One of the advantages of a retaliation claim, as compared to other claims, including discrimination and harassment claims, is the fact that even if you can't prove the underlying harassment or discrimination claim, you might still be able to prove the retaliation claim. A recent case McCoy v Pacific Mar. Ass'n (2013) is a classic example of that situation. In that case, an employee McCoy, who was working as a marine clerk filed a discrimination lawsuit. After the lawsuit was settled, she claimed that during the job training that took place afterwards, the vessel planners retaliated against her by giving her a less desirable room, which increased her isolation from the rest of the vessel planning staff. She presented additional evidence of retaliation in a form of sexual harassment during training and other unfavorable treatment toward her by the same key managers who she brought her earlier claims against. 

Although the court actually rejected the jury's substantial verdict to McCoy on discrimination claims and determined that there is not evidence to support a discrimination claim, the court also found that there was substantial evidence supporting the conclusion that the employer unlawfully retaliated against McCoy for engaging in a protected activity, and that McCoy suffered damages as a result. This allowed McCoy to recover significant award despite having her discrimination claim tossed out. 

One of the common mistakes that aggrieved employees make prior to being terminated when they feel that they are being retaliated against, is that they lose their temper when they feel that their rights are being violated. This often hurts them makes their potential legal claims for retaliation and wrongful termination much weaker. 


Imagine you request a medical time off under FMLA, your manager mistakenly believes that you are not entitled to it because somehow he/she determined that your medical condition is not serious enough to qualify or even worse - the employer thinks you are faking it. You then give your that manager a peace of your mind, telling them that they are not good and they are incompetent. Perhaps you raise your voice and you also use some inappropriate language. At the same time, you go to his/her superior and complain about denial of your rights. You might even send a nasty e-mail or two on top, to other managers to tell them how unhappy you are about your bosses ignorance. These actions give your employer an independent, and perfectly legal reason to terminate you - being rude, verbally violent and insubordination.  

Instead, you should always act like a "politician" , so to speak. You should never lose your cool or be rude or inappropriate with your boss. Most of the times, employee's right are violated not on person but because the employer simply doesn't know better or because the company has to deal with certain financial or productivity pressures that push them in the wrong directly legally. This is not to justify their actions but to make you realize that there is absolutely no point and no benefit in raising your voice or becoming aggressive toward your employer.  

Further, when you remain civil at all times, and the employer does violate the law by discriminating or retaliating against you, your potential legal case will be much stronger, as the employer will not have the "insubordination" excuse for retaliating or firing you. The more calmly you act in any legal proceeding, including your deposition or your testimony in court, the more likely you are to do better, and in large part because people who are calm are also more believable. 

Last month, Governor Brown signed California's Healthy Workplaces, Healthy Families Act of 2014. This new law takes effect on July 1, 2015 and will require all public and private employers, regardless of size, to provide sick leave to California workers.  Employee who work more than 30 days a year in California, including part-time, temporary, exempt and non-exempt employees are covered by this law. There are  several exceptions to this coverage, including home health care and air carrier employees and employees governed by collective bargaining agreements.     

Under the new law, employees will accrue one hour of sick leave for every 30 hours worked. For full-time employees (2080 hours or work per year), this equates to about 69 hours, or just over eight days a year. If an employer has a paid leave or paid time off (PTO) policy that provides for at least 24 hours (three days) per year that may be used as sick leave, and otherwise complies with the new law, then no additional paid sick days have to be provided. 

Covered employees may use sick leave for preventive care or an existing health condition for the employee himself or a family member (child, parent, spouse or registered domestic partner, grandparent, grandchild, or sibling), or for employees who are victims of domestic violence, sexual assault or stalking. An employee may use accrued paid sick days as early as on the 90th day of employment.   

Unlike vacation, accrued, unused sick leave is not treated as vested wages that must be paid out upon termination along with other final wages. However, if an employee is rehired by the same employer within 12 months of separation, any accrued, unused sick leave must be reinstated. 

In the recent unemployment appeal hearing at the Oakland office of the California Unemployment Insurance Appeals Board, our office handled and prevailed in a relatively challenging situation. The claimant was driver for a uniform supply company. He was terminated for violating the employer's policy which prohibited talking on the cellphone while driving (whether with a headset or without). The claimant answered his employer's call while driving, receiving a citation from the policy and was terminated shortly after. 

Initially, the claimant was denied benefits as he was found to have been terminated for "misconduct" within Unempl. Insurance Code sec. 1256. During the appeal hearing, we made a few arguments that convinced the judge that the above policy violation fell short of "misconduct" as defined by the code.  The important precedent case for these kinds of situations is Delgado v CUIAB (1974).  In that case, the claimant, a grocery checker, was fired for knowing violating the employer's rule when she postponed recording a certain purchase. The claimant believed that her departures from the rule were acceptable to her immediate supervisor and the store manager, who knew of them and participated in them. The claimant was never warned to stop this practice. The Court of Appeal held that the claimant reasonably believed that her actions were approved or condoned by her supervisor, and thus there was no "misconduct". 

The Delgado case can be used effectively to win at the unemployment appeals hearing in those common cases where the violation that lead to termination, even if was known to be against the company policy, was not significant and where the employee, when committing a violation, was arguably acting with an intent to benefit the employer.