Category Archives: Wrongful Termination

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

What Every Employee Needs to Know About Pretext

Almost every day our firm receives calls from potential clients claiming they were wrongfully terminated. What is often at the heart of the lawsuit is what the employer said was the reason for the termination versus the real reason for the termination. In order to prevail in the employment lawsuit the employee must show that the employer’s reason for terminating the employee was a pretext, or made up excuse, as a cover up for an illegal reason. This is also called a pretextual termination.

What is Pretext in a Termination Lawsuit?

A pretext is a phony excuse or a made up reason that the employer uses to fire an employee. A pretext is basically an excuse that is used to cover up the true and illegal reason for the termination. Some of the common pretexts we hear are “poor performance,” the employee “just does not fit” in at the company, “restructuring” or “reorganization,” and “financial reasons” or cutbacks.

How does an employee go about proving the reason is a pretext?

In order for an employee to show that the employer’s reason is a pretext, the employee must show either that it is more likely than not that a discriminatory reason motivated the employer than the pretextual reason, or the employer’s explanation is not credible. It should be noted that a mere mistake made by the employer is not a pretext, rather a pretext is a phony, deliberate excuse used to cover up the illegal reason.

Common Example

Here is a pretty common factual scenario of when an employer uses a pretext to fire an employee. Jane Doe was fired abruptly and arbitrarily days after complaining to Human Resources about being sexually harassed by a valued executive supervisor. Up until her complaint, she performed well at work. However, Jane’s employer told her that she was being fired because she just did not fit in anymore and it was not working out. That struck Jane as odd as she had been working there for years and was a valuable employee with no write ups or reprimands. Thus, it seems that Jane was fired for reporting sexual harassment in the workplace, not because she did not fit in anymore.

In this hypothetical the employer’s reason here is a pretext, and a way to cover up the real reason for the termination – the employee complained about harassment, and would rather just fire an her rather than a more valuable executive. This scenario happens quite a bit, especially in discrimination, hostile work environment, and wrongful termination cases.

At the end of the day, an employer almost never tells an employee they are firing him or her for the illegal reason. Usually, the employer will make up a reason as to why they are terminating the employee, and the illegal reason will have to be proved through circumstantial evidence. But just because the employer provides a pretext that may seem valid on its face does mean the employee does not have a case.

If you were recently terminated out of the blue and for an arbitrary reason, it cannot hurt to contact an employment attorney to investigate your legal rights and options.

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California Labor Law Attorneys: Holding Employers to their Promises

California is an at-will employment state, which means that an employee can be fired for good cause, bad cause, or any cause (so long as the cause is not in violation of California or federal law). However, there is an exception to this. Under the implied in fact contract exception; an employer cannot fire an employee if the employee can show that there is an established and implied employment contract between the parties.

Courts consider the following factors to determine if there is an implied-in-fact contract: employee’s length of service, employer’s policies and practices, and conduct or communication by the employer reflecting assurances of continued employment. California labor law attorneys ensure that employers will be held accountable if they breach an implied in fact contract with their employee.

Employment Contract Employment Case – Challenging the At-Will Doctrine

In Joseph Sebastian v. Christ the King Retreat Center, the plaintiff witnessed a fellow employee engaged in bizarre behavior in a conference room by throwing garbage on the floor, acting irrationally, and shaking objects at witnessing employees. The employer defendant terminated the plaintiff after he complained that it was a safety issue for himself and other employees.

Among other things, Plaintiff argued that he was terminated in breach of an implied in fact contract. Plaintiff was an employee there for roughly seven years. Plaintiff alleged that he was told after he completed his probationary period that the job was his, he has tenure, and that he has a job as long he wants it. Further, upon being hired, plaintiff was given a company handbook contained a provision regarding a discipline policy.

The At-Will Doctrine Lost

Defendant argued that plaintiff was an at will employee and thus could be terminated without good cause. Defendant also argued that plaintiff was terminated because he was insubordinate on multiple occasions during his employment. The jury was not convinced by the defendant’s arguments, and awarded plaintiff $362,296 for breach of an implied in fact contract.

At the end of the day, this case is a win for California employees. If an employer promises an employee certain benefits or long-term employment, and then fires that employee without good cause, then the employee may have a viable case despite California’s strong at-will policy. If you have been wrongfully terminated, and your employer made promises to you during the course of your employment, then call a California employment lawyer immediately to see if there is any legal recourse.

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Protecting Medical Professional Whistleblowers

It is the public policy of California to encourage patients, nurses, doctors and other members of health facilities to speak up against suspected unsafe patient care and poor health facility conditions. It is still very common for members of health facilities to witness first hand poor patient treatment and poor patient conditions. Therefore, California has passed a unique whistleblower law, Health & Safety Code 1278.5, for medical professionals.

Basically, under 1278.5, it is unlawful for an employer of a health facility to retaliate against any patient or employee of the health facility for complaining or reporting (blowing the whistle) unsafe patient care or poor patient conditions to the employer. Employment attorneys like Mr. Robertson are there to ensure that health facility employers are held accountable under this law.

Recent Verdict – Cancer Patients and Bad Surgeons Lead to Whistleblower Complaint

In a very recent case out of the California judicial system, Wascher v. Southern California Permanente Group, plaintiff was a surgeon who worked for defendant from 2009 to 2011. During his employment, plaintiff complained about unsafe patient care to the defendant. Plaintiff made the following complaints to his employer: access to surgery for cancer patients took too long and unqualified surgeons were handling cancer cases that they should not be handling. In response to his complaints, rather than addressing the plaintiff’s legitimate complaints, the defendant barred him from becoming a partner. Plaintiff hired an employee rights attorney to protect his rights.

Plaintiff argued that he was retaliated against for complaining about unsafe patient care in the workplace. Defendant argued that the plaintiff was not barred from becoming a partner because he was not a good fit. Defendant also argued that he did not make complaints, but asked for certain preferences that would benefit himself as a surgeon. The jury was not convinced by the defense and sided with the plaintiff. The jury awarded plaintiff $1,750,000 for retaliation under Health & Safety 1278.5.

This case was a huge victory for employees of health facilities, whether it be doctors, nurses, o medical staff assistance. Wascher v. Southern California Permanente Group reinforces California’s policy of encouraging members of health facilities to speak up against suspected unsafe patient care and poor health facility conditions. This is a very important law as it not only protects employees who act as patient advocates, but also protects the pateints themselves to ensure that Californians are treated in a safe and clean health facility. If you are an employee of a health facility and you feel that you have been retaliated against for reporting unsafe patient conditions or acting as an advocate for patients adverse to your employer, then call an employee rights attorney immediately.

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Filed under Health Care, Whistleblower, Wrongful Termination