Lawyers and Settlements (LAS): Why is retaliation a California labor law violation?
Morris Nazarian (MN): Retaliation interplays with discrimination and also goes hand in hand with wage and hour violations. Quite often, employees complain to their employers about a labor violation such as not getting paid appropriate wages, not getting overtime or someone harassing them. Not knowing or not caring about the law, the employer will either terminate or retaliate against the employee who complained.
LAS: What is the difference between retaliation and wrongful termination, and why is retaliation increasing?
MN: Retaliation and wrongful termination are two and the same. We are seeing more people who are jobless and it is cheaper to conduct business this way: Employers are holding employees ransom with the knowledge that it's tough out there to find another job—so many employees tend to hold onto any job, even though they can be paid less than minimum wage or not paid overtime. And employees fear losing their jobs, which is very unfortunate.
LAS: What are some common forms of retaliation?
MN: Retaliation doesn't let the employee progress; it means writing them up for something inconsequential; subjecting them to a hostile work environment; it could mean all these things and more, with the intention of wearing them down until they quit.
LAS: Can you give some examples of successful wrongful termination/retaliation settlements?
MN: We had one client who was being paid below minimum wage and she informed her employer, who ignored her. Then she contacted my office because nothing was being done. We sent her employers a letter and she was then fired. To make a long story short, her $15,000 wage and hour claim settled for $90,000 because she was wrongfully terminated. They could have negotiated and saved a lot of money. Instead, they paid so much more, because retaliation is unlawful and illegal and it is against public policy.
In another case, our client had a work-related injury and when she informed her employer that she had made a Workers' Compensation claim, he cut her hours in half and took away all of her benefits—medical, dental etc. They made her into a part-time employee. She had worked there for four years and she was an excellent employee. The employer came up with every excuse in the book to cut her hours: 'We had to hire someone else because we needed two part-time people,' and 'Her performance was slipping. ' That case should have been in Workers Compenstion court—instead it became a six-figure settlement—only because of the retaliation aspect.
LAS: What should an employer do to avoid huge wrongful termination lawsuits?
MN: Employers need to understand that if an employee has a concern, they should do some due diligence and look into the complaint—to see if it can be addressed and solved in a timely manner. If not, retaliation will backfire on them.
LAS: Can an employee collect unemployment benefits if they are retaliated against?
MN: Yes. If your employer says they won't do anything about your complaint, they want you to quit so they can avoid paying unemployment (quitting isn't considered termination and doesn't qualify for unemployment benefits), they are wrong.
Say you file a complaint about overtime and your employer lets you get so fed up, to the point that you leave; your employer thinks they can just wash their hands of you. However, when an employee is ignored, this is called constructive termination: even though you think the employee has walked away, it is because the employer has failed to act on a California labor law violation and that is the equivalent of a wrongful termination.
Employers need to be aware that if the employee quits and is wrongfully terminated, under the employment code, they can get unemployment insurance. Employees should look at the unemployment courts as well as the civil courts regarding filing civil lawsuits, the latter dealing with pain and suffering and lost wages, etc.
LAS: Are unemployment benefits on the rise?
MN: In the not-too-distant past, employers were getting away with not paying unemployment, but in my opinion, since Obama took office, unemployment benefits are on the rise and people are remaining on unemployment longer. The new policy has been more forgiving; it is easier for you to get unemployment and for a longer period of time.
Why get a job for $900 when unemployment will pay you $700? Even though there are more retaliation claims, what we see is pretty much the tip of the iceberg: Employees are usually not reporting retaliation because they go directly to unemployment benefits, so wrongful termination is never addressed and it keeps on going on…
LAS: How can wrongful termination be a case when an employee is hired at will?
MN: In a nutshell: Most employees in California are hired "at will" but that does not mean that an employer can terminate them for any reason. If an employer violates certain statutes (and there are a number of statutes), that gives grounds for an employee to file a wrongful termination lawsuit. If an employer violates policy, e.g., not paying prompt wages or not paying overtime, and you are fired for complaining, that constitutes wrongful termination. There are about 20–25 incidents that can result in wrongful termination, such as being fired for going on jury duty; being fired for filing workers' compensation claim; and being fired for taking medical leave is huge right now.
LAS: Why are medical leave claims so prevalent now?
MN: A medical leave issue is classified as disability discrimination, which is the hottest field right now because it interplays so much with family medical leave. If you have a serious medical condition that necessitates medical leave, besides not giving you the time off pursuant to California labor law, you are being retaliated against and your employer is potentially exposing themselves to disability discrimination.
LAS: Do I have a good chance of winning a disability discrimination claim?
MN: If you have a solid discrimination claim, chances are the court will not look favorably toward the employer's conduct. The courts abhor discrimination and harassment, especially if it goes to trial—the jury doesn't like it because everyone can relate to someone being sick, they can relate to having a medical condition and they can imagine that they don't want to be fired if it happened to them.
LAS: Is it better to settle an employment claim than go to trial?
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But if your goal is to inform this employer that his conduct was illegal, sometimes a settlement is the right way to go. My favorite saying is: A bird in the hand is better than two in the bush.
LAS: If you believe that you have been wrongfully terminated, retaliated against, you should seek an attorney who can help you collect unemployment benefits as well as filing a lawsuit against your employer.