Author Archives: BraniganRobertson

August 6, 2015 · 2:10 pm

California Labor Law Attorneys: Holding Employers to their Promises

California is an at-will employment state, which means that an employee can be fired for good cause, bad cause, or any cause (so long as the cause is not in violation of California or federal law). However, there is an exception to this. Under the implied in fact contract exception; an employer cannot fire an employee if the employee can show that there is an established and implied employment contract between the parties.

Courts consider the following factors to determine if there is an implied-in-fact contract: employee’s length of service, employer’s policies and practices, and conduct or communication by the employer reflecting assurances of continued employment. California labor law attorneys ensure that employers will be held accountable if they breach an implied in fact contract with their employee.

Employment Contract Employment Case – Challenging the At-Will Doctrine

In Joseph Sebastian v. Christ the King Retreat Center, the plaintiff witnessed a fellow employee engaged in bizarre behavior in a conference room by throwing garbage on the floor, acting irrationally, and shaking objects at witnessing employees. The employer defendant terminated the plaintiff after he complained that it was a safety issue for himself and other employees.

Among other things, Plaintiff argued that he was terminated in breach of an implied in fact contract. Plaintiff was an employee there for roughly seven years. Plaintiff alleged that he was told after he completed his probationary period that the job was his, he has tenure, and that he has a job as long he wants it. Further, upon being hired, plaintiff was given a company handbook contained a provision regarding a discipline policy.

The At-Will Doctrine Lost

Defendant argued that plaintiff was an at will employee and thus could be terminated without good cause. Defendant also argued that plaintiff was terminated because he was insubordinate on multiple occasions during his employment. The jury was not convinced by the defendant’s arguments, and awarded plaintiff $362,296 for breach of an implied in fact contract.

At the end of the day, this case is a win for California employees. If an employer promises an employee certain benefits or long-term employment, and then fires that employee without good cause, then the employee may have a viable case despite California’s strong at-will policy. If you have been wrongfully terminated, and your employer made promises to you during the course of your employment, then call a California employment lawyer immediately to see if there is any legal recourse.

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Filed under Employment Contract, Wrongful Termination

August 5, 2015 · 8:04 pm

Protecting Medical Professional Whistleblowers

It is the public policy of California to encourage patients, nurses, doctors and other members of health facilities to speak up against suspected unsafe patient care and poor health facility conditions. It is still very common for members of health facilities to witness first hand poor patient treatment and poor patient conditions. Therefore, California has passed a unique whistleblower law, Health & Safety Code 1278.5, for medical professionals.

Basically, under 1278.5, it is unlawful for an employer of a health facility to retaliate against any patient or employee of the health facility for complaining or reporting (blowing the whistle) unsafe patient care or poor patient conditions to the employer. Employment attorneys like Mr. Robertson are there to ensure that health facility employers are held accountable under this law.

Recent Verdict – Cancer Patients and Bad Surgeons Lead to Whistleblower Complaint

In a very recent case out of the California judicial system, Wascher v. Southern California Permanente Group, plaintiff was a surgeon who worked for defendant from 2009 to 2011. During his employment, plaintiff complained about unsafe patient care to the defendant. Plaintiff made the following complaints to his employer: access to surgery for cancer patients took too long and unqualified surgeons were handling cancer cases that they should not be handling. In response to his complaints, rather than addressing the plaintiff’s legitimate complaints, the defendant barred him from becoming a partner. Plaintiff hired an employee rights attorney to protect his rights.

Plaintiff argued that he was retaliated against for complaining about unsafe patient care in the workplace. Defendant argued that the plaintiff was not barred from becoming a partner because he was not a good fit. Defendant also argued that he did not make complaints, but asked for certain preferences that would benefit himself as a surgeon. The jury was not convinced by the defense and sided with the plaintiff. The jury awarded plaintiff $1,750,000 for retaliation under Health & Safety 1278.5.

This case was a huge victory for employees of health facilities, whether it be doctors, nurses, o medical staff assistance. Wascher v. Southern California Permanente Group reinforces California’s policy of encouraging members of health facilities to speak up against suspected unsafe patient care and poor health facility conditions. This is a very important law as it not only protects employees who act as patient advocates, but also protects the pateints themselves to ensure that Californians are treated in a safe and clean health facility. If you are an employee of a health facility and you feel that you have been retaliated against for reporting unsafe patient conditions or acting as an advocate for patients adverse to your employer, then call an employee rights attorney immediately.

