Defamatory Job Reference from Former Employer?

February 28, 2017 by

Defamatory Job ReferenceIs your former employer going to decimate any chance you have for future employment with a defamatory job reference? Let’s say that you left your previous job under less than favorable circumstances. Obviously, you need to find a new job, and any potential employer is going to want a list of previous work experience, including the last place you worked.

Verifying Work History With Your Former Employer

Your current application is likely going to undergo scrutiny that includes some investigation into previous job performance. Supervisors are legally allowed to share both positive and negative information about a former employee if it is done correctly under the legal doctrine of “qualified privilege.” That means, among other things, that information must be shared in good faith; it must be based on facts, not suspicions, suppositions, or generalizations.

Defamation

A defamatory job reference occurs during background checks when information shared is not necessary for the inquirer to have, especially regarding reasons for resignations or terminations. There are legal doctrines for individuals who provide a reference, and if a former employer goes outside those guidelines, you may have grounds for a defamatory job reference libel suit. A good labor law attorney can help you to determine the validity of your case. Here are some general guidelines:

Relevance: Information shared must be directly related to questions asked and pertinent to the position being applied for. If you were formerly a classroom teacher with horrible classroom management, and are now applying in for a sales position, you ability to control children is not relevant.

Critical to job performance: Minor issues that did not have a serious impact on job performance need not be shared with a potential employer. If applying for an accounting position, and serious calculation errors were a problem in the previous position, by all means, that is information that should be shared. On the other hand, if you had a disheveled desk but produced flawless accounting reports, the desk issue would be unimportant to relay.

Truthfulness: Accurate statements about observable behavior are appropriate; generalizations or personal musings about those behaviors are not. Your former employer may legitimately share a record or excessive tardiness; drawing a conclusion that you are lazy is another matter.

Information shared must be job-related:  Information about your marriage or other non-work issues is inappropriate.

Proper manner of dissemination: Information should always be provided in a proper setting and manner. Chatting at the water cooler in the office where unauthorized ears are lurking would be problematic. Discretion is the bottom line. If it is lacking, the potential for a legal remedy arises.

Defamatory Job Reference? Next Steps

If your reputation is harmed and you are brought into disrepute, you may have been defamed.  The criteria for defamation includes that those statements made about you were either false, or made with malice; the statements were slanderous (made verbally) or libelous (made in written form) to a third party; and the statements damaged your reputation or character. [Read more…]

Filed Under: Blog, Termination of Employment

Final Paycheck When Leaving a Job

November 16, 2016 by

Final PaycheckWhen can I expect to receive my final paycheck? Dissatisfied with your employment situation, you look for another job, providing your current employer with two weeks’ notice. You expect your final paycheck On the last day of employment along with unused vacation and sick pay. You are told, however, that payment will be deferred until the end of the pay period. So you scratch your head and wait for the check. Ten days later when it comes, the paycheck includes payment for the hours you worked, but nothing more. Where is the compensation for unused vacation and sick days?

What now? This is precisely the type of question that an experienced employment lawyer can assist with.

Was I Entitled to my Final Paycheck on the Last Day I was Employed?

In this situation, the answer is yes. The employee’s final paycheck is due within 72 hours of termination if the employee leaves without notice. The check may be picked up at the office or mailed to a designated address. If notice was given 72 hours or more prior to leaving, as in this case, the final check is due at the time of termination and at the location of the employer’s office.

What About Unused Sick Days and Vacation Days?

Earned, unused vacation pay must be included in the final payment. The same is not true for unused sick leave, however. Unless your contract says otherwise, California law does not ensure payment for these unused days.

Can Penalties Be Assessed if I am Forced to Wait for My Final Paycheck?

California law provides for employees who were discharged or who quit to be reimbursed at their daily wage for up to 30 days if an employer willfully fails to pay the earned wages in the time frame outlined. In this case, the 10 days of waiting may qualify for penalties. Also, the failure to pay out the unused vacation days may result in additional penalties. In Mamika v. Barca (1998) the court determined that the penalty would be calculated based on the monthly wage rather than at the daily rate for 30 days, which resulted in a slightly lower penalty.

