Category Archives: Employment Contract

What are the Legal Implications of Quitting Your Job?

What are the legal implications of quitting your job? Can you collect unemployment? Severance? What if you have a case and you quit (vs letting them fire you), will you still be able to take action? I answer all of those questions in this video.

My office gets a lot of calls from people who quit and still want to take action. This video details the critical things that lawyers look at in this situation.

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Filed under Age, Defamation, Disability, Discrimination, Employment Contract, FEHA, Harassment, Health Care, Layoffs, Leave of Absence, Pregnancy, Privacy, Race, Religion, Retaliation, Settlements, Severance, Wage & Hour, Whistleblower, Wrongful Termination

How to Complain to Human Resources the Right Way

As with all things in life, making a complaint at work is a risk. If you complain to human resources the wrong way, you might get fired (it happens far more often than people think). That is why I took the time to make a video about the correct way to complain to HR.

This video will explain the five things you need to know before you complain about your issue at work. It also covers how HR will react to your complaint and what you should expect if they conduct an “investigation.”

If you found this to be helpful, please leave a comment below.

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Filed under Abuse, Age, Defamation, Disability, Discrimination, Employment Contract, FEHA, Harassment, Health Care, Layoffs, Leave of Absence, Pregnancy, Privacy, Race, Religion, Retaliation, Settlements, Severance, Verdicts, Wage & Hour, Whistleblower, Wrongful Termination

What does being an “at-will employee” actually mean? Can I get fired for “any reason”?

This is a very common question. At-will employment does not mean that the company can fire you for any reason they want. That is incorrect. In this video, employment attorney Branigan Robertson explains the at-will doctrine and how it actually works.

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Filed under Abuse, Age, Defamation, Disability, Discrimination, Employment Contract, FEHA, Harassment, Health Care, Layoffs, Leave of Absence, Pregnancy, Privacy, Race, Religion, Retaliation, Settlements, Severance, Verdicts, Wage & Hour, Whistleblower, Wrongful Termination

New Video! Employee Inventions. Who Owns Them? You, or your Company?

Last week I was happy to create a different kind of video. This one is all about employee inventions, patents, trade secrets, and non-compete agreements.

Who owns employee inventions? What if you want to leave your company and start your own? What documents, information, and processes can you take with you? What is a “trade secret” and needs to be left alone?

When it comes to patents, I brought in a registered patent attorney, Karima Gulick. She examines this question from the IP perspective as I don’t practice intellectual property and I’m not a patent attorney. She does a great job explaining patents when the employee gets one while employed.

If you are thinking of starting your own company, I highly recommend that you watch this video!

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Arbitration Agreements Are Not Always the Last Word in Employment Disputes

Many people are aware that when they sign an arbitration agreement, they’re signing away some of their power. Arbitration contracts are used in any number of situations, and are often signed by new employees when they start a job. While some legal experts drone on about the benefits of arbitration to more efficiently settle employment disputes, and provide relief to an overburdened legal system, employees who’ve had legitimate legal claims blocked by arbitration know the process favors powerful employers and corporations.

By signing an arbitration contract, employees agree to settle any potential lawsuits against their employer outside of a court room in a special hearing presided over by a professional arbitrator. Employers typically hire the arbitrator (often a retired judge) who will consider the facts of the case and issue a ruling. In addition to the obvious conflict of interest of an arbitrator working on the company’s dime, the ruling is often final, and the employee doesn’t have the opportunity to appeal the decision. Most employment lawyers who represent workers agree that arbitration favors the company, not the employee.

So, if an employee signs an arbitration agreement, is he or she automatically backed into a corner when a discrimination, harassment, or wage issue arises?  As a case decided by the Court of Appeal of the State of California, Second District demonstrates, the answer is not necessarily. Put simply, your signature on an arbitration agreement isn’t always the final word on the matter.

This article was written to generally discuss the issue of employment arbitration, as well a case in which a car wash employee was allowed to continue with his lawsuit in a court of law despite signing an arbitration agreement. We’ve written about recent arbitration rulings before (this one involving an arbitration decision by the U.S. Supreme Court).

If you have questions about an arbitration agreement you signed for your employer, or some other employment law question, contact our officefor answers.

