Category Archives: Wrongful Termination

Five Reasons Why Human Resources Sucks at Helping Humans

I’m an employment lawyer. I sue companies on behalf of terminated employees. My office gets thousands of calls a year from employees. I talk to other lawyers everyday who do what I do. And I’ve realized that human resources does a terrible job helping their employees. Why? Here is why:

This video dives deep into HR and why, even if they want to help you, they largely can’t. I spend a lot of time detailing the five reasons HR sucks. I hope you like it!

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Filed under Abuse, Age, Defamation, Disability, Discrimination, Employment Contract, FEHA, Harassment, Health Care, Layoffs, Leave of Absence, Pregnancy, Privacy, Race, Religion, Retaliation, Settlements, Severance, Verdicts, Wage & Hour, Whistleblower, Wrongful Termination

What does being an “at-will employee” actually mean? Can I get fired for “any reason”?

This is a very common question. At-will employment does not mean that the company can fire you for any reason they want. That is incorrect. In this video, employment attorney Branigan Robertson explains the at-will doctrine and how it actually works.

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Filed under Abuse, Age, Defamation, Disability, Discrimination, Employment Contract, FEHA, Harassment, Health Care, Layoffs, Leave of Absence, Pregnancy, Privacy, Race, Religion, Retaliation, Settlements, Severance, Verdicts, Wage & Hour, Whistleblower, Wrongful Termination

Can Companies Fire Employees for Marijuana Use, Even Though Pot Is Legal in California?

Prior to 2016, it was illegal under state law to use marijuana recreationally — no matter how small the amount. Though things have changed significantly in California, and recreational use of marijuana is now legal under state law, there are still a lot of things employees need to consider when it comes to work place drug testing and job protection.

This article was written to unpack some of the issues surrounding marijuana use as it relates to California employment law. As a firm that primarily represents employees in employment disputes, it’s our job to protect workers. If you feel you’ve been treated unlawfully by an employer, give our office a call so that we can review the basic facts of your case.  Our office regularly handles discriminationharassment and wrongful termination cases.

Marijuana Legalization and California Employment Law

In 2016, Californians voted to approve Proposition 64, which amended sections of the state’s Penal, Business, Health and Tax Revenue codes. It is now legal for adults over the age of 21 to possess marijuana for recreational use. Use of marijuana for medical purposes, with the approval of a doctor, has been legal in California since 1996. 

With California now taking such a seemingly permissive attitude toward marijuana use, one might think that employers are legally required to give a pass to workers who smoke a little pot in their free time. After all, alcohol is legal, no one gets fired for enjoying a beer or two after work, right? Unfortunately, it’s not that simple.

The first thing that must be mentioned is that while recreational marijuana use is legal under California state law, it is still illegal under federal law. Alcohol doesn’t have that hiccup. While drug tests can determine if a person is under the influence of alcohol, booze leaves the system much faster than marijuana, which can remain in a person’s system at detectable levels for a month or longer. 

It’s completely legal for a California employer to fire an employee for recreational drug use.

Branigan Robertson

The second thing that people should know is that it is completely legal for an employer to fire an employee for legal recreational drug use. If the employer finds out that you are a user, they can fire you.

This is similar to when an employer fires someone for posting racist views on social media. It’s completely legal for you to be racist on your own time when you’re at home, but employers are allowed to fire people who have views like that. Why is this the case? Because CA (like many states) has the at-will doctrine. Due to the at-will doctrine, employers are allowed to fire employees for any reason except for reasons specifically deemed unlawful by CA’s legislature and court decisions. 

While there is reason to suspect that some companies have relaxed zero tolerance marijuana policies in the wake of Proposition 64, workers should not to assume their employers will automatically give employees who enjoy marijuana a pass.

Drug Testing and an Employee’s Right to Privacy

First and foremost, companies are allowed to drug test their employees. This is a practice that courts have upheld for years. However, in California, courts also acknowledge employee privacy. There are also anti-discrimination laws designed to protect employees.  

When and why a company decides to require employee to submit to a drug test can greatly affect whether a company runs afoul of the law.

At the core of the issue is how much privacy an employee is entitled to weighed against a company’s need to know the status of an employee’s drug use.

For instance, companies are generally allowed to drug test applicants prior to a job being offered. This is because an applicant’s right to privacy isn’t weighed as heavily as a long-term employee whose track record is well known to the company.

While random drug testing of existing employees can be a sticky issue for employers, there are certain industries where workers can expect to submit to random drug tests. Such industries include the airline or transportation industry. 

In other industries, customer service for instance, an employer would generally need a good reason to ask an employee to submit to a random drug test.

