Category: Employment Discrimination

Wrongful Termination Settlements: What You Need to Know

Wrongful Termination Settlement

Employees who have been illegally or wrongfully fired from their jobs may be able to get recover compensatory damages including but not limited to their back wages. They may even be able to get their job back by filing a wrongful termination lawsuit against their employer. Such a lawsuit typically alleges that an employee was fired or let go in violation of the law or an employment agreement. Wrongful termination claims can be challenging to prove. For this reason, many of these claims are resolved or settled out of court. The value of a wrongful termination settlement depends on a number of factors and could vary from case to case.

Most Wrongful Termination Cases Are Settled

It is a fact that a vast majority of wrongful termination cases don’t actually get to the courtroom. Most of these cases are settled before they go before a jury. Often, such a settlement is viewed as the ideal form of resolution in wrongful termination cases considering the potential nature of civil trials, which could be lengthy and unpredictable.

When it comes to the employee who has been fired, one of the main challenges is to convincingly demonstrate that the worker was terminated for illegal reasons such as his or her gender, race, nationality, religion, sexual orientation or because he or she was fired as retaliation for whistleblowing.

Employers often use the argument that they had valid reasons to terminate the employee such as poor performance or misconduct. It is important to note, however, that in some cases, employers have a reason to enter into a settlement because potentially damaging information about their company could come out as the wrongful termination case progresses.

What is Wrongful Termination?

Wrongful termination is illegal termination of an employee. For wrongful termination to have occurred, an employer must have discharged an employee in a manner that violates contractual terms. For example, if an employee’s contract clearly states that he or she cannot be terminated for not coming to work on time, but ends up being fired for that reason, the termination could be wrongful. Here are some of the most common scenarios that result in a wrongful termination claim:

  • The employee “blew the whistle” on his or her employer. This means the employee reported the employer for illegal practices such as workplace discrimination, harassment or for safety violations in the workplace.
  • The decision to terminate employment was discriminatory, which means it was based on an employee’s race, gender, age, disability or religion.
  • The employee was fired for exercising his or her legal rights in the workplace such as taking medical leave, maternity leave or serving time in the military.

What is the Value of a Wrongful Termination Claim?

The monetary value of a wrongful termination claim is based on a number of factors. Here are some of the most common factors that determine the value or worth of a wrongful termination claim.

Lost wages: As part of a wrongful termination claim, the employee can seek as damages the amount of wages lost from the date of termination until the present. A plaintiff in such cases has a duty to mitigate these damages by, for example, finding other employment. Any interim benefits such as unemployment benefits or income from a new job are deducted from the past wage total. In some cases, you may also be able to seek future wage loss, especially if you haven’t been able to find a new job.

Lost benefits: When calculating lost earnings, it is important to take into account, the amount of benefits lost. For example, if a fired employee is forced to pay health insurance premiums, the employer may be held liable for these expenses. Other types of benefits lost might include childcare, loss of stock options, etc.

Emotional distress: When an employee is laid off or terminated from a job, he or she not only suffers financial consequences, but also emotional trauma. Individuals tend to suffer from depression, anxiety, and other psychological issues as a result of their termination, and they can seek compensation for such emotional distress. Recovering compensation for emotional distress is much more likely in cases where the alleged actions by the employer were particularly egregious, most commonly in harassment and discrimination claims.

Punitive damages: These are damages an employer is ordered to pay for actions that are particularly outrageous. Unlike compensatory damages that are intended to reimburse plaintiffs for the losses they have suffered, punitive damages are intended to punish the employer and deter similar behavior in the future by others. Plaintiffs may have to satisfy a greater burden of proof in order to secure punitive damages. Often, the jury determines the amount of punitive damages.

Attorneys’ fees: In some cases, you may also be entitled to include attorneys’ fees. In most wrongful termination cases, your attorney will take the case on a contingency fee basis, which means your lawyer will be paid a percentage of your wrongful termination settlement.

Justice and Accountability

In addition to the money that you win as part of the wrongful termination settlement, you may also be able to get some sense of justice and vindication. Workers who have been fired due to harassment, discrimination or retaliation may see a successful settlement as providing validation and closure. As part of the settlement, some plaintiffs may also pursue changes in company policy so similar wrongs are prevented in the future.

Under California law, wrongful termination claims are subject to a two-year statute of limitations. This clock begins to tick at the time of the actual termination, not the time that employee gets notice of the termination. If you believe that you have a valid wrongful termination lawsuit, it would be in your best interest to pursue information right away and contact an experienced lawyer.

