Sunday, October 5, 2014

Our Overly-Litigious Society: The Justice System is Out of Control

When people find out what I do for a living, I usually get an earful. Too many lawsuits, they say. The verdicts are too high, they tell me.

The first thing I learned about being a good lawyer is that preparation is key. So I go to parties ready to hear this kind of stuff. Here's what I say to these folks.

1. Who Have You Sued?

I usually start off with a little party game I like to call, "Who Have You Sued?" It goes like this: I ask the person, "Have you ever sued anyone, or been sued?" The next question is, "Do you know anyone who's been sued, or who's sued anyone?"

I feel completely safe asking these questions, because no one's ever answered yes to either question yet.

Try to imagine the meaning of that: in what so many of us think as a society that sues too much, you probably have never sued anyone or been sued, and you probably don't even know anyone who has. Within a full degree of separation -- which is a lot of people, when you think about it -- you have probably had no contact with the court system.

As for our being an "overly litigious society," did you know that, from 2009 - 2010, lawsuits in California actually *decreased* 11.6%? As far as California goes, a survey of 29 states and D.C. showed that, per capita, California was 28th out of 30 in lawsuits filed. You can get some of this information straight from California courts, and the rest here:

In fact, of those lawsuits filed in 17 states surveyed (California was not part of this study), 61% of them were for breach of contract. That's not greedy plaintiffs sticking it to the poor companies. Breach of contract cases frequently involve corporations suing each other. Tort cases, involving personal injury and wrongful death -- the sorts of things you hear about people suing for -- were about 6% of the courts' dockets in 2009.

So the number of lawsuits is trending down, not up, and per capita, California is toward the bottom of lawsuits being filed.

Your own experience tells you that lawsuits are not out of control, because you've never sued anyone and you don't know anyone who has. The data says that lawsuits are not out of control -- they're actually trending down.

We need to ask ourselves: what kind of power do insurance companies and large corporations have that they can make us believe things that run counter even to our own experience and the facts we know to be true?

2. Litigants Get Big Money

But how about all those out-of-control verdicts? How about the lady who spilled coffee in her lap and got 150 million dollars?

Litigants who win big verdicts are sort of like people who win the lottery. You've heard it happens, but you've never met anyone it's happened to.

There's a lot of reasons for that.

Part of it is that what really happens would never make the news. It's too boring. Did you know that the average verdict in California personal injury cases, according to one study, is about $150,000? But the average verdict reported by the news is about $3.5 million. That gives everyone listening a false impression about what's really happening out there.

The other thing the news doesn't tell you is that there are a lot of protections for corporations and insurance companies built into the system. So everyone's heard of the McDonald's coffee case, in which the lady spilled coffee on herself and got $2.86 million. We don't have to talk too much about the facts of the case: the plaintiff received 3rd degree burns on her genitals, had to be hospitalized for eight days, needed skin grafts and two years of medical treatment, and internal memos from McDonald's showed that they knew the coffee was physically, dangerously hot, but served it that way anyway.

And while you never heard any of those facts on the news, here's what you also didn't hear: the judge took away the jury's verdict, and replaced it with his own: $640,000. Did you know that judges could do that? That they can just take away a jury's verdict, and replace it with whatever they darn well please? Yes, they can, and it happened here. Then the parties settled, reportedly for something less than $600,000.

Burned genitals, skin grafts, two years of medical treatment, and a company that knew what it was doing and did it anyway. And it took her 2 1/2 years just to get to court.

Sometimes, the facts don't make good stories. But they are still the facts nonetheless. Despite what our own experiences and the facts tell us, the constant drumbeat of "frivolous lawsuits" and "overly litigious society" keeps legislators dancing to the insurance companies' rhythm.

I know that this blog post's title was "Our Overly-Litigious Society: The Justice System is Out of Control," and that's not at all what the evidence shows. Sometimes, you just can't believe the headlines.