Am I Entitled to Severance Pay?

California law does not require employers to provide severance pay, although many companies do have their own contractual obligations. It is important to examine your contract with regard to this matter.

Can I Collect Unemployment While Looking for a New Job?

All employers must pay unemployment insurance, which covers employees except in certain circumstances. In this case, you quit your job. Unless you can demonstrate good cause for quitting, you are likely ineligible for unemployment benefits. [Read more…]

Filed Under: Blog, Termination of Employment Tagged With: , , , , , ,

Fair Labor Standards Act and “Fair Notice”

March 11, 2016 by

Fair Labor Standards ActOnce an employee has made a complaint under the Fair Labor Standards Act (FLSA), she is protected from retaliatory acts such as being fired for making the complaint. What if the employee never filed a formal complaint, and instead she simply alerted management to a potential Fair Labor Standards Act violation? And what if the employee was a manager? If a manager voices concerns that her company is not complying with the Fair Labor Standards Act, would it be clear that she was actually making a complaint under the FLSA, or would it appear that she was just doing her job?

The Fair Labor Standards Act Case

The Ninth Circuit Court of Appeals addressed this scenario in the case of Rosenfield v. GlobalTranz Enterprises, Inc. The plaintiff, Alla Rosenfield, was hired by the defendant, a transportation management services company, to serve as their Manager of Human Resources. She was later promoted to the position of Director of Human Resources and Corporate Training.

Rosenfield made numerous complaints to her superiors that the organization was violating the FLSA. Her boss, who saw himself as the only employee at GlobalTranz in charge of FLSA compliance, agreed to look into her concerns. Rosenfield later concluded that he had not corrected the violations and complained to him again.

Shortly afterward, he fired her. Rosenfield then filed a wrongful termination complaint, which included an allegation that her firing was retaliation in violation of the FLSA. At trial, the defendant filed a motion for summary judgment. The court granted the motion, holding that Rosenfield’s complaints to management did not actually constitute an FLSA complaint. Rosenfield appealed.

Fair Labor Standards Act and “Fair Notice”

The U.S. Supreme Court has held that an employer must be given “fair notice” that an employee is making a complaint. Under this precedent, a complaint must be “sufficiently clear and detailed” that a reasonable employer would recognize it as an assertion of the rights protected by the FLSA.

Several federal courts have adopted a separate standard for complaints from managers when determining if complaints are sufficiently clear and detailed. The rationale behind this distinction is that when an entry-level employee points out a violation of the FLSA, the most obvious explanation is that the employee is asserting his or her rights – whereas a manager who does the same thing may be pointing out the violation as part of his or her job duties.

The Ruling

The Ninth Circuit sided with the plaintiff. Its decision overturned the summary judgment ruling, and remanded the case for further proceedings. The Court determined that because informing management of FLSA violations was not part of Rosenfield’s job portfolio, it should have been reasonably clear to her superiors that when she notified them about FLSA violations, she was not simply doing her job.

In the ruling, the Court rejected the idea that all managers should be held to a different standard than non-managerial employees. Rather, the Court held that complaints should be resolved on a case-by-case basis, in which an employee’s managerial status is one factor. [Read more…]

Filed Under: Termination of Employment Tagged With:

Silicon Valley venture capital firm subject of gender discrimination lawsuit

May 22, 2012 by

 Silicon Valley venture capital firm subject of gender discrimination lawsuit (via The Bay Citizen)

Storied Menlo Park venture capital firm Kleiner Perkins Caufield & Byers has funneled money into some of the world’s most high profile companies: AOL, Amazon, Genentech, WebMD, and Zynga — to name a few. And now it’s the subject of a gender discrimination suit. Ellen Pao, a partner in the firm,…

[Read more…]

Filed Under: Employment Discrimination, Employment Law, Gender Discrimination, News, Sexual Harassment, Termination of Employment

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