Litigation – Suing Your Employer

05 Nov FEHA Protected Activity Retaliation

Retaliation for Fair Employment and Housing Act, or FEHA, protected activity is a common form of unlawful retaliation. The FEHA prohibits employment discrimination and harassment. But it also makes it unlawful to retaliate against employees for engaging in protected activity. There are two central parts to a FEHA retaliation claim: protected activity and retaliation. FEHA protected activity that triggers retaliation provision The FEHA prohibits retaliation. But it only prohibits certain kinds of retaliation. Specifically, it prohibits retaliation against employees for engaging in conduct that qualifies as protected activity. Under the FEHA, protected activity means opposing employment practices that the FEHA makes unlawful. All sorts of things can count as opposition. But, most commonly, it's reporting or complaining to a manager or HR. For example, the FEHA makes sexual harassment unlawful. Reporting to HR is a form of opposition. Accordingly, an employer cannot retaliate against an employee for reporting sexual harassment to HR. Doing so would violate the FEHA. Conversely, the FEHA doesn't make it unlawful for your boss to criticize your work. So suppose your boss criticizes your work. You think her criticism is unfair and you complain to HR. While that complaint to HR might be opposition, it's still probably not protected activity. That's because the conduct about which you're complaining isn't prohibited by the FEHA. Of course, the law is not black and white. There is a fine line between conduct that is impolite and conduct that violates the FEHA. Fortunately, the underlying conduct need not actually violate the FEHA. Instead the employee just needs to show they had a good faith belief that it does. For example, if an employee complains about what they honestly think is unlawful harassment, then the FEHA protects that employee from retaliation. Of course, that honest belief typically has to be at least somewhat reasonable. FEHA protected activity retaliation requires an adverse employment action Technically under the law, retaliation refers to the overall act of retaliating against an employee for engaging in protected activity. The employer does the retaliating by taking what's called an adverse employment action. Many people assume this means firing, but it's actually much broader. In simple terms, an adverse employment action is anything that negatively affects the conditions of your employment. In addition to termination, this can be things like, demotions, failure to promote, or transfer to a less desirable role. This is not an exhaustive list. In fact, there isn't necessarily an exhaustive list. Whether something qualifies as an adverse employment action depends on the facts of the situation. Causation is an element of retaliation Critically, it is not enough to show merely protected activity and an adverse employment action. To establish a retaliation claim, an employee must show some causal connection between the protected activity and the adverse employment action. That is, they must show the adverse employment action was at least partly because of the protected activity. Obviously, the best evidence is direct evidence. But in most cases, an employer won't say they're firing an employee because of their protected activity. More often, an employer will offer some legitimate reason for the adverse employment action and the employee will need to use circumstantial evidence to establish causation. For example, close temporal proximity between the protected activity and the adverse action is evidence of causation (though usually not enough evidence on it's own). There are non-FEHA retaliation laws that apply in California It's important to note that there are other types of unlawful retaliation. For example, California Labor Code section 1102.5  prohibits retaliation against qualifying employees. There are also federal laws, such as the Sarbanes-Oxley Act, that prohibit retaliation in certain circumstances.Consequently, if you have experienced retaliation that doesn't fit within the FEHA retaliation discussed above, that doesn't mean you don't have a case. You should contact an employer lawyer to evaluate your case. They can determine what, if any, retaliation claims you may have. If you an employer has retaliated against you, contact the Khadder Law Firm today for a free consultation. For more, follow us on Twitter....

