California Breach of Employment Contract

November 12, 2018 by

california breach of employment contractContact a California breach of employment contract attorney if you feel the terms of your employment contract are not being honored. Contracts are entered into in the workplace every day. While many employees here in California are considered to be “at will” employees who can be terminated without cause, certain employees do have contracts that specify a particular time frame for work, and that may or may not have options for extensions. If you feel the terms of your contract are not being honored, you may wish to consult with an attorney experienced in such matters to determine how to proceed.

California Breach of Employment Contract Defined

What constitutes a California breach of employment contact? Several elements must exist:

  • You and one or more parties must have entered into a contract;
  • You substantially met the requirements set forth in the contract;
  • If you did not complete all the requirements, you were reasonably excused from them;
  • Your employer did not meet his or her requirements set forth in the contract, or;
  • Your employer acted in a way that was prohibited within the contract;
  • You experienced some harm;
  • The harm was essentially due to the breach of contract.

What is a Material Breach?

A material breach is one that is so significant that it results in substantial damage, or it validates your reason for failing to fulfill your contractual obligations. For instance, let us say you contracted with an employer to redesign a web page and develop advertising materials over the course of one year. You were expecting to be paid monthly, but after three months you had yet to see a paycheck, or worse, you were let go. You are clearly justified in discontinuing your work because the failure to pay you as agreed for the established time period was a material breach.

What is a Non-Material Breach?

On the other hand, a non-material breach of contract generally involves only minor damage that would not entitle the other party to forgo their responsibilities of the contract. For instance, let us say you had agreed to redesign the web page and develop advertising materials by January 1st.  Although you completed most of the job, the finished advertising materials were not available until January 4th. While you did fail to meet the terms of the contract, the damages to your employer are presumably minimal under the circumstances. Ergo, there is no justifiable reason for your wages to be withheld.

California Breach of Employment Contract – Damages

The types of damages recoverable include general damages and consequential damages.

  • General damages are those that come directly out of the breach, such as wages for the job that was done.
  • Consequential damages go beyond what might be expected due to the employment contract breach.  For example, if the breach led to additional unforeseeable costs, they would be consequential damages.

[Read more…]

Filed Under: Blog, Employment Contract Tagged With: ,

Should You Sue Your Employer?

November 1, 2018 by

sue your employerShould you sue your employer? Plenty of people dislike their jobs. Sometimes it is because of the work itself, sometimes it is due to personnel issues, and sometimes it is because of a toxic work environment. When does simple disgruntlement become a legitimate reason to sue your employer? Every situation is different, and only an experienced employment attorney can answer that question for you.

Common Reasons to Sue Your Employer

Suing an employer is a pretty bold move, but all too often it is justified, and is the only way employees can be empowered to regain the dignity, wages, and satisfaction they deserve after mistreatment on the job.  Here are just a few of the most common reasons employees decide to fight back against unscrupulous employers:

  • Firing without giving a reason: Some employers think that just because California is an at-will state, they can terminate anyone without providing an explanation. What they do not realize is that if they fail to explain the motivation behind their decision, the employee may rightfully suspect the termination is based on discrimination, retaliation, or some other unsavory factor. This can land the employer in court pretty quickly.
  • Claiming poor performance when the evidence says otherwise: If an employee has a long track record of satisfactory job performance and things suddenly change due to new management or some other issue, defending the termination will be tricky against a skilled prosecution team.
  • The timing for termination stinks: When an employee files some sort of complaint with HR, Workers’ Compensation, or another work-related entity, and is suddenly on the firing line, it may not be too difficult to connect the dots.
  • Delaying the investigation for a complaint: If the employer drags out an investigation about harassment or some other issue, it can become ammunition in a lawsuit;
  • Ignoring company policies: When policies are on the books, employees can expect their bosses to follow them. If that does not happen, the end result may be a lawsuit.
  • Discrimination: State and federal laws offer protections for employees based on a number of circumstances, including race, age, gender, disability, sexual orientation, pregnancy, and religion. When employers discriminate in the hiring, training, pay, promotion, or termination of individuals based on a protected status, it is simply a lawsuit waiting to happen.
  • Failing to accommodate: In addition to discrimination based on protected status, failing to provide reasonable accommodations is unlawful. Whether in regards to requirements related to attire, schedules, physical surrounding, job requirements, or other simple adjustments, employers must comply with EEOC rules.

[Read more…]

Filed Under: Blog, California Employment Law Tagged With:

Obesity Discrimination?

October 26, 2018 by

obesity discriminationObesity discrimination in the workplace? After 15 years on the job, a California woman began having problems. She says the issues all revolved around a new manager with a nasty temperament and his disdain for her and her oversized body.