If you believe that you have been wrongfully terminated, it is important that you reach out to an experienced Orange County employment lawyer who has successfully handled wrongful termination cases in the past. Valuable advice from an experienced employment lawyer can help you avoid costly mistakes and guide you through what can be a complex process. Call our law offices for a free consultation and comprehensive case evaluation.

Working from Home with a Disability: What You Need to Know

Work from Home Disability

Living with an illness and/or a disability can be a significant challenge. It can be even more challenging to work when you are disabled. This is especially true if you are attempting to work a conventional job when you are disabled. Depending on your specific situation, commuting to work, certain job tasks such as lifting or standing for long periods of time, or rigid work schedules may serve as obstacles. These are very likely obstacles that disabled individuals may never be able to overcome.

This is why working at home might be an appealing option for individuals with disabilities. It essentially gives those who are disabled the hope that they too can work, build a career and earn a livelihood despite their limitations. Working at home opens up a world of opportunities to those who are living with disabilities and chronic illnesses. At the same time, they could also pose a set of new and different challenges.

If you are living with a disability and are hoping to work from home, here are a few tips that might help you.

Knowing Your Limitations

When people initially begin working from home, it can be rather challenging to maintain a daily structure. Since you are working from home, it may be difficult to make that separation between work time and home time. This could lead to the person being up during the early hours of the morning when he or she should have gotten some rest and sleep. If you are suffering from a chronic illness, working at home could initially throw you off your medication or therapy schedule.

But, sleep deprivation and lack of adequate rest will likely catch up with you, making you less productive and efficient. This could hurt your income and your relationship with a remote employer or client, if you are an independent contractor. So, it is absolutely crucial that you recognize your limitations and build your work schedule around them.

Knowing What You Can Handle

This goes hand in hand with understanding your limitations. When you are working from home, it is important not to take on more than what you can reasonably do. Initially, when you begin working from home, you may be tempted to take on more than 40 or 50 hours of work each week. You may think that you will have that kind of time because you don’t have to commute, attend meetings or get dressed anymore.

But the work could add up very quickly and take up more time than you initially thought. Working past your limits could prove potentially damaging emotionally and could throw a wrench in your social life. It could cause other health symptoms to flare up. In addition, failing to deliver on projects could cost you the project, a client or even a job, and it could damage your reputation.

Overextending yourself can do even more damage to your body. For example, typing too much when you are suffering or arthritis or not following your sleep schedule could wreak havoc on your health and overall well being.

It is important that you set yourself up for success. Initially, take on only what you know you can complete. Add on to your workload gradually. This will not only keep you happy and healthy but also give your employers and clients the assurance that you are capable of handling the pressures of working from home.

Pay Attention to Self Care

If you have a disability or a chronic illness, you know what you need to do to care for yourself. This could mean sticking to your medication schedule. You might need to undergo physical therapy or continue to do exercises at home every day so you’re not losing strength and mobility. You will need to maintain your doctor’s appointments and sleep schedule. You may need to do a number of other things that affect your daily routine.

Just because you don’t have a conventional job, don’t skip any of these things you need to do to take care of yourself. In addition, take regular breaks, particularly if you are sitting down at your computer all day. Step outside for a walk, if possible, or at the very least, get up and stretch. Set your timer to remind you to get up and stretch. Breaks can help alleviate eye strain, and moving around regularly improves blood circulation.

When you feel overwhelmed, it’s a good idea to get a soothing cup of tea or do deep breathing exercises. Taking these steps to care for yourself can help you become more productive and effective at your job and prevent you from getting burned out.

The Job That’s Right For You

When you are faced with a disability or a chronic illness, it can be challenging to find a job that can accommodate your limitations. This can become simpler if you know what to expect and understand your limitations. For example, if you know you have to go to the doctor frequently or undergo physical therapy every day, then, you might only be able to handle a part-time job because of these daily interruptions.

If you have chronic pain or find that your energy levels vary each day, you may be able to do take on something deadline-based such as freelance writing projects. If your only limitation is mobility, you could opt for a phone-based customer service job or social media job.

If you are not sure about what kind of a job might be right for you, contact a vocational rehabilitation counselor who can help you not only determine the type of job that’s appropriate for you, but also help you find it. For more information, visit NTI@Home’s website (ww.ntiathome.org/work-at-home-jobs-disabled.shtm).

Understanding Income Limits

If you are currently receiving Social Security Disability Insurance or Supplemental Security Income (SSI) checks, you can only make a certain amount in income each month, as an individual with a disability. When you fail to keep your income down, you may find your monthly disability payments getting reduced. It is important that you check the Social Security Administration’s website or talk to your caseworker or attorney for more information.