Read More

21 Oct Different Sources of Employment Law

There are different sources of employment law in California. You've probably heard about Title VII. This is federal law, which Congress enacted as part of the Civil Rights Act of 1964. Title VII prohibits harassment and discrimination in the workplace. But California also has its own version of Title VII: the Fair Employment and Housing Act, also known as the FEHA. Like Title VII, the FEHA prohibits workplace harassment and discrimination. Both Title VII and the FEHA apply in California. If you're considering suing your employer, you may be able to choose between the two. Different sources of employment law, similar rules and remedies After the federal government enacted Title VII, many states passed their own versions of the law. The FEHA is California's version of Title VII. Because the FEHA is based on Title VII, there are many similarities between the two laws. For example, both prohibit harassment and discrimination based on certain characteristics, such as race, gender, and religion. They both also prohibit employers from retaliating against employees who oppose harassment or discrimination. Moreover, they both set up a mandatory administrative process. Title VII created the Equal Employment Opportunity Commission. If you want to sue your employer under Title VII, you have to go to the EEOC first. Likewise, the FEHA has the Department of Fair Employment and Housing. Like under Title VII, you must go through the DFEH's administrative process before you sue your employer in court under the FEHA. Finally, Title VII and the FEHA both authorize punitive damages and allow victorious plaintiffs to collect attorney fees and costs. They both also have asymmetrical cost shifting. This means prevailing plaintiffs can recover fees and costs as a matter of right, but when defendants win, they can't recover fees and costs unless the plaintiff's lawsuit was frivolous. Though similar, there are important differences between Title VII and the FEHA While similar, there some key differences between Title VII and the FEHA. Perhaps the most important difference from a plaintiff's prospective is Title VII's damages cap. While the FEHA allows for unlimited compensatory and punitive damages, Title VII limits recoverable damages. Additionally, Title VII is federal law. This means that federal courts automatically have jurisdiction over Title VII cases. While California courts can hear cases involving federal law, a defendant being sued under federal law has the right to remove the case to federal court. While this doesn't affect the substantive law, federal courts use different procedural rules. For example, California courts do not require plaintiffs to win unanimous jury verdicts, while federal courts do require unanimous verdicts. Moreover, it's often more expensive to litigate in federal court and plaintiffs' attorney are generally less experienced there. Accordingly, plaintiffs often prefer state court. Because the FEHA is not federal law, defendants have a harder time removing FEHA cases to federal court. Finally, there are some differences in the substance of the two laws. For example, the FEHA prohibits discrimination based on sexual orientation and gender identity. It's unclear whether Title VII does so, though the Supreme Court is expected to conclusively resolve this issue in the spring of 2020. Different sources of employment law: which law should I use? Now you know there are different sources of employment law in California. If you're considering suing your employer, you might be wondering: which source of law should I use? The answer: it depends. Most plaintiffs' attorney probably prefer the FEHA. But that doesn't mean that every plaintiff in every situation should proceed under the FEHA. There are some instances in which Title VII is the way to go. First, in some situations, Title VII is your only option. For example, if you are an employee of the federal government, you generally can't use the FEHA to sue the federal government in state court. There are also some areas, called federal enclaves, where only federal law applies. If the offending conduct occurred in a federal enclave, Title VII may be the exclusive remedy. Additionally, you may be in an area where the juries are not favorable for plaintiffs. Because the applicable federal court may be in a different city or county, it's possible you could get a more favorable jury in federal court. Because you probably can't bring your FEHA claims in federal court, you may want to use Title VII if this is the case. These are only a few of the many factors involved in choosing whether to pursue claims under Title VII or the FEHA. Ultimately, this is a decision you'll need make in consultation with your attorney. It's also important to remember that there are other laws, both state and federal, that might apply in the employment context. If you believe you have a claim against your employer, contact the Khadder Law Firm today for a free consultation. To stay up to date on our blog posts and more, follow us on Twitter....

