I. Can Your California Employer Fire You for Legal Activity Away from the Workplace?
You've probably heard about the events in Charlottesville, Virginia. In sum, the city announced that it intended to take down a statute of Robert E. Lee, the Confederate general. In response, a large group of racists, white supremacists, American Nazi Party members, and KKK members assembled to protest.
I don't want to talk about the counter-protestors or the violence committed by the racist groups. That's not the subject of this post. This blog is about employment law, and what's interesting from an employment law perspective is what happened on Twitter.
A well-known Twitter user posted his request that people scan pictures of the racist protestors. If they recognized anybody, the Twitter user asked them to tell him their names. He would then publicize their names via his Twitter account. Some of these people then lost their jobs as a consequence. https://www.yahoo.com/news/white-supremacists-losing-jobs-disowned-195500830.html
Let's put aside the illegal acts committed by some of the racist protestors. Some of these people were protesting legally, although repugnantly. Could their employers legally fire them for their lawful protest?
II. It's not so Clear
As usual, I'm just going to talk about California law. The law in your state may be different. In California, it's not so clear whether an employer can fire someone for engaging in a legal protest.
When analyzing these issues, we start from the at-will doctrine. As I've discussed in previous posts, you are presumed to be an "at-will" employee, meaning that your employer doesn't need a reason to fire you. The at will doctrine has its limitations, of course. You can't be fired because of your race, age, sex, religion, disability, and a handful of other protected characteristics.
But how about for lawful protest? even really horrible, racist protest?
III. It may Depend on what your Job is
As a first cut, it's worthwhile to figure out if you're actually an at-will employee or not. If you're employed by the government, whether federal, state or local, you may have free speech rights that prohibit your employer for firing you because you exercised that right.
If you're lucky enough to be in a union, your collective bargaining agreement probably (but not necessarily) provides that you can be fired only for good cause. You would have to examine the CBA closely to determine what "good cause" is, but engaging in legal protest probably can't result in your being fired.
Finally, if you have a contract for a period of time, it probably can't be terminated early without good cause. Again, the terms of the contract will control.
IV. At Will is a Powerful Doctrine
Assuming that you don't have any of those protections, and that you are indeed an at will employee, your job may be forfeit if you take actions your employer doesn't like. That's what at will employment means: you can be fired for any reason or no reason at all.
V. There may be some Exceptions
On the other hand, California law has made this issue not quite as clear as it may have been before. California Labor Code §96(k) prohibits "discharge from employment for lawful conduct occurring during nonworking hours away from the employer's premises." In 2004, the Labor Code Private Attorneys General Act went into effect, specifically incorporating §96(k), and possibly giving individuals the right to sue for its violation.
In other words, it may be illegal in California to fire someone because of legal activity conducted away from the workplace during nonworking hours, no matter how obnoxious or racist the activity. You also can't be fired for engaging in union organizing, or because your speech was political in nature.
VI. Conclusion
Although California presumes that you are an at-will employee, there are enough exceptions to that doctrine that you may be protected from an unfair firing. If you were fired for legal activity conducted away from the workplace, consider talking with an attorney familiar with this area of the law.
Thursday, August 17, 2017
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.
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 http://www.iwpr.org/initiatives/pay-equity-and-discrimination
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 http://www.latimes.com/business/la-fi-equal-pay-day-20160412-snap-htmlstory.html
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.
-- 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 http://www.iwpr.org/initiatives/pay-equity-and-discrimination
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 http://www.latimes.com/business/la-fi-equal-pay-day-20160412-snap-htmlstory.html
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.
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.
Wednesday, April 8, 2015
Justice for All: Workplace Law and the Undocumented Worker
I recently gave a talk to a group of soon-to-be college graduates about workplace law. I gave them an outline of at-will employment, anti-discrimination laws, and non-compete issues. I told them about laws relating to wages, and how California jealously protects the wages of its workers.
One student raised her hand and asked me, "I am not a United States citizen. Do the laws still protect me?"
I was proud to answer "yes" to her question.