Monday, August 11, 2014

Whistleblower Protection Expands in California

Most forms of discrimination are not illegal. It's not illegal for your employer to discriminate against you because they don't like you, because they want to hire their nephew instead of you, or because you wore yellow socks to work one day and they don't like yellow socks. Your employer is legally allowed to discriminate, so long as the discrimination is not based on a protected characteristic, like race, age, sex, disability, or something like that.

By the same token, most forms of retaliation are not illegal either. If you complain to Human Resources that your boss doesn't like you, or that they hired their nephew, you can legally be retaliated against and fired for that. It may be unfair, but it's not against the law.

Some forms of retaliation, however, are definitely against the law. It is illegal to retaliate against someone because that person has "blown the whistle" on something illegal. Note that the whistleblower has to be reporting something *illegal,* not just arbitrary or unfair. So, for example, the person who complains of racial discrimination in the workplace is a whistleblower, and he or she can't be retaliated against because of that.

This year, California enacted a host of new laws providing additional protections for whistleblowers.

1. It used to be true that California's Labor Code only protected your reports of most illegal activity to a government agency. Then one court came along and said that you were protected if your employer thought you were going to report to a government agency, and preemptively fired you. Another court disagreed, and California law became uncertain.

The Legislature settled that uncertainty this year. You are now protected under California Labor Code §1102.5(b) as a whistleblower if you report illegal activity *internally* to someone who has the authority to do something about it.

Even if your employer *believes* you reported something illegal, but you really didn't, it's still prohibited from retaliating against you now.

2. Employers can no longer retaliate against immigrant workers who exercise their legal rights by (a) requiring more or different paperwork to show immigration status than the federal law requires, or by denying paperwork that appears to be genuine on its face, (b) using the E-verify system in a way not required by federal law, (c) filing or threatening to file a false police report, or (d) threatening to contact or contacting immigration authorities.

Whatever your views on undocumented immigration, these workers have a right to complain about illegal working conditions without being threatened on the grounds of their immigration status.

3. Victims of sexual assault and domestic violence have long been protected from retaliation for having to appear in court for related issues. A law passed in 2014 extends that law to victims of stalking, as defined in the Penal Code and Civil Code. The new law also requires employers to provide reasonable accommodations for the safety of such employees while at work.

4. Employers cannot retaliate against employees who provide CPR or other voluntary, emergency medical services in response to a medical emergency.

There are other laws that passed this year as well that relate to whistleblower protections.

Whistleblower cases can be among the most powerful of retaliation cases. We can all sympathize with employees who are trying to do the right thing, only to have their employers retaliate by taking away their livelihoods.

If you believe that you have been the victim of illegal whistleblower retaliation, make sure to take action within your statute of limitations, or your rights may be lost forever.

Tuesday, August 5, 2014

You Have Been WARNed: California Employers and their Duty to Warn of Shutdowns

Employment in California is at-will. That means that, absent some type of agreement to the contrary, you can be fired for any reason or for no reason at all.

But there are lots of limitations on that rule. The federal government has some limitations, but the State of California has many more. California law frequently models itself after federal law, but then adds additional protections. One example is California's WARN Act, or Cal-WARN.

California's Worker Adjustment and Re-training Notification Act applies to employers with more than 75 employees in the last 12 months. Passed in 2002, Cal-WARN was a reaction to mid-sized companies opening and closing in rapid succession, taking a heavy toll on local communities.

In a nutshell, Cal-WARN requires covered employers to give their workers 60 days advanced notice of a mass layoff, relocation, or termination of operations. If they don't do it, they're liable for their failure to provide such notice up to 60 days of wages and benefits.

That's good in theory, but here's the problem: companies that are laying off or closing down probably don't have any money. So who's going to pay those 60 days of wages and benefits?

That's where Cal-WARN is so much better than the federal WARN Act. Although the courts have said that Cal-WARN is modeled after the federal law, the two really have very little to do with one another. In fact, they share virtually no language in common. (As near as I could tell, Cal-WARN may have been modeled after Maine's Severance Pay Act, because that's the earliest law that I could find with language similar to Cal-WARN.)