Read More

08 Oct #MeToo inspired sexual harassment bills await signature

Three #MeToo inspired sexual harassment bills await the governor's signature. The legislature passed each of the three bills partly in response to the #MeToo movement, which has grown in response to sexual harassment in the workplace. As part of the movement, #MeToo advocates have called for updates to California's sexual harassment laws. While the bills all aim to deter sexual harassment, they each address distinct issues. AB 9, inspired by #MeToo criticisms, would extend the statute of limitations for sexual harassment claims AB 9 would extend the time victims of sexual harassment have to file claims under state law. Currently, sexual harassment victims generally have only one year to take action. AB 9 would change the statute of limitations for sexual harassment to three years. Employment lawyers and supporters of the #MeToo movement have criticized the short statute of limitations California has for sexual harassment claims. They argue many sexual harassment victims don't immediately recognize they've experienced legally actionable sexual harassment. By the time they do, it may be too late to take action. Meanwhile, critics of AB 9 argue that it will increase employers' liability. Undoubtedly, this would be a major change to state employment law. But until the bill goes into effect, nobody can say for sure how much real world impact the change would have. AB 51 seeks to protect sexual harassment victims' right to sue in court AB 51 would prohibit employers from enforcing mandatory arbitration clauses against victims of sexual harassment. Employers are increasingly using mandatory arbitration clauses in their contracts with employees. Arbitration is essentially a private court system. Arbitration generally has similar procedures as court, but there are some important differences. These differences, tend to advantage employers. Moreover, it's very rare that a court will decline to enforce an arbitration agreement. Unsurprisingly, many #MeToo advocates have been critical of arbitration agreements, arguing they take rights away from sexual harassment victims. Moreover, because arbitration is private, it allows employers to sweep sexual harassment lawsuits under the rug. AB 51 would make it harder for employers to enforce such agreements against victims of sexual harassment. Advocates hope the legislation would help victims fight back more effectively against sexual harassment at work. Even if passed, however, it's possible that AB 51 would conflict with federal law regarding arbitration agreements. Where state and federal law directly conflict, federal law prevails. Therefore, it's possible AB 51 would have little or no impact on sexual harassment lawsuits. If AB 51 does become law, courts will have to work this out. AB 749 would prohibit employers from including "no rehire" clauses in sexual harassment settlements AB 749 prohibits employers from including "no rehire" clauses in settlement agreements with sexual harassment victims. These clauses give employers the right to refuse to hire or employ the victim in the future. #MeToo advocates argue this is a form of retaliation against employees who file sexual harassment lawsuits. By prohibiting such clauses, the legislature sought to ensure that victims can move on without sacrificing future opportunities. #MeToo advocates hope governor will sign the sexual harassment bills As of now, these three #MeToo inspired sexual harassment bills are not law. They will only become law with the governor's signature. The governor has until October 13, 2019 to sign them. Activists in the growing anti-sexual harassment movement are hoping the governor will sign them before the upcoming deadline. If the governor does not sign one or more of the bills, don't expect that to be the end of the line. This is only the beginning of what will likely to be a long effort to reshape California's civil rights laws to combat sexual harassment. If you believe you have been a victim of sexual harassment, contact the Khadder Law Firm today for a free consultation. For updates on these bills and more, follow us on Twitter....