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Filed under Health Care, Whistleblower, Wrongful Termination

July 27, 2015 · 5:57 pm

Cheerleaders are Employees – Not Independent Contractors

Companies frequently try to squirrel out of having to pay payroll taxes and benefits to employees by calling them “independent contractors.” Employees are frequently misclassified this way. One popular example are sports cheerleaders. Governor Brown recently signed AB 202 which adds Section 2754 to the Labor Code, providing that cheerleaders for California-based professional sports teams are employees, rather than independent contractors. The statute applies “for purposes of all of the provisions of state law that govern employment, including the Labor Code, the Unemployment Insurance Code, and the California Fair Employment and Housing Act.” The new law goes into effect on January 1, 2016. After that date, the Chargers, Raiders, 49ers, Angels, Dodgers, Lakers, Clippers and all of the other sports teams will have to pay their “cheer” staff an hourly wage, overtime, and all the other perks of employment.

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Filed under Uncategorized

June 22, 2015 · 2:31 pm

Pregnancy Discrimination Verdict – $538,000 in Damages

Branigan Robertson is proud to announce that his law firm, along with the incredible Lawrance Bohm of the Bohm Law Group, just obtained a verdict in Orange County Superior Court in front of Hon. Ronald Bauer. The case was a pregnancy discrimination case in which the Plaintiff, Kimberly Perry, was terminated after delivering a stillborn child. Mr. Robertson has handled many pregnancy discrimination cases.

Ms. Perry worked at eGumball, Inc. In three years of employment as the HR Manager, Ms. Perry was never reprimanded in writing. In February of 2013 she told her boss, the President, that she was pregnant. Ms. Perry went on leave on August 30, 2013, approximately a week before her baby was due. A few days later she delivered a stillborn child. She and her husband were devastated. Her son’s name was Trenton.

On October 4, Ms. Perry informed the President via email that she intended to return to work on October 31st. According to witnesses, this made the President uneasy as he thought she would be depressed and gloomy. He did not think Ms. Perry would return from leave after what happened. The President forwarded Ms. Perry’s email to his assistant, Chelsea Patterson. Ms. Patterson was the President’s most trusted employee, and she replied to the President stating that despite the situation Kimmy had done a “good job” in the HR Department, but they should move forward with their “most recent decision.” Ms. Patterson confirmed at depo that this email meant “terminating Kimmy Perry.” She changed her testimony at trial and said it didn’t mean termination, it meant they were going to “make some kind of change.”

But since eGumball did not write up Ms. Perry in three years of employment, they needed a paper trail if they were going to fire her since her termination was going to follow the death of her child. eGumball hired an auditor to look into the HR Department on October 14, 2013. The auditor came in and interviewed two employees who were not qualified to give the answers. eGumball used the audit’s results as its main justification for terminating Ms. Perry. But during the case it was discovered that eGumball did not get the results of this audit until weeks after Ms. Perry was already fired.

The jury awarded $138,000 in damages for Ms. Perry. The jury then heard testimony as to whether or not punitive damages should be awarded. The jury felt they were needed awarded $400,000 for a total verdict of $538,000.

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Filed under FEHA, Pregnancy

April 15, 2015 · 12:00 pm

Your Right to Receive Reasonable Accommodations Due to Disability in the Workplace

California law requires that employer make reasonable accommodation for the known disabilities of employees to enable them to perform the job’s essential functions unless doing so would produce undue hardship to the employer’s operations. This is an affirmative duty for employers to accommodate disabled workers. The Fair Employment and Housing Act (also known as FEHA) provides a list of possible accommodations including making facilities readily accessible for disabled employees, job restructuring, modifying work schedules, or even allowing an employee to work from home. Disability discrimination and employment lawyers ensure that employers in California will be held accountable for failing to provide reasonable accommodation for disabled employees.

FEHA Protects your Rights

In Doe Psychiatrist v. California Department of Corrections & Rehabilitation (“CDCR”), Plaintiff was a full time psychiatrist for CDCR since 2006. After medical leave of absence, Plaintiff informed the employer that she had ADHD and depression. She then asked for reasonable accommodations and presented the employer with a list of possible accommodations such as a more secluded and quiet place to work. CDCR refused to provide the accommodations. The employer notified the Plaintiff that she would need to decide whether to return to work or not. Plaintiff ended up being terminated shortly thereafter. Plaintiff retained an employment lawyer to represent her against the CDCR.

The employer argued that Plaintiff did not give the employer sufficient medical information to the employer, and that reasonable accommodation was already provided to the Plaintiff when she took a leave of absence. The jury did not buy the employer’s arguments. The jury awarded Plaintiff a gross verdict of over $1 million for employer’s failure to provide reasonable accommodations, and failure to engage in good faith in the interactive process.

