Category Archives: Retaliation

Can Immigrants in California Sue for Discrimination or Wrongful Termination? What are the Risks?

The topic of immigration in America continues to spark passionate, and often vitriolic debate. But regardless of the different voices clamoring to be heard, the simple truth is that America was built by immigrants, and immigrants — whether documented or undocumented — contribute positively to the fabric of California. 

There are laws in place at both the federal and state level that protect both documented and undocumented immigrants from employment abuse. This means that immigrant workers are protected from unlawful discriminationharassmentwrongful termination and other workplace violations.Continue reading to learn a little more about immigration and employment law.

If you are an immigrant who is working in this country, lawfully or unlawfully, you have rights. If you feel you’ve been treated unfairly by an employer, contact our office to discuss your case. 

Immigrant Employment Rights – What Does the Law Say?

While employment law is complex, and there are many things to consider when pursuing action against an employer. Generally speaking, immigrants are covered by the same workplace protections that US citizens enjoy. The California Labor Code says:

All protections, rights and remedies available under state law…are available to all individuals regardless of immigration status who have applied for employment, or who have been employed, in this state.

Labor Code §1171.5(a)

Subsection (b) further states:

For purposes of enforcing state labor, employment, civil rights, consumer protection, and housing laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status unless the person seeking to make this inquiry has shown by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law.

Labor Code §1171.5(b)

Beyond that, your former employer is prohibited from reporting or threatening to report your immigration status in retaliation for filing a lawsuit. CA Labor Code § 244(b)

California’s Fair Employment and Housing Act (FEHA), which protects all workers within the state, makes it unlawful for employers to discriminate against workers for any number of reasons including color, race, ancestry, and, most importantly for purposes of this article, national origin.

What Kinds of Protections Does the Law Provide Immigrants?

Thanks to laws like those mentioned in the previous section, immigrants are afforded many of the same rights as non-immigrant employees.  These protections cover:

  • Equal employment opportunities – non-discrimination
  • Disability rights
  • Harassment prevention
  • Freedom from other forms of discrimination
  • Rest and meal breaks
  • Overtime, PTO, minimum wage, and other wage & hour standards

If you’re an immigrant, whether in the country on a work visa or undocumented, and you believe you’ve experienced harassment, discrimination, or some other workplace violation, consider contacting an experienced employment lawyer to discuss the facts of your case.

But Wont My Employer Retaliate?

It is unlawful under California and federal law for an employer to retaliate against an employee because that employee reported a violation of workplace law, or refused to do something they thought was illegal. An employer who retaliates in this way, even against an immigrant employee, can potentially be liable for damages.

Documented Immigrants

Workers who are in the country on a work visa can be subject to retaliation. An employer who is upset at an immigrant worker for complaining about wage, safety, or meal break violations might threaten to cancel that worker’s visa and have them deported.  

Understandably the fear of losing one’s visa is often enough to keep an immigrant from speaking up for his or her rights (or the rights of others). If you are here on a work visa and your employer has retaliated against you unlawfully, contact our office to discuss the facts of your case.

Undocumented Immigrants

An undocumented worker has perhaps the most to fear when it comes to employer retaliation. According to the Economy Policy Institute, instances of immigration related retaliation appears to be on the rise. Workers in California filed 94 immigration related retaliation claims in 2017. This represented a sharp increase from 2016 in which there were only 20 claims. In 2015, there were only seven such claims. 

An undocumented immigrant might understandably be hesitant to contact an employment attorney for fear of retaliation by their employer. However, it’s important to remember that even undocumented immigrants have rights in the workplace and an after learning the facts of your case, a good attorney will be able to discuss the potential risks of pursuing legal action against your employer.

If your employer is threatening to contact ICE or another law enforcement agency because you reported a workplace violation of law, don’t hesitate to contact our office. Calls placed to our office are kept in the strictest of confidence.

Immigrant Employees Can Sue Their Employers

In addition to those laws, according to CA Labor Code § 1019, Immigrants can sue their employer for any unfair immigration related practice including:

  • Requesting more or different documents that are required by federal immigration laws,
  • Using the federal E-Verify system to check the employment authorization of a person at a time or in a manner not required under federal law,
  • Refusing to accept such documents when they reasonably appear on their face to be genuine,
  • Filing or threatening to file a false police report or a false report or complaint with any State or federal agency like the Immigration and Customs Enforcement Agency (“ICE”), or
  • Contacting or threatening to contact immigration authorities.

What Can Immigrants Recover in an Employment Lawsuit?