Obesity Discrimination – Cornell’s Story

As a college co-ed, Ketryn Cornell got a job as a lifeguard at the Berkeley Tennis Club, a revered tennis facility that has been the host of many a celebrity tennis star over the years.  

Over time, Cornell tried her hand in a number of positions at the club. She struggled with weight gain, and ultimately found she was not able to walk much farther than one mile or to stand in place longer than about an hour. Severe obesity was impacting her life and her health. 15 years after starting as a lifeguard at the luxury club, it would begin to affect her job.

New Manager Does Not Play Nice

When a new general manager was hired, Cornell claims he targeted her for her size, and deliberately humiliated her by ordering a work uniform that was several sizes too small. But that was not the end of it. Her manager pointed out that Cornell ought to consider getting weight-loss surgery, and told her she was not a “good fit” for the club.

Furthermore, when Cornell complained that a fit, young co-worker was making more money than Cornell was, the manager conceded that the petite woman was “a good fit.”

Termination

Ultimately, this story ended like many such cases do – with Cornell’s termination. The manager claimed that Cornell was surreptitiously attempting to record a board meeting one evening at the club. He used the accusation as the basis for firing her.

Obesity Discrimination – The Lawsuit

Cornell was having none of that, and quickly filed a suit claiming discrimination based on her disability (obesity), harassment, retaliation, and wrongful termination. The case was thrown out of court on a summary judgment motion, but the discrimination and harassment rulings were reversed on appeal.  

What Does it all Mean?

To prove obesity discrimination, Cornell will still be required to prove that her obesity constitutes a disability as a result of a physiological cause, and she will now have the opportunity to show that the manager’s explanation for her termination was bogus, and simply a ploy to get rid of her. Additionally, she will be able to put forth her evidence that the manager’s behaviors were predicated by malice, resulting in her wrongful discharge. [Read more…]

Filed Under: Blog, Disability Discrimination

Complaining at Work can Get You Fired

October 17, 2018 by

complaining at workCan I be fired for complaining at work? Let’s say you have a complaint about how things are going at work. If you are under the impression that free speech is a God-given right to which you are entitled anytime, anywhere, you are wrong. Although the Fair Work Act makes it illegal to fire someone just for complaining, your employer can limit certain speech in terms of the time and venue in which you express your complaints.

Complaining at Work – Google Drops the Hammer

James Damore was—emphasis on was—an employee at Google. That is, until he posted a lengthy document about the company’s efforts to improve diversity among employees on a company platform. His views were allegedly steeped in sexism, and were offensive to fellow employees, who refused to buy into the notion that the biological superiority of men was the cause of the gender gap in the technology industry. Whether you agree with Damore or not, the legal issue centers on an employer’s right to control speech on a platform paid for by the company. As it turns out, although public and government entities are not allowed to restrict your free speech, the same is not true for private companies. So, how do you, as an employee, know what the rules are when it comes to expressing yourself?

Does Your Company Policy Cover Complaining at Work?

When Google CEO Sundar Pichai responded to Damore’s post, he specifically referred to the code of conduct at Google. Most companies have an employee handbook that details expectations related to this type of thing, and they generally close by stating that failure to abide by the company’s expectations can lead to disciplinary procedures, and, potentially, termination.  It would behoove employees to be clear about company policies.

Know What You are Talking About

Damore was taking the company to task for policies promoting diversity, but his point became lost in controversial statements that have been scientifically disproven. His complaint became weak and his argument ineffectual.

Complaining at Work – Protect Yourself

If you have legitimate complaints about the job, there are some things you can do to ensure your complaining at work is heard without resulting in unemployment:

  • Formalize the complaint: Whether that means inviting a union representative, scheduling a meeting with management or HR, or simply writing your issues on a workplace form, demonstrate that you are serious about a workplace issue.
  • Assemble prior performance reviews and other documentation that may rebut allegations against your job performance in the event the complaint ruffles some feathers.
  • Offer constructive criticism, and, if possible, tell management what you would like to have happen.
  • Handle yourself professionally. Your supervisor will have a tough time saying you have an attitude problem if you do.
  • Document the interaction. If your complaint is related to discrimination or other legal issues and the company fails to respond appropriately, they could be facing legal trouble.

[Read more…]

Filed Under: Blog, Employee Rights Tagged With:

Workplace Religious Discrimination

October 5, 2018 by

workplace religious disriminationWorkplace religious discrimination does not pay in California. Is America a Great Melting Pot or a Cultural Stew? Regardless of how you view the enormous collection of cultures, ideas, and religions in this country, the legal protections for differences are alive and well. When it comes to religious differences, federal and California law join to protect all Americans, regardless of faith. If your employer fails to recognize your religious rights under the law, a conversation with a local employment attorney could prove useful.

