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.
One of the most valuable elements in successful prosecution of the case and in a good attorney-client relationship is actually liking the lawyer who represents you and knowing that your lawyer likes you.
Although this might sound like an obvious point, many of the attorney-client relationships are permeated with negativity and lack of mutual respect. The attorney might think of his client as a psycho or a liar, wishing to settle his case as soon as possible without providing quality legal representation, while the client might think of his attorney as an arrogant, pompous person, who only cares about making as much money as possible in as little time and with as little work as possible. This often significantly hurts the case, making both parties in an attorney-client relationship unhappy.
On the other hand, when the lawyer likes and has respect for a particular client, he is motivated and eager to help him and work on his case. This motivation will translate into a better and a more aggressive advocacy for the client. A great client - a client who is completely truthful, not overly verbose and who has reasonable expectations, not tainted by media, is a valuable asset to any attorney.
So, if you consider hiring an injury lawyer, and employment attorney or any other kind of attorney, make sure that you actually like the person who will be representing your legal interests and that you get the same vibe from him before you sign a fee agreement.
I have had a chance to look back at the last 20 cases I have handled, the results I obtain in representing injured persons, workers and small business around San Francisco Bay Are and Sacramento, and I have come to a conclusion that might sound obvious to many - I have achieved the best results and enjoyed working the most with clients who I liked as individuals, and who I genuinely enjoyed meeting.
Legal representation is a rather unique and in many ways intimate relationship. When an attorney meets a potential client, he gets to find out many private facts about his life - his medical history, educational and employment history, his current financial situation, criminal record, etc... If the lawyer is engaged in representation, the attorney and the client will be working closely together over a long period of time. A typical civil claim can take anywhere from 6 months two 2.5 years or longer to resolve, especially if the case is being appealed.
Thus, it is essential that the attorney and the client simply like each other as humans. A client who likes his attorney, will be more reasonable and courteous in his communication with the attorney, and in turn will receive a better representation from a lawyer, who will be more motivated to help a person who, he actually wants to help and see receive great results.
Don't settle for an attorney who you consider arrogant, grumpy or unreliable/not responsive just because he/she charges less per hour or because his office is located closer to your residence. Make sure you feel comfortable working with the person who represents your interests in a legal matter, even if his hourly rate or contingency fee is a little higher, and even if it takes a few minutes longer to drive to see him. It will pay off in the end.
Under federal law, leave taken for an employee's incapacity due to pregnancy, childbirth or related medical condition is governed by FMLA, just like leave for any other "serious health condition" of an employee. However, the CFRA (California Family Rights Act) expressly excludes an employee's incapacity due to pregnancy, childbirth, or related medical condition.
Pregnancy disability leaves under the PDLL run concurrently with leave taken under the FMLA.
Thus, if an employee takes 12 weeks of leave due to her pregnancy, childbirth or related medical condition and the employer gives the proper FMLA notices, the employee will have exhausted her annual entitlement to FMLA leave and will have exhausted 12 weeks of the fourt month PDLL leave entitlement.
Since CFRA doesn't run concurrently with PDLL, CFRA can be taken after PDLL leave. Following a pregnancy disability leave, an employee will still have the right to take a CFRA leave of up to 12 weeks "for reason of the birth of her child, if the child has been born by this date" assuming, of course, that the CFRA leave rights were not exhausted during that year prior to the pregnancy disability leave.
If the maximum amount of both types of leave is taken, the maximum total leave entitlement will be 4 months plus 12 workweeks (4 months of pregnancy disability leave under the PDLL, of which 12 weeks may also be FMLA leave plus 12 workweeks of CFRA leave).
An employee is only entitled to use the maximum amount of pregnancy disability leave if she was actually disabled by pregnancy for four months, and is entitled to CFRA leave only if she meets CFRA eligibiltiy rules and has not previously used the CFRA leave for another purpose.
Whether the conduct of a co-worker or a supervisor is sufficiently pervasive to create be actionable as a hostile work environment must be determined form the totality of the circumstances. The victim must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee. In considering, for instance, whether a certain conduct is severe enough to constitute sexual harassment hostile work environment, the factors that will determine this will be the nature of the unwelcome sexual acts or words (generally, touching is more offensive than words), the frequency of the offensive encounters, the total number of days over which all of the offensive conduct occurred, and the context in which the harassing conduct occurred.
In determining what constitutes "sufficiently pervasive" harassment, acts of harassment cannot be occasional, isolated, sporadic, or trivial; rather, the plaintiff must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.
Surprisingly, one of the common reasons that employees are terminated is violence accusations. While sometimes those accusations have grounds and are well justified, often an employee is being accused of violent behavior by his co-workers or a supervisor who tries to "frame" him and have him fired for one reason or another.
