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California Employment Lawyer Answers Wrongful Termination-Retaliation Questions

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Los Angeles, CAAttorney Morris Nazarian has extensive experience handling California labor law issues and employment disputes. His law firm helps countless employees obtain their unpaid wages, overtime and other benefits to which they are entitled. Increasingly, the law offices of Morris Nazarian are seeing more retaliation and wrongful termination claims. And Lawyers and Settlements concurs—retaliation complaints are on the rise.

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?

MN: That depends on what you are trying to accomplish, i.e., what you hope will be the end result. If you are trying to set this lawsuit as precedence so that other employers will not follow your employer's violations, then your claim is best suited for a trial. On the other hand, a settlement is confidential; the employer can admit no wrongdoing and that leaves them open to do it again. And they usually do it again because it is less costly than to change policy.

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.

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READER COMMENTS

Posted by

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Quick run down. I gets a job same company worked before different store was there a year quit after I was denied a promotion 3 times when every manager there said I should be given the spot. 2 weeks in new job harassment starts from old/new boss. Next week got so bad had to tell his boss leave me alone just shut up your stressing me out so bad I feel like I can not breathe stop harassing me. Got sent home cuz of it but went to DR. BP was 200/100's told manager what happen so manager suspended me for 5 days not off medical leave just suspended me when I come back same bs so I text general manager the harassment complaint manager talks to me says its my fault I am being harassed couple days later I tell GM( old boss is GSM) again if harassment doesn't stop I will file complaint with HR then I tell my GM I have a follow up apt next day due to follow up call from ER said was emergency. So Dr prescribes anxiety med's for me and I tell boss that the harassment got so bad I now have to take these to even work with him. Next day they when I was at Jury Duty they fired me. Work responds to complaint saying we have nothing in his file we just were reducing sales force. have proof I told manager about Dr stuff the harassment and even has the medical evidence and Dr statements etc saying and showing my BP and that I answered a question " my boss always yells at me" and " my boss wouldn't stop yelling at me and when I went to urgent care and they said u need to take ambulance to ER cuz you have the risk with your BP of having a stroke or Heart attack and you have a risk of DEATH. I lost everything because of this and became homeless etc. I feel I was discriminated because of the medical condition that was caused by them this is all after I was offered a promotion from the new GM and after he said he would speak with GSM my old manager about it and they would start my training asap is when the harassment started.

Posted by

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I had previously filed two cases with the dfeh, and one with eeoc. the first two were settle with the company the 3rd was not. I filed the 3rd case May 2015. I left on an overseas deployment in May 2015. The company made the decision to terminate me for insubordination on November 24, 2015 while I was deployed. My record book is clean and I have high marks in the area of following company policies and supervisor instruction. They said it was because of what I said to HR and for not answering a work related question my supervisor asked me. I never had a conversation with them only emails. The only dealings I had with HR was me asking for their assistance with an employee I felt was harassing me because of my race. I had constantly complained about this harassment. We were overseas and they refused to remove him from my shift, therefor subjecting me to his harassing behavior for over 4 months. My understanding is he was also terminated in early December for the things he did to me while we were deployed. I was terminated while I was out on stress from this harassment by way of email. November 11, 2015 I had a phone conversation with my supervisor in the conversation I stated to him I was going to the EEOC when I returned from the deployment because of the Harassment. November 13, 2015 Supervisor writes letter to me asking me to do a part of my job I have always done. I was offended and told him in an email dated 16 November I always do my job, and at the end of the email I wrote, I am not going to answer that question.
My supervisor told me the guys working with me (Caucasians) did not have to tell me where they were going while they were supposed to be at work. I was the lead mechanic and it was my responsibility to make sure all maintenance was done and account for the mechanics working for/with me. When I told him that didn’t make any sense, he just said they didn’t have to tell me they were leaving the job site or anything but it would be nice if they did. He also, changed my job requirements several times, while not requiring the same from my white counter parts. At the end just before I was terminated he accused me of not being there when maintenance was being done on the aircraft. I told him, although I am not required to be there when maintenance is being done on the aircraft, I was always there because I didn’t trust the other worker to do maintenance properly. In the last email he sent me he changed the requirement from me participating in all maintenance on my shift to me participating in all maintenance from start to finish. None of this is required by any General Atomics policy for an A and P mechanic specialist II. Jason did not require this of any of my white counter parts that were doing that held the same exact position as I did. I felt his actions where not just discriminatory but also I felt he was retaliating against me for complaining about his discriminatory behavior. The Caucasians working with me were allowed to sleep on the job and break numerous policy’s and procedures and were never sent home early from the deployment, nor terminated.

