Tue, 27 Jul 2010 23:11:57 -0800WeeblyTue, 27 Jul 2010 15:28:22 -0800http://www.arkadylaw.com/1/post/2010/07/sometimes-unemployment-benefits-are-denied-due-to-the-departments-error.htmlRecently, one of my clients was denied unemployment benefits that were due to her based on the second extension approved by the government. The reason that the claimant was denied benefits was the conflicting information she was receiving about her role in making sure that she continues to receive the benefits. The information pamphlet about the second extension stated that the claimants who were otherwise eligible for benefits did not need to do anything in order to continue receiving the payments. However, the Employment Development Department (EDD) clerk, who handled my client's second extension process, was under the impression that a claimant has to re-apply in order to qualify for the second extension. This mistake caused my client to be left without benefits for a period of approximately 5 months. 

At the appeal hearing, the administrative law judge quickly recognized the department's fault and promptly issued an order (see attached below) reversing the denial of unemployment benefits, and awarding the claimant retroactive payments for the above period if time.

]]>Tue, 29 Jun 2010 11:41:47 -0800http://www.arkadylaw.com/1/post/2010/06/do-not-let-your-attorney-fuel-the-fire-of-your-anger.htmlOne of my recent clients mentioned to me about the mistake she made hiring a family law lawyer for her divorce just because he made an impression on her of being fearless, very aggressive and confident in his success. It took many months and many thousands of dollars for the woman to realize that the lawyer is artfully "milking" her at an hourly rate of $375, by continuing to convince her not to accept a reasonable settlement and go to trial.

Eventually, due to a fall-out, she switched attorneys and was surprised as to how much more mellow the new attorney was. At first it was alarming to her, but as she continued to work with him, she realized how much more competent her new lawyer was. The settlement was reached shortly after to my client's satisfaction. She related to me that the response of her ex husband and the opposing attorney to her new lawyers was completely different and they got along much better right away because her new lawyer did not engage in pointless arguments or personal attacks against the other side like her prior attorney did. 

My client learned a very important lesson from her personal experience being represented by an attorney - having a bad relationship with the opposing side has no benefits to the case. At the end of the day, everyone is interested in some kind of resolution, which means a transfer of money from one set of hands to the other. That transfer is much more likely to happen if there is a good relationship between the parties, no matter how contentious the legal issues are, because any person is more likely to give and compromise with someone they respect rather than someone they can't stand, and as a result want to harm financially any way they can.
]]>Mon, 14 Jun 2010 22:48:29 -0800http://www.arkadylaw.com/1/post/2010/06/lesson-from-defeat-retaliation-and-discharge-in-violation-of-public-policy-claims.htmlOn 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.

 

]]>Sun, 23 May 2010 21:25:16 -0800http://www.arkadylaw.com/1/post/2010/05/another-denial-of-unemployment-benefits-is-reversed-at-the-appeals-hearing.htmlI was happy to find out that yet one more of my clients was awarded unemployment benefits after my rather unpleasant confrontation with the representative for the employer.  The employer, after telling my client that they did not need her services any longer and after hiring her replacing while forcing my client to train her replacement, actually stopped paying her while she was training the new employee. At the appeals hearing, the employer dared to argue that they never terminated the employee. Luckily, the administrative law judge did not buy it and found for the employee, awarding her unemployment benefits retroactive. You can read the full unemployment appeal analysis and holding below:

]]>Fri, 09 Apr 2010 12:47:58 -0800http://www.arkadylaw.com/1/post/2010/04/how-to-find-the-best-lawyer-for-your-case.htmlPeople tend to be very thorough when it comes to buying a pair of shoes  or buying car. They would try many pairs of shoes before deciding on the pair they are going to buy, and they are going to spend hours researching cars, talking to friends and test driving different vehicles before making the choice.

However, when looking for legal representation, many people commit the same two very common mistakes that prevent them from finding the best attorney for their case:

1. The first mistake is choosing and attorney randomly from yellow pages, an online directory or otherwise, knocking on the first door they see. This is one sure way to end up with an attorney who is either incompetent in the specific area of law which your case concerns, or who is too busy to give you and your case the work and the attention it needs. 

Most legal issues are not urgent. Unless you or your close one is in custody and facing a criminal prosecution, or eviction, or an imminent child custody battle hearing is about to take place, or unless the statute of limitations on your case is about to run, there should be no urgency in hiring an attorney the same day you started looking for one. Most legal issues take months or longer to resolve, so whether you sign up with an attorney today or next week, it is not going to make any difference to the outcome of your case. For example, suppose you believe you have been wrongfully terminated in California about 6 months ago. Unless the employer was government agencies, all the possible employments claims you might have (discrimination, retaliation, harassment, etc...) have at least one year statute of limitations. Signing up with an attorney who is not right for your case just because he was the first one to return your call or meet with you may seriously affect the outcome of your case.