Reasonable Accommodations in Today’s Workplace

Sadly, employers fail to provide employees with reasonable accommodation all the time. Many times employers may do this to cut costs. However, as the above case shows, employers will be held accountable for failing to provide disabled employees with reasonable accommodation. If your employer has failed to provide you with reasonable accommodation, contact an employment lawyer immediately.

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Filed under Disability, FEHA

March 23, 2015 · 3:22 pm

Employment Lawyers: Holding Employers Accountable for Retaliation

California law protects employees from retaliation who oppose unlawful company conduct by either complaining against their boss, or testifying against their boss or employer in any legal proceeding. What is retaliation though? Retaliation occurs when an employer fires, demotes, lays-off, or does something that adversely affects the employee’s job because the employee opposed unlawful practices under the law. When this happens employment lawyers may be contacted to ensure that employers are held accountable for their illegal conduct.

Our main page on retaliation can be found here. Here is a video Branigan Robertson made to explain retaliation to non-lawyers.

Case Example of Lawyers Holding an Employer Accountable

In Zulfer v. Playboy Enterprises Inc., the plaintiff employee worked as an executive in the corporate accounting department for almost thirty years. At one point, the CFO, asked the plaintiff to accrue over $1 million dollars in executive bonuses on the company’s general ledger. The plaintiff refused to do so because Board approval was required if there was to be a pay out on the bonuses. The plaintiff then discussed what the CFO asked of her with another executive at the company. Several months later, the CFO terminated the plaintiff because he had made the decision to eliminate her position. Oddly enough, the CFO had another executive move from Chicago to California to basically take over plaintiff’s former corporate controller position. The plaintiff immediately retained an employment lawyer.

Plaintiff alleged that the CFO pressured her into making the accrual without following internal accounting policies which would violate the Sarbanes-Oxley Act. Defendant alleged that the issue had nothing to do with the Sarbanes-Oxley Act, but was simply a routine accounting issue within the company. Further, the defendant argued that the plaintiff’s termination was legitimate.

The jury was not convinced and found that the company had retaliated against the plaintiff for refusing to take part in illegal activity in violation of the Sarbanes Oxley Act. The jury awarded the plaintiff a verdict of $6,000,000.

What Should You Do If You’re Retaliated Against?

Unfortunately, it is not uncommon for employers to ask or demand their employees to perform some duty in violation of the law. Many times employees feel pressured and will succumb to the employer’s demands. However, as Zullfer illustrates, employers can be held accountable for retaliating against their employees for refusing to break the law. If you feel you have been retaliated against for opposing unlawful company conduct, contact an employment lawyer immediately. Attorney’s like Branigan Robertson generally represent employees on a contingency fee. They normally do not charge for consultations. Therefore, there is no risk in picking up the phone.

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Filed under Retaliation

March 9, 2015 · 11:56 am

California Labor Laws on Age Discrimination

There are many types of prohibited employment discrimination in California. One common type is age discrimination. CA’s Fair Employment and Housing Act, or FEHA, protects employees who are at least 40 years old from discrimination in the workplace or during the hiring process. It is unlawful for an employer to discharge an employee because of the employee’s age if the employee is 40 years or older. And it is also unlawful for an employer to only search for younger applicants if the employer has a job opening. Age discrimination in the workplace is just one of the many areas of labor law in which California employment attorneys work to prevent.

California Labor Lawyers Deter Discrimination in the Workplace

In Nickel v. Staples, the plaintiff was employed as a facilities manager. The plaintiff was 64 years old at the time he was terminated. At the time he was terminated, a new company had just acquired the company he had been employed with for several years. Throughout his employment, the plaintiff received accolades and positive reviews for his performance. Despite this, the plaintiff believed he was terminated because his pay scale was higher than many of the employees of the acquiring company. His managers also stated that they needed to get rid of the older, higher paid employees. The plaintiff’s age also became a running joke at the office, and he was often referred to as an old goat. Lastly, the plaintiff was even approached by a co-worker who told him that she had been told by upper management to make up a false statement about the plaintiff’s conduct as a pretext to his termination.

The jury sided with the plaintiff. The jury awarded the plaintiff a total verdict of $26,107,328, most of which was punitive damages. This is an exceptional result that is rare in California jury verdicts. While the details here don’t seem to justify such a large verdict, the jury saw and evaluated all of the facts before coming to such a large amount.

Nickel Proves Workplace Discrimination Still Exists

Unfortunately, employers still take adverse action against its employees for discriminatory reasons. Sadly, this is far too common in California. But companies can be held accountable. If you believe you have been discriminated against in the workplace for any reason, call a California labor lawyer. There are many great lawyers up and down the State of California. If you have a good case, you will find a lawyer who will likely represent you on a contingency fee.

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Filed under Age, FEHA