Employment Law For Employees
Glossary of Workers' Compensation Terms
following is intended to provide basic general information on
employment concerns affecting employees including job
discrimination, sexual harassment, age, race, gender, pregnancy,
glass ceiling and disability discrimination, wage & overtime,
breach of contract, non-compete clauses, wrongful termination,
whistle blowing and various other issues. For more specific
information, please contact us.
What is Job Discrimination?
employer doesn’t like you and fires you, it isn’t necessarily
actionable discrimination. The employer must be discriminating
on the basis of a "protected class" for the
discrimination to be illegal.
specific categories which are protected are spelled out in
particular laws, or statutes. Because gender, or sex, is one
protected class, everyone is protected by at least one
category. Many people fall into more than one protected class.
words, if the category of the discrimination isn’t spelled out
in a statute, the employee is not protected from that form of
discrimination. Therefore, if the employer doesn’t like you, but
you don’t know why, or the category isn’t protected by law, he
can fire you or not hire you for that reason.
essential consideration is why. Why were you fired or not hired?
Was it because of your age or race or gender, etc.? Or was it
because the employer just didn’t like you, or wanted to hire his
brother, etc.? What matters is the motive.
discriminating on the basis of age is illegal under both the
Federal Age Discrimination in Employment Act (ADEA), and the
California Fair Employment and Housing Act (FEHA).
under forty years old are not protected by age discrimination
laws. If an employer refuses to hire somebody because he or she
is thirty-nine, and therefore "too young", that is not illegal.
But if it is because he or she is forty and "too old", that is
illegal. It is illegal to replace a person over 40 with a person
under 40, if age is the reason. It is also illegal to replace a
person over forty with a younger person who is also
when employers are down-sizing, they lay people off by offering
"golden handshakes", which are special packages to employees who
agree to take early retirement. This is not age discrimination.
However, if it is being done for the purpose of getting rid of
older workers just because of their age, and if it can be shown
that there is a real discriminatory motive that is illegal. It
is not illegal to replace people who are making high wages with
people who will make less because they have less seniority.
if the wage considerations are not the real motivator, and the
employer is actually trying to replace older workers with
younger ones, that is illegal.
individuals are protected from discrimination by the Federal
Americans With Disabilities Act (ADA) the California Fair
Employment and Housing Act (FEHA). These laws make it
illegal for an employer to discriminate against a qualified
individual with a disability in job application procedures; the
hiring, advancement, or discharge of employees; employee
compensation; job training; or other terms, conditions, and
privileges of employment, because of the individual’s
employee to be eligible to make a claim of disability
discrimination under the ADA or FEHA, he must be a "qualified
individual with a disability." This means that he must be able
to do the job. For instance, a person with no hands would not be
qualified to be a typist. (However, see below discussion on "reasonable accommodation.") If the employer didn’t give him the
job, it wouldn’t be discrimination. It’s just that the person
simply isn’t qualified.
generally, an employer has an obligation to make a
"reasonable accommodation" if a disabled employee can
otherwise perform the duties of the job.
accommodation means that even if a person is disabled, and even
if that disability may make it seem like he or she can’t do a
job, the employer must consider whether or not a "reasonable
accommodation" can be made. A "reasonable accommodation" is when
the employer modifies the job duties, provides some extra help,
or takes some other measure to ensure that the person can still
be able to do the job.
have to ask for reasonable accommodations. Once they do, the
employer has the right to consider the requests, and make
counter-offers that the employer might see as more reasonable.
If the employer and employee can’t agree, then the employee
might want to consider bringing suit. However, to win the
employee must prove that the employer’s proposal is unreasonable
and the employee’s proposal is reasonable.
disability" means that the worker is actually disabled. For an
injury, disease, or their ailment to be a "disability" under the
law, it must "substantially limit one or more major life
activities." A mere annoyance in not enough. The disability must
actually interfere with a person’s life.
