that their complaints will be heard, addressed, and there will be no recourse. Unfortunately, a verbal complaint does not leave much evidence of the employee’s complaint behind.  Employees are much better suited contacting a wrongful termination lawyer or a discrimination attorney who can help them take appropriate steps to protect their rights and build their workplace case.   

John McCarthy is a San Diego employment lawyer handling wrongful termination, discrimination, and wage and hourissues.  He counsels, and represents employees, and writes a California Employment Law Blog.

Hostile Work Environment?

Lots of people call me saying they are experiencing a hostile work environment.  They claim that their boss is a jerk and that he yells at everybody and everybody is really stressed out.  Most of the time, these people are disappointed to hear that their boss is not doing anything illegal.  

A hostile work environment exists when an employee experiences workplace harassment and fears going to work because of the offensive, intimidating, or oppressive atmosphere generated by the harasser.  The United States Supreme Court stated in Oncale v. Sundowner Offshore Services, that Title VII is “not a general civility code.” Thus, federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. Rather, the conduct must be so objectively offensive as to alter the conditions of the individual's employment. The conditions of employment are altered only if the harassment culminates in a tangible employment action, or are sufficiently severe or pervasive.

In California, a hostile work environment occurs where speech or conduct is “severe or pervasive” enough to create a hostile or abusive work environment.  It is a legal term of art.  It is more than a boss being rude, annoying, or yelling.  In order to be actionable, the severe, or pervasive speech, or conduct must be directed at someone on the basis of some protected class.  Think about a boss making fun of somebody with a disability, or telling sexist or racist jokes.  If it’s severe or pervasive enough, then you have a hostile work environment.  But, the “equal opportunity, Type ‘A’, rules with an iron-fist” boss isn’t necessarily doing anything illegal.  Nonetheless, you should look for a discrimination lawyer if ever you feel you are being harassed, or discriminated, against at work.  An experienced discrimination lawyer can help protect your rights and maybe even protect you from such abusive behavior.  They can definitely help you build a discrimination case.  They can even save you from needing a wrongful termination lawyer.

John McCarthy is a San Diego employment lawyer handling wrongful termination, discrimination, and wage and hourissues.  He counsels, and represents employees, and writes a California Employment Law Blog.

Supreme Court Tackles Same-Sex Marriage: Some Unusual Alliances Form

The Supreme Court tackles same-sex marriage this week.  Today, the Court addresses California’s Proposition 8 (“Prop 8”), which bans gay marriages, and tomorrow the Court looks at the Defense of Marriage Act (“DOMA”). 

The cases are more about the States’, and the Federal Government’s, meaning of the word “marriage” than about anything else.  16 states allow same-sex partners to enter into legal relationships that confer most, if not all, the rights and responsibilities of marriage. 

The Justices appear hesitant to tackle the issues head on.  They could use these cases to order every state to allow same-sex couples to enter into a legal arrangement under the name “marriage.”  But, they probably won’t. 

Nonetheless, some unusual alliances are forming over these issues.  For example, most employment lawyers who represent employees are all for striking down Prop 8 and DOMA as unconstitutional.  In general, we represent people who have been discriminated against.  The LGBT community has long been discriminated against.  The denial of the right to marry is just one example.  So it’s not surprising when employee rights lawyers take up a cause like this.  But, it’s a little more surprising to see Seyfarth Shaw, one of the largest Employment Management Defense firms take up a cause like this.  Seyfarth Shaw joined opponents of DOMA, saying the law “forces an employer to place its lawfully married employees into two categories and requires that they create and administer a variety of dual systems for these employees. This creates regulatory, tax, and morale problems for employers, and forces them to differentiate in distributing benefits to lawfully married couples.”

Another interesting alliance is being formed between the traditional left progressives and the traditional right conservatives.  Both sides seem to agree that the laws violate the Equal Protection Clause.  Justice Kennedy famously wrote “if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”  That was in Romer v. Evans, which determined that Amendment 2 of Colorado's State Constitution, forbidding the extension of official protections to those who suffer discrimination due to their sexual orientation, violated the Fourteenth Amendment's Equal Protection Clause. 

Employees Should Know:

Employees should know that regardless of the outcomes on Prop 8 or DOMA, employers cannot discriminate against employees on the basis of sexual orientation or gender identity under California law.  If you feel like you are the victim of unlawful discrimination, it is important to contact an experienced discrimination attorney.  There are lots of things you can do to help protect your job.  But, you have to be willing to protect your rights.  Otherwise, you might very well end up looking for a wrongful termination lawyer and nobody wants that.      

John McCarthy is a San Diego employment lawyer handling wrongful termination, discrimination, and wage and hourissues.  He counsels, and represents employees, and writes a California Employment Law Blog.

Price is Right Do-Over

A judge has overturned an $8.5 million verdict awarded to a former “Price is Right” model, Brandi Cochran, in a pregnancy discrimination case and ruled a new trial is necessary based on the Supreme Court’s recent decision in Harris v. City of Santa Monica.  The Judge determined that he should have instructed the jury on the possibility “mixed motive.”  Under Harris, if the jury determines that there was a “mixed-motive” then the Plaintiff is not entitled to any damages.  Her attorney, Carney Shegerian, an esteemed member of CELA, agreed that Judge Brazile’s ruling was proper and he’s looking forward to trying the case again saying, “I think on re-trial I'll get triple or quadruple that.”

Harris is proving problematic for Plaintiffs.  Increasing the standard of proof from a “motivating factor” to a “substantial motivating factor” is not daunting.  The real problem lies in Harris cutting off damages to employees if the employer can prove that it would have fired the employee anyway.  Basically, the Court has said, “you were the victim of discrimination that substantially motivated your boss to fire you, but you weren’t the greatest employee so you we’re not going to give you anything for the pain and suffering you have endured as a result of the discrimination.”  Harris provides for attorneys’ fees and costs and injunctive relief in mixed motive situations, but employers are now free to discriminate against problem employees without fear of paying for causing emotional distress or having to pay punitive damages. 