1. Employees include *all* employees in California
California law explicitly states that all of the provisions of its Labor Code apply to "all individuals regardless of immigration status." See Ca. Lab. Code §1171.5(a).
That an important statement. That means that even employees who do not have the legal right to work in the US cannot be denied their wages after earning them. In other words, an employer can't hire someone, have them work, and then not pay them.
Undocumented workers are subjected to wage theft more than other employees, primarily because of their vulnerable position. One study from 2008 showed that more than a quarter of undocumented workers are paid below the minimum wage, with 60% of them being shorted by $1 or more an hour. Of those who work overtime, 3/4 of them did not get paid overtime wages.
About 40% of undocumented workers in this study had illegal deductions taken from their pay. Imagine working a minimum wage job in, say, a restaurant, and having to pay for a customer who skipped out on the bill. See http://nelp.3cdn.net/1797b93dd1ccdf9e7d_sdm6bc50n.pdf
California employment law protects *all* employees, meaning it extends to everyone, regardless of how they came to this country.
2. Employers cannot threaten an employee because of that person's immigration status
One of the reasons undocumented workers fall prey to illegal business practices is because of their vulnerability. Frequently, employers know that the person they hired is undocumented, and pay them less than minimum wage or illegally deduct from their paychecks, believing that the employee has no recourse. Sometimes, the employer will threaten the employee with reporting that person to the government.
California law no longer allows its employees to be threatened this way. It is illegal to threaten an employee with a report to the government about that person's immigration status.
3. Employees have recourse
The California Department of Industrial Relations has a procedure to address wage theft. Although it accommodates anyone, it is particularly designed for low-wage workers. Undocumented workers have equal access to this process. A report to the DIR's Division of Labor Standards Enforcement will get the ball rolling. You can find your local office here: https://www.dir.ca.gov/dlse/DistrictOffices.htm
Sometimes, especially in higher value cases or class actions, it may make more sense to sue by using a private attorney. California law also makes it illegal to ask a party to a lawsuit about their immigration status, unless doing so is necessary for the case by a showing of clear and convincing evidence.
No one should have to work without being paid properly, or be the victim of illegal deductions taken from the paycheck that they rely on. California law agrees, and extends its protections to all California workers.
One student raised her hand and asked me, "I am not a United States citizen. Do the laws still protect me?"
I was proud to answer "yes" to her question.
1. Employees include *all* employees in California
California law explicitly states that all of the provisions of its Labor Code apply to "all individuals regardless of immigration status." See Ca. Lab. Code §1171.5(a).
That an important statement. That means that even employees who do not have the legal right to work in the US cannot be denied their wages after earning them. In other words, an employer can't hire someone, have them work, and then not pay them.
Undocumented workers are subjected to wage theft more than other employees, primarily because of their vulnerable position. One study from 2008 showed that more than a quarter of undocumented workers are paid below the minimum wage, with 60% of them being shorted by $1 or more an hour. Of those who work overtime, 3/4 of them did not get paid overtime wages.
About 40% of undocumented workers in this study had illegal deductions taken from their pay. Imagine working a minimum wage job in, say, a restaurant, and having to pay for a customer who skipped out on the bill. See http://nelp.3cdn.net/1797b93dd1ccdf9e7d_sdm6bc50n.pdf
California employment law protects *all* employees, meaning it extends to everyone, regardless of how they came to this country.
2. Employers cannot threaten an employee because of that person's immigration status
One of the reasons undocumented workers fall prey to illegal business practices is because of their vulnerability. Frequently, employers know that the person they hired is undocumented, and pay them less than minimum wage or illegally deduct from their paychecks, believing that the employee has no recourse. Sometimes, the employer will threaten the employee with reporting that person to the government.
California law no longer allows its employees to be threatened this way. It is illegal to threaten an employee with a report to the government about that person's immigration status.
3. Employees have recourse
The California Department of Industrial Relations has a procedure to address wage theft. Although it accommodates anyone, it is particularly designed for low-wage workers. Undocumented workers have equal access to this process. A report to the DIR's Division of Labor Standards Enforcement will get the ball rolling. You can find your local office here: https://www.dir.ca.gov/dlse/DistrictOffices.htm
Sometimes, especially in higher value cases or class actions, it may make more sense to sue by using a private attorney. California law also makes it illegal to ask a party to a lawsuit about their immigration status, unless doing so is necessary for the case by a showing of clear and convincing evidence.