Legal Requirements and Workplace Religious Discrimination

Title VII of the Civil Rights Act of 1964 requires employers to make reasonable accommodations for the religious beliefs of employees. This law, in conjunction with California’s Fair Employment and Housing Act (FEHA) provide significant religious protections for employees.

FEHA’s requirements ask employers to make reasonable accommodations for religious reasons, provided the accommodation does not lead to the segregation of employees based on religious affiliation. Such accommodations would be expected to include:

  • Changes in work schedules in order to accommodate religious holidays or observances;
  • Adjusting dress and grooming standards;
  • Allowing for private prayer time during the workday as prescribed by the religion.

Proving an Accommodation Causes Undue Hardship for the Company

It is not necessary to make adjustments to company policies and procedures if those adjustments would result in undue hardships. Those hardships will be evaluated considering several factors, including:

  • Nature of the accommodation;
  • Costs required;
  • Resources of the company;
  • Size of the facility;
  • Geographic factors.

Workplace Religious Discrimination 2018 Lawsuit

One California business discovered just how serious it is for companies to decline to make the religious accommodations required by law. While making the adjustments would have been a minor adjustment for a single employer, their decision to resist working with that employee wound up costing them more than they bargained for.

Learning a Lesson on Workplace Religious Discrimination

Universal Protection Services is a private security company that provides services for a number of California businesses. When a security guard requested modifications to the compulsory grooming standards set forth by the company based on his Muslim religious convictions, the company refused to make an exception. Just days following his entreaty, the employee was fired, according to the Equal Employment Opportunity Commission (EEOC).

The employee filed a complaint with the EEOC, and the legal wheels started turning. Universal refused to agree to any settlement in the case, and after enduring litigation, was required to make a number of concessions, in addition to having to fork over 90K.

  • They were required to work with an EEOC monitor, whose task it was to appraise and modify company policies with regard to religious accommodations, to ensure company guidelines were in accordance with Title VII laws;
  • They were obliged to provide annual employee and manager trainings regarding EEOC requirements;
  • They were told to post a notice informing employees of religious rights under EEOC rules;
  • They were expected to record instances of religious discrimination complaints and issues and report those situations to the EEOC.

[Read more…]

Filed Under: Blog, Religious Discrimination Tagged With: ,

FMLA Violations and Harassment Lead to Court for Employers

September 28, 2018 by

Individuals and families often have legitimate medical issues that lead to a request for time off of work. The federal Family and Medical Leave Act (FMLA) and the state’s California Family Rights Act (CFRA) lay out the responsibilities of employers (applicable to those with 50 or more employees) when it comes to family, medical, and/or parental leave. While the leave may be unpaid, it is job-protected time off. In the majority of situations, employees must be allowed to return to their previous position or an equivalent position as it relates to pay, benefits, working conditions, status, and fringe benefits. Crucially, employees are entitled to request and take leave without fear of retribution from employers.

FMLA – Employee Rights

Eligible employees are entitled to as much as 12 weeks of leave annually. This leave may be taken to deal with an array of issues, including:

  • Personal illness;
  • Caring for a family member who is ill;
  • Bonding with a newborn baby, a child who has been adopted, or a foster child;
  • A family member’s military service when associated with a qualifying exigency (FMLA provides 26 weeks to care for service members who have been injured).

Pregnancy Disability – FMLA

California’s CFRA laws apply to employers with five or more employees, and provide eligible employees as much as four months of pregnancy disability leave (PEL). This is in addition to FMLA bonding time.

When FMLA and CFRA Laws are Ignored

Failure to adhere to state and federal laws regarding leave is one of the most common reasons employees seek redress through civil lawsuits. In particular, retribution from irked employers gets them into trouble. Consider the case of Maria Salgado:

When Maria Salgado was called “psychotic” and “psycho” by a coworker, it understandably added to her stress at work. This was not helpful, especially since she suffered from anxiety and depression before the harassment began. Notably, the name-calling occurred shortly after Salgado informed her supervisor of her mental health status. Could the supervisor have breached ethical and legal boundaries by sharing this confidential information with Salgado’s co-worker?  If so, it would be the latest in a long list of harassment experienced by Salgado at the hands of her supervisor, including:

  • Objections for taking time off to deal with medical issues related to an injury, diabetes, and mental health problems;
  • Disciplinary action related to Salgado’s providing less than 24-hour notice prior to taking sick days or medical leave;
  • Confrontations and berating for expressing concerns in an open meeting hosted by the union to deal with medical leave issues;
  • Retaliating by insisting that Salgado be fired after three tardies totaling 13 minutes;
  • Failing to address co-worker harassment that occurred in the presence of the supervisor.