Employees must document and complain of real or perceived discrimination early on, before employers can write them up in order to help establish that the write-ups are pre-textual.  Unfortunately, many employees will fail to build a discrimination case, and will be subjected to harassment and discrimination and will not be compensated for the emotional distress they have endured.  Employees should work with a discrimination attorney as soon as they suspect discrimination, before they need a wrongful termination lawyer.  

John McCarthy is a San Diego employment lawyer handling wrongful termination, discrimination, and wage and hourissues.  He counsels, and represents employees, and writes a California Employment Law Blog.

Supreme Court to Review Title VII “Mixed Motive” Discrimination Cases

The Supreme Court will review whether an employee can sue a former employer under Title VII’s retaliation provision by showing illegal discrimination was one of multiple reasons for taking action against him - a so-called “mixed motive” - or whether he must prove the employer would not have acted “but for” its improper motive.  Nassar v. University of Texas Southwestern Medical Center (No. 12-484). 

What is a “Mixed Motive”?

Under Title VII where the plaintiff has shown intentional discrimination in a mixed motive case, the defendant can still avoid liability for money damages by demonstrating by a preponderance of the evidence that the same decision would have been made even in the absence of the impermissible motivating factor. If the defendant establishes this defense, the plaintiff is then entitled only to declaratory and injunctive relief, attorney’s fees and costs. Orders of reinstatement, as well as the substitutes of back and front pay, are prohibited if a same decision defense is proven. 42 U.S.C. §2000e-5(g)(2)(B).

On the proper use of mixed-motive instructions, see Matthew Scott and Russell Chapman, Much Ado About Nothing — Why Desert Palace Neither Murdered McDonnell Douglas Nor Transformed All Employment Discrimination Cases To Mixed-Motive, 36 St. Mary’s L.J. 395 (2005):

Thus, a case properly analyzed under [42 U.S.C.] § 2000e-2(a) (what some commentators refer to as pretext cases) involves the plaintiff alleging an improper motive for the defendant’s conduct, while the defendant disavows that motive and professes only a non-discriminatory motive. On the other hand, a true mixed motive case under [42 U.S.C.] § 2000e-2(m) involves either a defendant who . . . admits to a partially discriminatory reason for its actions, while also claiming it would have taken the same action were it not for the illegitimate rationale or . . . [there is] otherwise credible evidence to support such a finding.

The rationale for the distinction . . . is simple. When the defendant renounces any illegal motive, it puts the plaintiff to a higher standard of proof that the challenged employment action was taken because of the plaintiff’s race/color/religion/sex/national origin. But, the plaintiff, if successful, is entitled to the full panoply of damages under § 2000e-5. . . .

At the same time, where the defendant is contrite and admits an improper motive (something no jury will take lightly), or there is evidence to support such a finding, the defendant’s liability risk is reduced to declaratory relief, attorneys’ fees and costs if the defendant proves it would have taken the same action even without considering the protected trait. The quid pro quo for this reduced financial risk is the lesser standard of liability (the challenged employment action need only be a motivating factor).

What California Has to Say About Mixed Motives

The California Supreme Court just struggled with a similar issue in Harris v. City of Santa Monica as it applies to the Fair Employment and Housing Act (“FEHA”).  Harris was a pregnancy discrimination case where the Plaintiff was a bus driver, had bad reviews, told her supervisor she was pregnant, was fired, sued for pregnancy discrimination, went to trial, and won at trial.  The Defendant appealed saying it should have been allowed a “mixed motive” jury instruction. 

The California Supreme Court held “under the FEHA, when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, backpay, or an order of reinstatement. But the employer does not escape liability. In light of the FEHA‘s express purpose of not only redressing but also preventing and deterring unlawful discrimination in the workplace, the plaintiff in this circumstance could still be awarded, where appropriate, declaratory relief or injunctive relief to stop discriminatory practices. In addition, the plaintiff may be eligible for reasonable attorney‘s fees and costs.” 

That means that FEHA discrimination cases come down to:

1.      Plaintiff demonstrates that unlawful discrimination was a substantial factor motivating an adverse employment action (i.e. wrongful termination);

2.      Defendant must prove that it would have made the same decision absent discrimination:

a.       If Defendant fails, then Plaintiff may get all damages;

b.      If Defendant succeeds, the Defendant may still be liable for declaratory/injunctive relief and attorneys' fees.

It will be interesting to see where the Supreme Court goes with the decision in Nassar.  If the Supreme Court decides that a Plaintiff must demonstrate a “but for” cause, then you can expect Employer lawyers to use the analysis to persuade judges to apply the same “but for” analysis in FEHA cases.  However, the Supreme Court could also rely on the California Supreme Court’s analysis and provide a whole new test in the way of a “substantial motivating factor.”  Stay tuned. 

John McCarthy is a San Diego employment lawyer handling wrongful termination, discrimination, and wage and hour issues.  He counsels, and represents employees, and writes a California Employment Law Blog.

How to Negotiate a Severance Package

I’m often asked how to negotiate a severance package.  Mass layoffs are no longer dominating the news, but struggling companies are still looking to cut costs, often one or a few employees at a time.  Workers who are part of mass layoffs will find it more difficult to negotiate some sort of severance deal.  But, workers who are laid off one at a time can find considerable negotiability. 

What to Do When You Are Facing a Layoff

Whenever you are faced with a lay-off you should:

1.      Immediately consult with an employment lawyer to discuss your rights;

2.      Do what you can to preserve your rights;

3.      Seriously consider any severance package; and

4.      Negotiate a better deal before you sign anything. 

Companies routinely require laid off employees to sign documents that waive almost all of their rights to sue.  Moreover, companies frequently try to get you to sign off on “non-compete” and/or “trade secret” agreements.  While non-competes are not favored in California, trade secret agreements are far reaching and can really damage an employee’s job prospects and maybe even put the employee on the opposite end of litigation.  Most companies give employees 21 days to review severance agreements because of the Older Workers Benefit Protection Act and the ADEA.   So there is no excuse not to review the severance package with a professional. 