Word of mouth is as ancient as it is the most reliable way to find a person to perform services for you. Legal field is not an exception. It is well worth your time to do a thorough research and understand your legal issues. Then, you should try your hardest to find one or more people who had a similar legal issue and who were happy with the attorney who represented them in their case. No matter how unique you think your situation is, you would be surprised to find out that quite a few other people faced the same legal problem. You might think that no one you know may have ever been involved in anything similar to your legal claim, but if you start asking people around, you would be surprised to find out that someone will most likely know someone else who had an issue like yours, and it is well worth getting in touch with them to educate yourself about the possible issues you might have with your case, the mistakes you should avoid making, and whether the attorney who helped them might be right for your case. 

2. Not making a good impression on the attorney once you meet him.  The best attorneys are also the pickiest. Since they have a reputation for being good, they get more potentially business than they can handle. They naturally want to choose the best and the highest value cases or other kind of legal work and they want to work with people who they enjoy representing. It is well established among lawyers than representing a client who seems like he/she will be trouble down the road is more trouble than its worth. The most successful attorneys have no patience for potential or existing clients who are dramatic, have a sense of entitlement, believe in conspiracy theory against them, or who will not listen to the attorney's advice, believing that they know it all because they spoke with a couple of friends or looked up a few cases or legal concepts on the internet. 
Normally, when it comes to a consumer - service provider relationship, the consumer is in the position of greater bargaining power, which has been briefly encapsulated in the "client is always right" motto. However, in legal (and medical) field, the provider is actually in the shoes of the consumer and has the power of choosing who he/she will work with.

What this means to you is that you should sell your case and yourself to the attorney who you would like to represent you. Being courteous and respectful, only telling the truth without exaggerating the facts of your case, having as much documentation to support your claims than you can, listening more than talking, and appearing like a calm and polite person without any sense of entitlement will make the attorney want  to represent you and help you, even if your case is not as big as that lawyer would expect to work on.
]]>Sun, 14 Mar 2010 00:38:54 -0800http://www.arkadylaw.com/1/post/2010/03/unfair-and-hurtful-is-not-the-same-as-illegal.htmlYesterday, I received a call from a potential client who was understandably angry. She was terminated and apparently falsely accused of egregious misconduct that she never committed. It's possible that she had a legitimate workplace defamation claim against her employer. 

The woman sounded infuriated and eager to go to "war" against her employer as soon as possible. As soon as I started explaining to her what evidence she needs in order to have a legitimate defamation claim and what she was currently missing to have a case, she said: "I think you are wrong, I am going to continue looking for a lawyer" and hung up the phone.

That caller was of a known type - she is driven by her emotion, and by her desire to hear what she wants to hear. I did not even have a chance to tell her that I am a lawyer. And, while I sincerely sympathize with her situation and the unfortunate events prior to her apparently wrongful termination, I was there to advise her on her legal rights, not what's fair and not on what's right.  I just hope that she doesn't waste too much time calling other lawyers around town, or paying a large amount of money who will take advantage of her emotional state and lead her to believe that she has a case without investigation the facts of her claim carefully, as it's so critical to a successful prosecution of any wrongful termination claim, and especially when it comes to slander and libel at workplace.
]]>Mon, 01 Mar 2010 01:07:19 -0800http://www.arkadylaw.com/1/post/2010/03/racial-and-national-origin-discrimination-is-not-over.htmlI am inherently skeptical when it comes to the allegations of racial and national original discrimination at workplace and elsewhere. Most employment lawyers are. They have to be, as the majority of racial harassment and discrimination claims fail for lack of sufficient evidence to support these allegations at workplace or anywhere else. My personal skepticism also comes from the fact that I was lucky enough to have never be or at least feel discriminated at workplace and I always felt that my superiors tried to conduct business and treat their employees "by the book." Today's incident however has changed my perhaps "naive" perception of the persistence of racism in our society.

This incident didn't happen at work and it has nothing to do with any of my clients. It happens in the most unlikely place - at one of the San Francisco's public parks in the Marina District, at the tennis court. My father ran through the court where two, older and seemingly well-to-do white ladies were playing tennis. He English is far from fluent, and his accent is thick, making it often hard for others to understand him. I was sitting at a bench near the courts and observing. These women got annoyed with my father going over the court instead of walking around as the tennis etiquette provides, and he was probably in the wrong. However, the reaction of one of the women shocked me. She approached  him and told him very slowly and clearly:
"When you are in our country, follow our rules! If you want to follow your rules, go home to where you came from!" 
I could not believe my ears. I did not think that the City of San Francisco, that prides itself on open-mindedness and tolerance was a home to people who hold such beliefs.

I was tempted to tell that lady that my father has been living in this country almost 20 years, that he is a US citizen, and that this is his home just as much as hers, but all I did was to tell her that as a civil rights attorney, I was disappointed to hear those words come from someone who looks as well put together as her. I guess people are not always what they appear to be.