Each case is different, and it’s impossible to answer this question with a specific dollar amount. That said, immigrant employees are entitled to recover the same damages as workers born or naturalized in the US. This includes the following:

Back Pay: Say an immigrant worker was paid less than the minimum wage for the time he or she was employed with the company.  The minimum wage in California is currently $12 hourly. Suppose a worker was only paid $9 hourly over a period of three years. If he or she successfully presses a claim, that worker could be eligible for back pay. If that employee regularly worked overtime, the final figure will increase.

Lost Wages: An employee who is found to have been wrongfully terminated might be entitled to lost wages. This is the money he or she would have earned had the termination not happened. Imagine an immigrant employee was making $45,000 annually, was wrongfully terminated as the result of retaliation, and unable to find work for three years. An immigrant who successfully pursues a case could be entitled to the normal salary over a period of three years. This would come out to $135,000.

Punitive Damages: These are the damages that often come in million-dollar amounts. They are designed to punish companies that act with malice, oppression or fraud. While proving these elements is difficult, it’s not unusual for a company that abuses immigrant labor to engage in behavior worthy of punitive damages.

Contact an Attorney to Discuss Your Case

Any settlement, no matter how big, is little comfort to a worker who faces deportation. That’s why it’s important to discuss with an attorney the risks and rewards an immigrant faces when deciding to sue an employer.

If you are an immigrant who believes you have been mistreated by an employer, contact our office to discuss your case. Rest assured, your information will be kept confidential. You have little to lose by talking to our firm.

If you have questions or concerns, contact Branigan Robertson’s office. Find out how we can help.

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New Video! How Much Money are Retaliation Lawsuits Worth?

We are excited to release our latest video. This one is about how much money retaliation lawsuits can be worth. In this video Branigan explains recovery from three different perspectives: people who got fired, people who quit, and employees who are still employed. This video is a necessary addition to our Ultimate Guide to Retaliation Law webpage.

If you would rather watch the video on YouTube, click here.

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Filed under Retaliation, Settlements, Verdicts

New Retaliation Video – An Overview of Retaliation Law and Lawsuits

We are excited to release our latest video. This one is on retaliation, specifically, what exactly is unlawful retaliation and when do you have a case? In this video Branigan explains when you might have a case and how much it may be worth. This is meant to be an introductory video to our Ultimate Guide to Retaliation Law webpage. So, give it a watch!

If you would rather watch the video on YouTube, click here.

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New Video! How to Prove Retaliation at Work

We are excited to release our latest video. This one is on retaliation, specifically, how to prove that retaliation is happening to you. In this video Branigan explains the dangers of going to war with your boss and trying to “prove” retaliation to HR. He also explains how a retaliation lawyer like Branigan goes about proving your case in court. So, give it a watch!

If you would rather watch the video on YouTube, click here.

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New Retaliation Whiteboard Video

Branigan Robertson just finished filming a whiteboard video on retaliation. This video can also be found on our retaliation page which gives a comprehensive overview of CA law regarding retaliation in the workplace. We hope you find it helpful.

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January 28, 2017 · 9:19 am

Stealing From the Elderly is a Bad Business Decision

Last week, a San Francisco jury demonstrated that California takes the rights of whistleblowers seriously. Trish Williams, a former sales rep for Wyndham Vacation Ownership, was awarded $20 million in a civil lawsuit against her former employer.

According to a press release issued by the lawyers representing Williams, their client was terminated after she reported the company’s shady business practices, which included defrauding elderly customers through dishonest sales tactics. “I am grateful a jury of 12 people exposed the facts of this fraud and confirmed that I was terminated for standing up to Wyndham on behalf of the elderly clients they were ripping off,” Williams said after the verdict was handed down.

Trial Evidence

During the one-month trial, William’s lawyers presented evidence that sales reps maxed out customer credit cards, lied about reducing timeshare maintenance fees, and mislead clients about their ability to obtain rental income from timeshares.

Sales reps were encouraged to engage in a practice known as “pitching heat,” which consisted of using deliberate misrepresentations in an effort to get customers to buy more timeshare “points.”

There were even TAFT days, an acronym for “Tell Them Any F***ing Thing,” when sales reps were encouraged to tell clients anything as long as they didn’t put it in writing. One high ranking sales rep was quoted as saying “I sold my soul to the devil. I can say whatever I want so long as I don’t put it in writing, that’s why Wyndham has good lawyers.”

According to online news outlet SF Gate, Williams began working for a Wyndham vacation resort located in Virginia back in 2007, but transferred to an office in San Francisco in 2010. During her 63 days with that office, Williams reportedly complained seven times about dishonest sales tactics before being fired.

SF Gate reported that Wyndham tricked elderly clients, some in their 90s, into buying time share points by signing up for credit cards. The company would max out the cards without the clients’ knowledge.