How to Negotiate the Severance  

You should try to get as much as you can.  Most employers feel terrible about letting long term employees go.  One of the ways you can capitalize on that is by playing to their guilt.  You can sometimes double your severance and negotiate additional perks like keeping that company laptop or iPad and even getting the employer to pay for your job coaching.

Most companies offer one to two weeks’ pay per year worked.  But, there is no magic formula and everything is open to negotiation.  If you or someone in your family has health problems, you should let the employer know and try to negotiate extended health benefits.   You might even find it beneficial to offer to fill in if needed.   

Employers don’t want to get sued.  You may have wrongful termination, harassment, discrimination, or age discrimination claims.  But, frankly, you need to talk to a wrongful termination lawyer or a discrimination attorney.  You probably should not sue unless you have a serious claim and you are willing to accept that future employers are leery of workers they perceive as litigious. Instead focus on how to brand yourself in your future job search.  Working with your employer to maintain strong references can help you get over the shock of losing your job a lot more easily.   

San Diego Wrongful Termination / Discrimination Attorney, John F. McCarthy, has dedicated his life to representing and counseling employees throughout California.    

EEOC Files Race Discrimination Suit Against Transportation Firm

On February 27, 2013, the EEOC filed a race discrimination suit against a large transportation firm because the firm refused to hire black applicants for employment, discriminated against a black employee and retaliated against three employees for opposing race discrimination and/or filing a discrimination charge with the EEOC.  For more check out: http://www.miamiherald.com/2013/02/26/3255427/eeoc-files-discrimination-suit.html.  I'm always amazed to hear about that stuff still happening.  Of course race discrimination is illegal in the United States, because of Title VII, and in California, because of the Fair Employment and Housing Act.  If you are the victim of racial harassment, or discrimination, you will need an experienced harassment and discrimination lawyer like San Diego Attorney John McCarthy.   

BAE to Layoff Workers?

BAE could layoff 1368 workers according to the San Diego Union Tribune.  Obviously that could hurt the local economy down here in San Diego.  Lay-offs are prime times for employers to pick off people who they are discriminating, or retaliating against, because those people are often lost in the fray with the dozens, hundreds, or thousands, of other employees who are getting laid off.  However, employees can do a lot to protect themselves if they think they are getting laid off for some illegal reason.  If you find yourself wondering, "I think I'm going to fired.  What should I do?" you should check out the link, and call an employment lawyer as soon as possible.  You can call me toll free at (800) 690-1701.

FMLA, Maternity Leave, Pregnancy Disability

FMLA and Maternity Leave

The Family Medical Leave Act (FMLA) turned 20 yesterday.   The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:

• Twelve workweeks of leave in a 12-month period for:
  • the birth of a child and to care for the newborn child within one year of birth;
  • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
  • to care for the employee’s spouse, child, or parent who has a serious health condition;
  • a serious health condition that makes the employee unable to perform the essential functions of his or her job;
  • any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or
• Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

Q: Can the employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of my child?

Yes. An eligible employee is entitled to a total of 12 weeks of FMLA leave in a 12-month period. If the employee has to use some of that leave for another reason, including a difficult pregnancy, it may be counted as part of the 12-week FMLA leave entitlement.

Q: Can the employer count time on maternity leave or pregnancy disability leave as FMLA leave?

Yes. Pregnancy disability leave or maternity leave for the birth of a child would be considered qualifying FMLA leave for a serious health condition and may be counted in the 12 weeks of leave so long as the employer properly notifies the employee in writing of the designation.

In California the Fair Employment and Housing Act (FEHA) contains provisions relating to pregnancy leave. These provisions cover all employers with five or more employ­ees. It is unlawful for an employer to discriminate in terms of compensation, conditions, or privileges of employment because of pregnancy. In addition, there are certain leave and transfer protec­tions and guarantees provided under the FEHA and the California Family Rights Act (CFRA).

California Pregnancy Leave Requirements

• An employee disabled by pregnancy is entitled to up to four months dis­ability leave. If the employer pro­vides more than four months of leave for other types of temporary disabili­ties, the same leave must be made available to women who are disabled due to pregnancy, childbirth, or a related medical condition.
• Leave can be taken before or after birth during any period of time the woman is physically unable to work because of pregnancy or a preg­nancy-related condition. All leave taken in connection with a specific pregnancy counts toward computing the four-month period.
• Pregnancy leave is available when a woman is actually disabled. This includes time off needed for prenatal care, severe morning sickness, doc­tor-ordered bed rest, childbirth, re­covery from childbirth, or any related medical condition.
• If an employee is disabled as the result of a condition related to pregnancy, childbirth, or associated medical conditions and requests reasonable accommodation upon the advice of her health-care provider, an employer must provide reasonable accommodation.
• As an accommodation, and with the advice of her physician, an employee can request transfer to a less strenuous or hazardous position for the duration of her pregnancy.
• Employees are entitled to take pregnancy disability leave in addition to any leave entitlement they might have under CFRA. For example, an employee could take four months pregnancy disability leave for her disability, and 12 weeks CFRA leave to bond with the baby; to bond with an adopted child; or to care for a parent, spouse, or child with a seri­ous health condition. CFRA leave may also be taken for the employee’s own serious health condition. For more information, see below.

• If possible, an employee must provide her employer with at least 30 days advance notice of the date for which the pregnan­cy disability leave is sought or transfer begins and the estimated duration of the leave.
• If 30 days advance notice is not pos­sible due to a change in circumstances or a medical emergency, notice must be given as soon as practical. The leave may be modified as a woman’s changing medical condition dictates. If a woman desires to return earlier than agreed, an employer must reinstate her within two business days of her notice.