[Read more…]

Filed Under: Blog, Workplace Retaliation Tagged With: , ,

Age-Discrimination Does Not Pay Off for Danaher Corp.

September 17, 2018 by

age-discriminationWhen her bosses told Codie Rael that she was a dumb female who was outdated and old culture, she got fed up and quit her job.  Then she filed a lawsuit against the company for age-discrimination. If you find yourself facing age discrimination, speaking to a local labor law attorney could open some doors for you.

Outcome of the Age-Discrimination Case

A jury found that Rael’s employers were malicious and oppressive, and hit them with a $31 million judgment: $3 million in compensatory damages and a whopping $28 million in punitive damages.

State and Federal Anti Age-Discrimination Laws

There are laws on the books protecting you from age discrimination in advertising for jobs, the application processes, hiring, offering promotions and training opportunities, and/or firing.  Compensation and working conditions cannot be assigned based on age, either.

Is it Age-Discrimination?

Proving age discrimination is getting tougher these days. Rael’s case was littered with overt age slurs, making it easier to prove that her age was an issue with her employers. Most employers are smart enough to know that making disparaging remarks about an employee’s age could get them into trouble.  

In past years, older employees who were let go as part of a reduction in staff could infer that age-discrimination was at the root of the termination. Recent court decisions have found that companies that are trying to reduce costs are within their rights to eliminate higher earning individuals—often those who are older. Reducing costs and age discrimination no longer go hand in hand. In order to win a discrimination case, employees must demonstrate that age was a central issue behind the firing.

If You Think You Have an Age-Discrimination Case

In the event you believe you have a case for age-discrimination, it is important to pay attention to timelines:

  • You have 300 days to file an age discrimination case with the U.S. Equal Employment Opportunity Commission (EEOC) if a state agency enforces anti-discrimination laws (California’s Fair Housing and Employment Act (FEHA) protects employees at work places that employ five or more people);
  • If you are filing suit under the Equal Pay Act, you have two years from the time of the incident to make your claim.

[Read more…]

Filed Under: Age Discrimination, Blog Tagged With: ,

Federal Court Supersedes California Immigration Laws

September 6, 2018 by

immigration lawsCalifornia immigration laws. When the Immigrant Worker Protection Act became law in January 2018, many hoped it would keep local immigrants safe from ICE agents and their workplace investigations. The feds have temporarily enjoined a number of the provisions in California’s law, however. So, where do things stand right now? A local labor and employment attorney might be worth consulting.

Assembly Bill 450

California’s bill, alternately referred to as AB 450 and the Immigrant Worker Protection Act, banned employers from cooperating with immigration agents in several ways:

  • Immigration enforcement agents were not be allowed access to areas of the facility that were not open to the public;
  • These agents were not allowed to obtain or view employee records;
  • Agents were unable to re-verify the Employment Eligibility Verification form (Form I-9), without a requirement by federal law.

Immigration Laws – New Federal Push

A new temporary injunction orders the state to stop impeding private business from cooperating with federal investigators looking into illegal immigration. The injunction prevents the state from putting restrictions on when and how employers can cooperate with ICE agents with regard to I-9 issues.

The impetus behind the federal push for relaxing state requirements on employers is based on the perceived “precarious situation” employers have been put in when crushed between state law and federal expectations. The federal intervention is designed to enhance cooperation between federal enforcement officers and business owners.

Additionally, the injunction was meant to address ambiguities within the California immigration laws, which do not provide a definition for who, exactly, is considered an immigration enforcement agent.  That has been problematic for employers who hire foreign nationals through the U.S. Citizenship and Immigration Service (USCIS), since that agency approves applications only in conjunction with the employer’s agreement to cooperate with record-sharing and premises inspections.  Backing out of that promise could lead to a number of problems, including:

  • Reviving particular immigrations cases;
  • Prompting larger investigations;
  • Rescinding the USCIS approval for foreign nationals.

What Parts of California Immigration Laws Still Stand?

According to the federal decision, the notice obligation for California employers remains intact. Employees must be told of I-9 reviews or other inspections related to immigration status within 72 hours of notification from ICE.