No one should have to work without being paid properly, or be the victim of illegal deductions taken from the paycheck that they rely on. California law agrees, and extends its protections to all California workers.
Tuesday, January 27, 2015
What is My Case Worth?
If you have had something illegal happen to you in the workplace, and you are considering taking legal action, you've probably asked yourself: What is my case worth? If you haven't asked yourself that yet, I urge you to think about it.
Your legal issues aren't just dollars and cents to you. They are about something that really happened, and they affected you and your life. Maybe you want just compensation for what you've gone through, and what you'll continue to go through for the near future. On the other hand, maybe you feel it's crass to try to quantify your distress and assign a dollar value to it.
I. The Law is Limited in What it Can Do, and "What it Can Do" is Usually Just Money
I wouldn't argue with you either way. If something illegal has happened to you at work, you are justified in wanting to set it right with adequate compensation. But although it is crass to break human suffering down into a monetary award, that is the best the law can do. The law can't undo what happened. The most it can do is to assign a dollar value to it, and try to put you back where you would have been.
I ask my clients to try to think of their lawsuits, as much as they can, as a business proposition. Since if they get anything out of it it is likely only to be money, they need to assess whether the likely outcome is worth pursuing or not.
II. There are Certain Signposts for Assessing a Case's Value
So clients will ask me, quite reasonably, "What is my case worth?" What I hope they are doing is trying to decide whether the heartache, consumption of time, investment of physical and spiritual energy that could be applied elsewhere, will ultimately be worth it.
Here's what I tell them:
I can't tell you with any precision what your case is worth. Any attorney who tells you with certainty what you will get at the end of the day is not to be trusted. What I can do is give you a general idea of what I look for in a case to assess its value. I may even be able to give you a range of values that I think a case is likely to fall into, although of course there are no guarantees. You may get nothing. If you lose at trial, you may owe the other side money. All of these things have to be taken into consideration when assessing a case's value.
With all that said, here's what I look for:
A. Strength of Liability
In previous posts, I've mentioned that there are two parts to every lawsuit: liability, and damages. Damages asks, "What is the case worth?," which is the topic of this post. Liability asks, "Can I prove that the company did something illegal?," a question that must be answered "yes" before the company would have to pay anything.
Some cases are stronger on liability than others. The stronger the liability, the better the settlement value of the case is. That doesn't mean that good liability increases the damages; but it does mean that weak liability will decrease the perceived value of the case. Stronger liability cases generally settle earlier, and for closer (not close, but closer) to full value than weak liability cases.
B. Your Age
One of the things your attorney has to assess is how much a jury is likely to award you in front pay. "Front pay" is your loss of wages and benefits until you are reasonably likely to find another, substantially similar job with reasonable effort. The longer you're likely to be out of work, the more your case may be worth.
Here's where your age comes in. The unfortunate truth is that age discrimination is rampant, and older workers are less likely to find comparable employment than their younger counterparts. A jury expects that a young person in their 20s or even their 30s will find new work pretty quickly. Someone in their mid-50s or older may have had their career ended by an illegal firing.
I usually estimate that a jury will award 3 - 5 years of compensation for someone who's been illegally fired, and hasn't found work by the time the trial rolls around. That's how long I've heard economists say it takes the average worker to get back to their previous salary level. I don't know if that's true or not, but it's a reasonable guesstimate that I've sometimes seen validated by jury verdicts.
C. Your Compensation Level
How much you earn is an obvious factor in determining what your case is worth. That's true not just because a larger salary adds up pretty quickly in a front pay and back pay award. It's also true because statistically, lower paying jobs are easier to find than higher paying jobs. So a highly-compensated person who has been fired illegally will be out of work longer, on average, than someone who doesn't make as much.
Putting these factors together, many attorneys look for highly-compensated plaintiffs in their mid-50s or so with strong liability as a good starting point for a high-value case.