Salary and Benefits During Pregnancy Leave

• Employers who provide health insurance coverage for employees who take leave for non-pregnancy-related, temporary disabilities must provide coverage for employees who take leave for pregnancy, childbirth or related medical conditions.
• An employer may require an employee to use her accrued sick leave during any unpaid portion of her pregnancy disability leave. The employee may also use vaca­tion leave credits to receive compensation during an otherwise unpaid portion of her pregnancy disability leave. An employer may not require an employee to use vacation leave or other accrued time off during pregnancy disability leave.

Return Rights after Pregnancy Leave

• After a pregnancy disability leave or transfer, employees are guaranteed a return to the same position and can request the guarantee in writing.
• If her same position is no longer avail­able, such as in a layoff due to plant closure, the employer must offer a posi­tion that is comparable in terms of pay, location, job content, and promotional op­portunities, unless the employer can prove that no comparable position exists.

California Family Rights Act (CFRA) Leave Requirements

• To be eligible for CFRA leave, an employee must have more than 12 months of service with the employer and have worked at least 1,250 hours for that employer in the 12-month period before the leave begins.
• An eligible employee may take an unpaid leave to bond with an adopted or foster child or to bond with a newborn.
• An eligible CFRA employee may take unpaid leave to care for a parent, spouse, or child with a serious health condition. CFRA leave may also be taken for the employee’s own serious health condition.
• Full-time employees may take leave of up to 12 work weeks in a 12-month period. Part-time employees may take leave on a proportional basis. The leave does not need to be taken in one continuous period of time.
• An employer may require a 30-day advance notice of the need for a CFRAqualifying leave. When this is not possible due to the unexpected nature of the leave, notice should be given as soon as practicable. Notice can be written or verbal and should include the timing and the anticipated duration of the leave. An employer must respond to a leave request within 10 calendar days.
• The employer may require written communication from the health-care provider of the child, parent, spouse, or employee with a serious health condition stating the reasons for the leave and the probable duration of the condition.
• Employees are entitled to take CFRA leave in addition to any leave entitlement they might have under PDL. Leave taken for the birth or adoption of a child must be completed within one year of the event.
• In addition to the family care and medical leave requirements of the CFRA, employers of five or more persons have additional obligations pertaining to PDL.

Salary and Benefits During CFRA Leave

• Employers are not required to pay employees during a CFRA leave. An employer may require an employee to use accrued vacation time or other accumulated paid leave other than sick time. If the CFRA leave is for the employee’s own serious health condition, the use of sick time can be required.
• If the employer provides health benefits under a group plan, the employer must continue to make these benefits available during the leave. The employee is also entitled to accrual of seniority and participation in other benefit plans.

Return Rights After CFRA Leave

• After CFRA leave, employees are guaranteed a return to the same or comparable position and can request the guarantee in writing.
• If the same position is no longer available, such as in a layoff or closure, the employer must offer a position that is comparable in terms of pay, location, job content, and promotional opportunities, unless the employer can prove that no comparable position exists. An employee is not entitled to reinstatement if the employee would have been otherwise laid off or terminated.

Family Temporary Disability Insurance (FTDI) or “Paid Family Leave”

Employees on CFRA leave of absence may also be eligible for six weeks of paid leave under FTDI, a program administered by the California Employment Development Department (EDD).

In 2002, historic legislation was enacted to extend disability compensation to cover individuals who take time off of work to care for a seriously ill child, spouse, parent, or registered domestic partner, or to bond with a new child. Senate Bill 1661 established the Paid Family Leave insurance program, also known as Family Temporary Disability Insurance program, to be administered by the State Disability Insurance (SDI) program. An estimated 13 million California workers who are covered by the SDI program have also been covered for Paid Family Leave insurance benefits as of July 1, 2004.

For California workers covered by SDI, Paid Family Leave (PFL) insurance provides up to six weeks of benefits for individuals who must take time off to care for a seriously ill child, spouse, parent, or registered domestic partner, or to bond with a new child.

Information on Paid Family Leave

To learn more about Paid Family Leave, view the Paid Family Leave Fact Sheet or the State Disability Insurance Frequently Asked Questions.

If you have questions regarding FMLA, CFRA, Maternity Leave, Pregnancy Disability Leave, or if you believe you are a victim of illegal dis­crimination, you should contact a pregnancy discrimination lawyer, such as San Diego employment lawyer, John McCarthy.

Tort Reform is Killing the Right to Jury Trial

Tort Reform is Killing the Right to Jury Trial

The nation is at odds over the 2nd Amendment.  But, maybe the nation should be more concerned with the 7th Amendment.  The 7th Amendment guarantees people the right to civil jury trial in Federal Courts.  California’s Constitution states, “[t]rial by jury is an inviolate right and shall be secured to all.”  However, that “inviolate” right is being violated.  Huffington Post had a fascinating article today entitled, "The Slow Death of Justice in California."  The premise is that budget problems have reduced many people's access to justice. The article cites things like:

·         court closures leading to:

o   delayed resolution of proceedings; and

o   increased difficulty and cost of attending proceedings;

·         cost increases like:

o   having to pay increased filing fees; and

o   having to pay for court reporters.

It’s all true, but there is more to the story than that. 

The premise behind jury trials is that people should be judged by their peers.  For years, this led to individuals successfully prosecuting their rights in front of juries.  Juries, hearing the stories of people, who had been harmed, were often sympathetic toward the people and often awarded them compensation for their damages. 

However, in the 1980’s, Corporate America started an offensive to turn public opinion.  The offensive was entitled “tort reform.”  The premise was that, the civil justice system was constricting the economy, fomenting excessive litigation, and contributing to astronomical liability insurance premiums.  The civil justice system had gotten away from the people.  The flashpoint was the McDonald’s coffee case.  Everybody knows the story.  This lady ordered coffee.  She didn’t know the coffee was hot, and she burned herself.  She sued.  She got millions of dollars.  The McDonald’s case was on the news, on television shows and in the papers.  The lady was ridiculed, decried as “stupid” and a gold-digger.  ABC even called the case “the poster child of excessive lawsuits.”