It is also
unlawful to discriminate against a person who is perceived
to have a disability. If the employee is not disabled, but the
employer believes he is, and discriminated against him, that is
illegal under both Federal and State Law to discriminate in the
"terms or conditions of employment" on the basis of a person’s
race or color.
or a condition of employment" means
just about anything relating to someone’s job: their position,
pay, title, hours, vacations, most everything is a term or
condition of employment. Whether or not a person is hired is
also considered a "term or condition of employment."
generally defined as a person’s ancestry, ethnic characteristics
or color. Employment discrimination based on association with
people or a particular race is also prohibited. For instance, if
an employer fired a white employee because he or she was dating
a black person, that would be unlawful discrimination.
two types of race discrimination: "disparate treatment"
and "disparate impact."
discrimination. Simply put, it is treating a person differently
because of a protected class, like sex or race.
discrimination is more complicated. "Disparate impact" is
where some type of company policy excluded a certain individual
or individuals from the job or from promotions. The policy
wasn’t designed to exclude them; that was just the unfortunate
result, or the impact.
example, fire departments frequently imposed various strength
requirements for job applicants. Women were frequently unable to
meet these requirements. In some instances, the requirements
were simply too high; they were more than was necessary.
Qualified women were therefore being excluded unnecessarily.
This does not mean the fire departments were necessarily trying
to exclude women. That was just the result of their policy; it
had a disparate impact upon women. Because the policy wasn’t
sufficiently job-related (too much strength was required) there
Disability Discrimination & Workers’ Compensation Claims
employee injured on the job is entitled to file a workers’
compensation claim. The employee’s injury may be temporary
or permanent and may be of a nature that the worker can continue
to work or require the worker to take time off work.
employer retaliates against the employee for filing a workers’
compensation claim, the employee can also file a claim for
additional compensation to punish the employer under California
employee is fired when the employee can do the job, the employee
can also file a claim for discrimination. It
depends on whether the employee is able to do his job either
with or without accommodation. If the injured employee can do
his or her job, the employer cannot fire the employee even if
the employer thinks the employee may get re-injured on the job.
compensation laws establish what an employee injured on the job
can recover by a predetermined formula. However, damages under
disability discrimination can include all, part, and
future loss of wages, benefits, emotional distress, attorney
fees and even punitive damages.
Sexual Orientation Discrimination
illegal in California for an employer to discriminate against an
employee because of that employee’s sexual orientation.
It is also
illegal in California for an employer to discriminate against an
employee on the basis of that employee’s perceived sexual
orientation. So if an employer believes an employee is gay, and
fires him because of that, it is illegal whether or not the
employee is actually gay.
One of the
aspects of the California law is that the employee must make a
complaint to the California Labor Commission no more than 30
days after he or she is discriminated against. Only after the
Labor Commission has processed the claim may the employee sue in
the same actions that violate the laws against sexual
orientation discrimination violate other laws as well. It is
possible that an employer who is discriminating on the basis of
sexual orientation is also discriminating on the basis of
National Origin Discrimination
Immigration Reform and Control Act, (IRCA) prohibits
employment discrimination because of national origin against
U.S. citizens, U.S. nationals, and authorized aliens. Title
VII of the Civil Rights Act of 1964 bans national origin
discrimination against any individual.
origin discrimination is different than race discrimination. It
happens when an employer discriminates because of where someone
was born. Obviously, race discrimination and national origin
discrimination can often go hand-in-hand.
Pregnancy Discrimination & Leave
Discrimination based on pregnancy is illegal under both the
California Fair Employment and Housing Act (FEHA) and the
Federal Title VII laws.
includes discrimination based on pregnancy, childbirth, or
related medical conditions. Even discrimination based on the
"potential" for pregnancy is illegal. For example, in one
case a manufacturing company would not allow women to work
certain jobs because if they were pregnant there could be harm
to their fetus. This was illegal discrimination.
have a number of responsibilities to employees who become
pregnant. For instance, if a woman becomes pregnant, and with
the advice of her doctor asks for a position that is less
strenuous or hazardous, the employer must transfer her to
another position if it has one, or can make one without being
California FEHA specifically gives pregnant employees the right
to take a leave of absence for a reasonable period of time, not
to exceed four months. The employer does not have to pay his
employee during this time. Employers can require any employee
who plans to take a pregnancy leave to give the employer
reasonable notice of the date the leave will start and how long
it is expected to last.
addition, a pregnant employee may also be eligible for up to 12
weeks medical leave under the Federal Family and Medical Leave
generally cannot force a pregnant employee to go on pregnancy
leave. It is there if the woman wants it. However, if the
employer can show that the woman absolutely cannot do her job,
or is "disabled" by the pregnancy, and there is no
reasonable accommodation that can be made, he may be allowed
to make her take a leave of absence.