That said, state and federal law prohibits companies, with few exceptions, from singling out groups of people based on protected characteristics. This is important when it comes to how drug tests are administered to employees in the work force. Keep reading to learn more about workplace discrimination.

When Drug Testing Targets Certain Groups

California’s Fair Employment and Housing Act (FEHA) protects certain classes of people against workplace discrimination. Such protections prohibit discrimination based on gender, sexuality, race, national origin, pregnancy status or military status. 

As such, an employer can’t require random drug tests of only certain groups of employees while not applying the same standards to other groups of employees.  Furthermore, an employer who requires a worker to submit to a drug test because of membership in a protected class is engaged in unlawful behavior.

For instance, if a manager decided to test only the military veterans in the company because he read an article once stating that some veterans struggle with drug abuse, then that manager could potentially land the company on the hook for damages—particularly if an employee is terminated because of the discriminatory action.

If you believe you were required to take a random drug test because you are a member of a protected class, contact our office to schedule a consultation.

What About Employees Prescribed Medical Marijuana?

What about employees who are prescribed marijuana due to a disability?  Disability is a protected class, right?

Ironically, a 2008 California Supreme Court case found that employers can terminate employees that use medical marijuana, even if the marijuana has been prescribed by a doctor. The court reasoned that because the federal government, specifically the Americans with Disabilities Act, excludes protection for “any employee or applicant who is engag[ed] in the illegal use of drugs.” 

The state high court further argued that federal law has rejected the proposition that “marijuana has acceptable uses for medical treatment…” As a result, discrimination based on the use of medical marijuana “cannot be considered sufficiently substantial and fundamental to support a common law tort claim for wrongful discharge.”

When considering this, it’s important to keep in mind that employment law is complex, and there are many aspects to consider in a disability or wrongful termination case. The only way to know if you have a case, is to contact an employment lawyer.

If You Have Concerns, Contact a Lawyer

It’s important to note that attitudes toward medical and recreational marijuana continue to evolve. The best way to determine if you have been treated unlawfully by your employer is to contact a lawyer to review the facts of your case.

Though there are situations where employees can rightfully be subject to random drug tests and terminated for marijuana use, a good attorney can examine the facts of a case and determine if a company has acted unlawfully. An employee who is wrongfully terminated can potentially collect lost wages, back pay, pain and suffering damages, and in rare cases, punitive damages. 

If you feel you were unfairly targeted at work and required to take a drug test because you are a member of a protected class, contact the office of Branigan Robertson to schedule a consultation. Mr. Robertson won’t charge to review the basic facts of your case. If it turns out you have a case worth pursuing, our office often handles cases on a contingency basis. This means you don’t pay out of pocket fees.

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Can Immigrants in California Sue for Discrimination or Wrongful Termination? What are the Risks?

The topic of immigration in America continues to spark passionate, and often vitriolic debate. But regardless of the different voices clamoring to be heard, the simple truth is that America was built by immigrants, and immigrants — whether documented or undocumented — contribute positively to the fabric of California. 

There are laws in place at both the federal and state level that protect both documented and undocumented immigrants from employment abuse. This means that immigrant workers are protected from unlawful discriminationharassmentwrongful termination and other workplace violations.Continue reading to learn a little more about immigration and employment law.

If you are an immigrant who is working in this country, lawfully or unlawfully, you have rights. If you feel you’ve been treated unfairly by an employer, contact our office to discuss your case. 

Immigrant Employment Rights – What Does the Law Say?

While employment law is complex, and there are many things to consider when pursuing action against an employer. Generally speaking, immigrants are covered by the same workplace protections that US citizens enjoy. The California Labor Code says:

All protections, rights and remedies available under state law…are available to all individuals regardless of immigration status who have applied for employment, or who have been employed, in this state.

Labor Code §1171.5(a)

Subsection (b) further states:

For purposes of enforcing state labor, employment, civil rights, consumer protection, and housing laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status unless the person seeking to make this inquiry has shown by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law.

Labor Code §1171.5(b)

Beyond that, your former employer is prohibited from reporting or threatening to report your immigration status in retaliation for filing a lawsuit. CA Labor Code § 244(b)

California’s Fair Employment and Housing Act (FEHA), which protects all workers within the state, makes it unlawful for employers to discriminate against workers for any number of reasons including color, race, ancestry, and, most importantly for purposes of this article, national origin.

What Kinds of Protections Does the Law Provide Immigrants?

Thanks to laws like those mentioned in the previous section, immigrants are afforded many of the same rights as non-immigrant employees.  These protections cover:

  • Equal employment opportunities – non-discrimination
  • Disability rights
  • Harassment prevention
  • Freedom from other forms of discrimination
  • Rest and meal breaks
  • Overtime, PTO, minimum wage, and other wage & hour standards

If you’re an immigrant, whether in the country on a work visa or undocumented, and you believe you’ve experienced harassment, discrimination, or some other workplace violation, consider contacting an experienced employment lawyer to discuss the facts of your case.

