We are excited to release our latest video. This one is on retaliation, specifically, how to prove that retaliation is happening to you. In this video Branigan explains the dangers of going to war with your boss and trying to “prove” retaliation to HR. He also explains how a retaliation lawyer like Branigan goes about proving your case in court. So, give it a watch!
If you would rather watch the video on YouTube, click here.
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Filed under Retaliation
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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Filed under Uncategorized
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.
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Filed under Uncategorized
When it comes to employment law, California tends to lead the nation in terms of the protection it provides employees. The state’s Fair Employment and Housing Act goes beyond federal law to provide broader protections for workers against discrimination, harassment and other work place injustices.
The state distinguished itself once again in July 2019 when Governor Gavin Newsom signed into law Senate Bill 188, the first of its kind in the nation. The law takes aim at more subtle discriminatory practices and policies that unfairly target employees based on the style or texture of their hair.
Sadly, for years employers have been allowed to enforce dress code policies that unfairly target and penalize persons of color, often black employees, for their natural hairstyles. With the passage of Senate Bill 188, employees and their attorneys have one more tool in the legal arsenal with which to fight back against unfair workplace practices.Continue reading this article to learn more about SB 188, as well as workplace discrimination in general. If you feel you have been the victim of discrimination, contact our office to schedule a consultation.
Senate Bill 188, also known as the Crown Act (Create a Respectful and Open Workplace for Natural Hair), amended both the education and government code. The Act states in part:
“Workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks, have a disparate impact on Black individuals as the policies are more likely to deter Black applicants and burden or punish Black employees than any other group.”
Senate Bill § 188 – The Crown Act
The act further acknowledges that the federal courts have long accepted that Title VII of the Civil Rights Act prohibits discrimination against persons with afros, but adds that “afros are not the only natural presentation of Black hair. Black hair can also be naturally presented in braids, twists, and locks.”Accordingly, California state law was amended to broaden the definition of race to include hair texture and protected hairstyles.
While the following incident did not occur in California, and is not strictly work related, it still highlights the type of discrimination persons of color have been known to experience based on hairstyle.
In December 2018, a black high school wrestler from New Jersey was singled out by a white referee and made to cut his dreadlocks before being allowed to compete in a match. Video shows the young man agreeing to cut his hair in the gymnasium before going on to win the match by takedown.
This incident is extreme, but it demonstrates how hair policies can be used to unfairly target people of color.
In 2010, the Equal Employment Opportunity Commission (EEOC) sued Alabama- based Catastrophe Management Solutions for its treatment of a recent hire, a black woman named Chastity Jones. At the time of her interview, her hair, which was blond, was dreaded in curls known as “curllocks.” She was offered a position as a customer service representative.
At a meeting held later that day, staff noticed her dread locks and told her that company policy required her to cut her hair. She declined, and the manager rescinded the job offer.The EEOC sued the company on Chastity’s behalf.
The regional attorney for the Birmingham office stated that the litigation wasn’t about fighting company policies that require employees to maintain neat, professional hair, but rather
“it focuses on the racial bias that may occur when specific hair constructs and styles are singled out for different treatment because they do not conform to normative standards for other races.”
California’s Fair Employment and Housing Act is contained in the Government Code. Section 12940 states that with few exceptions, it is unlawful for an employer to discriminate against an employee or job applicant based on race, religious creed, national origin, ancestry, gender, or sexual orientation (in addition to a number of other traits). A worker who believes they have been treated differently because of legally protected characteristics should contact an attorney in order to have their case reviewed.
If you believe your employer is trying to enforce a policy that unfairly targets you because of the natural presentation of your hair, contact our office to schedule a consultation.
Our office doesn’t charge to review the facts of your case, and cases are often taken on a contingency basis — this means the client doesn’t pay out of pocket fees. For more information, contact the office of Branigan Robertson to learn how we can help.
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Filed under Discrimination
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. Below is a section on how you should preserve the text messages so your legal team can use them if you have to go to court.
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.
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.
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 workplace 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.
Inappropriate texts come in any number of forms. They can include:
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 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.
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.
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.
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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 leave of absence 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 against you while you were out on protected leave, contact our office to schedule a consultation.
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.
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.
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.”
We have a detailed page on CFRA here.
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:
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.
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.
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.
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Filed under Harassment, Leave of Absence
How do you know if your severance package is fair or not? Did they offer you enough money? Are you getting ripped off? What does all that legal mumbo-jumbo in the agreement actually mean? This article and video will answer most of your severance questions and explain your options.
Severance deals in California come in all shapes and sizes, and most people find the contract terms to be very confusing. The only way to properly determine if you’re getting a good deal is to have an employment lawyer do three things:
Unfortunately, lots of people call me after they’ve signed a severance agreement for a few thousand dollars, only to discover that they had a case worth hundreds of thousands of dollars. Don’t be one of these people. Before you sign, have an employment lawyer like me do a severance review.
This article and video will go into extraordinary detail on severance agreements, negotiation, and lawsuits. I highly recommend that you watch the below video and read this article in full before you decide to sign a severance agreement.
If you’re in California and you already know you need a lawyer to review your severance package, contact us here.
As I explain in the video, when you’re terminated and then presented with a severance offer, you have four options how to respond:
How do you choose which one is best for you? Just like any difficult decision in life, you need to weigh the options against something. If you don’t have anything to compare these choices against, you can’t possibly make an educated decision. Keep reading to learn how to compare these options.
You need to figure out what you are giving up if you sign the severance agreement. While there are a lot of important terms and conditions in the severance agreement (more on those below), I’m going to focus on the main one here.
When you sign the severance agreement, you give up your right to sue the company for employment violations. Therefore, before you sign, you should have an answer to these two questions:
The only way to get an honest idea of the answer to these two questions is to have an actual lawyer examine the facts surrounding your termination and review the terms of your severance agreement. Once you have an idea of how much money is at stake and the strength of your legal claims, you can compare it to the severance offer and make an educated decision.
While this might seem obvious in theory, reality is far more complicated. It is almost impossible for a non-lawyer to come up with educated answers to the below questions. Regardless, here are questions that should be circling around in your head:
Unfortunately, most individuals tend to underestimate the risks they face. Since every case is drastically different, and employment law is so vast and complicated, the only way to get a genuine picture of the risks that you face is to have a professional analyze and explain them to you.
While most severance agreements contain these basic building blocks, every single one is different. So read your contract carefully! If you do not understand parts of your agreement, I strongly recommend that you have it reviewed by a lawyer.
But for purposes of this article, here are some of the major terms:
Obviously, there is more to the agreement and each agreement is different. But most of the agreements that I’ve reviewed have these terms.
Simple, they want to avoid a lawsuit. In today’s litigious world, employers offer money to “problematic” employees at termination in an effort to buy their way out of a lawsuit.
Employers are not required to offer severance. It is not a legal right. Just because your company offered severance to one employee, doesn’t mean they have to offer it to you.
But therein lies the rub. Why is the employer offering money to you? Why didn’t they just fire you? Here are some common reasons:
We often hear stories about employers terminating a worker, and pressuring them to sign the severance deal right there in the termination room. Don’t do it!
We recommend that you say to them, “Thank you, but I’m going to take this home and read it fully before I sign it. If there is anything I don’t understand, can I email you questions?” Then, once you get home, contact a lawyer for a severance review.
If you’re a California employee and you have decided to have a lawyer look at your severance agreement, I hope you’ll consider hiring my office. You can contact us here.
If you have decided to negotiate on your own for more money (we don’t usually advise this), we have an entire webpage on this. Please watch the video on this page carefully before you decide to take this route.
