1. What does "Employment at Will" mean?    
Employment-at-will means that an employee can leave his/her job or be terminated from the same job for any reason, no reason or arbitrary reason except that the employee cannot be terminated for an illegal reason, such as discrimination or retaliation. There is a basic presumption in California that in the absence of a contract or some kind of agreement to be employed for a specified period of time or not be terminated unless there is (just) cause (such as in the case of workers who are union members, permanent civil service employees, and certain groups of licensed professionals), all other employees are considered to be employed "at will."  

2. How much is my wrongful termination case worth?  
There is never a precise answer to this question for several reasons. First, no attorney can or should guarantee an outcome of any claim due to the inherently unpredictable nature of most employment related cases. Some of the factors that affect the outcome of the case and the potential size of the settlement / verdict are: your rate of compensation while working for the employer sued; how many years you worked for the employer-defendant; your age - older people tend to be more sympathetic in front of the jury, although this is not always the case; your personality - the court/jury tends to be more generous to those claimants who are likable and charismatic; the specific facts of your case and the egregiousness of the employer's conduct against you; availability of witnesses to prove your allegations, such as your former co-workers,; the extent of your emotional distress as documented in medical records and can be evidence from your life's circumstances, the amount of time you have been unemployed as a result of wrongful termination, the size of the employer and their philosophy on fighting employee claims vs settling them sooner rather than later; and your lawyer's approach to your case - when the other side sees that your lawyers knows what he is doing, and he is not an novice in the employment law arena, they will take your case more seriously and are likely to be more forthcoming during settlement negotiations.  

3. What does "workplace harassment" or "hostile work environment" really mean? 
I believe that the above concepts are some of the most misunderstood legal terms by the common public. Most people believe that just because their manager or a supervisor is not nice to them, or is being rude, unfair, abrupt or overly critical in evaluating their performance, he is being "hostile." This is not the case however. Under the law, hostile work environment or harassment claim arises when the employment conditions of the victim are so objectively intolerablethat they would actually alter the working conditions to cause a reasonable person in the victim's place to quit. This means that typical, common job related conflicts or stress are clearly not enough to assert a hostile environment claim, and generally, such claims arise when someone is mistreated for discriminatory reason. For example, if a manger repeatedly calls his female subordinate a bitch, this alone will likely not give rise to a hostile work environment claim, as this is merely an insult that has no inherent discriminatory animus (although one could argue somewhat subjectively that the term "bitch" suggest hostility toward women). On the other hand, if the same manager makes degrading ageist comments to an older workers, such as "old fart," "it's time to retire," "we need fresh blood," etc... this would likely give rise to a harassment and discrimination claim, similarly to a situation where a disabled worker is being degraded verbally with negative references to his disability. 

4. How long will it take for my discrimination / wrongful termination case to resolve?  
I have had cases resolve after writing one letter to an employer, which explained why the termination was unlawful, and in which case the employer agreed that their conduct was illegal and they were eager to settle case and avoid litigation. In the vast majority of cases, however, the employers deny liability, as there are so many ways to put a different spin on the facts of what seems to be an illegal termination, and it can take anywhere between 3 months to 1.5 half to work up the case and bring the case to a resolution through or before trial. 

5. I filed a union grievance against my employer. Should / can I still pursue a lawsuit in court?  
It is important to understand that filing a grievance is different from filing a lawsuit in court in several important regards. First, grievances arise out of employer's violation of the Collective Bargaining Agreement between the union and the employer and not out of legal violation. For example, an employee who was terminated because of filing for workers compensation benefits of using disability leave may file a grievance for being termination for just cause, and at the same time file a lawsuit in court for disability discrimination and retaliation for asserting workers compensation rights. Filing a grievance does not have any bearing on the employee's rights in court. Winning or losing a grievance also does not have a whole lot of bearing on the aggrieved employee's civil case. Often, filing both the grievance and the lawsuit in court has a number of strategic advantages: (a) the employer will experience more financial pressure of having to defend both the union and the grievance and is likely to agree to a global settlement more than to just a settlement of either the grievance or a civil lawsuit; (b) if you are ready and willing to return to you workplace, union action is the only way that your employer might be able to be ordered to reinstate you; (c) unions are notoriously slow in pursuing grievances due to being understaffed, having too many claims and due to different political issues. Having a parallel court action at the same time provides you with additional and often faster and more aggressive way of recovering compensation for violation of your rights. 

6. Will the settlement of my wrongful termination case be taxable?   
Yes, generally - settlements of employment related claims are considered taxable income and they are taxed at a regular rate as your wages would be taxed and are subject to the same common deductions as any other income.


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On Friday, June 11, 2010, the Eastern District Court granted the defendants' motion to dismiss my client's case. I had a feeling that it was going to happen but was willing to give it a shot, hoping that perhaps the judge will have a more liberal view of the claims asserted than he actually did. 

