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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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.
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.
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 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 of such harassment 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, whistleblower, overtime, 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.
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 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 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.
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.”
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.
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.
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.
- You must be physically able to work,
- You must be available for work,
- You must be ready and willing to immediately accept work,
- You must be actively looking for work,
- You must be totally or partially unemployed,
- You must be unemployed through no fault of your own, and
- 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?
I hope this post has been helpful. Contact us if you have a claim for wrongful termination, harassment, retaliation, or you were a whistleblower.
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 claim, not based on a conventional employment relationship, but on sexual harassment occurring in a “professional relationship” (i.e. the relationship between producer and actress). 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.
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:
- Social Worker
- Real Estate Agent
- Real Estate Appraiser
- Trust officer
- Financial Planner
- Loan officer
- Collection Service
- Building Contractor
- Escrow Loan Officer
- Property Manager
- Elected Official
- 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.
What happens if your boss keeps incomplete records of the hours you worked? Can a company just get away with not paying you your full and rightful wages? What if you decide to challenge your employer in court by providing your own incomplete records or witness testimony? Will you be able to make a case for wage theft based on incomplete evidence of the hours you worked?
The California Court of Appeal has issued a ruling on this very issue, and the decision could benefit workers.
Keep reading to learn a little about this major decision, as well as associated employment issues.
The Case, a Brief Summary
This case, filed with the California Appeals Court First Appellate District, involved a marketing director named Terry Furry and his former employer, East Bay Publishing. In 2014, Furry sued East Bay for unpaid overtime wages, meal and rest break compensation as well as statutory penalties for inaccurate wage statements.
Furry had been an employee of East Bay Publishing going back to 1996. In 2009 he was promoted to sales and marketing director. Though he was paid a base salary of $20,000 in addition to his commissions, East Bay reportedly did not keep track of the overtime hours he worked.
After filing his lawsuit, Furry testified to working overtime hours, with some days adding up to 12 hours. Coworker testimony supported his claim.
A lower court ruled that while Furry’s employer failed to keep accurate time records, it also found that his testimony was “too uncertain to support a just and reasonable inference that he performed work for which he was not paid.”
The appellate court disagreed.
Citing precedent, the appellate court argued that once the plaintiff shows “the amount and extent of that work as a matter of just and reasonable inference,” then the burden of proof shifts to the employer to provide evidence of the precise amount of work performed.
The court further added, “If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result may be only approximate.”
In simple terms, this means courts can rely on incomplete worker-supplied evidence regarding hours worked if the company doesn’t keep accurate wage records of its own. In this case, the incomplete evidence included testimony from Fury’s coworker.
A Word About Wage Theft – It Happens All The Time
The case detailed in this article is just one scenario involving employees being denied proper wages. In some cases, the practice is more overt. Sometimes, employers systematically refuse to pay their workers properly. Whatever the situation, an employee who feels they have not been paid their rightful wages should contact an attorney to discuss their situation.
You Should Keep Your Own Records
This case also illustrates something that any worker dealing with a difficult employer should keep in mind — the need to keep your own records. We generally recommend that folks keep their timesheets, paystubs, and other evidence that a jury could easily understand.
This applies whether you’re dealing with wage theft, discrimination, harassment or any number of workplace issues. This might mean keeping detailed notes of conversations or encounters with management, it might also mean saving emails, voicemails and paystubs.
If you believe you’ve experienced wage theft, or have been denied rest breaks, talk to a lawyer to discuss your situation.
Have Questions? Contact our Office
There are a lot of different unlawful situations in which a person might be denied their rightful wages. It can happen when a person works overtime hours, when a person is forced to work on their lunch break, it can even happen when a person is asked to complete small tasks after they’ve clocked out.
Whatever your situation, if your instincts tell you something is wrong, you have nothing to lose by calling an employment attorney. Our office typically doesn’t charge for initial consultations, and cases are taken on a contingency basis. Contact the office of Branigan Robertson with your questions, and find out how we can help.