If you are being discriminated by an employer because of your disability, you may be able to seek compensation for your losses. Our experienced disability discrimination lawyers can help you better understand your legal rights and options.

Winning Your Claim for Unpaid Overtime Wages: Here Are Six Tips

Unpaid Overtime Laws

California’s overtime law requires employers to pay those employees who are eligible twice their rate of pay when they have worked more than 12 hours in one workday or more than eight hours on their seventh consecutive day of work. Employees who qualify for overtime in California are paid 1.5 times their normal rate when they work more than eight hours in a workday and more than 40 hours in one workweek.

They also earn 1.5 times their normal wage for the first eight hours of their seventh consecutive day of work. In order to be eligible to get overtime pay, employees must be over the age of 18, and employed in a non-administrative or non-professional job. Employees who are paid hourly or daily rates or are salaried may also be able to qualify for overtime pay.

Overtime Laws in California

Overtime laws in California are not as simple as they may seem. Here are a few tips we hope you will find useful when it comes to winning your unpaid overtime claim:

Record the number of hours you worked. Your employer may not have kept up with the number of hours you actually worked. This could be because your employer inaccurately classified you as an “exempt” or “salaried” employee. In some cases, employers also misclassify employees as “independent contractors” in order to avoid paying them sick and vacation pay and medical benefits.

Do not let any of this stop you from maintaining an accurate record of the hours you’ve worked. If you can provide a detailed and accurate record of the hours you’ve worked, your claim will be significantly strengthened. You may keep track of your hours using a notebook, computer or whatever method works best for you.

Keep track of any work you did off the clock. It is becoming increasingly common for employers to require employers to work “off the clock.” This is just a nicer way of saying that they want you to do the work but won’t pay you for it. However, if you are doing this work on site and doing something that benefits the employer, you should be getting paid for it. Some examples of “off the clock” work include but aren’t limited to any type of “prep work” such as filling out paperwork, putting on a specialized uniform or getting equipment or tools ready. It is important that you keep track of all the hours you work. Log the hours you spend doing prep work as well.

You are not bound by labels. One strategy commonly used by many employers to dodge paying overtime is to tell employees they are “exempt” from the Fair Labor Standards Act. This may be because they are paid a salary (as opposed to being paid hourly) or because they are independent contractors. In some cases, employers will misclassify an employee as a supervisor or manager even though they may be taking orders from other supervisors most of the time. Do not buy into these labels. If you believe that you are not being paid overtime, it is important that you contact an experienced California wage and hour lawyer to find out if you are entitled to overtime compensation.

Make an honest assessment of your job duties. Generally speaking, if you spend a vast majority of your time working under a supervisor, you don’t have much discretion when it comes to how and when you do your job. If you spend much of your time doing manual labor, you should be classified as “non-exempt,” which makes you eligible to receive overtime pay.

If you do not have supervisory duties, you should be getting paid by the hour and receive time-and-a-half compensation for all hours worked over 40 per week. If you believe your employer is improperly denying you overtime pay, an experienced employment lawyer can help you assess your job duties and determine your eligibility to receive overtime pay.

Be sure your voice is heard. Many employees are afraid to stand up to their employers because they worry that their employers might retaliate. Many are not aware that state and federal employment laws forbid employers from retaliating against their employees. But, this is ultimately a choice you have to make. When you blow the whistle on an employer who is violating the law, you may be helping others in your company as well.

It is very likely that others in your company are not getting paid the wages they are due either. In some cases, speaking up may help correct the problem. If you have suffered retaliation as a result of objecting to your employer’s unfair and unethical practices, contact an experienced Orange County wage and hour lawyer right away to obtain more information about your legal rights.

Do not post on social media or online. If you have a pending claim, do not post details about it on social media or anywhere online. It is a well-established fact that nothing is private online. Anything you say or post online can and most likely, will be used against you. It would be in your best interest to suspend all social media accounts, at least temporarily, until your wage claim is resolved. Please remember that anything you post, including photos and videos, could be used against you in these types of claims.

Contact an experienced lawyer as soon as possible. A majority of claims for unpaid overtime have a two-year statute of limitations. This means that you may not be able to file a claim if the statute of limitations expires. As time passes, you may lose your right to claim back wages. It is important that you act in a timely manner.

While you may be able to file an individual claim, employees in such cases may also be able to band together and file a class action lawsuit against employers. This is particularly true in cases where employers have failed to pay overtime wages to a number of employees. Having an experienced Orange County employment lawyer on your side will help ensure that you avoid making mistakes that could jeopardize your claim, help you obtain fair compensation for your losses and hold your employer accountable for their potentially illegal actions.

