Law Office of Arkady Itkin 

Few issues are more upsetting to an employer - especially to the manager who feels very powerful and who has been engaging in unlawful  or unethical practices for a while, than an employee who is trying to change his ways, especially if that employee threatens to or actually reports the conduct to the outside public agency.  Whistleblower retaliation is a claim that arises when the employer takes adverse action against an employee (including termination, transfer to a less desirable position, suspension, and demotion) because that employee complained to the outside entity about what he reasonable believed to be an unlawful practice by his employer. 

One significant power of whistleblower retaliation claims in California is that the aggrieved employee does not how to prove that the conduct he or she reported was actually illegal. All the employee has to show is that he reasonably believed that the conduct was illegal. Thus, for instance, if you are an accounting manager, and after reviewing the statements of the company you believe that an comingling of funds or embezzlement is going on at your company, and you report that conduct to the entity overseeing the integrity of financials, you are protected from retaliation, as your position allows you to reasonable conclude within the scope of your skills, knowledge and job duties, that an unlawful practice is taking place. If your employer retaliates against you by terminating your after reporting that conduct and later proves that the conduct you were worried about is perfectly lawful, the employer will still be liable for unlawful retaliation and wrongful termination.

One of the most common ways to resolve a wrongful termination, discrimination, harassment or any other employment dispute between employers and employees is a private mediation.  Mediation is an informal meeting between the parties and their attorneys, who submit their case to the third-party neutral evaluator - usually an experienced attorney in the subject area of law who also works as a mediator or a former judge. 

When the parties agree (or "stipulate") to mediation in court, which usually occurs after the written discovery is concluded and the depositions are taken, they draft mediation briefs (a statement of their case, liability, evidence and damages) submitting it to each other and to the mediator before the hearing. 

The mediation hearing itself usually consists of a brief face to face meeting between all involved, during which the mediator is listening to the opening statement of both parties, after which the mediator will separate the parties into different rooms and will basically go back from one room to another, trying to explain to the employer why their settlement offer is too low considering the evidence, and will also try to persuade the employee that his expectations are too high in light of the weaknesses of his or her case. As a result, this hearing can last anywhere between 3 hours and all day, and it's not uncommon for some of the best mediators to not let the parties leave the negotiation table till the late hours of the night.

The three main advantages of mediation are as follows: 

First, mediation is a great opportunity to get an objective and invaluable opinion from a mediator who used to be a judge, working on similar case and not rely just on one's own opinion about the case. An experienced mediator will not only evaluate the case, but will also assess the likelihood of the parties to prevail at trial as well as the jury appeal of the case. 

Secondly, mediation is a "risk free" hearing. The parties do not have to settle at the end of the day if they don't want to, but they will at least both know where each stands as far as the figure which they are willing to pay/accept to settle the claims.   

Lastly, a settlement reached at mediation is confidential (unlike court judgments which become a public record). This means that no one, except the parties and the mediator, will have knowledge of the settlement terms and conditions agreed upon at the conclusion of the mediation hearing.

Statistically, most mediations are successful and lead to settlement unless one of the parties or both sides are unreasonable stubborn and are not open-minded about the settlement possibility as they should be. 

The most significant disadvantage of a mediation hearing is its cost, which may may range these days in San Francisco Bay Area between $1,500 and $3,000 per party.  

It is important to have the right mindset when submitting a case to the mediation: mediation is an attempt to negotiate a settlement and it's all about compromise. Successful mediation reaching to settlement means that both parties are somewhat unhappy. The employee gets much less than what he thought he will or he deserves, and the employer pays more than he believes is right. In exchange, however, both parties get certainty and the opportunity to move on without the risk of losing at trial.

Some of the worst business disputes I have had to work on ironically involved people who, until that dispute arose, were very close to each other. Those were either close relatives or best friends who did business with each other, such as engaging in a partnership or another form of business venture, who did not feel comfortable asking each other to sign any agreements, and who were proud to agree on everything orally, believing that they will be able to work out any disagreement about their business in the future. 

The above approach to business often backfires and hurts all parties as oral agreements inherently have serious flaws that are bound to give rise to conflicts, fights, disagreements and lawsuits that could have been avoided if a proper written contract was drafted. Most people who enter into an agreement do not plan to deceive, defraud or steal from each other. The most common reason for business disputes is the fact that people simply did not outline and did not agree or reached a mutual understanding on many of the key aspects of their deal. Even the most simple agreement for consulting services is not as simple as it might look at first. For instance, John hired his best friend Brad to perform software consulting services. They agree on the start date and on compensation orally and believe that there is no need to sign any written agreements. Brad quits his job for the better and a higher-paying consulting position. Subsequently, several unexpected events might take place - John might change his mind a few weeks later and decide to not use Brad's services any longer; or Brad's services might prove to be unsatisfactory, or both simply feel that although they get along very well in social situations, they are not working together very well at all.  In this situation, the parties are left without any agreement on how they should go about terminating their relationship. Investing a few hundred dollars in drafting a proper consulting services agreement would have been well worth the effort and the expense.

At a minimum, a consulting services contract would provide for termination terms, any applicable penalties that each party might bear, and basic dispute resolution terms, among other important terms that clarify any possible misunderstanding that may arise between the parties and eliminate many ambiguity that are typical in business agreements.

Whether you are an employee or an employer, your deposition in a workplace harassment or wrongful termination lawsuit is one of the most important stages of your case. This is the opportunity for you to tell your story, to testify on your own behalf, and disprove your opponents arguments. 

It is critical to remember that just as important as the facts of your case, or even more important, is "how" your act at a deposition. It is critical that you come across as a likable person who is not emotionally destabilized easily, who doesn't get angry when disagreeing with his opponent, and who comes across as a reasonable and rational person. If the opposing and deposing attorney realizes that the jury will like you and thus is likely to be generous to you, it is likely to significantly increase the value of your claim and be very helpful in subsequent settlement negotiations. On the other hand, if you come across as an angry, hostile witness, the attorney deposing you will see that as an opportunity to not only make you say things on the record that you are going to regret later but to also prove to your own attorney that you are not someone who will do well at trial.  

Most trial lawyers know from experience that jurors don't really care about injuries and damages. They are generous toward those people who they like, and they are pretty tight fisted with those who they annoyed with. And, make sure that your read my deposition tips before you testify at your deposition. 

Imagine the following, not uncommon situation. You are happily or at least not unhappily employed at your office for a number of years. You are slowly building a career enjoying a decent salary, benefits and a retirement package. One day, a different employer approaches you with a tempting offer to quit your current job and work for him for a significantly higher salary and a number of other perks that make the offer all the more difficult to resist.

You decide to take a risk, quit your job in anticipation of being hired, and suddenly, for whatever reason, you find out the the new employer's plans to hire you fell through. You try to return to your previous place of employment but they have already found a replacement for your position. You are devastated. Not only did you lose a job through no fault of your own, but you are also not eligible for unemployment compensation benefits because you voluntarily quit. 

The above scenario has a legal remedy as it is considered fraud, fraudulent inducement and detrimental reliance. Proving fraud requires showing misrepresentation inducing reliance and damages. Lazar v. Superior Court (1996). An action for a promissory fraud may lie where the employer fraudulently induces the potential employee to enter into a contract. This would allow the aggrieved employee to recover compensatory damages (wage loss) as well as damages for associated emotional distress, pain and suffering, and possible punitive damages to punish the employer for fraudulent or reckless conduct.