Read More

24 Feb Mandatory Arbitration Clauses and Employment Disputes

Mandatory arbitration clauses, especially since 2011, have become more and more common in the employment context. I’ve talked about this in some of my other blog posts about how much I disdain mandatory arbitration clauses and unfortunately, there are many problems with mandatory arbitration, especially in the employment context. The biggest issue among many is that employers with arbitration clauses will probably have to participate in multiple arbitrations, and the arbitrators are essentially private judges. There is the potential for the arbitrators to rule in favor of the employer in order to get repeat business (called “the repeat player effect”). Individual employees typically don’t have to go to arbitration more than once in their lifetime, if ever, so there is no potential incentive for an arbitrator to rule in an employee’s favor. Another problem with mandatory arbitration, is that it could, but not necessarily will, have an effect on the value of the case. If an employee is presented with an arbitration agreement, they should think long and hard, and even think about talking to a lawyer before signing it. Not all employers, however, will give you the option of signing it or not signing it. Some do, but a lot of them don’t. Everyone should keep in mind that if they sign an arbitration agreement, they are most likely going to be forced to go to arbitration as opposed to having their day in court in front of a jury. That can affect the value of their case. If you don’t have a choice in the matter, you can either agree to the arbitration agreements, or you will have to find another job. That is not an easy decision for most people to make, but, unfortunately, it is becoming more and more commonplace. One mitigating factor about arbitration in the employment context is that if the employer requires the employee to go to arbitration, the employer has to pay for the arbitrator fees. The employee only has to pay for what they would normally pay if they were in a regular court of law. Frankly, the arbitrator fees can cost far more than any cost associated with filing a case in a court of law. So, sometimes employers will decide that they don’t want to enforce the arbitration agreement because it would cost a lot of money. That’s one advantage that an employee who is forced to sign an arbitration agreement may have in their back pocket. Arbitration agreements have to follow certain procedural and substantive requirements. If the agreements are procedurally or substantively unconscionable to a certain extent, then a court may decide that the arbitration agreement is not enforceable. If an employee has a legal claim against their employer, and there is an arbitration agreement, it would be very important to speak with an employment attorney to evaluate whether the arbitration agreement could be found unenforceable in court so that the employee can have the chance to bring their claims to a jury of their peers as opposed to a private judge. If you are presented with an arbitration agreement by your employer, or if you have already signed an arbitration agreement and have a legal claim against your employer, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation....

Read More

12 Dec What if I’m afraid of making the overtime claim because I might lose my job?

This is a legitimate concern that many employees have, and unfortunately, there is no perfect protection against an employee who seeks to enforce their rights to overtime and other pay laws. The good news is that California law prohibits retaliation against an employee who asserts their rights under the wage and hour laws. California labor code 1102.5 (see below) is a particularly powerful tool for going after employers that retaliate against you for asserting your rights under the labor code. There are other provisions in the labor code that also prohibit retaliation, and provide that the person can sue on those claims, but labor code section 1102.5 is the most commonly used. In addition, because Section 1102.5 falls within the California labor code, an employee may also be able to sue under the Private Attorney General Act and recover attorney’s fees for any retaliation that he or she experienced because they sue to enforce their rights to overtime pay. < California Labor Code 1102.5 > Labor Code - LAB DIVISION 2. EMPLOYMENT REGULATION AND SUPERVISION [200 - 2699.5]  ( Division 2 enacted by Stats. 1937, Ch. 90. ) PART 3. PRIVILEGES AND IMMUNITIES [920 - 1138.5]  ( Part 3 enacted by Stats. 1937, Ch. 90. ) CHAPTER 5. Political Affiliations [1101 - 1106]  ( Chapter 5 enacted by Stats. 1937, Ch. 90. ) 1102.5. (a) An employer, or any person acting on behalf of the employer, shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties. (b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties. (c) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. (d) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for having exercised his or her rights under subdivision (a), (b), or (c) in any former employment. (e) A report made by an employee of a government agency to his or her employer is a disclosure of information to a government or law enforcement agency pursuant to subdivisions (a) and (b). (f) In addition to other penalties, an employer that is a corporation or limited liability company is liable for a civil penalty not exceeding ten thousand dollars ($10,000) for each violation of this section. (g) This section does not apply to rules, regulations, or policies that implement, or to actions by employers against employees who violate, the confidentiality of the lawyer-client privilege of Article 3 (commencing with Section 950) of, or the physician-patient privilege of Article 6 (commencing with Section 990) of, Chapter 4 of Division 8 of the Evidence Code, or trade secret information. (h) An employer, or a person acting on behalf of the employer, shall not retaliate against an employee because the employee is a family member of a person who has, or is perceived to have, engaged in any acts protected by this section. (i) For purposes of this section, “employer” or “a person acting on behalf of the employer” includes, but is not limited to, a client employer as defined in paragraph (1) of subdivision (a) of Section 2810.3 and an employer listed in subdivision (b) of Section 6400. (Amended by Stats. 2015, Ch. 792, Sec. 2. Effective January 1, 2016.) If your employer has retaliated against you for making an overtime claim, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation....

Read More