Cal-WARN has its own definition of "employer," which includes "any person . . . who directly or indirectly owns and operates a covered establishment. A parent corporation is an employer as to any covered establishment directly owned and operated by its corporate subsidiary.:

That's a lot to take in, but it essentially means any entity, whether a person or a company, who directly or indirectly owns and operates the business. A parent corporation is liable for its subsidiary's actions even if it doesn't operate the business.

This opens up a lot of avenues under Cal-WARN that aren't available under the federal act. I've hooked private investment companies (they're my favorites; their egos just won't let them not try to operate the business themselves), parent corporations, and individuals into liability for Cal-WARN. That's because the whole point of Cal-WARN is to protect workers from sudden unemployment,  and to give them a financial bridge to finding something else. So Cal-WARN extends liability to employers above and beyond what the law normally thinks of as an "employer."

Cal-WARN is a bit of a hodgepodge of a statute. It's internally contradictory, and in some places it just doesn't make any sense. But it is a powerful tool available to displaced workers, and it is especially valuable in a bad economy.

Wednesday, June 18, 2014

Don't be a Quitter: Why Quitting in the Face of an Illegal Workplace is (Usually) a Bad Idea

     • An employee who needs an accommodation for a disability is told there's no work for him, and
     he should just quit.

     • An accountant in a company with state contracts finds that the company is illegally overbilling
     the state. Her boss tells her to resign quietly.

     •  A victim of sexual harassment in the workplace is given two options: (a) take two weeks pay
     and resign quietly, or (b) just quit.

Fearful of harming their employment record and not knowing what the right thing to do is, employees frequently quit their jobs when their employers have done something illegal to them. What they don't realize is:

  a. Quitting your job makes it much more difficult to collect unemployment insurance; and

  b. Quitting your job makes it much more difficult to pursue your employer for their illegal acts in

A. Damaging your "permanent record"

Workplace records aren't like your records from high school; they don't follow you wherever you go. There's no "permanent record" floating out in the ether someplace that all corporations can get hold of.

In other words, when you're applying for a job, unless your prospective employer asks for your previous employment history, they can't get it. If they do ask, and you have to say that you were fired, a brief explanation will hopefully get you past it. And it's not clear that you'll be hired quicker by being able to say that you quit without another job ready rather than that you were fired.

B. Collecting Unemployment

Getting unemployment insurance requires that you have been fired for reasons other than misconduct. If you quit, you will have a higher burden to carry in order to get your unemployment insurance. You will have to demonstrate that your quitting was through no fault of your own. Your employer will dispute this, and it will be more difficult to prove than if you were actually fired.

C. Affecting your rights

Employees who are fired illegally by an employer have a lot of rights available to them. Employees who quit have far fewer.

If you quit your job, and you want to pursue your legal rights, in order to get compensation for future damages you will have to show that no reasonable person would have stayed in that workplace. That's a lot harder to show than you would think. Courts have made it very difficult to demonstrate this type of "constructive termination," as they call it. What you and I might think would be intolerable to any reasonable person, the courts have said we all should be able to tolerate anyway.

D. Leverage

If your employer asks you to quit, that's because they want you gone. By accommodating them, you take away some of the leverage you have to negotiate. Imagine how much more quickly and better your conflict with your employer might resolve if you stay in the workplace when they really, really want you gone. 

E. Illegally Harassing Workplaces

One of the few exceptions to my "don't quit" rule of thumb may be the workplace where employees are being illegally harassed. It of course depends on your situation, but if you are being harassed because of your race, sex, religion, disability, or a handful of other protected characteristics, and you find you can't stay in the workplace, the rules I've discussed above may not apply.

The bottom line is that, if you feel that your workplace has become so intolerable that you can't stay there, talk to an attorney before you take any action that may affect your rights.