Consequences for Employers with Documentation Improprieties

When I-9 forms are not properly completed, employers are subject to fines of up to $2,191 per infraction. Knowingly hiring workers who are not authorized to work in the country can mean a fine of $16,000 per incident. [Read more…]

Filed Under: Blog, California Employment Law Tagged With: , ,

Pregnancy Discrimination Costs AutoZone Big Bucks

August 30, 2018 by

pregnancy discriminationA case of pregnancy discrimination. A San Diego AutoZone manager was told that she could not handle the responsibilities of management after becoming pregnant. Pressured to step down, she stood her ground. After having her child, she was subjected to a reduction in pay and a demotion, and was later set up to be fired. She did not take the alleged pregnancy discrimination actions sitting down. In the lawsuit that ensued against her employer, Juarez was vindicated and AutoZone learned an important lesson.

Pregnancy Discrimination, A Glass Ceiling for Women?

In her suit, she asserted that female employees are limited in their ability to be promoted. In fact, only about 10% of AutoZone stores in the San Diego area had female managers. During the trial, one man who had formerly been a district manager testified that he had been admonished for promoting too many women into management positions. He had been instructed to get rid of the women, as the company was not running a boutique. Another district manager was offered a promotion in exchange for terminating all females in the stores he managed. It would seem that in addition to pregnancy discrimination, all females’ jobs were in a precarious position.

Anti-Pregnancy Discrimination Laws

Gender bias laws have been on the books for decades. The Federal Pregnancy Discrimination Act of 1978 specifies that pregnant women should be accommodated in their jobs, in the same manner as an individual with a disability or who had experienced an injury. Providing light duty and making other reasonable adaptations for pregnant woman is required by law.

Additionally, California law bans workplace discrimination. Contrary to federal law, the state has no cap on awards for punitive damages and emotional suffering. In the Juarez case, the decision was made to bring the case to state court, arguing that Juarez was discriminated against under California’s Fair Employment and Housing Act.California law obligates employers to do the following:

  • Provide reasonable accommodations, such as allowing extra breaks, allowing employees to sit, and so forth;
  • Transfer pregnant employees to a lateral position to avoid strenuous or hazardous conditions;
  • Provide as much as four months of pregnancy disability leave (PDL);
  • Allow employees to return to their same position following PDL;
  • Provide appropriate lactation breaks following the birth of a child.

The Pregnancy Discrimination Judgment

The jury found in favor of Juarez, and the court upheld the verdict, awarding her nearly $875,000 in compensatory damages and $185 million in punitive damages. They found that AutoZone, had, indeed, discriminated, harassed, and retaliated against Juarez due to her pregnancy. [Read more…]

Filed Under: Blog, Employment Discrimination Tagged With: ,

Subcontractors Cheating Employees. Who is Responsible?

August 21, 2018 by

subcontractorsIf you are an employee of a company that subcontracts services for another business, you may be interested to know that if your company fails to adhere to California laws regarding wages, breaks, and so forth, you may be entitled to damages from multiple sources. A case in point involves the Cheesecake Factory, which contracted with Americlean Janitorial Services Corporation for cleaning services. Americlean then hired subcontractors Magic Touch Commercial Cleaning. Magic Touch failed to pay minimum wages, denied workers rest breaks, and ignored overtime rules. When the California Labor Commissioner’s Office got wind of the problem, they wound up assessing the three companies for a combined total for $4.57 million in fines.

California Law Butts up Against Specifics of This Subcontractors Case

According to California law workers are entitled to specific rest and meal breaks, including:

  • A 10-minute break for every four hours on shift;
  • These rest breaks should be as close to the middle of the work period as possible;
  • They must be in addition to toilet breaks;
  • Meal periods must be provided for every five hours worked, and must be a minimum of 30 minutes long;

At three different California Cheesecake Factory franchises, cleaning personnel were required to work daily shifts without appropriate rest and meal breaks. They typically worked roughly 10 hours of overtime weekly, but were paid only a flat rate for eight hours of work each day.

Businesses are responsible for workplace violations committed by their subcontractors according to California law SB 588,  putting Cheesecake Factory, Americlean, and Magic Touch all in a precarious position. Workers received almost $4 million. Liquidated damages were calculated based on the money underpaid in wages plus interest, in addition to a full hour of pay for each day workers were denied their 10-minute rest breaks. Furthermore, the companies shared over $500,000 in civil fines.  

Thanks to SB588, big corporations can no longer hide behind contracts with smaller companies. When violations occur under their umbrella, they share in culpability with their subcontractors. The Labor Commission is streamlining procedures to speed up collections on unpaid wages. Employers are now required to post bond for and judgments related to these liabilities, and get the employees paid. [Read more…]

Filed Under: Blog, Wage and Hour Law Tagged With:
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