Busting Arbitration Agreements | Unconscionability PAGA & Waivers

Wage Theft Claim Throws Arbitration Agreement into Question, Court Sides with Worker

Carlos Juarez worked for the Wash Depot beginning in July 2012. His job duties included washing, drying and detailing cars. In December 2016, he filed suit against the company alleging failure to pay earned wages, minimum wages, and overtimecompensation, among other violations.

Wash Depot attempted to compel arbitration based on the company’s employee handbook, which Juarez acknowledged receiving. The handbook featured an agreement that required disputes to be settled in an arbitration setting. The handbook also included a waiver of employee rights under the state’s Private Attorney General Act (PAGA), which stated that Juarez would have no right or authority for any dispute to be heard as a private attorney general action. However, significant differences in the wording of this waiver existed between the English and Spanish versions of the employee manual.

After Juarez filed suit against Wash Depot, the company attempted to have the case removed to arbitration, per the handbook agreement. Juarez resisted, and the court denied the company’s motion. In its ruling, the court stated that the differences between the Spanish and English versions of the handbook were “profound.” The court further relied on a section of California’s Civil Code regarding contracts, which states:

“In cases of uncertainty not removed by the preceding rules, the language of the contract should be interpreted most strongly against the party who caused the uncertainty to exist.”

Wash Depot appealed the ruling to the California Court of Appeals for the Second District, but the higher court also denied the company’s request to compel arbitration. Referring to the differences in Wash Co.’s English and Spanish manuals, the court wrote:

“At best the difference in the severability clauses in the English-language and Spanish-language versions of the handbook is negligent; at worse, it is deceptive.”

We’ve also addressed PAGA waivers in a prior blog post here.

What This Case Can Mean for Workers

You might have signed an arbitration agreement with an employer years ago, or may be faced with signing one now. As the previous section of this article hopefully makes clear, even employers, with their fancy lawyers, can make mistakes.

If you feel your employer has acted unlawfully and is attempting to compel you to settle your claim via arbitration, be sure you discuss your case with a good employment lawyer. If the company made a mistake in drafting its arbitration agreement, this could benefit you.

Arbitration in the Media

In 2015, the New York Timeswrote a series of articles on the ever-increasing number of companies using arbitration to ban class action lawsuits. Entitled, “Beware the Fine Print,” one of the articles mentioned several specific class actions blocked from the courts. These included an executive at Godman Sachs who attempted to sue on behalf of bankers claiming sexual discrimination, as well as African American employees at Taco Bell restaurants who claimed they were denied promotions, and subject to offensive comments. The article further noted:

“By banning class actions, companies have essentially disabled consumer challenges to practices like predatory lending, wage theft and discrimination, court records show.”

Some Contracts Are Unconscionable

Sometimes a court won’t honor an arbitration agreement or other employment contract because the terms of the contract are unconscionable. In legal terms, unconscionability is defined as something that is overly harsh, unduly oppressive or unfairly one-sided in favor of the person with superior bargaining power. The law generally views the concept of unconscionable contracts through two filters: the first, is known as procedural unconscionability, and the second is substantive unconscionability. The term procedural generally refers to the process under which the contract is negotiated, and substantive refers to the actual terms of the contract.

Regarding contract unconscionability, California Civil Code §1670.5 states the following:

“If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.”

If you believe an arbitration contract you signed might be unconscionable, now might be the time to contact a qualified employment lawyer to discuss your situation.

Before You Sign, Have A Lawyer Review (if possible)

If an employer hands you a contract to sign, it might be in your best interest to have an employment attorney look the contract over to make sure everything is on the level. If you’re just starting a new job, you might want to know if your future employer is trying to corner you with unconscionable terms.

Likewise, if you work for a company where you’ve already signed an arbitration agreement, and your company is engaged in unlawful behavior such as wage or overtime violations, a good employment lawyer might be able to find any errors in the contract and help you fight for a better settlement in a court of law.

If you have questions about anything discussed on this page or some other area of employment law, schedule a consultation with the office of Branigan Robertson to find out how we can help.

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California Continues to Reject Non-Compete Clauses

You don’t have to be a legal expert to know that non-compete clauses are largely unenforceable in California. The law nullifying this type of clause, in which an employer tries to prevent terminated employees from working for competing businesses, has been on the books for years. And if you’re an advocate of employee rights, the law is a bright spot in California’s Business and Professions Code.