Gender or Sex Discrimination
VII and the FEHA
prohibit sex discrimination based on the "terms or conditions of
racial discrimination, there are two types of sex
discrimination: "disparate treatment" and "disparate
is straightforward discrimination. Simply put, it is treating a
person differently because of his or her sex.
Disparate impact is
where some type of company policy excludes certain individuals
from the job or from promotions. The policy wasn’t designed to
exclude them; that was just the unfortunate result.
It is also
illegal to make employment decisions based on "stereotypes"
regarding gender, such as caring for children.
The Glass Ceiling
ceiling exists when it is possible to draw an imaginary line on
the corporate ladder above which all or any one of a protected
group cannot rise above. For example, above this "glass
ceiling" all managers and executives are 100% white,
Anglo-Saxon males. Below the "glass ceiling" are found
the group of females, the African Americans, the Latinos, etc.
ceiling cases are primarily proven by statistics and involve a
class of employees. If all women cannot rise above the position
of supervisor, then all women are being discriminated against in
promotion and hiring. Therefore, any glass ceiling case is a
potential class action case.
the approach for proving discrimination tends to be the same
irrespective of the type of discrimination, actually proving
discrimination can be more complicated than outlined below. This
is especially true of disability discrimination, where other
factors, such as "reasonable accommodation" are at issue.
employee shows that (1) he is a member of a "protected class"
and (2) he suffered an "adverse employment action."
employer must then state that there was a legitimate reason for
the adverse employment action. For example, we’ll take the case
of a black man who was fired, and says it’s because he is black;
because the employer is racist. The employer might state that
the employee was not fired because he was black, but because the
employer was actually down-sizing. That is a perfectly legal
reason to fire someone.
employee then has the chance to show that the employer’s reason
for the firing was not the legitimate reason that the employer
says it was. The employee is trying to show that the employer’s
reason for the firing is a "pretext." In the example, the
employee might be able to show that his position wasn’t actually
eliminated during the downsizing.
It used to
be that that was enough. Once the employee proved that the
employer’s supposed reason wasn’t actually the legitimate
reason, then the court would presume that the real reason was
the illegal one. However, the more current trend is to require
the employee to provide some actual proof of discrimination.
example, the employee would have to present some evidence that
he had been fired because he was black. He might be able to show
that the person who decided to fire him had called him the
"n-word." This is pretty good proof that the person is a racist.
Statistics also can be very useful in proving discrimination
cases of all kinds.
Sexual Harassment in the Workplace
harassment is one of the most complicated areas of employment
law. Below is a basic guide to sexual harassment in the
workplace. Please note that sexual harassment often goes
hand-in-hand with other illegal acts, like gender
discrimination. If you have a problem with sexual harassment,
you should think about what else might be going on as well.
There are two types of sexual
harassment, "quid-pro-quo" and "hostile environment"
Each will be explained
separately, although where there’s one, there’s often the
Latin for "this for that." It is a trade. When the trade
is on the basis of sex, it is illegal. This is the when the
employer makes sex a prerequisite to getting something in the
workplace. For example: "sleep with me and you’ll get the job."
That’s illegal. Quid-pro-quo can also include negatives. For
example, "sleep with me or you’re fired" is also illegal.
sue? Obviously, the
woman who is fired because she wouldn’t sleep with the boss can
sue. But in some cases so can a woman who slept with the boss.
example a situation where the boss asks one of his assistants to
sleep with him in exchange for a promotion. She does it and gets
the promotion. Under the law, she has a claim, because her
agreeing to his sexual demands was a condition of the promotion.
She also has a claim if she refused and didn’t get the
she was just having an affair with him because she wanted to,
there is no claim. What about the other assistants? Do
they have a case because the other assistant got a promotion
because she was sleeping with the boss, and they did not?
