After Hours: Can your Legal Activity Conducted Away from the Workplace get you Fired?

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.

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.

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.

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.

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.

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.

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.

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.

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.

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
      court.

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.

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.

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.

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.

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.

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.

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.

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.

Still the Best Policy

"Honesty never damages a cause that is just."
-- Mahatma Ghandi

Recently, a client mentioned to me a fact about his case that could reflect poorly on him. He asked me if, when testifying about it, he could say, "Well, the reason was X." My question: "Is X true?" He cast his eyes down, and admitted it wasn't. I told him he couldn't testify that it was.

Putting aside any ethical or moral issues, there are lots of practical reasons to be honest in litigation.

Many people say that the law isn't about a search for the truth. I think it is, and to prove it, there are plenty of ways the legal system seeks out and punishes the untruthful.

1. The Law's Gonna Getcha

For example, people or companies that file for bankruptcy have to list all of their assets so that the court can make determinations about their finances. Sometimes they don't list a pending lawsuit as an asset, even though they have a possibility of making money at it. If the civil court decides the omission was inadvertent or a mistake, no problem. But if the civil court decides it was intentional, it can throw out your lawsuit using a rule known as "estoppel." The judge isn't even required to give you a chance to explain yourself.

Another example: a couple gets divorced. During the proceedings, the husband states, under penalty of perjury, that he has no stock in the company where he's the CEO. When he's later fired, and sues for his millions of dollars in stock, the company shows him his prior statement in the divorce court. The CEO is out of luck.

In other words, the legal system requires honesty, and it imposes severe penalties if it finds someone hasn't lived up to that standard.

2. No One Will Believe You

This isn't just finger-wagging -- it's practical advice from a lawyer who has had clients torpedo their own cases by being dishonest. You have to assume the other side knows all the bad stuff about you, because they probably do. If you're caught in a lie, you may as well write the other side a big check, because it's going to cost you in terms of the value of your case.

In any employment case, the most important witness is always the plaintiff/ex-employee. Good facts are of course necessary, but it's also critical that the jury like you. And they will often hold you to a higher standard than they hold themselves, requiring a high degree of honesty before they will find in your favor. It's unfair, but this post is all about the practical benefits of honesty, not fairness.

3. Your Lawyer Will Look Bad

I always tell my clients: Tell me the bad facts. Don't let me be surprised by the other side. I can deal with any set of bad facts. What I can't deal with is being shown by the other attorneys that my client doesn't tell the truth.

When you hire a lawyer, you are depending on that person to bring about the best results for you. Your lawyer can't do that if you don't discuss everything, both good and bad, about your case. Hiding facts or lying about facts to your lawyer not only doesn't do any good -- remember, the other side probably knows about your concerns anyway -- but it will hurt your case by making it look like your lawyer doesn't understand the issues.


Whether the law is actually about the search for truth or not, it certainly tries to be, and it is unforgiving to lies both big and small. Owning up to bad facts, and being perceived as honest, just works a lot better.

Simple Human Decency: A Rant on Unacceptable Racial Slurs

I'm going to discuss the recent news about the Miami Dolphins, and the words major league football player Richie Incognito said to fellow player Jonathan Martin. I'm using this incident to point out an important principle about simple human decency.

We'll call it The First Principle: It is never okay to insult someone with racial slurs. There are no circumstances and no context in which this is okay. It is always unacceptable.

That's so important, I'm going to say it again: IT IS ALWAYS UNACCEPTABLE TO INSULT SOMEONE WITH RACIAL SLURS.

With that out of the way, we should all feel some horror that Mr. Incognito and his enablers in the Miami Dolphins organization have tried to paint Mr. Martin as blameworthy somehow. Somehow, they've managed to convince a certain segment of the country to interpret Mr. Martin's decision not to comment as meaning that he brought on himself getting called a "half-n-gger" and having his "real mother" slapped across the face.

Now Mr. Incognito is working the talk shows, telling people he didn't mean to hurt Mr. Martin, and that he's not a racist, and sometimes Mr. Martin has used the term "n-gger" himself.

If you're disgusted by what Mr. Incognito is saying, I'm with you. If what he's saying sounds persuasive to you in any way, go back to The First Principle.

This incident has tapped into an ongoing debate about whether African-Americans can use the n-word when talking to each other (because Mr. Incognito brought that up as a justification for his own words). Unless you're African-American, you don't get to decide that. You get to have an opinion, but make sure that you understand that your opinion about it isn't really all that important. And whether it's okay or not for African-Americans to say it, it never, ever justifies the use of that racial slur by someone who is not an African-American.