Friday, May 16, 2014

Why You Shouldn't Sue Your Employer (or anyone else for that matter)

Lots of people hate their jobs. It can be demoralizing, stressful, and unhappy. Sometimes, illegal things happen, like you're paid late or people tell lewd and inappropriate jokes. Let's face it: the workplace can really stink.

I've posted before about how not everything that's wrong in the workplace is illegal, which means that there's not always reason to sue for everything that's wrong or unfair. But even when there is cause to sue, it's rarely a good idea.

It might seem odd that an employment attorney is trying to talk people out of suing. The fact is that a good attorney will try to help you preserve your employment relationship, if possible, because suing is such a poor alternative. A good attorney will encourage you to work things out if you can, because these days, you'd probably much rather have a job than a lawsuit.

Don't worry; I'll still have plenty of work.

1. The Time Commitment

I used to be able to tell people that, from the filing of a lawsuit until they got to a jury, it would take about a year to a year-and-a-half. I can't tell people that anymore. Unfortunately, state budgets have de-funded our court system to disastrous levels, and getting in front of a jury is a sketchy proposition. I've seen the time it takes go up now from about 1 1/2 - 2 years. And there's no sign it's going to get any better.

2. The Monetary Risk

I often represent people who have lost their jobs illegally. That means that they probably don't have a lot of money for a lawsuit. If I like their case enough, I'll advance the costs (which can be tens of thousands of dollars), and get it back at the end of the case. (No, the attorneys aren't the only ones who make money, the way you hear on the news. If I make money, so do my clients, and that's true of reputable lawyers.)

The fact that I'm advancing the costs of the lawsuit, though, doesn't mean that it's risk free for my clients. Did you know that, if you go to trial and lose, you will owe the defendants their costs (except in rare, specific circumstances)? Losing doesn't mean you get nothing. It means you actually owe money, which, like the amount of money I advanced, can be tens of thousands of dollars.

In rare cases, a losing plaintiff can owe attorney's fees, which can even be hundreds of thousands of dollars.

3. The Poor Return

People frequently have illegal things happen in the workplace short of being fired. Maybe they've been sexually harassed with lewd jokes, or they've been repeatedly paid late.

While these things are illegal, they may not justify a lawsuit. The law only compensates you for what you've lost. If you haven't lost any money, then you have nothing by way of what attorneys call "economic damages." And without economic damages, juries frequently don't want to allow money for emotional distress damages.

So in cases where illegal things are happening in the workplace, but you still have a job, it's often a better idea just to try to find something else, rather than suing.

4. Collecting can be Tough

When an employer doesn't pay on time, there's usually a reason, and the reason usually is that they don't have any money. If you win a judgment against a defendant, the court doesn't help you collect it. The money has to come from the defendant, and if there's no money to be had, suing becomes a useless exercise.

5. The Time and Energy Drain

There's nothing pleasant about a lawsuit. It's a stressful time, which demands energy and attention which could likely be directed better toward finding new employment. You spend your time filling out forms, answering detailed questions, and having former employers and doctors subpoenaed for their medical files as the employer looks for anything and everything they can to humiliate and discredit you.

I never encourage anyone to sue. The clients who do wind up in litigation are the ones who don't really have much choice about it. Perhaps their reputations have been ruined, or their situation is such that finding another job will be next to impossible. In these rare situations, it might make sense to exercise their legal rights. But as a matter of course: don't sue. Spend that time, energy and money looking for other ways to make your life better, in ways that litigation can't.

Sunday, May 4, 2014

Truth or Consequences: The Five Best Answers at your Deposition

A deposition is the taking of a witness's testimony under oath. An attorney asks questions, and the witness answers them. Meanwhile, a court reporter is taking down everything everyone says. There may be a video camera recording. The witness's attorney may make objections.