Probably not. In California and in most states, there is no
sexual harassment or discrimination claim because a lover got
special treatment. However, if the boss made sexual demands that
they refused, and that’s why they didn’t get the promotion or
other benefits, they have a claim.
the person who accepts the offer of advancement in exchange for
sex. She can still sue. She either deserved the promotion or
didn’t deserve it; however, she shouldn’t have been put in the
position of considering whether or not to sell her body to get
it. The problem is the idea of "consent."
harassment must be unwelcome. If she encouraged the trade-off or
was happy to participate, she has a difficult case.
sexual harassment can recover for their lost wages, future lost
wages, emotional distress, punitive damages, and attorney’s
The Hostile Workplace Environment
environment sexual harassment is a situation in which the
employer, supervisor, or co-worker does or says things that make
the victim feel uncomfortable because of his or her sex. Hostile
environment sexual harassment does not need to include a demand
for an exchange of sex for a job benefit. It is the creation of
an "uncomfortable environment."
workplace environment also may involve racial, national origin
or ethnic discrimination.
conduct must be "offensive." If two employees have a good
time exchanging sexual jokes, it would not be sexual harassment.
If one employee
kept telling another employee sexual jokes that the second
employee found offensive, it would be sexual harassment.
If two employees dated and engaged in consensual sex, this would
not be sexual harassment. If one of the two then wanted to
terminate the relationship, and the other used the unequal
relative terms and conditions of employment of the work place to
further the relationship, this would be sexual harassment.
pictures, touching, leering, unwanted requests for a date have
all been found by courts to be sexual harassment. Sexual
harassment can be between people of the same sex. Sexual
harassment can be a woman harassing a man.
Theoretically, anyone who is offended by a sexually harassing
environment may sue. However, that employee’s offense must be
reasonable. An extremely sensitive person might not be able to
maintain a claim, because her feelings of having been offended
were not reasonable.
have held that if you are harassed in the work place about your
race, ethnicity, or national origin you may have the right to
sue your employer. Discrimination and harassment go hand in hand
here. Where there is discrimination, there is also usually
race, national origin or ethnicity discrimination or harassment
must be severe and pervasive to be actionable. An idle
comment, even if offensive, is not the basis for a lawsuit.
Ongoing use of the "n-word" word could be severe and pervasive.
Having derogatory words and racial or ethnic slurs written on
the bathroom walls could be severe and pervasive. One has to
look at it on a case-by-case basis.
conduct must be carried on "by management" or
"management must know about it" and have had an opportunity
to stop it and in fact, do not. In other words, management
condones the behavior.
fellow worker is the one doing the discrimination and
harassment, you should follow the company policy and report the
conduct to your supervisor and Human Resources. Report it in
writing to have proof of the date you reported it, and be sure
to be specific about the exact nature of the discrimination or
harassment. Saying things like Joe is bothering me or harassing
me is not sufficient. Also, saying that Joe called me the "N"
word once is insufficient. Don’t retaliate back, or you can be
Sexual Harassment Outside The Workplace
only employers can be sued for sexual harassment. For example,
if a man grabs a woman’s breast in a bar, that’s not sexual
harassment, although it may be assault and battery. However, if
a woman’s boss grabs her breast (and she doesn’t want him to)
that’s probably sexual harassment.
The law in
California has recently been changed to allow people to sue
others for sexual harassment, even when the harassment isn’t at
the job. The following people can be sued for sexual harassment,
when they have a business, service, or professional relationship
with the person they harassed:
||a person’s physician, psychotherapist,
||marriage, family or child counselors,
licensed clinical social workers, and masters of social work,
||real estate agents and real estate
||accountant bankers, trust officer,
financial planners and loan officers
||escrow loan officers,
||executors, trustees, or
||landlords and property managers,
||people who are in a relationship
that is substantially similar to any of the above.
harassment must occur in the context of the relationship.
Generally, only the more direct "quid pro quo" harassment in
actionable. The victim must make a request for the behavior to
stop. This means the first request or advance is never illegal.
For the harassment to be illegal, the victim must not be able to
easily terminate the relationship without "tangible
hardship." In other words, if the victim can just leave
without any trouble, it’s not illegal.
Other Types of Harassment
standing alone, is not illegal. The harassment must be based on
an illegal factor, like those listed above under
"discrimination." In other words, the employer cannot harass the
employee because of his race. But he can harass him because he
just doesn’t like him. There is no law against general
harassment or bad treatment of employees.