But Wont My Employer Retaliate?

It is unlawful under California and federal law for an employer to retaliate against an employee because that employee reported a violation of workplace law, or refused to do something they thought was illegal. An employer who retaliates in this way, even against an immigrant employee, can potentially be liable for damages.

Documented Immigrants

Workers who are in the country on a work visa can be subject to retaliation. An employer who is upset at an immigrant worker for complaining about wage, safety, or meal break violations might threaten to cancel that worker’s visa and have them deported.  

Understandably the fear of losing one’s visa is often enough to keep an immigrant from speaking up for his or her rights (or the rights of others). If you are here on a work visa and your employer has retaliated against you unlawfully, contact our office to discuss the facts of your case.

Undocumented Immigrants

An undocumented worker has perhaps the most to fear when it comes to employer retaliation. According to the Economy Policy Institute, instances of immigration related retaliation appears to be on the rise. Workers in California filed 94 immigration related retaliation claims in 2017. This represented a sharp increase from 2016 in which there were only 20 claims. In 2015, there were only seven such claims. 

An undocumented immigrant might understandably be hesitant to contact an employment attorney for fear of retaliation by their employer. However, it’s important to remember that even undocumented immigrants have rights in the workplace and an after learning the facts of your case, a good attorney will be able to discuss the potential risks of pursuing legal action against your employer.

If your employer is threatening to contact ICE or another law enforcement agency because you reported a workplace violation of law, don’t hesitate to contact our office. Calls placed to our office are kept in the strictest of confidence.

Immigrant Employees Can Sue Their Employers

In addition to those laws, according to CA Labor Code § 1019, Immigrants can sue their employer for any unfair immigration related practice including:

  • Requesting more or different documents that are required by federal immigration laws,
  • Using the federal E-Verify system to check the employment authorization of a person at a time or in a manner not required under federal law,
  • Refusing to accept such documents when they reasonably appear on their face to be genuine,
  • Filing or threatening to file a false police report or a false report or complaint with any State or federal agency like the Immigration and Customs Enforcement Agency (“ICE”), or
  • Contacting or threatening to contact immigration authorities.

What Can Immigrants Recover in an Employment Lawsuit?

Each case is different, and it’s impossible to answer this question with a specific dollar amount. That said, immigrant employees are entitled to recover the same damages as workers born or naturalized in the US. This includes the following:

Back Pay: Say an immigrant worker was paid less than the minimum wage for the time he or she was employed with the company.  The minimum wage in California is currently $12 hourly. Suppose a worker was only paid $9 hourly over a period of three years. If he or she successfully presses a claim, that worker could be eligible for back pay. If that employee regularly worked overtime, the final figure will increase.

Lost Wages: An employee who is found to have been wrongfully terminated might be entitled to lost wages. This is the money he or she would have earned had the termination not happened. Imagine an immigrant employee was making $45,000 annually, was wrongfully terminated as the result of retaliation, and unable to find work for three years. An immigrant who successfully pursues a case could be entitled to the normal salary over a period of three years. This would come out to $135,000.

Punitive Damages: These are the damages that often come in million-dollar amounts. They are designed to punish companies that act with malice, oppression or fraud. While proving these elements is difficult, it’s not unusual for a company that abuses immigrant labor to engage in behavior worthy of punitive damages.

Contact an Attorney to Discuss Your Case

Any settlement, no matter how big, is little comfort to a worker who faces deportation. That’s why it’s important to discuss with an attorney the risks and rewards an immigrant faces when deciding to sue an employer.

If you are an immigrant who believes you have been mistreated by an employer, contact our office to discuss your case. Rest assured, your information will be kept confidential. You have little to lose by talking to our firm.

If you have questions or concerns, contact Branigan Robertson’s office. Find out how we can help.

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Filed under Abuse, Discrimination, Retaliation, Wrongful Termination

New Video! How Much Money Are Wrongful Termination Lawsuits Worth?

This video is part of a series of videos on wrongful termination law. If you want to know more about this subject, go to our Ultimate Guide to Wrongful Termination law page. It answers almost every question that people have about unlawful discharge.

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Filed under Settlements, Verdicts, Wrongful Termination

California Continues to Reject Non-Compete Clauses

You don’t have to be a legal expert to know that non-compete clauses are largely unenforceable in California. The law nullifying this type of clause, in which an employer tries to prevent terminated employees from working for competing businesses, has been on the books for years. And if you’re an advocate of employee rights, the law is a bright spot in California’s Business and Professions Code.

