Category Archives: Uncategorized

Can Laid Off Workers (During COIVD-19) Get Their Jobs Back?

California workers laid off during the pandemic just got a little boost of hope. On April 16, Governor Gavin Newsom signed Senate Bill 93 into law, which went into effect immediately. The law requires employers to give rehire preference to qualified workers laid off during the pandemic.

This is good news for employees laid off in industries hit hard by the pandemic: hospitality, airports, private clubs, restaurants and hotels.

Keep reading this article to learn a little about this new California law. If you were laid off during the pandemic, or you are experiencing another type of employment issue such as harassment or retaliationcall our office to schedule a consultation.

What This New Law Says (Senate Bill 93)

Senate Bill 93 updates Labor Code §2810.8. The law states that an employer is required:

“To offer its laid-off employees specified information about job positions that become available for which the laid-off employees are qualified, and to offer positions to those laid-off employees based on a preference system, in accordance with specified timelines and procedures.”

Senate Bill 93

For purposes of this law a “laid off employee” is anyone who was employed for six months or more in the 12 months before January 1 2020, and whose separation was related to the COVID-19 pandemic.

Does the Law Apply to You?

Simply put, if you were terminated because of the pandemic, you could be legally entitled to your old position. Types of layoffs covered by this statute include:

  • Downsizing
  • An order to close from a government agency
  • A lack of business
  • Other non-disciplinary reasons

What if Multiple Laid Off Employees Qualify for a Single Position?

If two laid off employees are entitled to the same position, the employer shall offer the position to the laid-off employee with the greatest length of service.

The law, as currently written, will remain in effect until December 31, 2024.

What You Should Do if Your Employer is Hiring Again but Won’t Consider You for Your Old Position

The Division of Labor Standards Enforcement (DLSE aka Labor Board) shall have exclusive jurisdiction to enforce this new law. So, if your employer refused to rehire you for a job that you were laid off of, you should contact the DLSE and file a claim.

The DLSE has the authority to award aggrieved employees the following:

  • Hiring and reinstatement rights
  • Front pay or back pay for each day during which the violation continues
  • Value of the benefits the laid-off employee would have received under the employer’s benefit plan

We hope this article has been helpful. Take care!

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New Video – FMLA Explained by a Lawyer

Mr. Robertson is pleased to release a Family Medical Leave Act (FMLA) video as a companion to our California Family Rights Act (CFRA) video. This video answers common questions regarding leaves of absence from work. Who has the right to take a leave of absence? How do you qualify? How long can you take? What happens if your employer denies your leave?

The above links go directly to more detailed pages on each subject. If you would rather watch the video on YouTube, click here.

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New Video! The Ultimate Guide to Discrimination Law

I am pleased to release another whiteboard video! This video is all about discrimination law. It details the legal definition of discrimination, the statute of limitations, how much cases are worth, what to do if you are still employed, quit, or have been fired, and much more.

If you want to learn more about unlawful workplace discrimination in California, visit our main discrimination page here.

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Wrongful Termination Law Video

Mr. Robertson is excited to release another wrongful termination video. This video is meant to headline our Ultimate Guide to Wrongful Termination Law. If you want to learn more about wrongful termination, that is the place to do it.

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What to Expect in a Wrongful Termination Lawsuit – From Termination to Settlement

Branigan is pleased to release his latest video on YouTube. This is one small part of Branigan’s Ultimate Guide to Wrongful Termination Law. If you have any questions about wrongful termination, that is the place to get them answered.

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What Should You Do When Your Boss Sends Inappropriate Text Messages?

With great advances in digital technology, come great opportunities for nasty surprises. These days, a swipe of a finger is all that’s necessary to open an unsolicited inappropriate message on our phones and other digital devices. Such texts or direct messages can range from the mildly offensive to the outright vulgar.  And when the inappropriate message comes from a coworker, or worse yet, a boss, it can affect one’s work life in significant ways.

This article briefly details some of California’s laws regarding sexual harassment as well as some of the steps a worker might take to protect themselves if they are the recipient of harassing texts.  As always, if you believe your employer has broken the law, contact our office so that we can evaluate your case and help you decide if you should pursue legal action.