Other Employment Issues
is a term that generally refers
to a person being fired when they shouldn’t have been. It can be
very misleading phrase. Many terminations that people think of
as "wrongful" aren’t illegal.
California and most other states, employment is "at
will." This means that the employer can fire the employee
for no reason or any reason.
two exceptions to this general rule:
Employers cannot discriminate
against employees on the basis of age, race, sex, national
origin, disability, and a variety of other reasons. Employers
cannot discriminate against an employee because he or she has
"whistle blown" which is reporting illegal activity of the
employer. They also cannot discriminate against an employee for
engaging in other protected activities, such as filing workers’
If an employer fires an
employee because of one of these factors that is against the law
and the termination is "wrongful termination."
If any employee has a contract
with the employer, the employee probably cannot be fired without
just cause. Contracts can be written, oral or implied. (See
section on Breach of Contract.) A common way for an
employee to have a written contract is to be in a union. If the
employer fires the employee in violation of a contract, that is
not, in legal terms, "wrongful termination." It is "breach of
Other than these exceptions and
a few rare others, employers can fire employees for any reason,
even because they just don’t like the employee.
is when an employee tells on an
employer who is breaking the law. Employees who blow the whistle
on their employers are protected by law.
To actually "Whistle Blow",
the employee must report an alleged illegal act of the employer
to a government or law enforcement agency.
If the employee just complains
to someone inside the company, that is not whistle blowing, and
the employee is not protected by the whistle blower laws.
However, the employee may be protected under other laws. For
example, it is illegal to fire someone for complaining of sexual
harassment or discrimination.
It is not necessary that the
employer actually broke the law. The employee could be whistle
blowing on something that isn’t illegal in the first place. The
employee is still protected from retaliation or termination.
However, the employee must believe that he or she is reporting a
violation of the law, and the employee’s belief must be
If the employee has reported
the allegedly illegal activity to a government or law
enforcement agency, he or she is protected. The employer cannot
retaliate against the employee. The employer cannot fire the
employee for the whistle blowing. The employer cannot mistreat
the employee for whistle blowing.
This does not mean that after
whistle blowing, the employee cannot be fired for any reason.
The employer can continue to treat the employee like any other
employee. But the employer cannot treat the employee differently
because of the whistle blowing. Obviously, if the employee
whistle blows on Monday and is fired Tuesday, it suggests that
the employee was retaliated against for making the report.
Wage & Overtime Claims
There are both federal and
state laws that affect wage and overtime claims. The law also
requires workers to receive overtime based on a certain amount
of hours per week that they work.
This law does not apply to
"exempt" workers. Primarily, "exempt" workers include
managers and assistant managers. However, the mere
classification of a person as a manager or assistant manager
does not automatically make them "exempt."
In determining whether a
"manager" is an "exempt" worker, the law looks to the actual
work performed by the person as opposed to their title. In
general, to be an "exempt," the manager must supervise other
workers, exercise independent judgment and otherwise perform
non-routine work for a significant percentage of the work week.
If the assistant manager or
manager qualifies as a non-exempt employee and work more than 40
hours a week, they are entitled to overtime pay even if they are
In large operations, such as
chain stores, if the assistant manager or manager are
misclassified, this usually applies to everyone in that
category. This may potentially provide grounds for a class
action on behalf of all similarly situated employees.
Pregnancy Discrimination & Leave
Discrimination based on
pregnancy is illegal under both the California Fair
Employment and Housing Act (FEHA) and the Federal
Title VII laws. This includes discrimination based on
pregnancy, childbirth, or related medical conditions.
As noted above, even
discrimination based on the "potential" for pregnancy is
Additionally, as discussed
previously, employers must make a reasonable accommodation for
disability due to pregnancy and employees have a right to
pregnancy leave for a reasonable period of time, not to exceed
four months. Employees may also be entitled to up to 12 weeks of
medical leave due to pregnancy.
Generally, if an employee is
injured on the job in California, he or she may recover
under "Workers’ Compensation." Workers’
Compensation is an insurance system. All employers must have
workers’ compensation insurance of some kind.
