Wednesday, December 14, 2016

What to do as You're Being Fired

Losing your job can be traumatic. All of a sudden, you don't know how you're going to make your house payments or pay your rent. Will you have to move? What will happen to you and your family if you can't meet your bills?

In an emotional, scary moment, it can be difficult to know how to react. The tendency is to react emotionally, defensively, and in ways that ultimately don't help.

If you are going to fired, and you think that the firing is illegal, there are questions you can ask that may help you later. I know that it's difficult to think clearly and act logically in such a situation. Experience teaches us that the best way to perform when the moment comes is to think about it before it happens. Run through the whole conversation in your head, along with various things that could be said, and how you'd react to them. That way, the words will come when you need them.

I. Get Information

If you are being fired illegally, there are things that an attorney will want to know to help your case. If you can find these things out before a law suit is filed, you run a better chance of getting the real answers, instead of answers that their own attorney helped them prepare.

Here are the things I most want to know when a potential client comes to me. Ask them these things as you're being fired, and see what information you can get.

  A. Who made the decision?

We want a name here. Companies sometimes respond that "It was a company decision." That's not good enough. You need a name. You're being fired; you have nothing to lose by being assertive and politely repeating your question: Who made the decision to fire me?

If the response is, "It was a collective decision," get the names. At the very least, see if they'll tell you if the person you suspect is bigoted or retaliatory was involved in the decision.

  B. When was the decision made?

If you believe that you were fired for engaging in a protected act, such as reporting racial discrimination or illegal kickbacks, then the timing of the decision to fire you is critical to any potential lawsuit. Ask whoever is communicating the decision when it was actually made.

  C. Why am I being fired?

This is, of course, critical information. Don't let them get away with "It's just not a match," or "We're having a reduction of force." Neither of those things explain why *you in particular* are being fired. "What makes it not a match?," and "Why was I specifically laid off?" and "What criteria were used to determine who would be laid off?" are good questions to ask. Don't let them get away with vague answers that don't mean anything.

Even if they deny later what they said to you, your testimony may be good enough to keep the judge from throwing your case out entirely.

As I've indicated, be assertive and don't accept vague, meaningless responses. See if you can get them to say something that isn't subject to any interpretation at all. At some point, if they're just not talking, you can't make them, but it's worth a significant effort.

II.  Don't Give Information

You're being fired. This is not the time to tell them everything that's wrong with the company, and all the negative feelings you've been harboring. Since the decision has already been made, it doesn't help that you are now complaining for the first time about the illegal acts that your employer took in the past. The point of this discussion needs to be for you to get information, not give it.

III.  Don't Sign Anything

You may be pressured into signing documents the very day that you're being fired. Don't do it. There is no need to sign anything the day you're being fired, and I mean anything. In California, you can't be required to sign anything in order to get your wages. If you're worried about a severance agreement, it probably won't go away if you want to take some time to review it or show it to a lawyer. Tell them you need some time to look it over before you sign it. If they tell you it's only good for the day, it's up to you, but consider turning it down; there's probably something in there that they don't want you to read thoroughly, and there's probably a good reason for it.

No one takes a job expecting that they're going to fired from it one day. If you prepare for that eventuality, however, it may help you react in a beneficial way if and when it does occur.

Sunday, June 26, 2016

Advancing Toward Fairness: The Fair Pay Act of 2016

"Fairness is what justice really is."
-- U.S. Supreme Court Justice Potter Stewart

Women earn less money than men. That is a truism of American life. A 2015 study showed that women make 79 cents for every dollar made by men. Substantial gender-based wage gaps exist in every single profession in which statistically significant samples were available. See

California is no different. A recent study by the Census Bureau showed that women make about 84 cents for every dollar made by men in the Golden State. See 

California, however, has decided to blaze the trail in correcting this problem. In January, California's Fair Pay Act went into effect. That statute has tremendous protections for California's workers, and may help make significant inroads into this ongoing issue.

1. Substantial Similarity

Previously, California law prohibited paying women less only for equal work within the same facility. The Fair Pay Act does away with the "equal work" requirement in favor of a "substantially similar work" standard.