If you are the plaintiff (the person suing the defendant), your deposition is the most important one in the case. Not to put any pressure on, but how the plaintiff comes across as a person can be as important as the facts in the case. No matter how the other attorney acts, treat that person with courtesy and respect, answer the question that was just asked, and wait for the next one.

With all of this going on, depositions can be confusing and intimidating. They don't need to be. In fact, depositions can be straightforward with some preparation and the right approach.

There are Five Best Answers to deposition questions. If you can answer a question with one of them, you are on the road to a successful deposition. They are:

1. Yes.
2. No.
3. I don't know.
4. I don't remember.
5. I don't understand the question.

If you answer questions with one of the Five Best Answers, no one can say that you were evasive. You answered the question (or asked for clarification), and you will appear straightforward and confident. Many witnesses feel that, the more they tell the other lawyer, the faster they will be done with the deposition. The opposite is true. The more you talk, the more you tell the other attorney things they didn't know already, and the more you are giving them to follow up on.

It's the other attorney's job to ask good questions to get the information needed. It's not your job to offer information they didn't ask for. Your job is to be truthful, not helpful. I'm not saying to give the other attorney a hard time or to make getting information from you like pulling teeth. Don't artificially limit what the question means to try to limit your response. Just answer the question in the shortest, most truthful way possible.

It's also a human tendency to want to explain and put things in context. Your deposition isn't the time to do that. You will not convince the defendant's attorney that you are right no matter how much you explain. All you will do is appear evasive and defensive. Your deposition is like the Dodgers being in the outfield: nothing good can happen. Answer the questions, finish up, and get out.

Feel free to say "I don't remember" or "I don't understand," but don't try to narrow the question so as to try not to answer or to give a misleading answer. I never recommend giving the other attorney a hard time; that's the person who will recommend whether and for how much to settle your case. Also, don't say "I don't remember" when you really do, or "I don't understand" when the question is clear to you.

Sometimes, questions aren't susceptible to one of the Five Best Answers. Listen to the question, and make sure to answer what it asks for. The response to a question that asks "who" is a name. The response to a question that asks "when" is a date or time. The response to a question that asks "where" is a place. Remember not to think aloud when answering. Take the time to think about your answer without talking about it, and respond in the shortest truthful way you can.

Of course, these are just guidelines and they don't apply to every question or every situations. For some questions, you will want to let 'er rip and testify about everything that happened. A good example is if you're asked about your emotional distress, or how the events of the lawsuit affected you personally. When that happens, it's time to be fully expressive.

This is how I approach depositions, but every attorney has their own outlook. Make sure to ask your lawyer how to go about giving your best, most truthful testimony in your deposition.

Sunday, March 30, 2014

A Break for California Workers: The Rules of Vacation

California is a great place to work. We have the sun, great weather, and plenty of things to see and do when you're on vacation. Speaking of vacation, California also has laws that protect the vacation time that you accrue at your job.

No law requires employers to give vacation time to their employees. If they do, however, then that vacation is considered to be wages for that employee.

The fact that vacation is a form of wage comes with a lot of implications. For example, once you have vested in your vacation time, it can never be taken away. "Use it or lose it" vacation policies, which take away your vested vacation if you haven't used it by a certain time, are illegal in California. Instead, employers are allowed to cap your accumulated vacation, meaning that, after a certain amount of accumulated time, you don't build up any more vacation until you use some and get below the cap again.

When your employment comes to an end, either voluntarily or involuntarily, you are entitled to the cash value of your unused vacation. That value is determined using your current rate of pay. So even if you worked at a company for 15 years and never took a break, when you leave all of your built up vacation is paid out at your current rate.

Employers can tell their workers when and how much vacation they can use, so as to promote the business effectively. They cannot, however, use their discretion in such a way that it undermines the value of the vacation, such as never approving its use or unreasonably restricting it.