Over the years, California employers have tried to test the strength of California’s non-compete law, with little success. However, in July of 2018, an employee turned the tables and sought to test the law’s strength in a case that didn’t specifically involve a non-compete clause.

The United States Court of Appeals for the Ninth District ruled on the case, which involved a doctor whose former employer wanted him to sign a non-rehire agreement. The federal court looked to California’s non-compete law to rule in favor of the doctor. Continue reading to learn more about the court’s decision, non-compete clauses and related areas of employment law.

If you have questions about your own employment situation, don’t hesitate to contact our officeto learn how we can help.

Non Compete Clauses Unenforceable in California | Branigan Robertson

California’s Non-Compete Law

The Golden State’s non-compete law is found in Business and Professions Code §16600. It states:

“Every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”

Golden vs. California Emergency Physicians Medical Group

Physician Donald Golden was an emergency room surgeon employed by California Emergency Physicians Medical Group (CEP) at its Seton Coastside Medical Facility. He was fired in May 2008, and filed a discrimination suit against the company.

The case ended up in Federal District Court in 2010, but before the trial had a chance to begin, CEP offered to settle the case. In return for a large settlement, the company wanted Golden to waive any rights to future employment with the company.

This meant that Dr. Golden wouldn’t be rehired at any facility owned by the company, as well as any facility CEP might own in the future. Dr. Golden refused to sign the printed agreement. The court ruled that Dr. Golden should be compelled to sign the agreement, but the doctor appealed the decision, and the case moved to the appellate court.

During his appeal, Dr. Golden argued that the non-rehire provision of the settlement violated California’s law against non-compete clauses.

In its ruling, the Federal Court noted that California’s no compete law has been broadly interpreted over the years. The court further argued that the lower court had abused its discretion in narrowly interpreting the law.

The appellate court argued that the simple question at hand was whether or not the settlement agreement in Dr. Golden’s case restrained anyone from engaging in a lawful profession, trade, or business of any kind.

“We have no reason to believe that the State has drawn section 16600 simply to prohibit ‘covenants not to compete’ and not also other contractual restraints on professional practice,’” the court wrote in its decision.

Accordingly, the appellate court reversed the lower court’s judgment and remanded the case “for further proceedings not inconsistent with this opinion.”

What This Means for California Workers

This case once again reinforces the strength of California’s non-compete law and actually demonstrates that the law goes beyond non-compete clauses in protecting an employee’s right to earn a living.

To be clear, this doesn’t mean every employee who’s been unlawfully compelled to signed a non-compete clause has a shot at a million-dollar judgment. But it does mean that non-compete clauses, with few exceptions, are unenforceable.

Unfortunately, this doesn’t stop employers from asking workers to sign these agreements. In 2016, the Office of Economic Policy, a division of the US Treasury Department issued a report on the prevalence of non-compete contracts. According to the report, California workers were found to have signed these agreements at 19 percent higher than the national average. Acknowledging that such agreements are largely unenforceable in court, the report noted that the trend suggests “firms may be relying on a lack of worker knowledge.”

Employers and employees often sign non-compete clauses that include trade secret language. Employers are very much allowed to prohibit the theft/taking of valid trade secrets, and employers frequently sue former employees who steal customer lists or valuable and secretive manufacturing plans. When you have a mixed clause like this, contact a lawyer especially if you think your employer may try to enforce the provision.

When an Employee Blows the Whistle on Non-Compete Contracts

If an employee realizes that a company he or she works for is violating the law by requiring other workers to sign non-compete contracts, and that employee notifies the authorities (a state agency, the District Attorney, the police), it’s possible the company will retaliate against that employee (fire, demote, harass, etc.). It’s important to note that the employee in this situation is a whistleblower, and whistleblowing activities are protected by law. A worker who experiences retaliation as the result of whistleblowing activities could be entitled to monetary damages. For more information on whistleblowing, contact our office or visit our whistleblowing page.

When to Contact an Employment Attorney

If you work in California, and have been asked to sign a non-compete clause, chances are good your employer has violated state law. It could be worth your time and effort to discuss your situation with an employment attorney. Additionally, if you’ve received notice of legal action from a former employer stating you have violated the company’s non-compete clause, you’ll want to contact an attorney right away.

If you have questions about anything discussed in this article, or another employment law related question, contract the office of Branigan Robertson to learn more about your rights under the law.

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Filed under Employment Contract, Layoffs, Wrongful Termination