However, most people don’t know that “on February 27, 1992, Stella Liebeck, a 79-year-old woman from Albuquerque, New Mexico, ordered a 49-cent cup of coffee from the drive-through window of a local McDonald's restaurant located at 5001 Gibson Boulevard S.E. Liebeck was in the passenger's seat of her grandson's Ford Probe, and her grandson Chris parked the car so that Liebeck could add cream and sugar to her coffee. Liebeck placed the coffee cup between her knees and pulled the far side of the lid toward her to remove it. In the process, she spilled the entire cup of coffee on her lap.  Liebeck was wearing cotton sweatpants; they absorbed the coffee and held it against her skin, scalding her thighs, buttocks, and groin. Liebeck was taken to the hospital, where it was determined that she had suffered third-degree burns on six percent of her skin and lesser burns over sixteen percent.  She remained in the hospital for eight days while she underwent skin grafting. During this period, Liebeck lost 20 pounds (9 kg, nearly 20% of her body weight), reducing her down to 83 pounds (38 kg). Two years of medical treatment followed. 

The trial took place from August 8–17, 1994, before Judge Robert H. Scott. During the case, Liebeck's attorneys discovered that McDonald's required franchisees to serve coffee at 180–190 °F (82–88 °C). At that temperature, the coffee would cause a third-degree burn in two to seven seconds. Stella Liebeck's attorney argued that coffee should never be served hotter than 140 °F (60 °C), and that a number of other establishments served coffee at a substantially lower temperature than McDonald's. Liebeck's lawyers presented the jury with evidence that 180 °F (82 °C) coffee like that McDonald’s served may produce third-degree burns (where skin grafting is necessary) in about 12 to 15 seconds. Lowering the temperature to 160 °F (71 °C) would increase the time for the coffee to produce such a burn to 20 seconds. 

Other documents obtained from McDonald's showed that from 1982 to 1992 the company had received more than 700 reports of people burned by McDonald's coffee to varying degrees of severity, and had settled claims arising from scalding injuries for more than $500,000. McDonald's quality control manager, Christopher Appleton, testified that this number of injuries was insufficient to cause the company to evaluate its practices. He argued that all foods hotter than 130 °F (54 °C) constituted a burn hazard, and that restaurants had more pressing dangers to warn about.

A twelve-person jury reached its verdict on August 18, 1994. Applying the principles of comparative negligence, the jury found that McDonald's was 80% responsible for the incident and Liebeck was 20% at fault. Though there was a warning on the coffee cup, the jury decided that the warning was neither large enough nor sufficient. They awarded Liebeck US$200,000 in compensatory damages, which was then reduced by 20% to $160,000. In addition, they awarded her $2.7 million in punitive damages. The jurors apparently arrived at this figure from Morgan's suggestion to penalize McDonald's for one or two days' worth of coffee revenues, which were about $1.35 million per day. The judge reduced punitive damages to $480,000, three times the compensatory amount, for a total of $640,000. The decision was appealed by both McDonald's and Liebeck in December 1994, but the parties settled out of court for an undisclosed amount less than $600,000.”  http://en.wikipedia.org/wiki/Liebeck_v._McDonald%27s_Restaurants

So, the lady didn’t get “millions” of dollars, just because she got burnt with hot coffee.  She got less than $600,000 even though she rehabilitated for two years, after she suffered 3^rd degree burns over 6% of her body, because of coffee that was kept too hot by a company that could care less. Nonetheless, the McDonald’s case was a significant triumph for “tort reform” in swaying public opinion.    

In the employment context, tort reformers cite the “explosion” of wrongful termination claims in the last 50 years as proof that the civil justice system is broken.  However, such reformers fail to mention that the Civil Rights Act of 1964 was the really the first national law that gave employees the right to sue for wrongful termination if they were discriminated against on the basis of their gender, or race, or religion.  Nonetheless, Corporate America has succeeded in turning public sentiment against those seeking justice in the civil justice system making it more difficult for them to seek justice.      

I estimate that in California, the average Plaintiff, in an employment lawsuit, will need to spend at least, $2,225-15,725.00 on costs, just to reach trial.  This is based on:

·         $435.00 filing fee;

·         $100.00 for process service of the summons and complaint on a defendant;

·         $40.00 for a needless discovery motion because defense firms bill by the hour;

·         $150.00 for an advanced jury deposit; and

·         $1,500.00-$15,000.00 for depositions.

The costs of a trial are significantly more expensive with:

·         Expert witnesses: $1,500.00-$7,500.00;

·         Exhibits and multimedia productions: $250.00-$1,000.00;

·         Court reporters: as high as $300,000 for a two-week trial. 

Obviously, the average person, who has been fired from his or her job, cannot afford these costs on their own.  So, the average person turns to an attorney who can help them front the costs and take on the case on a contingency.  However, often attorneys are unwilling, or unable to take on representation, leaving the average employment litigant without representation and without the financial resources to make it to trial.  So much for the concept that, “[t]rial by jury is an inviolate right and shall be secured to all.”

John F. McCarthy is the owner of the Law Offices of John F. McCarthy.  He is a San Diego employment lawyer. He handles wrongful termination, harassment, discrimination, retaliation, and wage issues for employees, throughout California.  He can be reached at www.californiaemploymentlawfirm.com or at (800) 690-1701.

New California Labor Laws 2013

New California Labor Laws 2013

These new employment laws will be in effect in 2013:

Religion and Reasonable Accommodation

FEHA’s religious discrimination protections and reasonable accommodation requirements cover religious dress practices, and religious grooming practices.  It also specifies that segregating an individual from other employees or the public, is not a reasonable accommodation of religious beliefs or observances. 

Sex Discrimination and Breastfeeding

Prohibition of sex discrimination now includes protection of breast feeding, and related medical conditions. 