"Substantially similar work" is well-defined within the statute. Work is viewed as a "composite of skill, effort and responsibility," as well as "similar working conditions."

The effect of this part of the law is huge. It expands the pool of your colleagues to which your attorney may compare you to prove gender discrimination. In other words, employees with different titles but doing a substantially similar job can no longer be paid differently because of their sex.

2. Remedies

Although the Fair Pay Act provides that it is to be administered by the Division of Labor Standards Enforcement ("DLSE," or the "Labor Commissioner"), that State agency is notoriously overworked. If left to the State, the statute would go largely unenforced.

That's why the Fair Pay Act allows people to sue on their own, providing for what we call a "private right of action." Violations of the Fair Pay Act will cause an employer to pay the difference in wages going back 2 years (3 years in case of a willful violation), an equal amount to that as liquidated damages, interest, and attorney's fees.

3. Non-Waivable Right

You can't give up (or "waive") your right to be paid fairly and without discrimination. The Fair Pay Act provides that being paid the same regardless of your gender is a non-waivable right.

4. Employer's Defenses

The act does provide a defense for employers, but it's a demanding one. An employer won't be liable for wage inequality on the basis of gender if it can show a non-gender-based reason for the difference. These reasons can include a seniority system, a merit-based system, or measurements of production quality or quantity.

Other factors can legitimize a pay difference, such as difference in educational, experience, or training level. There are other strict requirements even for this, though: the reason can't be derived from a sex-based difference, and it must be necessary for the business. Even then, the employee can overcome this defense by demonstrating that the employer could have done something different that would have eliminated the wage difference.

There has been a lot of discussion in legal circles about this new law. Similar wage differentials exist based on race and disability; perhaps the law will be amended to include these protected characteristics as well. Meanwhile, California leads the charge in promoting fairness based on sex in the workplace. The statistics show we have a lot of work to do, but our State can be rightfully proud of this effort.

Monday, April 4, 2016

Your Wages and What to Do if You're Paid Incorrectly

California jealously protects the wages of its workers for the most part. Paying workers correctly and on time is a fundamental public policy of our state.

When an employer doesn't pay all the wages that it owes its employee, severe penalties and interest can attach that are often as much or more than the unpaid wages themselves.

If you haven't been paid correctly, what can you do about it?

I.     What is a Wage?

I said that California protects its workers wages, and that's true. But what qualifies as a wage?

California defines "wages" as "all amounts for labor performed." It doesn't matter whether it's calculated by commission, piece rate, hourly, or some other method. If you're being paid for work that you're performing, it's a wage. Vacation and PTO (when the PTO is usable like vacation) is a wage. Bonuses can be wages, if they're based on performance in some way.

II.     Correcting Wage Problems Economically

If like most people you depend on your wages, and your employer shorts you somehow, it can be a real problem. For folks living paycheck to paycheck, a few hundred dollars can make the difference between paying the rent or not. Even for people making more money, getting shorted on your paycheck can make things tough.

     A. Consider the Labor Commissioner

I used to be able to tell people that the Labor Commissioner was a good option when a few hundred to a few thousand dollars is at stake. The Division of Labor Standards Enforcement (DLSE) is part of the Department of Industrial Relations. The head of the DLSE is called the Labor Commissioner. The Labor Commissioner will take a complaint free of charge, and one of the deputies will try to negotiate a resolution. If the parties can't agree, the deputy will hold a hearing and enter a judgment, which can be entered with the superior court and enforced just like any other judgment that the court issues.

Unfortunately, the Labor Commissioner has such a terrible backlog that it's no longer a viable option if you need your money immediately. I recently experience having to wait 8 months just to get them to schedule a resolution meeting. I can't tell you why it's taking so long. I don't know if it's a lack of resources or something else. What I can tell you is that, when it takes 8 months just to get a resolution meeting scheduled, the Labor Commissioner isn't doing what it's supposed to do, which is provide a quick method for workers to get paid correctly.