My client was a loss prevention agent, working for one of the large security companies at a department store in Sacramento. He was terminated shortly after complaining to the corporate management about his co-workers and his immediate supervisor's time clock fraud and reporting false apprehensions of shoplifters that didn't actually happen. The formal reason for terminating my client was his "failure to meet apprehension goals" which is inherently nonsensical, as a loss prevention agent has no control over how many people actually try to steal merchandise from the store. The court found that preventing internal fraud that only affects the private employer and not public interest at large is not sufficient to give rise to a public policy retaliation and wrongful termination claim. 

I was disappointed at the impunity that the employer will enjoy in this case, even though a number of witnesses informed me that my client's termination was orchestrated and there was a significant concern about him knowing about the misrepresentation.

Below is the court's order which includes the brief factual background of the case and the court's decision and analysis.

 
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California Labor Code section 98.6 prohibits employer from terminating, threatening to terminate, demoting, suspending, or otherwise discriminating against an employee who participates as a claimant or as a witness in proceedings before the state Labor Commissioner or otherwise exercises his or her rights under the Labor Code.

Labor Commission proceedings include claims for unpaid wages, claims for retaliation against employees for complaining about violation of wage and hour laws (such as meal/rest breaks periods, overtime, etc.), claims against en employer for preventing an employee from engaging in political activity or running for office or for requiring an employee to participate in political activity. 

The employee has six months after the act of discrimination occurs to file a complaint with the Division of Labor Standards Enforcement (DLSE) as per Labor Code 98.7(a). Only employee who make actual complaint or claim are protected. Labor Code 98.6(b).  Such an employee is entitled to reinstatement and reimbursement for lost wages and work benefits caused by the unlawful acts of the employer. 

Arkady Itkin
San Francisco Employment and Wrongful Termination Law

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An issue often arises in connection with the off-duty conduct of employees of whether an employee can be disciplined or even discharged  by his employer based on such off-duty conduct. This answer to this question will often depend on the facts surrounding the employee's conduct. Where the conduct is offensive and egregious, however, the courts will often rule in the employer's favor. 

In a recent New York case, for example, a male nurse employed in a hospital visited the hospital while on vacation. The employee, who was intoxicated, got into a violent scuffle with security guards at the hospital and was terminated. The employee brought action for wrongful termination arguing that his off-duty conduct should not have been considered by the jury. The court disagree, however, holding that his off-duty conduct was relevant to the issue of whether he posed a threat to the safety of others. 

Employers should avoid taking adverse action against the lawful off-duty conduct of employees unless:

* The conduct represents a conflict or potential conflict of interest (e.g., working for a competitor or engaging in self-employment in competition with one's employer).

* The conduct impairs an individual's job performance (e.g., drop in an employee's productivity because a second job makes the employee too tired to work at expected performance levels). 

* The conduct puts the employee in a position where his judgment or authority can be compromised (e.g., a manager dating a subordinate and having authority for employment decision affecting that individual.) It is important to note, however, that the adverse employment action against the manager should be based on job-related factors and not his off-duty conduct. Such job-related factors may include a loss in confidence in the manager's ability to manage the subordinate; on-the-job conduct, such as  spending  excessive  time with the subordinate with no business justification; or making decisions that negatively affect other employees and could be in violation of the company's sexual harassment policy (e.g., showing favoritism with respect to a promotion). http://www.sanfranciscoemploymentlawfirm.com

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Many employment contracts and the majority of the union collective bargaining agreements provide that the employee should not be terminated unless for good cause. It is important to understand what the "good cause" standard exactly means, as the meaning of "good cause" in this instance is quite different from the ordinary meaning of the words "good cause."

In the context of express or implied contracts not to discharge without good cause, "good cause" means "fair and honest reasons, regulated by good faith on the part of the employer, that are not trivial, arbitrary, or capricious, unrelated to business needs or goals, or pretextual. A reasoned conclusion supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond.  

Employee misconduct on the job is, of course, good cause for termination. But employers do not need to prove that the alleged misconduct actually took place. "Good cause" exists if the employer reasonably believed the alleged misconduct took place and otherwise acted fairly.

Several California court cases held that the depressed condition of the employer's business and its decision to reduce its staff with the result that an employee's services are no longer needed is "good cause," for discharging employee. Similarly, sale or divestiture of a portion of the employer's business can be "good cause" for terminating the employees involved. 

However, economic reasons for layoff do not automatically insulate an employer from liability for wrongful termination. Where the employee alleges that he was terminated for unlawful reasons, such as discrimination and retaliation, courts will not accept a reduction in force as the conclusory explanation for the employee's termination.