An employer has a duty to investigate thoroughly and promptly any allegations of violence and other kinds of harassment, even if the employer doesn't believe the allegations to have any merit. Therefore, the employer is likely to find itself in a conundrum: if the employer doesn't believe the alleged victim and doesn't discipline the alleged perpetrator of violence, the company risks being sued by the victim for harassment and/or failure to prevent violence. If, on the other hand, the company take victim's side and demote, transfer or terminate an employee because of violence, the employer risks being sued by the disciplined employee for defamation.
If you have been falsely accused of violence and you are in a process of undergoing investigation, it's crucial that you comply with investigation, convey your side of the story in a clear and credible way and above all - show that you are not angry at anyone - you are not angry at the accuser and you do not wish harm upon anyone. In other words, you have to communicate to the investigator and your employer that by nature you are not a violent person and you don't have temper, even when you are provoked and falsely accused of violence, harassment, and similar violations.
Having an image of a calm, rational, respectful and a non-confrontational person will help your employer justify the decision to believe you, take your side and not take any adverse employment action against you more than many other factors.
Under Cal. Gov. Code 12950.1 each employer covered by this section shall provide sexual harassment training and education to each supervisory employee in California once every two years. The training and education required by this section shall include information and
practical guidance regarding the federal and state statutory
provisions concerning the prohibition against and the prevention and
correction of sexual harassment and the remedies available to victims
of sexual harassment in employment. The training and education shall
also include practical examples aimed at instructing supervisors in
the prevention of harassment, discrimination, and retaliation, and
shall be presented by trainers or educators with knowledge and
expertise in the prevention of harassment, discrimination, and retaliation. Thus, an employer must make sure that the trainer that provides harassment training to his staff is qualified and has the requisite credential to advise on California harassment law and prevention of harassment at workplace.
The training mandated by the statute need only be provide to "supervisory employees" and not to all employees. Although this statute doesn't define supervisor, generally FEHA defines supervisors as individuals who have the authority to hire, terminate and make other executive decisions with respect to other employees (subordinates).
Although the penalty for non-compliance appears to be relative minor, the implication of failure to provide harassment training to supervisors can be quite significant and egregious. The plaintiff, suing the company for harassment and failure to prevent harassment, will argue at trial that the company has failed to comply with harassment prevention laws, and the jury will be likely entitled to consider that evidence against the company when determining liability for harassment and failure to prevent.
Thus, it is in the employer's best interest to educate and train its supervisors and other employees not only about sexual harassment and general discrimination laws, but also about the provisions of Title VII, the FEHA (Fair Employment and Housing Act) and other statutes prohibiting harassment, discrimination and retaliation on the basis of race, religion, color, national origin, disability, sexual orientation, age, etc.
It is not uncommon for managers and supervisors of both small and large companies to create a "paper trail" against employees they dislike, want to get rid of and terminate (lawfully and unlawfully) by issuing series of unjustified poor performance reviews. A supervisor may use those reviews later to rebut allegations of unfair or unlawful termination by pointing at those reviews in support of his or her argument that an employee had a history of poor performance and therefore was fired legally.
If you believe that you are a victim of such conduct and you care about retaining your job and possibly being able to protect your rights, should you be suspended or even terminated, it's crucially important that you don't ignore those performance reviews. It is perfectly appropriate and even recommended that you submit rebuttal to those reviews that you believe to be false and unfounded, and request investigation from the superiors to inquire into the possible ill will that your supervisor is exercising against you in issuing those reviews.
Your active protesting of reviews will be a strong evidence later that you complained about possible unlawful, defamatory, discriminatory or retaliatory conduct against you, and your employer didn't take action to prevent and remedy the same, as required under California law.
Under California disability laws, an employer has an affirmative obligation to engage with an employee who has actual or perceived disability (or medical condition) in an interactive process or direct communication to find reasonable accommodations to his or her condition.
After the employer provides an initial accommodation, the employer's duty under the law does not end, but the duty to re-initiate the interactive process is only triggered if the employer learns or the employee advises the employer that the offered accommodation is not working. The interactive process envisions a continuous flow and exchange of information between employee and employer.
Once an employer has provided an accommodation, there must be a continuous reassessment of whether the provided accommodation continues to be effective, but only if the employee notifies employer of that need or if the employer should reasonable know of such need, based on the obvious condition and the difficulties that the employee continues to experience and the employer witnesses.
If you work and reside in the Stockton area, and have questions about your rights as a disabled or potentially disabled worker, feel free to contact experienced California employment lawyer in the Stockton area for a free, no-obligation consultation to discuss your concerns.
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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