Category: Wrongful Termination

Means Girls: State Hospital Style

We often hear stories of youngsters in high school making up rumors about each other out of retaliation for one thing or another. Sometimes, those high school tactics become prevalent in the real world too.

Melody Jo Samuelson began working for Napa State Hospital as an assessment psychologist in 2006. Her job function was to accurately assess criminally accused patients of their ability and fitness to stand trial. Ms. Samuelson soon realized that her job was not so much about actually assessing the patients, as it was to go through an easy checklist of characteristics.

James Jones, the hospital’s chief psychologist seemed determined to increase the hospital’s positive “outcome stats” and pump out patients who were “fit to stand trial.” Therefore, he manipulated the hospital’s assessment procedures, significantly lowering assessment standards, to reach his goal.

In 2008, Ms. Samuelson was subpoenaed to testify that these methods were true. The case involved a patient who was wrongly cleared fit to stand trial. Ms. Samuelson spoke of Mr. Jones’ methods, sparking a wave of retaliation against her.

After her testimony, two of Ms. Samuelson’s fellow employees created an elaborate scheme to frame her of extortion and committing perjury. These allegations got Ms. Samuelson fired.

Upon pursuing a suit against Napa State Hospital, it was found that the two employees had indeed fabricated these accusations. Ms. Samuelson was awarded $890,000 in punitive damages, attorneys’ fees, and awards. Each employee was ordered to pay $30,000 and $50,000.

If you feel you’ve been terminated for “whistle blowing,” contact one of our employees.

FMLA Leave 2014 Remix

The Family and Medical Leave Act maybe remixed in 2014. Representative Carolyn B. Maloney (D-NY) has proposed the Family and Medical Leave Enhancement Act of 2014 that would amend the original and make it broader for use.

Currently, in order to be eligible for FMLA leave, an employer must have fifty (50) or more people employed within twenty-five (25) miles of each other. One may take up to twelve (12) weeks in any given year period for a variety of different reasons that include: childbirth; adoption of a child; care for a spouse, child, or parent with a serious health condition; a serious health condition of oneself; and any thereof applied to a service member on “covered active duty.”

The amended act seeks to reduce the number of employees needed for FMLA to apply for the company. Instead of 50, the enhancement asks for twenty-five (25) or more employees working within the same established radius. Also, it wishes to broaden the scope of the leave by including other legitimate reasons for taking an FMLA leave.

The following reasons could now be included: participate in or attend an activity sponsored by a school or community organization that relates to a program an employee’s son, daughter, or grandchild attends; take care of family medical and dental care for spouses, children, etc.; and visit nursing and care facilities to attend to elderly family.

The First Steps to File a Lawsuit

You find yourself bullied and harassed at your work place. You’re called names based on your ethnicity, or your religious beliefs and practices are brought into question, or you experience unwanted touching and sexual advances. You report these incidents to your employer. You are fired. Now what?

Many people find themselves at a loss when their livelihood is taken from them and are frequently confused as to where to turn. In these instances, one must know that time is precious. If you wish to file suit or take action for termination/firing, bullying, or harassment, the first step is to ensure your time is preserved.

For claims based on federal law that safeguards against discrimination, an employee or former employee has 180 days from the time the unlawful action took place to file with the federal entity, the Equal Employment Opportunity Commission (EEOC). On the state level and for claims violating state law based on discrimination, a person has up to 1 year to file a claim with the California Department of Fair Employment and Housing (DFEH). These time windows are called “statutes of limitations.” If your statute of limitation expires, then the claims do also.

Therefore, to ensure your precious time is in fact preserved, contact an attorney who can determine which entity needs to be involved. It’s beneficial to contact an attorney sooner rather than later as to preserve your claims.

“Lay-off” vs. “Terminated” vs. “At-Will”

In day to day language, many of these terms can be used interchangeably. Normally, being “laid off” or being “terminated” or being “fired” mean the same thing. In the realm of the law, however, these terms are specifically defined to mean different things. The differences are subtle and nuanced, but different nonetheless.

According to California Labor Code §1400(c), a “layoff” means the following: “a separation from a position for a lack of funds or lack of work.” Meaning, a layoff is specifically used to define a person who was let go based on the nature of the quantity of the work, not the quality of the work. In the same vain, a “mass layoff” as defined by Labor Code §1400(d) is “the layoff during any 30 day period of 50 or more employees at a covered establishment.” Again, layoff legally is used to mean letting employees go based on the amount of work or funds available to the employer.

Then what does it mean to be terminated? Or fired? As per Labor Code §1400 (f), “termination” means “a cessation or substantial cessation of industrial or commercial operations” from the employee. Termination is analogous with the common term of being “fired.” One may be fired or terminated for a variety of reasons but is traditionally used to mean letting an employee with performance issues go.

So that brings us to the term, “at will.” What does that mean? The state of California, as with the majority of the nation, follows an “at will” presumption. This means, in the absence of an employee contract stipulating very certain parameters, all employees are presumed to be “at will” or voluntarily employed. Under “at will” an employee can be fired for any reason or no reason at all, as long as that reason is not unlawful. Even if an employee is fired based on a mistake, or if the punishment seems too harsh, it can still be lawful for the employer to do so.

Now let’s look at the exceptions: (1) breach of contract; (2) breach of the “Covenant of Good Faith”; and (3) violation of public policy. Let’s bring our attention to reason #3: “violation of public policy.” Violating public policy is one of the exceptions to “at will” and may also be constituted as “wrongful termination.”

If an employee is wrongfully terminated in violation public policy, it means there is an apparent “causal connection” between an employee expressing their rights and the employer firing them. For instance, let’s say an employee is being sexually harassed by a supervisor. He or she reports it to upper management so that they may be removed from the supervisor’s department. Management does not listen, but instead decides to get rid of the complaining employee and fires him or her. This employee was attempting to exercise his or her right to work in an environment free of sexual harassment as protected by the Labor Code. Out of retaliation, the employee was fired. This is an example of an employee being fired in violation of public policy. There was a cause and effect phenomenon that occurred. The employee complained, and then was fired for it. This is actionable by the former employee by law.

If you have been wrongfully terminated in violation of public policy either out of retaliation or from any of the other mentioned reasons (discrimination and harassment may also be a basis for wrongful termination) please contact an Aegis attorney immediately.

Age Is Not Only a Number…It’s Protected

In the United States, it is illegal to discriminate against a person over 40 because of their age.  Sometimes this comes up when a young, new boss says he wants to get rid of all those “old farts” and “bring in some new blood.”  Other times, an older worker is fired so the company can replace him with someone who is younger and quicker at the same task.

Most often, though, the reason age discrimination occurs is less straightforward – it is not actually the employee’s age that puts him in the cross-hairs, but his experience.  More senior workers with more experience frequently make higher salaries than younger, less experienced competitors.  In a tight economy, companies looking to save money might be tempted to axe old-timers and replace them with much less expensive, new workers.

This is often a poor idea for the company because it is losing the value of significant experience, know-how, and maturity.  But it is not just a bad idea – it can actually be illegal.