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Constructive discharge occurs when an employer engages in conduct that effectively forces the employee to resign or retire. Although the employee may say “I quit,” the employer relationship is actually terminated by the employer’s acts against the employee’s will. As a result, a constructive discharge is legally considered as a firing by the employer rather than a voluntary resignation or retirement by the employee.

To establish a constructive discharge claim, an employee must prove that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign. In determining whether a reasonable employee would feel compelled to resign, courts consider such factors as demotion, reduction in salary, reduction in job responsibilities, reassignment to degrading work, badgering, harassment or humiliation by the employer intended to encourage the employee to resign, offers of early retirement or continued employment on terms less favorable than the employee’s former status.  The employee must further notify someone in a position of authority of intolerable conditions before he may prevail on a constructive discharge claim. Such notice prevents employers from closing their eyes to wrongdoing and permits employers who are unaware of any wrongdoing to correct a potentially destructive situation.

It is important to remember that this standard is objective, and employee’s subjective feeling of disappointment is not enough to claim constructive discharge. An employee is not permitted to quit and sue simply because he doesn’t like something at his workplace.

So, which working conditions are considered “intolerable” and thus grounds to claim constructive discharge? Intolerable working conditions are those which either are unusually aggravated or amount to a continuous pattern of objectionable conduct. For instance, continuous course of harassment, uncorrected by management, can constitute objectively intolerable working conditions.

Normally, a single or isolated acts are generally insufficient to support a constructive discharge claim. But in some cases, even a single incident may be held to be “aggravated” misconduct by the employer; e.g., a crime of violence against the employee, or an ultimatum that the employee commit a crime.

The following conditions have been found to be “intolerable:”

continued harassment of an employee due to his sexual orientation (repeated gay jokes and other remarks);
a supervisor’s continuous “yelling and screaming,” unfair and harsh criticism and threats to fire an employee, uncorrected by management, may constitute objectively intolerable working conditions;
a supervisor’s extended campaign to get an employee fired, including repeated efforts to invent documentation for her termination, frequent reorganization of her duties and demands that she process unlawful orders, may constitute “intolerable” working conditions when the employee’s medical condition is exacerbated by stress.
The following conditions have been found to NOT be “intolerable:”

severe verbal abuse of employee (harsh, unfair criticism) in front of other employees and threats to terminate or demote are not intolerable working conditions unless a continuous course of such conduct is involved;
a poor performance rating or demotion, even when accompanied by a pay cut does not constitute an intolerable working condition necessary to support a claim for constructive discharge;
failure to promote over a long period of time is normally not enough to show “intolerable” working conditions.
The claim of constructive discharge is not applicable to at-will employment. There is no constructive discharge where there is no contractual right to continued employment. In other words, if you are an at-will employee (and you are presumed to be in the absence of a contract between you and your employer or any other evidence of your employer’s promise to continuously employ you for a certain period of time), you cannot have a claim of constructive discharge.

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If you are like the vast majority of workers in the United States, you are an employee “at will.” This simply means that your employer may terminate your employment for any reason or no reason, as long as it’s not an illegal reason. Again, an employer can be completely arbitrary in choosing who to fire, and he can simply pull one name out of the list, and decide to terminate his/her employment. 

Termination may be unlawful, however, if it can be shown that the reason why any given worker was terminated was unlawful. Termination is unlawful if a member of a protected class was terminated from his job position because of being a member of that protected class. Sex, race, and religious discrimination are the most common discrimination claims in California among workers, students, and other agrieved individuals.  

Discrmination may be proven directly or circumstantially. Direct proof requires a testominy of a witness (any third preson) as to hearing or otherwise witnessing discriminatory conduct. For example, a co-worker might overhere his boss using the “n” word in the presence of, or towards, an African American worker, who later files discrimination complaint.  Circumstantial proof is a little more tricky. It requires investigation of all facts an circumstances of the environment where a person works to determine whether the employment practices in place are such that they inevitably cause disparate treatment of a protected class. Thus, if an employer imposes a requirement that every new secretary should be able to bench press 150 lbs without any rational reason to have such a requirement considering the nature of the job, this is likely to be a significant evidence of employer’s attempt to prevent women  from applying or getting the position of a secretary on site. 

Discrimination claims are generally hard to prove because they usually come down to proving intent. Often, there are no witnesses to discriminatory conduct, or some witnesses are unwilling to testify against their own employer. In other cases, finding out whether an employer didn’t treat his employee well or even terminated him/her because of his/her jobe performance or because of his/her race/sex/sexual orientation/religion is quite a challenge as well. 

However, with careful investigation of facts, interviewing all available witnesses and looking at the history of the company’s work and internal procedures, unlawful employment practices such as discrimination may surface and be proven at or before trial. Arkady Itkin, Esq.

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