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One of the most difficult decisions an employee may ever face occurs when an unethical, unsafe or unlawful condition exists at the company, and the employee has to decide whether or not to notify a supervisor, or other company authority. Making complaints at work, or blowing the whistle, if you will, can have serious consequences. The above video discusses this in great detail (with a bit of humor).

The employee will fears their boss will retaliate. They might get fired, passed over for a promotion, written-up, demoted, or receive a pay reduction. Our office has seen numerous cases where an employee reports a violation, and then, for the first time ever, suddenly gets hit with a bad performance evaluation.

In many cases, when an employer retaliates against a worker because the worker complained about an unsafe or unlawful condition, the company has broken the law. We have an entire sections of our website dedicated to retaliation and whistleblowing.

However, but there are simple steps that the employee can take, that if done correctly, could avert retaliation, bad feelings, and legal action altogether. In other words, when it comes to complaining at work, some approaches are better than others.

The above video discusses seven tips to avoid being retaliated against when lodging complaints. This page was written to briefly discuss some of those steps.

1. Don’t Threaten

If you are reporting an unsafe condition, keep in mind that the goal is to get the violation fixed. Don’t threaten legal action or launching a slew of legal buzzwords at the company. You run the risk of escalating the situation. Furthermore, if the case goes to court at a later date, the company can potentially paint the employee as a troublemaker more intent on levelling threats than solving an actual problem.

2. Focus on Illegal Activities, Be Specific, Be Helpful

When notifying your manger about a potential violation, focus on the things that you believe are unlawful. In many cases, our office has counseled clients who have sent a long rambling emails to the company that complains about a wide range of problems, perhaps some of which are unlawful.

This usually doesn’t help the employee when it comes to getting the problem solved. Remember, if you’re complaining about a potentially unlawful problem at work, your goal should be to get the problem fixed. Keep your complaint short, explain why you believe it’s unlawful, and try to recommend practical solutions if possible,

3. If Possible, Follow Procedures Outlined in the Employee Handbook

In many cases, a company will provide the guidelines for reporting a violation in the employee handbook. If possible, follow the company’s procedure. When faced with a retaliation claim in a court of law, companies will often claim that they knew nothing of the violation. It’s a favorite tactic of defense lawyers in these situations to say “the company never received the complaint.”

Be sure to follow the proper procedure and get the complaint to the right person. If you don’t have an employee handbook to follow, use your best judgment when getting the complaint to the right person.

4. Put it in Writing, But Check Your Wording

It’s important that you not only complain to the right person, but complain in writing. Often times, company witnesses will take the stand and won’t remember being told of a violation. Without proof of the claim, it’s impossible to prove whether the witness is being forgetful or just lying. However, it becomes more difficult for the company to pretend it never received a complaint when there is an email proving otherwise.

So, put it in writing, but keep a cool head. Make sure the tone and language of your complaint isn’t aggressive or threatening. If for instance you are reporting a violation of overtime pay, rather than saying “The company isn’t complying with the wage laws! I’m not getting all of my overtime!” You might say, “I don’t think my overtime pay is being calculated correctly. We should look into what the labor code says. If I’m right, the company needs to fix this.”

If you Have Questions, Contact an Attorney

If you’ve experienced retaliation, or have questions about a potentially unlawful work situation, reach out to an employment attorney like our firm. In some cases, taking a company to court is the only way to get a violation fixed. Workers who experience retaliation are in many cases entitled to monetary compensation. Be sure to check out our video on preventing workplace retaliation.  If you have further questions, contact our office to find out how we can help.

Whether you’re in management, human resources, own a small company, or oversee a workforce of thousands, you should have some basic understanding of the employment laws that protect your workers. You already know that lawsuits are scary. With a bit of foresight and understanding, legal problems can be avoided.

Employment attorney Branigan Robertson has assembled a short video discussing some key issues that will be of interest to anyone who manages workers. Having practiced employment law for the past six years, Branigan typically represents workers. But working with aggrieved employees has given Branigan valuable insights that defense-side employment lawyers don’t typically develop. In this video, Branigan takes what he’s learned from employees and shares his wisdom with those on the management side of the equation. And he does so with minimum legal jargon.

