Category Archives: Wrongful Termination

How to Document Bad Behavior at Work – Pt. 1

This video details how employees like you should properly document bad behavior at work so you can protect yourself down the road if legal action becomes necessary.

In the video, employment attorney Branigan Robertson talks in depth about when you should take notes, what they will be used for, what you should write down, three strategies that are best for how you should write them down, and he discusses best practices.

This video gives simple guidelines that might dramatically help you preserve key evidence (facts, dates, witnesses, events, and occurrences) that will be important later on. If your boss, manager, or coworker is treating you poorly, this video is an essential watch.

This video is part 1 in a four-part series called “How to Document Bad Behavior at Work.”

This video series is especially important if you feel like your legal issues fall within one of the following categories:

If you would rather watch this video on YouTube, click here.

Be sure to watch the whole video for Branigan’s in deep dive into this important issue. If you prefer, you can read the rest of this blog to get a general overview. But be sure to watch the video for full understanding.

Is the Bad Behavior Unfair, or Unlawful?

Unfortunately, there is a lot of bad behavior that happens in the workspace that’s perfectly legal. For an attorney like Branigan Robertson to pursue a case, he must believe there has been a violation of state or federal law. In California, §12940 of the Fair Employment and Housing Act (FEHA) states that it is a violation of law for an employer to discriminate against an employee based on several characteristics. These include race, religion, gender identity, sexuality, national origin, disability and several other classes. 

Harassment of a protected person rises to a violation of law when the bad behavior is severe or pervasive enough to alter the working environment. If you believe that you are being harassed, the quality of the notes you take can help an attorney to determine if you have a case worth pursuing.

Simplicity is Key

The first thing to keep in mind when documenting bad behavior at work is that you must keep things simple. Remember that you might be presenting your case to a jury of your peers at some point. You don’t want a defense attorney holding up pages and pages of scribbled notes in which you document your bosses’ every little misstep, perceived hypocrisy or office snub. Furthermore, you’ll want to refrain from psychoanalyzing the boss—even if he or she is a narcissistic tyrant. 

Poorly compiled notes have the potential to make you come across to the jury as a whiner, or worse. When taking notes, focus on the significant events, which by their very nature are rare. These are the events you suspect are unlawful and impact your work:

  • ­Boss called me to his office, closed the door and rubbed my shoulders.
  • Devon threatened to hit me and used a racial slur.
  • Supervisor Sara made a joke at office lunch that she only promotes white people.

The Five W’s

Once you’ve decided you need to document something at work, keep it to the Five W’s:

  • Who
  • What
  • When
  • Where
  • Witnesses

People who call our office often struggle to remember simple but key details. They’ll begin the call by telling us about the hostile work environment they’re in and all the laws that are being broken. But when asked for the date when the illegal behavior happened, or who was there when it happened, these same callers’ minds’ go blank. If you’re documenting the significant issues, be sure you can answer the five W’s.

Set Up a Free Email Account

If you’re documenting bad behavior at work, you’ll want to have an email account set up where you can email and store your notes. This ensures that the notes have timestamp information that will corroborate your facts. It’s important you don’t store this information in a company email account, or your personal email account. In the former case, your employer probably has software or other ways of monitoring the information you store in a company account. In the latter situation you don’t want to trigger discovery that could result in a a defense lawyer sleuthing through your personal information.

Call an Attorney

If you’ve watched Mr. Robertson’s videos on documenting bad behavior at work and feel that you can relate a little too much to the discussion, it might be time to give our office a call. 

While Mr. Robertson doesn’t generally take on cases while a person is still employed, he will review the facts of your case for free. When Mr. Robertson does take a case, he generally does so on a contingency basis. This means the client doesn’t pay for legal services out of pocket. Attorney’s fees are paid with a portion of proceeds at the conclusion of the case. Give the law office of Branigan Robertson a call to find out if he can help.

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Can an Attorney Save Your Job if You Have a Legal Issue?

We get calls all the time from folks who are still employed but they are facing a significant legal issue at work. Whether it is harassment, retaliation, or something else, folks want to know if a lawyer can step in and help them. We get this question so often that Mr. Robertson decided to make a video about it.

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Filed under Abuse, Age, Defamation, Disability, Discrimination, Harassment, Pregnancy, Privacy, Race, Religion, Retaliation, Whistleblower, Wrongful Termination

What are the Legal Implications of Quitting Your Job?

What are the legal implications of quitting your job? Can you collect unemployment? Severance? What if you have a case and you quit (vs letting them fire you), will you still be able to take action? I answer all of those questions in this video.

My office gets a lot of calls from people who quit and still want to take action. This video details the critical things that lawyers look at in this situation.

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

How to Complain to Human Resources the Right Way

As with all things in life, making a complaint at work is a risk. If you complain to human resources the wrong way, you might get fired (it happens far more often than people think). That is why I took the time to make a video about the correct way to complain to HR.

This video will explain the five things you need to know before you complain about your issue at work. It also covers how HR will react to your complaint and what you should expect if they conduct an “investigation.”

If you found this to be helpful, please leave a comment below.

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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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