Social Media and Personal Passwords

Employers are prohibited from requiring or requesting employees or job applicants to provided user names or passwords for personal social media accounts, and from requesting an employee or applicant to divulge personal social media because of employee privacy. 

Inspection of Personnel Records

The new law says who can inspect or request personnel files, provides deadlines for providing access to the files, specifies where and how records must be made available, provides an employer’s obligation to retain files, and provides penalties for failure to comply. 

Pregnancy Disability

The new law changes pregnancy discrimination.  It defines “four months”, expands the definition of when a woman is “disabled by pregnancy”, clarifies an employer’s responsibilities regarding the reasonable accommodation or transfer of employees affected by pregnancy, childbirth or related medical conditions, and expands the protections to include that it is unlawful to discriminate against or harass an applicant or employee based on “perceived pregnancy.”

Disability Discrimination and Accommodation

The new law changes disability discrimination.  It expands the definitions of “mental” and “physical” disability and a detailed description of the interactive process and the obligations of both the employer and the employee during that process.  The amended regulations include specific examples of what constitutes a reasonable accommodation, including a discussion of when a leave of absence might be an appropriate accommodation. 

Itemized Wage Statements

This new law amends Labor Code section 226 and requires specific information from temporary service employers. 

Penalties for Wage Statement Violations

SB 1255 amends Labor Code section 226 to provide that an employee suffers an “injury” if the employer fails to provide accurate and complete information and the employee cannot promptly and easily determine from the wage statement alone all of the information required by the statute: the amount of the gross or net wages paid to the employee during the pay period, deductions made from the gross wages to determine the net wages paid to the employee during the pay period, the name and address of the employer or legal entity that secured the services of the employer, and the name of the employee and only the last 4 digits of the social security number or employee identification number.

Commission Agreements

The new law exempts certain types of wage payments from the written commission agreement requirement. 

Fixed Salaries and Overtime

The new law amends Labor Code section 515 to state that payment of a fixed salary to a nonexempt employee will be deemed to be payment only for the employee’s regular nonovertime hours.

Human Trafficking Posting

The new law requires specified businesses to post n 8.5” x 11” notice, that contains information about organizations that provide services to eliminate slavery and human trafficking. 

Wage Garnishment

The new law increases the amount of wages that are exempt from garnishment.  

Workers’ Compensation Reform

The new law reforms workers’ compensation to offset necessary increases in permanent disability benefits and potentially lowers system costs for employers. 

Accessibility Reform

The new law limits frivolous litigation regarding technical violations concerning disability access by reducing statutory damages. 

FEHC Eliminated, Duties Transferred to the DFEH

SB 1038 eliminated the California Fair Employment and Housing Commission. 

Intellectual Disabilities

“Intellectual disability” is in and “mental retardation” is out in many statutes.

Unemployment Insurance: Overpayment and Penalties  

The EDD can deny reimbursement to an employer for any overpayments if the EDD determines that the overpayment resulted from an employer’s failure to respond to or provide adequate information to the EDD. 

Prevailing Wage

The new law makes increased employer contributions that result in a lower hourly straight time or overtime wage do not constitute a violation of the applicable prevailing wage determination as long as certain conditions are met. 

Farm Labor Contractors

The new law subjects a person who violates Farm Labor Contractor Licensing laws to citations issued by the Labor Commissioner and civil penalties that increase as the number of citations for violations increase. 

Warehouse Workers

AB 1855 adds warehouse workers to the list of specific contractors subject to sufficient funds requirements. 

So there you have it.  If you have any questions you should contact an employment law attorney today.   

Fiscal Cliff Could Bring Paycheck Panic

Fiscal Cliff Could Bring Paycheck Panic

Payroll companies warn Congress must act soon to avoid the fiscal cliff -- or risk confusing companies about how much to pay their workers.

The longer Congress waits to avoid the fiscal cliff, the more complicated it will be for businesses to figure out how much to pay workers early next year.

The confusion poses the biggest threat to the nation's 27 million small businesses, because the vast majority do their own payroll. That means they'll have to understand what Congress decides and calculate the changes fast.

And the nation's leading payroll group warned on Wednesday that time is running out.

The American Payroll Association said Congress must decide on tax rates by Dec. 14 or else "businesses may not have enough time to implement any new changes when the first paychecks go out for 2013." Others in the industry say Congress could wait until Christmas week, but doing so would still cause headaches.

Related: The perils of going over the cliff temporarily

Michael O'Toole, an attorney for the association, described two worst-case scenarios.

The first happens if Congress comes to an agreement after Jan. 1 but applies new tax rules retroactively.

The other is a last-minute agreement that keeps rates as they are for a few more months, with the idea of making new rules later in 2013. That could confuse payroll software programs, because some only calculate a year at a time.

There are several tax rates in play.

The easiest to handle is the current payroll tax holiday. Workers typically pay a 6.2% payroll tax, meant to fund Social Security. For the past two years, they've been paying 4.2%, and that rate is set to rise back to 6.2% on the first $113,700 in wages.

But payroll won't be simple to adjust if the Bush Tax Cuts expire and businesses also have to account for rising income tax rates.

Related: Obama's tax plan catches small employers too

"Confusion costs employers money. It takes time away from actually running their business," said Rob Basso, president of Advantage Payroll Services.

Like all others, Basso is waiting on Congress before his 10-person team of tax specialists and computer programmers can make the necessary changes to their software, which is used by thousands of small businesses in New York's tri-state area. Basso said a payroll tax change might take him half a day. A more complicated change might take half a week.

SurePayroll, an online payroll provider for 40,000 small companies nationwide, is similarly waiting before it makes software changes. CEO Michael Alter said a simple change might take a day, whereas complicated changes might take two weeks.

In the meantime, Alter had this advice for small employers: "Sign up with a payroll service to get you through this, or err on the side of conservatism and assume the payroll tax holiday and Bush tax cuts will go away."