This also made me realize that if this kind of person was in any kind of management position at workplace, it would only be a matter of time till she created a racially hostile work environment, insulting or humiliating her co-workers and subordinates.
]]>Sat, 23 Jan 2010 16:53:09 -0800http://www.arkadylaw.com/1/post/2010/01/when-you-are-harassed-discriminated-or-retaliated-against-at-workplace.htmlYou have a job that you value and enjoy, and it seems that you get along with everyone at the company except those few "bad apples" - your manager who harasses or retaliates against you and his superiors who are either reluctant to take action because they are biased and side with your manager no matter what, or because they want to "play it safe" by sweeping your reported problems under the rug.   

If you are not ready to quit and you believe that the situation can be remedied, it is very important that you don't become a victim of your anger. You should not allow yourself to lose your cool, to act or talk in a rude or offensive manner to your superiors, whether they are guilty of unlawful misconduct or not and not give them legitimate, legal reason to suspend or terminate you. This is the time to act like a true diplomat  - to voice your concerns in a compelling but courteous manner to all those who have the authority to address your issues without yelling at anyone or threatening your employer with a lawsuit.

As tempted as you might be to give your boss a piece of your mind - anger never serves any employee's best interests before litigation or after the lawsuit is filed, when treating the situation like business rather than personal battle is even more important for successful prosecution of a case in court.
]]>Sat, 09 Jan 2010 01:19:53 -0800http://www.arkadylaw.com/1/post/2010/01/after-you-have-exhausted-your-fmlacfra-leave-rights.htmlMany disabled employees and their employers are under the mistaken belief that once their FMLA leave is exhausted, they have no right to any other leave and have to come back to work despite their health condition and/or disability. It is not uncommon for California employers to discipline, suspend or even fire employees who are unable to return to work after their FMLA/CFRA leaves expires. This however is often unlawful as it may violate the employer's obligation to engage in interactive process and provide reasonable accommodations to a disabled employee. 

Numerous California cases have held that finite leave may be a reasonable accommodation under the Fair Employment and Housing Act, provided that upon expiration of leave the employee will be able to perform his duties, and finite leave might be all that's necessary to accommodate the employee's medical condition. 

Unfortunately, many employee are not aware of this right and feel both hopeless and helpless after their FMLA leave expires. Extended leave under FEHA is of major help in such situations. 

One common issue that arises under the above circumstances is whether the leave was finite or too indefinite, because the employers have no duty to accommodate an employee or keep his position open while he is on disability of he is expected to be on leave indefinitely.
]]>Sat, 12 Dec 2009 22:31:34 -0800http://www.arkadylaw.com/1/post/2009/12/califonrnia-employment-law-accusation-of-falsifying-and-slanderlibel.htmlIt is common for a company to fire and employee and write in the letter of termination that the subject employee was terminated for falsifying company records. Many of these accusations are not true, unfounded, not based on any real facts or exaggerated, turning a simple innocent mistake by an employee into a charge of forgery. The California law provides a powerful tool of a claim for Defamation (general term for Slander and Libel) that can be brought against employers for such false accusations and result in award of damages. Although a number of hurdles, many of which are procedural technical, exist in bringing and prosecuting a claim for defamation, this article discusses a few of the common obstacles and defenses that the employers use when sued for defamation and the truth about those arguments.  

Employers often claim that the employee cannot have a defamation claim unless the publication of false information was made to a third party (someone other than the employee and the employer).  However, this argument is without merit, as publication occurs when a statement is communicated to any person other than the party defamed (the employee falsely accused). Bindrim v. Mitchell (9179) 92 Cal.App.3d 61, 79. Even internal corporate statements can be considered publications within the meaning of the defamation law. Agarwal v. Johnson (1979) 25 Cal.3d 932, 944. In Agarwal, the court stated that internal company statements regarding the plaintiff's "lack of job knowledge and cooperation" were considered "published" for the purposes of alleging libel. 

Employers and especially their attorneys like to argue that "falsifying" is the same as making a mistake. First, it is important ton ote that the code definition of libel has been held to include almost any language which, upon its face, has a natural tendency to injure a person's reputation, either generally, or with respect to his occupation. Schomberg v. Walker, 132 Cal. 224. At least in one case the court held that the statement that plaintiff falsified invoices were slanderous per se in that it charged plaintiff with forgery. This kind of statement clearly implies that the accused employee did so with intent do defraud. Kelly v. General Telephone Company (1982) 136 Cal.App.3d 278, 285.

The defendant empoyer cannot avoid liability by claiming that the employer gave a more innocent meaning to the term "falsify" or any other accusation damaging the employee's reputation, than the employee sees in it. However, the California Supreme Court observed that the language used is to be considered not only in terms of actual words used by also according to the sense and meaning under all the circumstnaces attending the publication which such language may fairly be presume to have conveyed to those to whom it was published. Grover v. Tribune Publishing Company, Inc. (1959) 52 Cal.2d 536, 546.

Further, the fact that an implied defamatory charage or insinuation leaves room for an innocent interpretation (such as considering falsifying to be equivalent to mistake or negligence), does not establish that the defamatory meaning does not appear from the language itself. The language used may give rise to conflicting inferences as to the meaning intended, but thwne it is addressed to the public at large, it is reasonable to assume that at least some of the readers will take it it its defamatory sense. Id. at 549.
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