D. What's Happened to You
Those factors are about the economic damages, but emotional distress damages are equally important or even more so. Plaintiffs who have suffered a deep loss to which juries can relate may have a more valuable case. The loss of a home or marriage can be devastating, and if attributable to the illegal firing, can be important in determining a case's value.
If the plaintiff has been seeing a therapist, or better yet a psychologist or psychiatrist, that creates a record of the emotional suffering that was going on before the lawsuit started. Such records have increased credibility, and can help increase the worth of the case.
E. You
I wish juries were completely rational, and just made their decisions based on the facts. Juries, of course, are human, and all sorts of considerations factor into their analysis.
One of the most important factors is how they perceive the plaintiff. I have turned away good cases just because I didn't want the plaintiff as a client, and if my reaction is so negative, I expect a jury's will be as well. It's not just a gestalt, nebulous feeling on which the jury is acting. If the plaintiff is truly difficult, the jury is more likely to believe that the employer's action was justified, or that it was based on the plaintiff's personality rather than on some illegal motivation.
Sometimes plaintiffs are so damaged by what happened to them that it can be difficult to relate to them. Rather than express the hurt they've experienced, they may express themselves angrily. Anger can be offputting to a jury, and a plaintiff may need help from the attorney and perhaps a psychologist to express fully the emotions they've endured in a way that the jury can appreciate.
I take time talking to prospective clients because I want to be able to assess how they'll come across to a jury. This may be one of the most important factors in determining the value of the case.
III. It's an Art, not a Science
If you've read this far, you still don't have a formula that you can put into a calculator and figure out what your case is worth. That's okay; neither do I. Valuing a case is an art, not a science.
When I accept representation of a client, I let them know that although I can't tell them exactly what the result will be, I'm expressing my confidence that we'll both make money by taking it on a contingency basis. My confidence may ultimately be shown to have been misplaced, but that's the best way I can tell you what my professional opinion is.
I'm still surprised, though, that when my colleagues and I talk about a prospective case, we usually come up with similar ranges for what we think the case is worth. It takes some experience, and there are more considerations than I've listed here, but you can start to get a sense from this, and hopefully have a better idea of whether litigation might be worth your time.
Your legal issues aren't just dollars and cents to you. They are about something that really happened, and they affected you and your life. Maybe you want just compensation for what you've gone through, and what you'll continue to go through for the near future. On the other hand, maybe you feel it's crass to try to quantify your distress and assign a dollar value to it.
I. The Law is Limited in What it Can Do, and "What it Can Do" is Usually Just Money
I wouldn't argue with you either way. If something illegal has happened to you at work, you are justified in wanting to set it right with adequate compensation. But although it is crass to break human suffering down into a monetary award, that is the best the law can do. The law can't undo what happened. The most it can do is to assign a dollar value to it, and try to put you back where you would have been.
I ask my clients to try to think of their lawsuits, as much as they can, as a business proposition. Since if they get anything out of it it is likely only to be money, they need to assess whether the likely outcome is worth pursuing or not.
II. There are Certain Signposts for Assessing a Case's Value
So clients will ask me, quite reasonably, "What is my case worth?" What I hope they are doing is trying to decide whether the heartache, consumption of time, investment of physical and spiritual energy that could be applied elsewhere, will ultimately be worth it.
Here's what I tell them:
I can't tell you with any precision what your case is worth. Any attorney who tells you with certainty what you will get at the end of the day is not to be trusted. What I can do is give you a general idea of what I look for in a case to assess its value. I may even be able to give you a range of values that I think a case is likely to fall into, although of course there are no guarantees. You may get nothing. If you lose at trial, you may owe the other side money. All of these things have to be taken into consideration when assessing a case's value.
With all that said, here's what I look for:
A. Strength of Liability
In previous posts, I've mentioned that there are two parts to every lawsuit: liability, and damages. Damages asks, "What is the case worth?," which is the topic of this post. Liability asks, "Can I prove that the company did something illegal?," a question that must be answered "yes" before the company would have to pay anything.