Over the years, California employers have tried to test the strength of California’s non-compete law, with little success. However, in July of 2018, an employee turned the tables and sought to test the law’s strength in a case that didn’t specifically involve a non-compete clause.

The United States Court of Appeals for the Ninth District ruled on the case, which involved a doctor whose former employer wanted him to sign a non-rehire agreement. The federal court looked to California’s non-compete law to rule in favor of the doctor. Continue reading to learn more about the court’s decision, non-compete clauses and related areas of employment law.

If you have questions about your own employment situation, don’t hesitate to contact our officeto learn how we can help.

Non Compete Clauses Unenforceable in California | Branigan Robertson

California’s Non-Compete Law

The Golden State’s non-compete law is found in Business and Professions Code §16600. It states:

“Every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”

Golden vs. California Emergency Physicians Medical Group

Physician Donald Golden was an emergency room surgeon employed by California Emergency Physicians Medical Group (CEP) at its Seton Coastside Medical Facility. He was fired in May 2008, and filed a discrimination suit against the company.

The case ended up in Federal District Court in 2010, but before the trial had a chance to begin, CEP offered to settle the case. In return for a large settlement, the company wanted Golden to waive any rights to future employment with the company.

This meant that Dr. Golden wouldn’t be rehired at any facility owned by the company, as well as any facility CEP might own in the future. Dr. Golden refused to sign the printed agreement. The court ruled that Dr. Golden should be compelled to sign the agreement, but the doctor appealed the decision, and the case moved to the appellate court.

During his appeal, Dr. Golden argued that the non-rehire provision of the settlement violated California’s law against non-compete clauses.

In its ruling, the Federal Court noted that California’s no compete law has been broadly interpreted over the years. The court further argued that the lower court had abused its discretion in narrowly interpreting the law.

The appellate court argued that the simple question at hand was whether or not the settlement agreement in Dr. Golden’s case restrained anyone from engaging in a lawful profession, trade, or business of any kind.

“We have no reason to believe that the State has drawn section 16600 simply to prohibit ‘covenants not to compete’ and not also other contractual restraints on professional practice,’” the court wrote in its decision.

Accordingly, the appellate court reversed the lower court’s judgment and remanded the case “for further proceedings not inconsistent with this opinion.”

What This Means for California Workers

This case once again reinforces the strength of California’s non-compete law and actually demonstrates that the law goes beyond non-compete clauses in protecting an employee’s right to earn a living.

To be clear, this doesn’t mean every employee who’s been unlawfully compelled to signed a non-compete clause has a shot at a million-dollar judgment. But it does mean that non-compete clauses, with few exceptions, are unenforceable.

Unfortunately, this doesn’t stop employers from asking workers to sign these agreements. In 2016, the Office of Economic Policy, a division of the US Treasury Department issued a report on the prevalence of non-compete contracts. According to the report, California workers were found to have signed these agreements at 19 percent higher than the national average. Acknowledging that such agreements are largely unenforceable in court, the report noted that the trend suggests “firms may be relying on a lack of worker knowledge.”

Employers and employees often sign non-compete clauses that include trade secret language. Employers are very much allowed to prohibit the theft/taking of valid trade secrets, and employers frequently sue former employees who steal customer lists or valuable and secretive manufacturing plans. When you have a mixed clause like this, contact a lawyer especially if you think your employer may try to enforce the provision.

When an Employee Blows the Whistle on Non-Compete Contracts

If an employee realizes that a company he or she works for is violating the law by requiring other workers to sign non-compete contracts, and that employee notifies the authorities (a state agency, the District Attorney, the police), it’s possible the company will retaliate against that employee (fire, demote, harass, etc.). It’s important to note that the employee in this situation is a whistleblower, and whistleblowing activities are protected by law. A worker who experiences retaliation as the result of whistleblowing activities could be entitled to monetary damages. For more information on whistleblowing, contact our office or visit our whistleblowing page.

When to Contact an Employment Attorney

If you work in California, and have been asked to sign a non-compete clause, chances are good your employer has violated state law. It could be worth your time and effort to discuss your situation with an employment attorney. Additionally, if you’ve received notice of legal action from a former employer stating you have violated the company’s non-compete clause, you’ll want to contact an attorney right away.

If you have questions about anything discussed in this article, or another employment law related question, contract the office of Branigan Robertson to learn more about your rights under the law.

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Filed under Employment Contract, Layoffs, Wrongful Termination

New Wrongful Termination Whiteboard Video

The above video was the first in a series of educational videos about employment law.  To learn more about this type of case, visit our main wrongful termination page.

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January 23, 2017 · 8:15 am