California wage laws dictate that employers must provide employees an itemized written statement showing the following:

• Gross wages earned
• Total hours worked by each employee whose compensation is based on an hourly wage
• The number of piece-rate units earned and any applicable piece rate
• All deductions
• Net wages earned
• Inclusive dates of the period for which the employee is paid
• The name of the employee and the last four digits of his or her Social Security number (or an employee identification number)
• The employer’s name and address; and
• All applicable hourly rates in effect during the pay period and the corresponding number of hours worked.

If you have other questions about the California Labor Code, contact a San Diego Employment Lawyer today. 

California Labor Laws: The Elf Edition

California Labor Laws:  The Elf Edition

Christmas is coming and that means the elves are working overtime to make toys for all the good girls and boys, all to Santa’s credit.  Hopefully they are keeping accurate records about all the overtime they are putting in.  This time of year, the elves probably aren’t getting too many meal and rest breaks.  Santa kind of works his elves round the clock.  Rumor has it, that Santa is trying to avoid paying overtime, by putting his elves on salary.    Of course this could land the big guy in hot water since misclassification of employees is a big “no-no”.

Of course the elves have to watch out for health and safety issues.  Imagine a factory that manufactures everything from wooden trains to iPhones.  It cannot be the safest place.  I wonder if the elves know there are whistleblower laws that protect them.   

And that’s got nothing to say about Santa’s hiring practices.  Have you ever seen a female elf?  Gender discrimination seems to run rampant in Santa’s workshop.

Also, you don’t see too many elves that aren’t white.  It looks like there is some serious race discrimination in that place.  Not to mention you never see any old elves.  So apparently Santa is big on age discrimination.  And religious discrimination?  Forget it.  How else can you explain a Boss requiring all of his employees to work to and through a major religious holiday?  Hopefully the elves take good notes to build a workplace discrimination case. 

Hopefully the elves know an experienced employment lawyer that they can contact.

Happy Holidays from the Law Offices of John F. McCarthy!                          

Overtime Black Friday

Overtime Black Friday

If you work retail then you might see something like this on Black Friday, or even Thanksgiving night.  If your boss is making you work more than 8 hours per day (or per shift) you should contact an employment lawyer too see if you are entitled to overtime.  You should take it upon yourself to learn more about overtime laws.  If you think you have an overtime case you should keep detailed records. Remember that salaried employees can get overtime.  There are lots of other California wage laws that you should know about. You should act now if you have any questions like, "how long do I have to file a lawsuit?"  Since there are probably "statutes of limitations" that could affect your legal rights. 

Have a Happy Thanksgiving from the Law Offices of John F. McCarthy!

Can My Boss Track My iPhone?

Can My Boss Track My iPhone?

So you just got a raise.  The Company wants you out on the road.  They’re giving you a raise, a laptop that you can take with you and your very own iPhone (or Galaxy, or Blackberry, or insert preferred smartphone here).  Sounds great right?  Think about all the stuff you’ll be able to do from the comfort of your home or hotel room, or barstool with that laptop and/or smartphone.  But, before you get too excited, think about who might be listening. 

Most of us expect our private lives to be private.  But, if you have a Company issued laptop or smartphone, your private lives probably aren’t all that private.  Consider this, in California, and in most other states, your employer has a right to monitor your email and desk phone at work.  The Company can, and probably does, monitor your calls and computer usage.  In California, and in other states, your employer has a right to monitor your Company phone or company laptop too.  The Company just has to notify you that you have no expectation of privacy when you use company issued things.  So what does that mean?  It means, among other things, a Company can monitor:

·         Emails on your laptop or smartphone;

·         Websites you visit on your laptop or smartphone;

·         Where your laptop or smartphone is, or where it has been; and even

·         Individual keystrokes on your laptop or cell phone. 

Consider this, your employer can justify all this because:

·         They are paying for you to have the laptop, the desktop and the smartphone;

·         They want to make sure that you are only using it to their benefit (i.e. if you say you are visiting a customer, and your phone is at a strip club…it’s not good); and

·         They want to make sure they can recover lost property like laptops and cell phones.

If this all seems too “Big Brother”, it is.  You should look in the employee handbook for information regarding any monitoring software.  If you can’t find it, then don’t be afraid to ask.  If you’re concerned about monitoring, then you should use your Company phone for business purposes only.  Buy another phone for personal use, or keep the one you had. 

Top Paying Jobs

Top Paying Jobs

Interesting look on the top paying jobs.  Most of these top paying jobs won't get overtime, or lunch or breaks, but most employees in these professions could end up as a whistleblower, suffering from a wrongful termination.  If you feel like you've suffered a wrongful termination be sure to contact an experienced employment lawyer.    

Can I Get Fired For Calling in Sick?

Can I Get Fired For Calling In Sick?

In California, in most instances there is nothing to prohibit an employer from firing an employee who doesn’t show up to work because California has "at-will" employment. There may be some exceptions, though, like time off as an accommodation for a physical or mental disability or accommodation for your religion.

There’s also something called the California Family Rights Act (CFRA) leave which pertains to employers of 50 or more employees. It allows employees who have worked for a company for at least one year, have worked for more than 1,250 hours in the year prior to taking a leave, and work in a location where there are 50 or more employees, to take up to twelve weeks in a one-year period for the serious health condition of a parent, child, spouse, or domestic partner. CFRA leave can also be taken for the birth or adoption of a child or the placement of a foster child in the home.

You might want to make sure, however, that the employer is not discriminating against you by treating you differently than other co-workers who have missed work for similar reasons and have not been fired and you believe it’s because of your race, religion, national origin, color, sex, disability, or something like that, because that would be illegal.  If you feel like you're being the victim of harassment or discrimination you should contact a San Diego Employment Lawyer as soon as possible. 

Can My Boss Tell Me Who to Vote For?

Can My Boss Tell Me Who to Vote For?