Some cases are stronger on liability than others. The stronger the liability, the better the settlement value of the case is. That doesn't mean that good liability increases the damages; but it does mean that weak liability will decrease the perceived value of the case. Stronger liability cases generally settle earlier, and for closer (not close, but closer) to full value than weak liability cases.
B. Your Age
One of the things your attorney has to assess is how much a jury is likely to award you in front pay. "Front pay" is your loss of wages and benefits until you are reasonably likely to find another, substantially similar job with reasonable effort. The longer you're likely to be out of work, the more your case may be worth.
Here's where your age comes in. The unfortunate truth is that age discrimination is rampant, and older workers are less likely to find comparable employment than their younger counterparts. A jury expects that a young person in their 20s or even their 30s will find new work pretty quickly. Someone in their mid-50s or older may have had their career ended by an illegal firing.
I usually estimate that a jury will award 3 - 5 years of compensation for someone who's been illegally fired, and hasn't found work by the time the trial rolls around. That's how long I've heard economists say it takes the average worker to get back to their previous salary level. I don't know if that's true or not, but it's a reasonable guesstimate that I've sometimes seen validated by jury verdicts.
C. Your Compensation Level
How much you earn is an obvious factor in determining what your case is worth. That's true not just because a larger salary adds up pretty quickly in a front pay and back pay award. It's also true because statistically, lower paying jobs are easier to find than higher paying jobs. So a highly-compensated person who has been fired illegally will be out of work longer, on average, than someone who doesn't make as much.
Putting these factors together, many attorneys look for highly-compensated plaintiffs in their mid-50s or so with strong liability as a good starting point for a high-value case.
D. What's Happened to You
Those factors are about the economic damages, but emotional distress damages are equally important or even more so. Plaintiffs who have suffered a deep loss to which juries can relate may have a more valuable case. The loss of a home or marriage can be devastating, and if attributable to the illegal firing, can be important in determining a case's value.
If the plaintiff has been seeing a therapist, or better yet a psychologist or psychiatrist, that creates a record of the emotional suffering that was going on before the lawsuit started. Such records have increased credibility, and can help increase the worth of the case.
E. You
I wish juries were completely rational, and just made their decisions based on the facts. Juries, of course, are human, and all sorts of considerations factor into their analysis.
One of the most important factors is how they perceive the plaintiff. I have turned away good cases just because I didn't want the plaintiff as a client, and if my reaction is so negative, I expect a jury's will be as well. It's not just a gestalt, nebulous feeling on which the jury is acting. If the plaintiff is truly difficult, the jury is more likely to believe that the employer's action was justified, or that it was based on the plaintiff's personality rather than on some illegal motivation.
Sometimes plaintiffs are so damaged by what happened to them that it can be difficult to relate to them. Rather than express the hurt they've experienced, they may express themselves angrily. Anger can be offputting to a jury, and a plaintiff may need help from the attorney and perhaps a psychologist to express fully the emotions they've endured in a way that the jury can appreciate.
I take time talking to prospective clients because I want to be able to assess how they'll come across to a jury. This may be one of the most important factors in determining the value of the case.
III. It's an Art, not a Science
If you've read this far, you still don't have a formula that you can put into a calculator and figure out what your case is worth. That's okay; neither do I. Valuing a case is an art, not a science.
When I accept representation of a client, I let them know that although I can't tell them exactly what the result will be, I'm expressing my confidence that we'll both make money by taking it on a contingency basis. My confidence may ultimately be shown to have been misplaced, but that's the best way I can tell you what my professional opinion is.
I'm still surprised, though, that when my colleagues and I talk about a prospective case, we usually come up with similar ranges for what we think the case is worth. It takes some experience, and there are more considerations than I've listed here, but you can start to get a sense from this, and hopefully have a better idea of whether litigation might be worth your time.
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: http://www.courtstatistics.org/Other-Pages/~/media/Microsites/Files/CSP/Home%20Page/csp_2012.ashx
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.
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: http://www.courtstatistics.org/Other-Pages/~/media/Microsites/Files/CSP/Home%20Page/csp_2012.ashx
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.
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