It doesn’t matter whether or
not the injury is an accident. If it happened on the job, the
employer’s workers’ compensation insurance must pay for medical
treatment and rehabilitation. The flip side of this is that
employees in California cannot sue their employers for
negligence. The employees can only recover under the workers’
compensation insurance program. This program has definite
limitations. For example, employees can recover only set maximum
amounts, regardless of how much their income was.
Disability Discrimination & Workers’ Compensation Claims
An employee injured on the job
is entitled to file a workers’ compensation claim. The
employee’s injury may be temporary or permanent and may be of a
nature that the worker can continue to work or require the
worker to take time off work. If the employer retaliates against
the employee for filing a workers’ compensation claim, the
employee can also file a claim for additional compensation to
punish the employer under the workers’ compensation claim.
Sometimes employers require an
employee to sign an employment agreement containing a
non-competition clause or covenant. Ordinarily the employee is
in contact with customers or clients of the employer, or deals
with patent or copyright information, usually referred to as
proprietary information. The employer does not want the employee
to leave or go to work for a competitor and take the customers,
clients or proprietary information to a competitor.
Balanced against the employer’s desire for protection, the
employee needs to get another job after leaving that employer.
The easiest and most remunerative job would be in the same
field, with the same job title, doing the same work. Therefore,
by necessity the employee needs to work for a competitor in
order to utilize his knowledge, experience and skills.
California courts tend to
protect an employee’s right to earn a living. Accordingly, a
non-competition clause may be held invalid if it is overly broad
Implied & Oral Contracts
can be created many ways. They are more common than written
contracts in the employment relationship. Implied contracts are
often called "oral or implied contracts." This is because
implied contracts are usually created by both circumstances
(which "imply" that a contract exists) and oral
statements. For the sake of clarity, "oral or implied
contracts" will be referred to here simply as "implied
Contracts that are more
strictly oral in nature will be called "oral contracts",
and are discussed below.
A number of factors are
considered in determining whether an implied contract has
actually been created. The more factors that exist in a given
situation, the more likely there is an implied contract.
Length of Service.
This is a very important factor
in creating an implied contract. The length of service must be
significant. Two weeks at an employer does not create an implied
Progressive Discipline Policy.
Many employers have
policies of "progressive discipline." These policies state that
employees will not be fired the first time they make a minor
mistake. Instead, employees receive warnings, second warnings,
etc., before they are fired. Even when there is a progressive
discipline policy, there are probably a number of things the
employee can do which will get him fired immediately.
Employee Benefit Programs.
Retirement programs, 401K
programs, and the like can help to create implied employment
contracts, because they help imply that the employee is expected
to be around long enough to participate in them or get their
Representations or Actions.
Occasionally, an employer’s
actions or representations will give rise to certain
expectations of the employee regarding his employment.
Most often, the "terms" of the
implied contract can be found in an employee handbook. For
example, the handbook may have a "progressive discipline
policy," which states that employees are to be given warnings
for certain infractions before they are fired.
If the employee can establish
that there is an implied contract, and that one of the terms was
that the employer would follow the progressive discipline policy
in the handbook, the employee can point to the handbook and
treat it like a written contract. He can look at the language of
the policy and see if the employer has failed to follow it.
An agreement that the employer
won’t fire the employee without "good cause" is the basic
term of the implied contract in an employment relationship. If
an implied contract exists and the employer fires an employee
without "good cause," the employer may be liable for damages for
breach of contract.
It is possible to have an
oral contract concerning your employment; however, it may
not be enforceable. Some contracts must be in writing to be
The major problem with oral
contracts is that they are hard to prove. If what you are asking
for is important, ask your employer to confirm it in writing. It
is important to note that many executive contracts are in
writing. Generally, if it only comes down to your word against
the employer, you will have an uphill battle because "you" have
"the burden of proof" to establish that a contract
Breach of Contract-Written Contracts
Employees in California are
generally "at-will." This means they can be hired or
fired at any time, with or without good cause. This means an
employer can fire someone just because he doesn’t like him. If
someone is fired because of their race, gender, national origin,
or other reasons such as those, it is illegal discrimination.
Written employment contracts
are very rare. Usually, only sports stars, actors and
highly-paid executives have them. It is important to note that
many executive contracts are in writing. If the company breaks
its contract with these employees, the employees may sue for
"breach of contract".