The sad truth is that, without the quick process that used to be available through the Labor Commissioner, there's no fast option in California anymore to get your wages.

Worse, if the amount of money that you're underpaid is a few hundred to a few thousand dollars, it often makes no economic sense to hire an attorney. An hourly rate would probably require you to pay the attorney more than you're owed, and a contingency arrangement doesn't make economic sense for the attorney.

If you have more money at stake, upwards of tens of thousands of dollars, then the Labor Commissioner might be the right place to go. Consider hiring an attorney, though. The Deputy Labor Commissioners who will hear your case are not attorneys; they have some training, but their abilities and decisiommaking are inconsistent. If you've been underpaid by that much, it might be worthwhile to seek an attorney on a contingency basis to help you out.

     B. Consider Suing in the Superior Court

There are several advantages to pursuing a wage claim in the Superior Court, instead of with the Labor Commissioner. One of the most important is that the Superior Court can award you attorney's fees if you win. That doesn't mean that, if you have a contingency-based agreement with your lawyer, that the amount you're paid will be marked up by the contingency percentage. It means that, if you go to trial and win, your attorney will tell the judge how many hours he or she worked on your case, his or her hourly rate, and ask the judge to tack that amount on to the judgment. That makes it a lot more likely that your case will settle sooner rather than later because the risk becomes too high for the company if they lose.

The other advantage to suing in the Superior Court is that your case is presided over by a professional judge who has likely heard many cases like yours and has a good idea of how to rule on the legal issues. If it gets that far, a jury will decide your matter, which can be helpful because most of them depend on their paychecks, too, so they're likely to have some sympathy for your position.

     C. Consider Exploring a Class Action

The whole purpose of class actions is to make it economically viable to pursue small wage claims. If lots of people have been paid incorrectly, but only in amounts of, say, a few hundred dollars, then putting them all together in a large class can start to make economic sense and be attractive to an attorney.

With the Labor Commissioner becoming a less viable option, class actions are becoming a more important instrument for people who haven't been paid correctly.

     D.  Consider Small Claims Court

For cases smaller than $10,000, small claims may be the way to go. I'm told on good authority that cases are heard within 70 days of filing, and any appeal takes another 60 days. The advantages are swiftness, and the fact that a judicial officer hears your case. The disadvantages include the fact that, if you lose, you can't appeal, but if the employer loses, it can appeal. Also, you can't have a lawyer in small claims court, but if the company has an employee who's a lawyer (say, an in-house counsel), then you could wind up facing a lawyer yourself. All in all, though, small claims may be the way to go for such cases. In fact, if your wage claim is just a little bit larger than $10,000 (say, within a thousand or two), you can even limit your claim to $10,000 so that it can be heard within the small claims court.

III.     Timing is Everything

Like every other type of legal right, your right to sue for unpaid wages has a time limit, called a "Statute of Limitations." For wages, the statute is 3 years, meaning that, if you sued today, you could sue for wages due you from up to 3 years ago. Sometimes, you can go back 4 years if the employer has engaged in a business practice of failure to pay wages, but assume 3 years to be safe.

That has an important implication for timing your suit. If you decide that you want to take legal action, but you're still working for the employer that underpaid you, you may have as long as 3 years before your statute of limitations runs out (remember it starts to run from when the wages weren't paid, so if you're owed money from 2 years ago, you have only 1 year to sue to get that money back). If your statute of limitations isn't close to running, consider finding another job and then pursuing your wage claim. It's illegal to retaliate against employees who reasonably complain about unpaid wages, but employers do illegal things all the time. That's what keeps me in business. If you can, wait until you're safely in another job before bringing the issue up. If it can't wait, then it can't wait, but talk to an attorney before bringing it up to your employer. There are things you can do to protect your rights if the employer retaliates against you.

People often apologize when they see me for the first time, saying things like, "I'm not a litigious person," or "I don't like to sue." You don't have to apologize for trying to get the money that you're owed. It's yours, you worked for it, and you deserve to be paid the wages they agreed to pay you. Now you have a better idea of some options to go about it.