The Basics of California’s Sexual Harassment Law

We’ve written extensively on CA’s sexual harassment law. We’ve also made several YouTube videos on it. If you want to learn the basics, I recommend that you check out our sexual harassment page.

For the purposes of this article, lets look at a simple explanation provided by the Government Code. Section 12923 states that inappropriate workplace behavior rises to the level of harassment when the conduct:

“Sufficiently intrudes upon the victim’s ability to perform the job as usual, or otherwise interfere(s) with and undermine(s) the victim’s personal sense of well-being.”

CA Government Code § 12923

An employee who receives unwanted and inappropriate text messages from a boss or coworker clearly will intrude upon the victims ability to perform the job. He or she might justifiably experience difficulty concentrating on tasks, or might not feel free to move about the office without intimidation.

Boss or Co-Worker Sends Inappropriate Text Messages | Employment Law

Employers Have a Legal Responsibility to Prevent Harassment

The Government Code provides a strongly worded mandate for employers when it comes to their responsibility to protect employees. It states that it is unlawful for an employer

“to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”

CA Government Code §12940(k)

There are different situations and ways in which workplace harassment can occur —these differences can result in different levels of liability for the company depending on who’s sending the inappropriate material, and what is done by the company to stop it.

Texts from a Coworker vs. Texts from a Boss

Inappropriate texts come in any number of forms. They can include:

  • Vulgar jokes or sexually explicit images
  • Photos of the senders’ (or another person’s) genitals
  • Requests for pictures of the recipient’s private parts
  • Requests for sexual favors in return for career advancement (quid pro quo)
  • Unwanted flirting or teasing
  • Sexually threatening messages

As mentioned earlier, a company has a legal obligation to deal with any employee who might be sending inappropriate texts. If you receive a text or direct message from a coworker that makes you uncomfortable or is sexually explicit, report the issue to your HR director. If you report the issue, and the company fails to deal with the offending worker and stop the harassment, the company could be liable for damages.

But what about when the boss sends inappropriate messages? 

Such a situation represents unique challenges because of the power the boss holds in the workplace. Naturally, a victim might be hesitant to report the behavior due to fears of retaliation.

When a boss harasses an employee with lurid or inappropriate texts, this behavior exposes the company to liability much quicker than a lower level employee. 

Understandably, a worker who finds herself or himself in such a position should talk to an attorney to discuss the best way to proceed.

Steps You Can Take to Protect Yourself

Make sure to save any inappropriate text or direct messages sent by the harasser – Don’t delete anything—even the texts you might have sent in response. Our office has fielded countless calls from potential clients who likely have been harassed, but who have failed to preserve the evidence of their harassment. This often makes it far more difficult to proceed with their claim.

Furthermore, some clients will attempt to conceal or delete text messages they have sent in response to their harassers. This is always a bad move, and can cause problems down the road once the case has started. Always be up front with your attorney.

Screenshot any inappropriate images sent to your phone or computer – This is important because it preserves dates and times. A solid timeline can be valuable when your attorney is deposing or cross examining a witness. 

Report the Issue to HR – Whether you’re dealing with a boss or a coworker, it’s important that you report the issue to your HR director (assuming your employer has an HR department) so that the company is aware of the issue and investigates.

Contact a lawyer – Sometimes, the only way to get justice when dealing with bad actors is to hire an employment attorney to help you stand up for your rights. Our office performs free consultations for harassed employees.

Has a Boss or Coworker Sent You Inappropriate Text Messages? Contact Our Office

Our office has handled a wide variety of sexual harassment cases as well as other employee rights issues (discrimination, whistleblowerovertime, etc.). If you feel you’ve experienced harassment either from a coworker, or someone in a position of authority over you, contact our office to schedule an appointment.

Our firm often handles these types of cases on a contingency basis, which means the client doesn’t pay any out of pocket expenses. Contact the firm of Branigan Robertson to find out how we can help.