One of the key concepts employers can take from this video, before even delving into the legal concepts, is that most employees don’t sue because the law was broken, but rather because they feel that they were treated like garbage.  Understanding the importance of treating employees with a basic level of respect and decency will help companies avoid costly lawsuits even in cases where the law may have inadvertently been broken.

Employment Law Basics for HR, Management & Ownership

Specific legal issues discussed in this broad overview include 12 key areas of employment law. These are:

• employee contracts,
• torts in the workplace,
• wages & hours,
• discrimination,
• harassment,
• leaves of absence,
• workplace safety,
• unfair competition,
• unemployment,
• layoffs,
• collective bargaining, and
• others.

Issues discussed include such topics as sales agreements—one of the most frequent triggers of employee lawsuits. Companies often run into trouble when they tinker with commission agreements affecting their sales team in the middle of a sales cycle or in the middle of a negotiation.

Or perhaps you have questions about wrongful termination. After all, California (and many other states) are “at-will.” When exactly does an employer cross the line when firing an employee? If you’re interested in learning more about the specific types of wrongful termination, you’ll want to watch this video.

Maybe you’re interested in questions of what constitutes reasonable accommodations for disabled employees. This area of employment law is particularly nuanced since it deals with more than just hiring and firing issues.

Other topics discussed in the video include:

• Whether or not a company can discriminate against employees of a certain age (the answer might surprise you)
• The difference between discrimination and harassment
• The Family Medical Leave Act
• Worker’s Compensation
• Other Issues

If you’ve ever had questions about these or other topics, you’ll want to watch Branigan’s video. It’s an excellent opportunity for anyone in the management field. After all, you won’t find many videos produced by plaintiff-side employment attorneys tailored toward companies. You certainly won’t find this type of video presented in such an informal and easy-to-understand format. Have a watch, enjoy, and if you have any questions contact our office for further information.

We recently finished filming a defamation video. You should go to our main defamation page and watch it there. But if you’re in a hurry, here it is!

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In our last article, we took a brief look at the California Family Rights Act (CFRA) and the Family Medical Leave Act (FMLA). The article examined who is eligible for leaves of absence under those laws, and the three reasons people are eligible to take a leave of absence. As promised, today we will look at those three reasons a little closer. The below video explains who is eligible for FMLA. Below the video are great details.

Here is a link to our last article.

The Birth of a Child or Adoption or Foster Care Placement of a Child

Eligible employees may take a paid or unpaid leave to bond with an adopted or foster child or to bond with a newborn. CFRA leave includes both maternity and paternity leaves, but does not include pregnancy-related or childbirth-related disabilities. If you are disabled due to pregnancy, childbirth, or related medical conditions you may, however, take Pregnancy Disability Leave (“PDL”) for six weeks up to four months. The CFRA allows employees an additional twelve weeks of bonding time. The minimum amount of time that may be taken is 2 weeks, but the California Department of General Services will grant a leave of at least one day, but less than two weeks on any two occasions. Leave for an adopted or foster child and childbirth must conclude within 12 months of the birth or placement.

Immediate Family Member with a Serious Health Condition

You may also take leave if you are an eligible employee and need to care for an immediate family member with a serious health condition. An “immediate family member” is a husband or wife as defined or recognized under state law, a biological, adopted, or foster child, stepchild, legal war, or a child of a person standing in the place of the parent who are under 18 years of age. A child who is 18 years of age or older and incapable of caring for themselves due to a mental or physical disability also qualifies. Finally, a biological or adoptive parent, or a person who stood in place of a parent when the employee was a child also applies. Parent-in-laws do not apply

Employee with Serious Health Condition

A serious health condition is an illness, impairment or physical or mental condition that involves:

1. Any period of treatment that includes inpatient care in hospital, hospice, or residential medical care facility; or
2. Any period of more than three consecutive calendar days that involves continuing treatment by a health care provider; or
3. Continuing treatment by or under the supervision of a health care provider for a chronic or long-term condition that is incurable, is so serious that if left untreated would result in incapacity for more than three consecutive calendar days, or for prenatal care.
4. Restorative dental or plastic surgery after an accident or injury, or the removal of cancerous growths are serious health conditions if all the conditions are met. Cosmetic surgery that is not medically necessary does not qualify, unless inpatient hospital care is required.