Here Are Eight Signs That You May Have Been Misclassified as a 1099 Contractor

Misclassification of employees in California often occurs not as the result of some mistake or misunderstanding, but rather, by design. Employers engage in this illicit practice because they attempt to dodge paying employees critical benefits and offering them the protections they are entitled to under the law such as minimum wage, overtime pay, family and medical leave, unemployment benefits and safe workplaces.

Employees usually lack sufficient information to understand that they are in fact being exploited. There is a lot of confusion regarding who should be placed on a 1099 status or treated as an independent contractor as opposed to a full-time employee. Many people tend to believe that the decision to classify someone as a contractor or as an employee is based on the employer’s discretion. This is an incorrect assumption.

When an individual is classified as a contractor, he or she takes on more of their tax burden compared to others who are classified as employees. Typically, employees pay a portion (about half) of their Social Security and Medicare taxes while their employers pick up the rest of it. Contractors, on the other hand, face the burden of the entire tax bill including federal and state income tax, which is usually withheld from employees’ paychecks. The Internal Revenue Service has very specific guidelines to differentiate between who is an employee and who is a contractor.

Here are some of the signs that you may have been misclassified as a 1099 contractor:

  1. You do not submit a monthly invoice for work done.

Full-time employees get paid, typically on a bi-weekly basis, by their employers. On the other hand, independent contractors bill the companies to which they provide their services. This type of billing is usually done on a weekly, biweekly or monthly basis, based on a verbal or written agreement between the contractor and the company. Some contractors bill hourly and others may invoice based on work done for a project. If you are getting a paycheck each month or biweekly, and are not being allowed to invoice the company for work done, that should raise a red flag regarding misclassification.

  1. The person whom you work for refers to himself or herself as your “boss” or “supervisor.”

Independent contractors are their own bosses. They do not “work for” or “report to” anyone. This is one of the biggest perks of being self-employed or working as an independent contractor instead of being full-time on a company’s payroll. Independent contractors enjoy considerable autonomy in terms of how they use their time and to whom they offer their services. If the person to whom you provide your services refers to himself or herself as your “boss,” that should tell you that you are expected to behave like an employee as opposed to an independent contractor.

  1. You have a specific schedule and have a supervisor who tells you when to report to work and when to take your meal breaks.

Independent contractors are not bound by a specific schedule. In fact, contractors make their own schedules. While they may work with someone in the company or might provide the deliverables to them, they don’t report to a “boss” or “supervisor.” The company also cannot tell contractors when or when not to take breaks. Once again, a contractor’s schedule is his or her own. The company also cannot tell you, for example, when you can or can’t take your vacation time.

  1. Other people in the company who perform the same job you do, are classified as W2 employees.

Often times, companies will classify individuals as contractors instead of W2 employees simply to avoid paying them crucial benefits such as sick pay, vacation time and medical benefits. If you find that others working in the company do pretty much what you do but are classified as W2 employees, then you should ask whether you may have been misclassified as an independent contractor so the company can save some money.

  1. The company requires you to wear a uniform or asks you to drive a company vehicle.

Contractors typically should not be required to wear uniforms bearing the company name and/or logo. This also applies to requiring you to drive a company vehicle while on the job. In most cases, only employees who are on the company’s payroll may be required to wear company uniforms or operate company-issued vehicles. If these are some of the things you are being required to do, you may have been misclassified as a 1099 contractor.

  1. You are using a company-issued computer and have a company email address.

Contractors typically use their own work equipment such as laptops and cell phones. If the company issues their own computer or cell phone or if you have a company email address or business card, those may all be telltale signs that you are being misclassified as a contractor.

  1. You are required to attend meetings or training sessions.

One of the other signs that you should be classified as a full-time employee as opposed to a 1099 contractor is if your client requires that you attend regularly scheduled meetings or makes training sessions mandatory. When they require training, they give the impression that you need to be taught how to perform a job. When that occurs, the nature of the relationship changes. There is nothing abnormal about a contractor meeting with a client to go over the specifics of a job. However, if you are required to attend regular meetings with the rest of the company’s team, there is a possibility that you have been misclassified.

  1. You have little control over how and when you complete your work.

Typically, independent contractors can choose how they complete the work as long as they finish the work on time and to the client’s specifications. In addition, independent contractors also have the freedom to take on other clients. If the company is imposing limitations on what you can or can’t do, that should raise a red flag regarding misclassification.

If you suspect you have been misclassified as a 1099 contractor, please contact our experienced Orange County employment lawyers to obtain more information about pursuing your legal rights.

What Are the Wrongful Termination Laws in California?