Posted by

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I was treated so bad with major retaliation that was open in front of patients, family members, and all of staff over a period of time. I have not been able to get over the depressed state that I currently suffer from. I have never in all my years EVER had such an impact on me. I am a great worker, educated, and a licensed provider, that because I wouldnt break the rules, the illegal, uneducated, unqualified, non- compliant, dental management company (that really owns the practice) fired me. I refused to make employees sign waivers to have breaks, lunches, & overtime paid, and refused to make employees, agree to things that the company should have known that were illegal and violates state and federal law. I was so devastated, violated, and humiliated. I have been threatened with personal injury in front of staff and patients, by one of the owners. I went on unemployment for a year because they admitted to EDD the reasons they fired me. I tried to contact several lawyers and the labor board- I didnt get the help I needed. This past year I has no income what so ever and cant get back on my feet. I am extremely depressed and still cry often. I feel as though I was raped over and over in front of everyone and had entered and never fully come out of since being let go. I need a job because I am now financially bankrupt, let my license to practice go, lost my home and vehicles, and all the weight is on my spouse. We are barely making it month to month. I stay in my room in bed 23 out of 24 hours a day. My family suffers with me, and I feel like such a loser and disappointment. My kids cant comprehend why I have given up and dont have the strength and drive they knew too well to overcome this. It has been 2 years now since this occured, Is there a statue of limitations to file against my past employer

Posted by

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Ive been at my job for about 3.5 years now. I am an operator which requires typing all day. I started having pain in Feb. 2009. I informed my supervisor, but she apparently forgot because she never did an ergo check. I waited a couple of months then i told her again, thats when she finally checked up on me. She told me how to sit correctly but never asked me how was my hand after that. In Sept.2009 I got a new supervisor, which whom i also explained what I was feeling. She said she would look into it but never happend. So i told her again and she did another ergo check and she said I was sitting and typing correctly. But by this time.my pain was gradually increasimg from my wrist to my elbow. I let her know but she said she was going to send another Supervisor an email to see what to do next, but like usual i never heard from them, the only diff is that all the supervisors were comstantly watching me more than usual.So finally in Dec 2010 almost 2 yrs from my initial complaint i told them i had to go because the pain is so bad i cant use my right hand . So now they are giving me a hard time because they are telling me to put down yesterdays date as the first day of injury. Would this be considered retaliation? Should I get a lawyer? Or should i do what they say? Please help??!??!

Posted by

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Thank you for this interesting case. I too have a horrendous case. Too much to get into check out kaytor v. electric boat corp. Maybe it will help your case out. I cannot settle w/my harassers b/c I must have Justice even if it is a dollar. They need the publicity so it never happen to another employee. I am through paying attys who are paid off. The first time around case was thrown out by the Judge and the 2nd circuit court sent case back to district court whittle down my claims. All is corruption original claims that were submitted disappeared. I am taking my case to the west coast. The retaliation was horrendous before I was fired. We are filed for 10 mil. Perhaps the Jury will like me hope to get my claims back thru punitive damage. I was fired w/a trumped up charge of Paranoia carrying the highest security clearance for nearly 34 years. I was a union councilor for six years even signing the union contract w/upper management. This company does not want to pay a woman. I am looking forward to the day they have to pay out. They took their crimes out into the community w/their hired PI's targeting my doctors breaking into my home even killed my pup. I may have settled but they killed my beloved pet and there is no price for ones beloved pet. There was an attempt on my life a highly toxic chemical was poured on me by a local doctor almost killing me. I must now be monitored for cancer. The crimes committed are all documented. Best Sharon

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