Category Archives: Uncategorized

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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Should I Go on Stress Leave From Work?

We all want purpose, meaning and joy in our careers. Sadly, for many California workers, this an elusive dream. Sometimes, survival and a better life for the worker’s family is the best that can be hoped for.

But human beings are complex. When their emotional needs are neglected as they struggle to make a living, stress, anxiety and depression can occur. In some cases, people are genetically predisposed to such mental health issues, which can be exacerbated by a toxic work environment.

When mental health problems flare up at work, the employee’s performance can suffer, and they suddenly find themselves under the microscope of indifferent managers, coworkers and clients. When this happens, things tend to get worse.

We regularly get calls from frustrated workers asking whether or not they should go on stress leave. It’s a complicated question that even an attorney can’t answer with a simple yes or no. Fears persist about whether an employee can be fired for taking time off and whether their original position will be waiting for them when they return. Some wonder if stress or depression is reason enough to ask for an extended leave.

This article was written to discuss some of the leave of absence laws surrounding mental health and disability leave as well as the questions an employee should consider before taking leave. If you feel your employer is treating you unlawfully, or has retaliated against you while you were out on protected leave, contact our office to schedule a consultation.

Legal Protections for Workers with Disabilities

Most workers know that California law protects employees with mental disabilities. CA Government Code §12940 states that it is:

“It is an unlawful employment practice… (a) for an employer, because of the… mental disability… of any person… to bar or to discharge the person from employment or from a training program leading to employment, or to bar or to discriminate against the person in compensation or in terms, condition or privileges of employment.”

FEHA § 12940(a)

Simply put, a person who is considered mentally disabled is protected from discrimination or termination (there are exceptions – more on that later). The question that many of our callers have is whether or not stress, anxiety or depression qualifies as a disability. Keep reading.

Does Stress Qualify as a Disability Under California Employment Law?

It’s important to note that state law defines the term mental disability in broad strokes. Mental disabilities can include intellectual disabilities in addition to emotional and mental illness. The common denominator in determining if a disability exists is whether or not the illness “limits a major life activity.” In other words, does it make the achievement of the major life activity difficult?

You should first note that stress created by the boss may not qualify as a disability. A CA court recently held that an employee’s inability to work for a particular supervisor, because of anxiety and stress related to the supervisor’s standard oversight of job performance, is not a disability. However, stress stemming from other conditions may constitute a disability if the underlying cause makes the achievement of a major life activity difficult.

A person with anxiety or depression might have difficulty concentrating on basic tasks, trouble sleeping through the night, or trouble getting up in the morning. This may cause extreme stress in someone’s life. Any of these symptoms, alone or together, have the potential to limit major life activities, including those necessary to maintain a job.

If you’re dealing with unexplained emotional symptoms that are making it difficult to complete tasks at work and do your job effectively, you should see a doctor immediately for an assessment of your symptoms and to determine a course of treatment. It’s important to remember that many employers will require the employee to provide a doctors’ note if he or she intends to take leave.

You should also note that under FEHA’s definition of mental disability, stress caused by sexual disorders, kleptomania, pyromania, compulsive gambling, or psychoactive substance use disorders stemming from the unlawful use of drugs or controlled substances, are specifically excluded. That means they are not protected. 

Stress Leave from Work | Branigan Robertson Employment Lawyer

What Options are Available to Stressed Out Employees?

California Family Rights Act

California Government Code §12945.2(a), also known as the California Family Rights Act, requires employers to allow employees with a serious health condition to take up to 12 work weeks off in any 12-month period as long as the employee has worked 1,250 hours for the employer within the previous 12 months. The law states that when family or medical leave is granted, the company must make a “guarantee of employment in the same or a comparable position upon the termination of the leave.”

We have a detailed page on CFRA here.

 A serious health condition can apply to a mental condition requiring continuing treatment or ongoing supervision by a health care provider.

While the CFRA is a good option for many employees dealing with significant stress, anxiety and depression, employers are not required to pay employees while they are out of work (though employees may be eligible to collect unused vacation hours, or sick pay). Additionally, many employees need more than 12 weeks to fully recover or adjust to life with their mental health issue. Sometimes temporary disability insurance is an option that workers dealing with mental health issues must explore.

Temporary Disability

California’s State Disability Insurance Fund allows eligible employees to collect up to 52 weeks’ worth of paid benefits which are provided based on the employee’s salary. There are many requirements an employee must meet in order to be eligible to collect from the program. These include:

  • Having a physician document your medical condition and certifying your disability.
  • A loss of wages due to your health issue.
  • You must have been paid $300 in wages subject to State Disability contributions during the 12-month base period.

Limits to Disability Protection

While California law does provide powerful protections to those with disabilities, there are limits to these protections. Government Code§12940(a)(1) allows an employer to terminate an employee suffering from a mental disability if the employee is unable to perform the essential duties of the job even with reasonable accommodations.

An employer can also fire a mentally disabled worker if he or she cannot perform the duties in a manner that would not endanger the employee’s health and safety or the health and safety of others even with reasonable accommodations.

As with many areas of the law, this section can be open to some interpretation. For this reason, if you were fired while dealing with a mental health issue or on disability leave, you should contact an employment lawyer to discuss your case.

Before You File for a Leave of Absence

If you’re on the fence about filing for leave, it might help to ask yourself the reason for doing it. Are you simply experiencing the normal stress of dealing with a difficult boss? Or are you struggling to hold your emotional life together hour by hour?

It goes without saying that if you’re dealing with emotional issues that are interfering with your basic life activities, you should do whatever you can to get better. This often starts with following the directions provided by a doctor or mental health specialist.

Contact an Employment Lawyer

As you no doubt already know, the areas of law dealing with mental health and employment can be complex and nuanced. Sometimes it requires help from a qualified attorney to help a worker stand up for their rights. Moreover, if you are dealing with a mental health issue, you should contact a mental health professional and take the steps necessary to get well.

If you feel that your employer has treated you unfairly while you struggle to deal with stress, anxiety or depression, or has unlawfully discriminated against you, contact the office of Branigan Robertson to schedule a consultation.

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The Ultimate Guide to CA Unemployment Benefits | Eligibility & Money Amount – Part 1 of 3

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 three part series answering the most common questions we get about unemployment. This is part one, and it 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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