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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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Sexual Harassment in Professional Relationships Outside of the Traditional Employment Relationship

As the reckoning of the #MeToo movement continues to make headlines, the public continues to learn about the and strengths and limits of the law. It was recently reported that portions of actress Ashley Judd’s sexual harassment lawsuit against producer Harvey Weinstein had been thrown out. In light of the many women who have accused Weinstein of reprehensible behavior, this wasn’t welcome news.

But though Judd didn’t win on this count, there is still a silver lining for women and men who decide to bring suits against their harassers in the future.

What makes Judd’s case somewhat unique is that she filed her sexual harassment claim, not based on a conventional employment relationship, but on harassment occurring in a “professional relationship” (i.e. the relationship between producer and actress). This is different than a hostile work environment. The harassment allegedly occurred in a hotel room, where a business meeting was scheduled to take place, as opposed to an office. 

This article was written to briefly discuss Judd’s lawsuit against Weinstein as an illustration of harassment law in California, particularly the Unruh Civil Rights Act, which deals with professional relationships. Those who deal with professional relationships outside of a conventional workplace might find particular interest in this post.

If you believe you’ve suffered harassment related to a professional relationship, contact our office to discuss your case. 

Judd’s Lawsuit, The Basics

Ashley Judd’s lawsuit against Harvey Weinstein was first reported on in Spring of 2018. The alleged harassment had occurred back in the mid 1990s. She claimed that she had met with Weinstein in a private hotel room in Beverly Hills to discuss potential film roles and to “build her professional profile.” But Weinstein appeared for this meeting in a bathrobe, asked if she would watch him take a shower, and asked for a massage. Judd said she refused his requests and fled the room.

A year after the alleged incident, Judd was being considered for a role in the Peter Jackson helmed Lord of the Rings trilogy, but didn’t get the part. In 2017, Jackson publicly stated that Weinstein had told him not to hire Judd for the Lord of the Rings part because she was a “nightmare to work with.” Jackson further stated “I now suspect we were fed false information.” As a direct result of this information, Jackson said Judd’s name was removed from the casting list.

After Jackson’s public revelation, Judd sued Weinstein alleging defamation and sexual harassment in professional relationships. While the judge considering the case allowed the defamation portion of Judd’s case to proceed, the sexual harassment portion was thrown out. The reason? The section of law Judd and her attorney sued under did not cover professional relationships in the film industry at the time. Though the law was amended in 2018, the court ruled it could not be applied retroactively. Judge Phillip Gutierrez stated however that his ruling didn’t mean Judd wasn’t harassed. He wrote:

“The Court makes clear that it is notdetermining whether Plaintiff was sexually harassed in the colloquial sense of the term. The only question presented by the current motion is whether the harassment that Plaintiff allegedly suffered falls within the scope of the California statute that she has sued under.”

Though Judd’s harassment claim was thrown out, Weinstein faces a charge of rape in a separate case. 

Sexual Harassment from Professionals Under the Unruh Civil Rights Act | Branigan Robertson

What the Law Says About Professional Relationships

The specific code sited in Judd’s case is California Civil Code § 51.9. The Unruh Civil Rights Act was designed to prevent sexual harassment in relationships taking place outside of the conventional workplace environment. The types of relationships covered prior to 2018 did not include producers or directors, however, this has changed. 

The law states that harassers, including producers and directors, can be held liable if the plaintiff can prove a number of elements, including:

“There is a business, service, or professional relationship with the plaintiff and defendant or the defendant holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a third party.”

The specific professionals listed under this section of law include:

  • Physician
  • Psychotherapist
  • Dentist
  • Attorney
  • Social Worker
  • Real Estate Agent
  • Real Estate Appraiser
  • Investor
  • Accountant
  • Banker
  • Trust officer
  • Financial Planner
  • Loan officer
  • Collection Service
  • Building Contractor
  • Escrow Loan Officer
  • Executor
  • Trustee
  • Administrator
  • Landlord
  • Property Manager
  • Teacher
  • Elected Official
  • Lobbyist
  • Director or Producer

The law also includes any relationship that is substantially similar to those listed above.

What Constitutes Harassment Under The Unruh Civil Rights Act? 

Section 51.9 of the civil code lays out specifically what constitutes harassment. The law states:

“The defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe.”

When Should You Contact an Attorney?

When a person experiences harassment in a conventional workplace, it’s often easier to know when to contact an attorney. Often, a person will seek legal help after they’ve been fired, or when the harassed employee has had enough and picks up the phone. However, in cases involving professional relationships where a company isn’t directly involved, there often isn’t an employment agreement in place.  This is why if you have questions, you should ask an attorney.

The office of Branigan Robertson generally takes cases on a contingency basis, which means the client doesn’t pay out of pocket expenses. Rather, the attorney is paid with a portion of the final settlement. Robertson’s office also provides free consultations.

If you have questions about professional relationships or sexual harassment, contact the office of Branigan Robertson, and find out how he can help.

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