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.
Category Archives: Retaliation
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.
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.
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.
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.
On July 13, 2015, Governor Jerry Brown signed Assembly Bill 304, an amendment to current sick leave law, thereby amending the Healthy Workplaces, Healthy Families Act (also known as “HWHFA”). Assembly Bill 304 basically states that any California employee who, on or after July 1, 2015, works for 30 or more days within a year from the start of employment is entitled to paid sick days for various reasons. And further, these paid sick days are to be accrued at a rate of no less than one hour for every thirty hours works.
Why did the California Legislature implement this new law?
The goal of HWHFA is to provide enhanced job protection for low wage employees across California as a little less than half of the workforce currently does not receive paid time off for illness.
So to whom does Assembly Bill 304 apply?
This applies to all employers, whether private or public, of any size. This also applies, not only to full time employees, but part time, seasonal, and exempt employees. In addition, Assembly Bill 304 applies to employees who take a paid sick leave to care for a family member.
This Law Will Protect California Employees from Retaliation
If an employer takes adverse action against an employee or terminates an employee for exercising his or her right under this new law, then the employee may have a viable claim against his or her employer. This is because it is unlawful for an employer to retaliate or discriminate against an employee who advocates for, or requests or uses paid sick days.
This is Good News for California Employees
At the end of the day, this is great news for California workers. Not only does the assembly bill provide a new benefit to employees, but also provides job security for employees as well. If your employer is retaliating or discriminating against you, then you should call an employment attorney immediately. You will feel incredibly blessed to have an experienced advisor on your side.
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.
Workplace retaliation is the unlawful employment practice in which an employer discharges or discriminates against an employee because that employee has opposed illegal practices that occurred at the workplace or because that employee has filed a complaint, testified, or assisted in any legal proceeding. Thus, an employee may have a retaliation claim in a situation where his or her employer wrongfully terminates the employee for testifying in a legal proceeding against the lawyer, or even assisting in a legal proceeding involving the employer.
In Avila v. Los Angeles Police Department, a police officer sued the LAPD alleging that he was owed overtime pay for working during his lunch periods. Avila, a fellow police officer, was called as a witness at trial. Avila testified that he worked through lunch without ever claiming overtime. He also testified that he witnessed other police officers working through lunch without claiming overtime. After his testimony, a disciplinary review board found him guilty of insubordination because he did not report overtime work violations to anyone during his tenure as a police officer. Subsequently, LAPD fired Avila. In response, Avila filed a retaliation lawsuit.
LAPD argued that he was not fired for testifying, but because Avila’s testimony shed light that he was not correctly reporting his work time. The Court was not convinced. Evidence showed that it was not uncommon for police officers to work through their lunch hours without reporting overtime hours. Oddly enough, only those who testified, including Avila, were fired. Further, Avila was terminated in the first placed because he had testified. If Avila had not testified, LAPD would have no knowledge of him not reporting working through his lunch break. Therefore, it was very reasonable for the jury to find that Avila’s testimony prompted his termination.
To sum it up, an employer cannot retaliate against an employee because the employee took part in a legal proceeding against the employer. Further, an employer cannot retaliate against an employee for complaining of potential wage and hour violations. Avila v. Los Angeles Police Department is a win for employees as it shows employers that they need to be extremely careful when firing someone for complaining or being part of a legal proceeding against them.
Laws You Should Know – Labor Code § 230.5 – Branigan Robertson is a California employment lawyer. Call for a free consultation. Governor Brown signed into law SB 288 this year. The bill adds Section 230.5 to the California Labor Code. The new law makes it illegal for employers to fire employees who are victims of violent crimes who take time off to attend court proceedings. Here is an abridged version of the statute:
Labor Code 230.5
(a) (1) An employer shall not discharge or in any manner discriminate or retaliate against an employee who is a victim of an offense listed in paragraph (2) for taking time off from work, upon the victim’s request, to appear in court to be heard at any proceeding, including any delinquency proceeding, involving a postarrest release decision, plea, sentencing, postconviction release decision, or any proceeding in which a right of the victim is at issue.(2) The offenses include all of the following:(A) Vehicular manslaughter while intoxicated(B) Felony child abuse likely to produce great bodily harm or a death, as defined in Section 273a of the Penal Code.(C) Assault resulting in the death of a child under eight years of age, as defined in Section 273ab of the Penal Code.(D) Felony domestic violence, as defined in Section 273.5 of the Penal Code.(E) Felony physical abuse of an elder or dependent adult, as defined in subdivision (b) of Section 368 of the Penal Code.(F) Felony stalking, as defined in Section 646.9 of the Penal Code.(G) Solicitation for murder, as defined in subdivision (b) of Section 653f of the Penal Code.(H) A serious felony, as defined in subdivision (c) of Section 1192.7 of the Penal Code.(I) Hit-and-run causing death or injury, as defined in Section 20001 of the Vehicle Code.(J) Felony driving under the influence causing injury, as defined in Section 23153 of the Vehicle Code.(K) Sexual assault as set forth in Section 261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269, 273.4, 285, 286, 288, 288.5, 288a, 289, or 311.4 of the Penal Code.