Litigation – Suing Your Employer

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....

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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....

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02 Dec Degenerative or Progressive Conditions: FEHA’s Protection of Employees from Future Discrimination

The FEHA prohibits discrimination of physical or mental disabilities that actually exist, or that they believe to exist, even though it doesn’t actually exist. It is also unlawful for an employer to discriminate against an employee who doesn’t currently have a disability but may have a disabling condition sometime in the future. For instance, if an employee has HIV, but not AIDS, they may not presently have any limits on their major life activities. But, if the employer knows that at some point in the future they could become disabled by AIDS, then they might discriminate against that employee. The FEHA clearly prohibits that. Similarly, if someone has some kind of congenital heart disorder, it may not presently constitute a disability because it doesn’t cause limits on their major life activities. But, if the employer believes that in the future it may, they may also discriminate against that employee, and they are prohibited from doing so. There are other examples, but the main point is that if you have an issue or condition that is not presently disabiling, but may become disabling sometime in the future, the fact that it may become disabling prevents an employer from discriminating against you. If you have been discriminated on the basis of your disability by your employer, or future potential disability, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation....

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