Your employer can require you to take some vacation if it feels that your work quality is suffering and you need a break. It probably can't require you to take vacation for the sole purpose of benefiting the company financially. So if you have a huge bank of vacation and have given your two weeks' notice, your employer probably can't require you to use your vacation for the last two weeks instead of showing up. (This is true for public employers. While the issue has never been decided for private employers, the reasoning is most likely the same.)

Because vacation qualifies as wages, it is subject to all of the laws which protect wages. California jealously guards the wages of its employees, and failure to follow those laws can come with stiff penalties.

Thursday, February 27, 2014

Healthy Rivalries Part 2: Choice of Law Provisions in NonCompete and Anti-Solicitation Agreements

I had good responses to my previous post about noncompetes, some of which asked me to fill in the blank I intentionally left: What happens when there's a "choice of law" provision in the noncompete or anti-solicitation agreement? Will the agreement be enforced?

This gets very complicated, so it's best to start off with an understanding of what a "choice of law" provision is.

Every state has its own set of laws. The laws of one state may be quite different from the laws of another. When two parties sign a contract, it will usually be interpreted under the law of the state where the contract was formed.

When signing a contract, though, the parties can agree that a different state's laws will apply. Usually, the different state will have some connection to one of the parties. So if party A, for example, is a California worker, and party B is a Minnesota employer, the parties could include a "choice of law" provision in the employment contract that it will be interpreted under Minnesota law.

So here's the issue: what happens when the contract is with an employee in California, where covenants not to compete are illegal, but includes a choice of law provision to be interpreted under the laws of Minnesota, where they are legal?

The answer as to whether it will be legal or not depends on who gets a judgment from a court of law first.

California has declared that its policy against noncompetes and anti-solicitation agreements is so strong that it won't enforce one *even when there's a choice of law provision applying another state's laws.* In other words, if the contract with a noncompete stating that is will be interpreted under Minnesota law is brought in a California court, it will still be found to be illegal.

There's a catch, however. Let's say the employer brings a lawsuit in Minnesota, asking the court to prevent the employee from working for a competitor and to enforce its noncompete. Minnesota will honor such a noncompete (if it complies with the "rule of reasonableness" that I discussed in my last post), and issue such an order.

Now, if Minnesota enters its order *before* a California court can enter its order, California *will honor the Minnesota ruling* and require the employee to follow it. This is called the "rule of comity," in which one state will honor the rulings of a sister state, even if the one state would not have come to the same conclusion.

In other words, California has established the need for a race to judgment when it comes to noncompetes and anti-solicitation agreements. California has decided that whoever gets their judgment first wins.

This is bad policy, because it actually encourages people and companies to sue each other. I've even been in the position of telling employees that they might have to consider a preemptive lawsuit when these issues have come up. Nonetheless, this is the current state of the law in California.

Conflicts among state's laws often create challenging legal problems and bizarre results. This is an example, and California's solution creates a lot of practical difficulties.

Tuesday, February 25, 2014

Healthy Rivalries: NonCompetition and Anti-Solicitation Agreements in California

Many of us have seen them: noncompetition and anti-solicitation agreements that are built into our employment contracts. They tell us that, when we leave or are fired and for maybe a year or two afterward, we can't work for a competing business. Maybe they tell us that we can't solicit our employer's clients when we leave.

Because we need the job, we try not to think too much about it when we sign. Years later, when we leave for another company, or maybe when we're fired, or maybe when we leave to start our own business, we wonder if that agreement will come back to haunt us.  Can we work somewhere else? Can we compete for business? Can we even make a living now? Are we going to get sued?

For more than 150 years, California has held that noncompetition agreements are illegal, with only a couple of exceptions. (Those exceptions include the sale of the goodwill or ownership of a business or its operating assets, as well as the dissolution of a partnership.) So far as I know, California is the only state in the union with this virtually absolute prohibition. Other states have what is called the "rule of reasonableness," meaning that, if the noncompetition agreement is reasonable in time (say, a year or two, though some have held that 5 years or more is reasonable; imagine going 1 year, let along 5 years, without being able to ply your trade!) and space (meaning limited in geographical location, say to a city or county), then it will be enforced.