There is another class of
employee who always has written contract. This is the union
employee. Union employees have a union contract. However, before
the union member may sue, he must first pursue his
"administrative remedies." These include grievance
procedures, arbitrations, and other processes that may be in the
A written contract can have an
unlimited numbers of "terms" or "conditions." For instance, one
term might be that the employee will be employed for five years.
This means he can’t quit and can’t be fired.
But there are always exceptions
to a term regarding length of service. The most common is
termination for "good cause." However, even an employee
with a written contract, which states he will be employed for a
certain length of time, can almost certainly be fired for "good
cause." A written contract that only allows for termination when
there is good cause probably defines what "good cause" is. For
instance, the contract might say that taking company property is
good cause for termination. The employee may think that taking
an old and unused piece of property is not a big deal. If the
employee takes the property, there is good cause. Frequently,
the issue of "good cause" boils down to an interpretation of
certain conduct of the employee with the employer and employee
taking different positions.
In drafting a contract, the
employer can’t just put unreasonable clauses in the contract. If
an employer imposes unreasonable clauses on an employee
otherwise deals outrageously with an employee he may be dealing
in "bad faith."
For example, assume an employer
wants to fire a particular employee. That employee takes home a
memorandum from the company, which was sent to him at work. The
company calls this taking company property stealing and fires
him. The employer is not dealing in good faith. The memo was
sent to the employee. It was sent for his use. He could have
thrown it away. The employer is not dealing in good faith,
because he is making a clearly unreasonable interpretation of
the contact. The employer has "breached the contract in bad
Therefore, even if an employee
has violated a company policy in the strict sense, the employer
may still have "breached" the contract.
Under California breach of
contract law, an employee can sue for his lost wages and
benefits. He can sue for the wages he would get in the future,
minus what he’s earned at a new job, and minus the wages he
should earn, assuming he gets a job in a reasonable time. The
employee cannot sue for emotional distress. This means that the
damages the employee can recover are limited to the compensation
the employee would have received had he not been fired.
Expense of Litigation
It can cost tens and hundreds
of thousands of dollars to take a case to trial. It is not
uncommon for attorneys to charge $300 or more per hour. Such
costs are necessary to cover the expenses of operating a law
Many people who have an
employment law problem cannot afford this. Often, they have been
fired, and therefore have no income. Often, even if they won
they would recover too little to make hiring a lawyer
A common solution is the
Some lawyers will represent
clients on a "contingency fee" basis. A contingency fee is where
the lawyer gets a portion of the client’s recovery. Contingency
fees are often around 33% to 40%, and sometimes are higher.
For example, The Law Offices
of Michael T. Chulak & Associates takes some cases on a
contingency fee basis. Before it takes a case on that basis, it
must consider the same things that a client who was considering
paying on an hourly basis would consider. For example, factors
to consider include the chances of success, the potential amount
of damages, and the costs of suing.
If the case is a real long
shot, the law firm is less likely to take the case on
contingency. This is the same as the client who is considering
spending his own money. The better the odds, the more likely the
client is to gamble on winning. The law firm must consider the
same thing when its money and time are at stake.
Even if the odds of success are
good, the lawyer must still consider the potential damages.
Maybe the person who was fired got a job the very next day for
more money. What is there to sue over? The lost wages are
minimal. Even if the client wins, there isn’t much money at
stake. It wouldn’t be worth it for an employee to pay a lawyer
thousands of dollars to sue over one day’s wages. Likewise it
isn’t worth it for the law firm.
Aside from paying the lawyer
for his time, there are also costs that must be paid. For
instance, it costs $355.00 to file a lawsuit in Los Angeles
Superior Court. It costs an average of $1,000.00 to pay
for a stenographer to attend a deposition. Mailing costs and
long-distance telephone bills, private investigators and
messengers, are all costs of litigation.
If a lawyer is being paid on a
contingency, the costs do not come out of the lawyer’s
contingency fee. The contingency fee pays the lawyer only for
his time and effort. The client has to pay for the costs.
There are two ways the costs
can be handled. First, the client can pay them up front. Second,
the lawyer can pay the costs, and be reimbursed out of the
settlement or verdict of the case is successful. Some lawyers
advance costs. Some don’t. Call us for a no cost consultation
regarding any employment claim.