If you want to know if your specific reason falls within one of these categories, contact an employment lawyer. If you have not read our detailed page on CFRA leave, we recommend that you do. If you are not a California employee, read our FMLA page.

While this has been more in-depth than the last article and we hope this has provided more information so you can conduct research on your own, the laws are still much more complicated than this. All the same, if you have been terminated while on FMLA/CFRA leave you may have a claim for wrongful termination. If so, contact our office for a free consultation with a leave of absence attorney.

Additional Information via Email

If you want to get more information about California employment law, sign up for our free newsletter. We will send you up-to-date information about pregnancy discrimination, overtime, retaliation, and much more. We will only send one or two quick emails a month. To sign up just click the below link. If you get tried of them, you will be able to opt-out.

I hope this page has been helpful in your search for information.

Many people know of the acronym “FMLA” and maybe even a few have heard “CFRA” tossed around, but what are they? What do they cover? And most importantly, can you use them? The California Family Rights Act (“CFRA”) and Family Medical Leave Act (FMLA) are laws passed by the State and Federal government for your benefit and the following article will give a brief overview of each law.

This entire page is written by an employment lawyer!

What are the benefits of the FMLA/CFRA?

The FMLA/CFRA enables an eligible employee to take up to a total of 12 workweeks of paid or unpaid job-protected leave with employer-paid health, dental, and vision benefits during a 12-month period for one or more of the reasons listed below. The 12-month period can be a calendar year, a fixed “leave year” of 12 months, such as a fiscal year, the 12-month period measured from the date an employee’s first FMLA/CFRA leave begins, or a rolling 12-month period. A “rolling” 12-month period means that when an employee uses any FMLA/CFRA leave, any FMLA/CFRA leave used within 12 months of that date counts against 12 workweeks.

“Rolling” 12-month example: Today is May 17, 2016, and John starts FMLA/CFRA leave. We look back to May 18, 2015 to see if John has used any FMLA/CFRA. It turns out that John has used one workweek of FMLA/CFRA leave in July 2015, so John has eleven workweeks of FMLA/CFRA that he may use.

Who is eligible for FMLA CFRA leave?

There are two requirements in order to be eligible:

1. You must be employed for a total of twelve months on the date that FMLA/CFRA leave is supposed to start.
2. You must have physically worked for at least 1,250 hours during those twelve months. This works out to be averaging a little over 24 hours worked per week over 52 weeks. Time off from sick leave, vacation/annual leave, administrative time off, compensating time off, holidays, informal time off, or personal leave are not counted toward the 1,250 hours of work.
3. You must work at a location which the employer has at least 50 employees within 75 miles of the employee’s worksite.

We will cover these three in far more detail in the next blog post about FMLA/CFRA eligibility.

What reasons are eligible for FMLA/CFRA leave?

As mentioned earlier, there are three basic reasons for FMLA/CFRA leave:

1. The birth of a child or adoption or foster care placement of a child (maternity leave).
2. To care for an immediate family member (spouse, child, or parent) with a serious health condition
3. When the employee is unable to work because of a serious health condition.

If you want to know if your specific reason falls within one of these categories, contact an employment lawyer. This has been a very basic overview of CFRA leave of absence, particularly regarding the reasons, but if you tune in next week we will go more in-depth into the eligible reasons.

While every case is different and the laws are much more complicated than this basic outline, we hope this gives you some basic information so you can conduct research on your own. However, if you have been terminated while on FMLA/CFRA leave you have may have a claim for wrongful termination. If so, contact our office for a free consultation with a pregnancy and maternity leave lawyer. Or visit our leave of absence page.