The guy above thinks so.  According to http://money.cnn.com/2012/10/09/news/economy/siegel-email-employees/index.html?iid=HP_LN David Siegel, the resort CEO, sent an e-mail to all 7,000 employees of privately-held Westgate Resorts, many of them in the battleground state of Florida, warning them their jobs are at risk if the president is re-elected  Out here, in California, employers can express their opinions but employers cannot demote, suspend, or discharge an employee for lawful conduct, during nonworking hours, away from the employer’s premises (this includes voting for a particular candidate).  Moreover, California law prohibits the discharge of employees for engaging in political activities, becoming candidates, or following or not following a particular course or line of political action, as long as it’s directed toward orderly government and not advocacy of violent revolution.   In fact, in California, an employee can take off necessary time, when added to available nonworking time, to vote in a statewide election.  Otherwise, it could be a wrongful termination.  If you feel like you are being the victim of harassment or discrimination or fear you may be the victim of wrongful termination, you should contact a San Diego employment lawyer.   

How to Form a Union

How to Form a Union

Many people get screwed at work.  Many unions stop people from getting screwed at work.  Add the two together and you would think that there would be more unions at work.  But, there are not.  In 2011, only about 11.9% of wage and salary workers were members of a union.  That includes 37% of public-sector workers and only 6.9% of private sector workers.  Still union workers make more money.  In 2011, among full-time wage and salary workers, union members had median usual weekly earnings of $938, while those who were not union members had median weekly earnings of $729.

http://www.bls.gov/news.release/union2.nr0.htm. 

Moreover, it is well-established that unionized workers in the United States are covered by more extensive employee benefits than are comparable nonunion workers.  See, for example, Thomas C. Buchmueller, John DiNardo, and Robert G. Valletta, "Union Effects on Health Insurance Provision and Coverage in the United States," Industrial and Labor Relations Review, July 2002, pp. 610-27; John W. Budd, "Non-Wage Forms of Compensation," Journal of Labor Research, Fall 2004, pp. 597-622; Richard B. Freeman, "The Effect of Unionism on Fringe Benefits," Industrial and Labor Relations Review, July 1981, pp. 489-509; Richard B. Freeman, "Longitudinal Analyses of the Effects of Trade Unionism," Journal of Labor Economics, January 1984, pp. 1-26; and Richard B. Freeman and James L. Medoff, What Do Unions Do? (New York, Basic Books, 1984).  Data from the March 2002 Current Population Survey (CPS), for example, show that unionized workers are 16.4 percentage points more likely than similar nonunion workers to be covered by an employer-provided health insurance plan, and 18.8 percentage points more likely to participate in an employer-sponsored retirement plan.  Budd, "Non-Wage Forms of Compensation." The differences shown here are generated from profit models controlling for gender, marital status, ethnic background, education, potential labor market experience, part-time status, hourly paid status, employer size, public sector employee, industry, occupation, and region. Basic statistics can also be accessed from the Census Bureau's Federal Electronic Research and Review Extraction Tool (FERRET) at http://dataferrett.census.gov/. Statistics obtained using FERRET will differ slightly from the figures cited here because the cited figures are from profit models which control for differences in union-nonunion worker characteristics.    

So how do you start a union?  According to http://www.aflcio.org/Learn-About-Unions/How-to-Join-or-Form-a-Union/Four-Steps-to-Get-You-Started

STEP ONE: Know Your Rights

Federal and state laws guarantee the right to form unions. Eligible employees have the right to express their views on unions, to talk with their co-workers about their interest in forming a union, to wear union buttons and to attend union meetings. (Supervisors and a few other types of employees customarily are excluded from coverage.)

Despite these laws, many employers strongly resist their employees' efforts to gain a voice at work through unionization. So, before you start talking union where you work, get in touch with a union that will help you organize.

STEP TWO: Find Out Which Union Is Right for You

To form a union on the job, you need the backup and hands-on help from the union you are seeking to join. If you don't already know which union is most able to help you, find out more about the unions affiliated with the AFL-CIO by visiting their websites. Many of these websites enable you to contact the right person there directly to help you form a union.

In communities across the country, the AFL-CIO has local and state councils where unions come together to work toward common goals. To find out about union activity in your community, visit the website of your state federation of labor or central labor council or check local directory assistance for this phone listing. Staff members at these offices can put you in touch with a local union that is right for you.

STEP THREE: Find Out About Working America

If forming a union with your coworkers isn’t a real possibility for you, you can still be a part of the union movement by joining Working America, the AFL-CIO’s community affiliate for people who don’t have a union at work.

STEP FOUR: Get in Touch with a Union Organizer

Union organizers assist employees in forming unions on the job to give them the same opportunity for a say at work, good wages and decent working conditions. To get in touch with a union organizer, click here.

But, you should be careful.  Unions are just like everything else out there.  There is some good, some bad and some in between.  So you should be careful when selecting a union or forming one.

Can I Get Fired for a DUI?

Can I get Fired for a DUI? 

A lot of people ask me whether they can get fired for a DUI.  In California, it’s entirely possible.  California is an at-will employment state.  That means that there is a presumption that employers can fire employees with, or without cause, at their will.  So, absent an employment contract, or harassment and discrimination, yes an employer can fire you for getting a DUI.  California employees have tremendous privacy rights.  But, employee privacy does not trump at-will employment.  Sure, California employees are allowed to engage in lawful, off-duty conduct.  But, driving under the influence isn’t really lawful.  While Labor Code Sections 1025-1028, requires employers of 25 or more employees to reasonably accommodate any employee who wants to enter an alcohol or drug rehabilitation program, that doesn’t require an employer to overlook a DUI.  While Labor Code Section 432.7 prohibits (with limited exceptions) inquiry into and use of information about arrest or detention that did not result in conviction, to determine any condition of employment, including termination, getting a DUI is a conviction.  If you are facing DUI charges, you should contact an experienced employment lawyer.  But, you should also contact an experienced DUI Lawyer, in the county where you got the DUI.