I felt moved to write this entry because Mr. Incognito and Mr. Martin are co-workers. They're highly paid, high profile co-workers, but they're still co-workers. Mr. Incognito is paid a lot of money to play a game that children like to play in sandlots and on grass fields, but he attaches such importance to what he does for a living that he tries to justify his use of racist language in the spirit of building camaraderie and ultimate success on the football field. I think Mr. Incognito needs a little perspective.

Federal law prohibits harassing a co-worker on the basis of race, sex, religion, disability, and other protected characteristics. To violate the law, the harassment has to be so severe or pervasive that it fundamentally alters the nature of the workplace.

Nothing in the law requires that Mr. Incognito have "intended" to hurt anyone. Harassment (unlike discrimination) is viewed from the reasonable perspective of the harassed person.

Yet the statements Mr. Incognito and his Dolphin cohorts have been making are typical of the harasser's profile. Mr. Incognito says he's not a racist, which is irrelevant, because whether he's a racist or not, his words were unacceptably racist. He says we should examine his words in context, that Mr. Martin didn't mind in the past, and no one ever complained before.

In other words, he's saying that Mr. Martin didn't mind before; what's the big deal now?

In the real world, it sometimes takes a while for the abuse to build to the point that the victim finally objects. Pretending that the victim should always say something the first time he hears an ignorant slur is just nonsense. Worse, it's dangerous nonsense, because it allows the perpetrator to blame the victim for not getting offended fast enough.

Everyone has the right to work in a place that's free of illegal harassment, where you can do your job without abuse that's based on a protected characteristic. It's not just the law; it's simple human decency.

What if your Job is in Jeopardy?

People frequently want to know what to do if they feel they're being illegally harassed at work, or if they think that they're about to get fired for an illegal reason. The answer depends on what your goal is, and what your particular situation is like.

First of all, remember that most types of workplace harassment are not illegal. Harassment is only illegal if it's based on a protected characteristic, like race, age, sex, religion, disability, or a handful of others. If you're being harassed at work, but it's not because of a protected characteristic (and you're not in a union), you probably have no legal recourse at all. Consider trying to address the problem internally, either with the person harassing you, that person's supervisor, or with human resources. Remember, though, that your complaints of legal, but harassing, activity can get you fired, and again, there's no legal recourse for that. So consider carefully whether what you're experiencing is something you can live with, or if you feel the need to do something about it at the risk of experiencing retaliation without recourse for you.

So let's assume for the moment that you feel you're being illegally harassed because of a protected characteristic, or that you think you're about to get fired for an illegal reason. What do you do about it?

My best advice is: Do what you can to address the situation, while keeping your job and avoiding a lawsuit. Sometimes that means looking for another place to work, and not saying anything until you've found one. Even if it's not the best thing for having a lawsuit later, the odds are good that you'd rather have a job than a lawsuit, especially in a rotten economy.

Look, the people who I help usually have no reasonable options available to them other than filing a lawsuit. They've been fired, or the illegal harassment they've suffered is so extreme that the law needs to address it. The legal system, however, needs to be looked at as a last resort. It's ugly, expensive, time-consuming, and your time and energy would be better spent finding a new job and getting on with your life, if you can manage it.

If you nonetheless feel the need to protect your legal rights, the first thing to do is to buy a journal. In that journal, write every harassing or discriminatory act as it occurs. I don't mean every sideways glance that your supervisor gives you (no one, including juries, likes a complainer), but things that actually affect you economically or extremely outrageous conduct. Don't write anything else in that journal; it may be shown to a jury in the future, so no doodles, no grocery lists, nothing like that. Make sure to take that journal home every night, because they have a way of disappearing when left at the office.

Also in that journal, write everything you remember that happened previously. Don't try to pretend that you're writing it as it happened; make it clear that you're recalling it as well as you can.

Consider making a complaint to the offending person or to that person's supervisor. If you're at this stage, consider making the complain in writing and keeping a copy. It is illegal to retaliate against you for complaining of an illegal act, but employers do illegal things all the time, and you'll want a written record that you actually made the complaint (employers' first line of defense in litigation: "We never got a complaint from that person.")

When I say "consider" doing these things, understand that I'm not telling you to do any of these things because I don't know your precise situation. There's no one answer that fits everyone.

If you feel your job is in jeopardy or you need to protect yourself legally, call an employment attorney immediately. That person will take the time to understand your circumstances, and give you the advice that's best for you.

Making a living is hard enough these days without feeling like your job is at stake. Make sure to protect your rights, do what you can to keep from getting fired, and try hard not to sue anybody. If it comes to that, though, know what you have to do to maximize your chances for coming out on top.