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The Ultimate Guide to CA Unemployment Benefits | Eligibility & Money Amount

We get a lot of questions about unemployment benefits in California. Unemployment pay gives people vital financial assistance while they look for a new job. But are you eligible? What if you were terminated? What if you quit your job? Do you still get benefits? How much money will California pay people each week?

Since the majority of people who call our office recently lost their job, we thought we’d put together a post answering the most common questions we get about unemployment. This post details who is allowed to file for unemployment and how much people may get. The Employment Development Department (“EDD”) is the state agency that administers unemployment payments.

But, we need to be clear about one thing. We do not represent people with their unemployment claims, questions, or issues. We are not “unemployment” lawyers. We practice employment law and help people with wrongful termination, whistleblower, and retaliation cases. So please, don’t call us with unemployment questions. But if you believe your termination was unlawful, we’d be happy to provide you with a free consultation.

Who Can Apply for Unemployment in California

Let’s first talk about who can apply for unemployment. Generally, people who apply for unemployment fall into three camps:

  • Recently terminated
  • Recently laid-off
  • Recently quit their job

While unemployment is meant to help people while they look for a new job, not everyone qualifies. Due to fraudsters and bad people, the EDD has developed strict eligibility requirements that you must meet before they will send you a weekly check. Generally, there are seven requirements.

  1. You must be physically able to work,
  2. You must be available for work,
  3. You must be ready and willing to immediately accept work,
  4. You must be actively looking for work,
  5. You must be totally or partially unemployed,
  6. You must be unemployed through no fault of your own, and
  7. You must have received enough wages during your “base period” to establish a claim.

These eligibility requirements are further explained in the video above. If you want to watch it on YouTube rather than here, here is the link. The page on the EDD regarding eligibility can be found here.

The “base period” issue in #7 is very confusing. Basically, the EDD wants to establish that you’ve earned wages during a 12 month period prior to filing for unemployment. Here is a useful page on the EDD website detailing “base period.

What Does Being Fired “Through No Fault of Your Own” Mean?

This is where a lot of disputes arise. CA Unemployment Insurance Code § 1256 says:

“An individual is disqualified for unemployment compensation benefits if the director finds that he or she…has been discharged for misconduct connected with his or her most recent work.”

CA Unemployment Insurance Code § 1256

But what does “misconduct connected with his or her most recent work” even mean?

For an employee’s act to be considered “misconduct,” the following four elements must be present:

  • The employee owes a material duty to the employer under the contract of employment.
  • There is a substantial breach of that duty.
  • The breach is a wilful or wanton disregard of that duty.
  • The breach disregards the employer’s interests and injures or tends to injure the employer’s interests.

This is still pretty vague. So, instead of going into it with extreme detail, here is a link to a detailed page on the EDD’s website defining misconduct. It covers a lot of scenarios and rulings.

Can You File for Unemployment if You Quit Your Job?

We get this question a lot. Clearly, people who just got fired or laid off can apply for unemployment. But what if you quit your job? Section 1256 also addresses this:

An individual is disqualified for unemployment compensation benefits if the director finds that he or she left his or her most recent work voluntarily without good cause….

CA Unemployment Insurance Code § 1256

Obviously, the definition of “good cause” is where all the fighting is about.

“Good cause” exists for leaving work, when a substantial motivating factor in causing the claimant to leave work, at the time of leaving, whether or not work connected, is real, substantial, and compelling and would cause a reasonable person genuinely desirous of retaining employment to leave work under the same circumstances

EDD Webpage on Good Cause

I’ve emphasized the important parts. Basically, when an objective adjudicator looks at your claim, he or she is going to determine if a reasonable person under the same circumstances would have also quit. If the answer is no, then you don’t get benefits. If the answer is yes, you do.

How Much Money Will Unemployment Pay You Each Week?

The answer is that it depends on how much you earned. The maximum amount (as of 2019) is $1,252.00 a week. The minimum is $50.00. So, how do you get that maximum amount?

Here is a page that explains calculating your payment amount. Here is another online calculator page that lets you put in wage information and get an estimate on your payment amount.

I hope this post has been helpful. Contact us if you have a claim for wrongful termination, harassment, retaliation, or you were a whistleblower.

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