Wrongful Termination Laws

Wrongful termination occurs when an employer-employee relationship is ended by an employer who violates an employee’s legal rights. According to California law, such a situation may arise when an employer breaches a state or federal law, general principles of public policy, the employee’s contract or some other element of the law. The state of California provides several protections for employees including stating the circumstances regarding how an employee may legally be terminated.

Who is an Employee?

In California, only an employee can file a claim or lawsuit against their employer for wrongful termination. This is because there must be an employer-employee relationship. A worker is considered an employee if he or she works under the direction, supervision, and control of an employer. There is a clear distinction between “employees” and “independent contractors.” While a contractor provides a specific product or service, the business has no right to control the means by which the contractor achieves that result.

The more control an employer exercises over the manner in which the worker performs their job and tasks related to the job, the more likely that worker is to be considered an employee by the courts. Workers who are not employees might have a claim against a business for breach of contract or a violation of some other law. Ending a business relationship in which no party is an employee would not meet the requirement to qualify as “termination.”

California is an At-Will State

Under California law, most employees are considered to work on an “At-Will” Basis. This means that the worker is free to quit his or her job at any time. Similarly, employers can terminate an employee any time for any lawful reason, or for no reason at all. This is the case unless there is a specific contractual relationship between the employer and employee that limits the employer’s ability to terminate the employee.

It is important to understand that your employer may decide to fire the employee for no good reason, even when the employee is doing a good job. This could happen even if the employee didn’t do anything wrong. While employers may not need a good reason to fire an at-will employee, they are prohibited from terminating their employees for unlawful reasons. Here are some examples of reasons for termination that may be illegal:

  • Firing an employee due to protected characteristics such as race, gender, disability, sexual orientation or religion.
  • Terminating an employee due to political beliefs or affiliations.
  • Firing an employee because he or she requested time off to which they are legally entitled.
  • Terminating an employee because he or she reported a violation of the law by the employer.

In other words, employers can fire at-will employees for any reason that is lawful. However, they cannot terminate employees for these types of reasons that could be deemed unlawful.

Exceptions to At-Will Employment

There are also some exceptions to “at-will” employment. Some employees have contracts and this limits the employers’ ability to fire them. In such situations, employees might be able to claim that they were wrongfully terminated because their employer did not have a valid reason to fire them. For example, in cases where an employer agrees to hire an employee for a certain period of time, but does not specify the circumstances under which the employee can be terminated, the employee may only be fired if:

  • He or she breaches job duties.
  • The employee routinely neglects his or her duties.
  • He or she is not able to perform job duties for some reason.

A contract might be entered into verbally or in writing, and it is typically for a set period of time. A contract may also limit the employer’s ability to terminate the employee if it requires the employer to have a good reason for the termination. In addition, employees who are union members, for example, are not at-will workers. This is because unions negotiate an employment contract that allows only “for cause” terminations.

Laws that Prohibit Unlawful Discrimination?

One of the most common grounds for a wrongful termination claim arises when the employer has discriminatory intent in terminating the employee. In California, there are a number of laws that prohibit workplace discrimination. The California Employment and Housing Act prohibits employers from discriminating based on age, race, color, national origin, religion, physical or mental disability, pregnancy, marital status, sex and gender identity, sexual orientation or military and veteran status.

Under the law, the employer cannot target a worker for termination due to any protected characteristics. Employers cannot target an employee for harassment over protected characteristics or create a work environment in which being a member of a protected class puts the employee at a disadvantage or puts him or her at disadvantage. Similarly, an employer may not harass an employer for belonging to a protected class. The employer cannot create or maintain a hostile work environment that leaves the class member with no other option but to quit that job.

Here are some other laws that protect employees:

Immigration discrimination: All employees, regardless of their immigration status, are protected by California’s employment laws. While employers are prohibited from hiring undocumented workers, non-citizens are still protected against discrimination just as U.S. citizens are.

Language discrimination: Employers might commit wrongful termination if they fire employees for speaking a different language in the workplace. There are certain exceptions to the rule such as whether the language requirement is justified by a business necessity.

Political discrimination: California law also prohibits employers from controlling their employees’ political activities. So, for example, an employer cannot fire an employee for being a member of a political party or forbid him or her from going to political rallies.

Victims of crime: Those who have been victimized by a crime have a right to be free from workplace discrimination. The law prohibits employers from discriminating against employees who need to appear in court as a witness in a crime of which he or she was a victim.

If you or a loved one has been wrongfully terminated from your employment, it is crucial to contact an experienced Orange County employment lawyer who will help you seek compensation for back pay, punitive damages, and compensation for emotional distress, hospitalization, and suffering. Call our lawyers for a free consultation.