Not so in California. Noncompetition agreements in California are void, unenforceable, and even illegal, regardless of whether they are "reasonable" or not. The "rule of reasonableness" has been completely rejected in California.

In other words, you are always (with the minor exceptions noted above, and possibly the "choice of law" issue discussed below) free to work wherever you want in California.

Sometimes, employers complain that their former employees will inevitably use their trade secrets when they work elsewhere. In other words, the former employee can't help but use the secret information that they learned at their previous employer in their new job.

Again, California has completely rejected the "inevitable use" argument. To keep you from working elsewhere, the employer must show that you actually have improperly used trade secrets. Claiming that you inevitably will can't prevent you from working elsewhere.

Anti-solicitation agreements are also generally illegal. You can even solicit your former employer's customers, regardless of what you signed with your former employer. This is especially important for sales people, who spend their careers building relationships and customer lists. The only restriction is that you cannot use your former employer's trade secrets in doing so. (Some cases have held that you can't use "confidential or proprietary" information either, but those terms have never been defined, and the trend is away from that.)

So what's a "trade secret?"

A trade secret is defined as having two parts: (a) it must be the subject of reasonable efforts to keep it secret, and (b) it must derive value from the fact of being secret. Examples might include computer algorithms or software code, specific pricing information, or even hiring and training practices.

Customer lists are almost never trade secrets, although they are the things that I see employers most often claim to be trade secrets. That's because they're valuable, and so they want to keep you from using them.

It's usually pretty easy to demonstrate that customer lists aren't actually trade secrets. Employers frequently post testimonials or lists of their customers on their websites, for example. If it's not a secret, it sure isn't a trade secret.

Does all of this mean you won't be sued if you go work elsewhere? Unfortunately, it doesn't mean that. Employers who are ill-informed, or even misinformed by their own attorneys unfamiliar with this law, may seek to enforce an illegal noncompetition or anti-solicitation agreement by suing you. If that happens, it's important to contact an attorney immediately. Don't wait -- the first thing they usually do is write a letter, but then they may file for a temporary restraining order (TRO) to prevent you from working in your new place. Don't bury your head in the sand. Get an attorney quickly. A well-written, well-informed letter can often get rid of the lawsuit all by itself. If it doesn't, you'll want a good attorney on your side to ensure you can keep making a living.

Sometimes, there are "choice of law" provisions in these contracts. That means that you agreed to have the law of the sovereign state of EmployerFriendlyScrewTheWorkers apply to you. This gets very complicated, it's beyond the scope of this quick blog post, and you'll need an experienced attorney to figure it out for you.

But how will you pay an attorney to help you out? If you've found a new place to work, your new employer may be required by Ca. Lab. Code §2802 to defend you against such a lawsuit. Furthermore, recent caselaw has held that it would be illegal for your new employer to fire you just because a former employer is trying to enforce an illegal noncompetition agreement or anti-solicitation agreement.

Even though these agreements are generally illegal, I still see them all the time in employment contracts. It's important to know what you can do and what you can't if you've signed one of them.

Thursday, February 6, 2014

Disability Rights -- "Reasonable" is Written Right into the Law

The laws protecting disabled employees in the workplace aren't that complicated, and they're not onerous. In fact, the law uses the word "reasonable" over and over again to describe the protections afforded disabled workers.

California and federal law are very different in this area. Although California's Fair Employment & Housing Act ("FEHA") was modeled after the federal Americans with Disabilities Act ("ADA"), the FEHA has developed much differently through the years. So throughout this post, I'll be talking about the FEHA. Just be aware that the ADA may be substantially different.

First of all, what does it mean to have a disability? The FEHA defines a disability as any physical or mental impairment that limits a major life activity. (This is the first big difference between FEHA and ADA. The ADA requires that the impairment "substantially limit" a major life activity. An amendment to the FEHA removed the word "substantially," and now requires only a limitation.) Major life activities include walking, talking, breathing, digesting, and a host of others.