Though according to court documents, the average fraudulent credit card bill was $52,000, Williams said she saw a bill for as much as $90,000. Because some of these customers had long standing relationships with the company, they weren’t reviewing documents they were signing, said Williams.

“A lot of these couples had been owners (with Wyndham) for years,” Williams said. “They were vulnerable.” The former Wyndham employee, who now works as a hostess at a grill in Virginia Beach, said she reported the alleged fraud to an executive, who threatened to fire her.

Employment Stealing from Elderly Whistleblower

California Law Protects Employees Who Report Theft from Elderly

In California, there are multiple laws in place designed to protect workers. These include the Fair Housing and Employment Act, the State Labor Code, wrongful termination case law, as well as the Federal Civil Rights Act. There are various retaliation laws that protect workers.

For example, California Labor Code §1102.5(a) makes it illegal for an employer to enforce any rule that prevents an employee from cooperating with law enforcement, or another employee who has “authority to investigate, discover or correct” a workplace violation. Subsection (d) of the law further makes it illegal for the employer to retaliate against the employee for exercising his or her rights under the law.

Despite the fact that a jury awarded a large sum of money in the whistleblower’s favor in the recent Wyndham case, it appears that the time-share giant intends to appeal the decision. Adam Schwartz, a Wyndham spokesman said the company does not agree with the jury’s findings.

“The allegations in this case were isolated to a single sales office years ago involving a small group of individuals who are no longer employed by the company, and are wholly inconsistent with both our values and business practices,” Schwartz said.

Refusing to Settle

For her part, Williams said she wanted to go to trial despite having the option of settling. Four other Wyndham employees joined Williams in her lawsuit. However, all settled.

“If you don’t come before a jury, no one will ever know,” said Williams. “Everyone was trying to buy me off and shut me up, but I had nothing but faith for six whole years that this was going to turn out exactly how it was going to turn out.”

Wyndham Worldwide is the parent company of Wyndham Vacation Ownership. According to the company website, the vacation ownership division is the world’s largest developer and marketer of points-based vacation ownership products. The company claims to have developed a new business model in the time-share field, which utilizes “industry-leading sales and marketing expertise to sell vacation ownership interests.”

Please note: Mr. Robertson was not involved in this case and did not represent any of the affected parties. This article is simply meant to share the victory and explain CA law. If you want to learn more about Branigan Robertson, visit his employment lawyer website homepage.

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Employers Cannot Retaliate Against Employees For Reporting Violations of Law

Unfortunately, retaliation at work is still a widespread occurrence throughout California. Many employers do not know the law, so it is no surprise when an employee refuses to participate in an illegal activity or reports a violation of law, the employer retaliates against the employee for being “insubordinate.” So what is retaliation?

Retaliation is when an employer takes adverse action against an employee for reporting or opposing an illegal practice in the workplace. Adverse action by the employer can occur in the form of a demotion, a cut in pay, a decrease in hours or a termination. There are many things that are illegal or violation under California law such as a nurse reporting patient abuse by other nurses, an accountant refusing to cook the books, or a worker reporting wage and hour violations by his or her employer.

Michael Marlo v. United Parcel Service, Inc.

Michael Marlo v. UPS is a great case example of retaliation in the workplace. Plaintiff worked for UPS for over twenty years. At some point in during his time working for UPS, he filed a class action lawsuit alleging wage and hour violations. The class action failed though and he ended up pursuing an individual wage and hour claim. In the same year he filed his individual claim, plaintiff would encourage his co-workers to file their own wage and hour claims against UPS. Over fifty UPS workers filed individual wage and hour claims. In the same year, plaintiff was terminated.

Plaintiff argued that UPS retaliated against him for reporting wage and hour violations in the workplace. Further, plaintiff argued that the reasons stated by UPS for his termination was just a pretext to get rid of him as UPS viewed his lawsuits and discussions with co-workers as a distraction in the workplace. Defendant argued that plaintiff was fired due an incident that occurred with a customer in the same year he filed his individual lawsuit. Defendant further argued that plaintiff broke numerous policies, and that is why he was fired.

Companies Will Be Held Accountable For Unlawful Conduct

The jury in Michael Marlo v. UPS sided with the plaintiff and awarded the plaintiff with over $18 million dollars in damages. The jury was not convinced that the real reason plaintiff was fired was due to an incident with a customer. This case is a classic retaliation case (but the damages ended up being extremely high). Plaintiff opposeed violations of law, and even filed multiple lawsuits while he was still working there. In the same year as one of his lawsuits, the company fired him after twenty-two years of great service. The facts on their face pretty much scream retaliation.

If you have worked for an employer for many years and recently reported or opposed illegal activity, and now your employer is retaliating against you, call a whistleblower lawyer for a free consultation. You can also visit our retaliation page here.

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