Much like race, age, sex, religion, and other protected characteristics, an employer can't discriminate against an employee because of a disability. That *doesn't* mean the employer can't fire someone with a disability; it means the employer can't fire someone *because* of a disability. If a disabled worker is doing poor work, he can be fired just like anyone else.

The law gets more involved when it comes to accommodating an employee with a disability. Any employee qualified to do the job must be provided a reasonable accommodation if it can be done without undue hardship to the employer.

That's just one sentence, but there's a lot to it. Starting at the beginning, a "qualified employee" is one who can perform the primary functions of the job with or without a reasonable accommodation. "Primary functions" don't include remote or trivial functions. For example, the primary functions of an outside salesperson might include driving to meet with customers, or entering sales information in a spreadsheet. For an outside salesperson, sweeping the floors or closing the shop at night might not be primary functions. "Primary functions" are determined based on what the employee actually does on a day-to-day basis, not just on what's in the job description.

The law protects employers, as well as employees, by requiring that the employee be able to perform those primary functions. In other words, if a disabled employee can't perform the primary functions of the job, the employer is free to fire that employee.

Before doing so, however, the employer must find out if a reasonable accommodation is available that could help the employee perform the job's primary functions. For example, suppose our outside salesperson had arthritis, which impacted the major life activities of grasping and holding objects. Arthritis probably qualifies as a disability (whether it does or not depends on how it affects the particular individual, but let's assume here the effect is enough to qualify as a disability). Suppose also that this salesperson's arthritis prevented entering sales data into a spreadsheet, which we said before was a primary function of his job. Is there a reasonable accommodation that exists that could help that person do the job?

To find out, the employer must engage in what the law calls a "good faith, interactive process" (GFIP) with the employee. That essentially means they must talk with one another, in good faith, to see if there's some accommodation that will allow the disabled employee to do the job. For example, the employee might suggest that the company buy voice recognition software to help with the data entry. Perhaps a larger keyboard with bigger keys will allow the salesperson to type without pain.

It may be possible that an assistant could help the salesperson with data entry. If the employer is very small, it might conclude that hiring an assistant would be an undue hardship. The law looks at each individual case to determine what is reasonable under those particular circumstances.

The point of the law is to keep people with disabilities working to the extent that they can do the job and remain productive. The law is written to require employers and employees to interact to see what can be done to accomplish that goal. When both sides are reasonable, and engage in good faith, the law works well.

Wednesday, January 22, 2014

For the Record: Don't Record Without Permission

Many times, different areas of the law intersect. Most attorneys know just a little bit about tax law, so they can draft settlement agreements to their client's best advantage. I had a case in which I had to learn about family law and community property rules.

The most concerning employment cases, though, are those in which criminal law comes in to play.

Most of the time, when an former employee has taken a criminal act, he's unaware of it. The most common one that I see is secretly recording the former employer or other witnesses. Did you know that it can be a crime to record private conversations without the knowledge of the person you're recording?

This can be a difficult fact to swallow. Employees are rightly concerned about how they will prove their case, fully anticipating that their employers will just lie on the witness stand. So they hide a recorder on themselves, and put themselves in more hot water.

To make matters worse, the recording probably can't be used in court anyway.

Secret recordings are more subtle than some of the things ex-employees do. I've heard of people breaking and entering into their former employer to get documents, or physically attacking someone at their previous job site.

Taking any of these actions can put you and your attorney in a really tight spot. Your attorney can't allow you to perjure yourself, and so needs to be prepared to assert all of your rights, including your Fifth Amendment right against self-incrimination. You can imagine how well that goes over while your deposition is being taken.

The long and the short of it is: don't engage in these type of self-help measures without talking to your attorney first. Your attorney knows what you've been through, and is watching out for your best interests. Help him by following his advice.