Monthly Archives: January 2013

Your Employee File – An Employment Lawyer’s Perspective

Employee Personnel File Employment Attorney Request Employee FileAll current and former employees have the right to inspect and copy their employment file. Every employment attorney knows this fact. But what exactly are your rights? What are you entitled too? Can your company refuse?

California Labor Code section 1198.5(a) states:

Every current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee.

Generally, an employer must comply with your request within 30 days. If they fail to do so you should contact an experienced employment lawyer.

What must the employer give the employee?

According to Labor Code section 432 and the Department of Fair Employment & Housing (DFEH) employers are required to give an employee or job applicant, upon request, a copy of any instrument that the employee or applicant has signed relating to the obtaining or holding of employment.

Moreover, files that are generally considered to be “personnel records” are those that are used to determine an employee’s qualifications for promotion, pay raises, or disciplinary action, including termination. The DFEH has some examples of “personnel records” it believes should be disclosed:

  1. Application for employment
  2. Payroll authorization form
  3. Notices of commendation, warning, discipline, and/or termination
  4. Notices of layoff, leave of absence, and vacation
  5. Notices of wage attachment or garnishment
  6. Education and training notices and records
  7. Performance appraisals/reviews
  8. Attendance records

What happens if my employer refused to disclose my file?

An employer who violates, refuses, or neglects to comply with an employee’s right of inspection is guilty of a misdemeanor. Labor Code Section 1199(c). Despite this law, it is rare than an employer will go to jail for this. However, you may try to get penalties via section 1198.5(k), which states:

If an employer fails to permit a current or former employee, or his or her representative, to inspect or copy personnel records within the times specified in this section…the current or former employee…may recover a penalty of seven hundred fifty dollars ($750) from the employer.

Employment Attorney – What about my payroll records?

According to Labor Code section 226(b), employers are required to permit current and former employees to inspect or copy payroll records pertaining to that current or former employee. An employer who receives a written or oral request from a current or former employee for his or her payroll records shall comply with the request within 21 calendar days.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Filed under Discharge & Layoffs, Employment Records, Labor Law, Uncategorized

Congratulations to Jeffrey Greenman For Winning CAALA’s “Rising Star” Award

Jeff Greenman CAALA Rising Star Award

Jeff Greenman, a personal injury attorney in Newport Beach and good friend of mine, was recently awarded the Consumer Attorneys Association of Los Angeles’ (CAALA) inaugural “Rising Star” award. In his short career he has obtained some amazing results. This past year he won a million dollar medical malpractice verdict.

“The jury returned a verdict of $1,017,500, beating plaintiff’s 998 demand for $750,000. After the verdict was returned, there was pandemonium in the courtroom with the client crying and hugging the jury, and the jury crying and hugging back.”

This is an important award. It recognizes young talent and gives it a boost. But this verdict isn’t Mr. Greenman’s best. He’s obtained a $17 million dollar settlement, $12 million dollar settlement/verdict, and a $5 million dollar settlement (just to name a few) for his clients. It goes without saying that Mr. Greenman has started his career winning big.

Check out Mr. Greenman’s website at Greenman Law PC. Mr. Greenman graduated from Chapman University School of Law and has been practicing law for six years.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Filed under Lawsuits & Lawyers, Uncategorized

Employment Lawsuits and Your Medical History: What’s Fair Game?

Medical Records Attorney Employment RecordsOne of the most common disputes to arise during an employment lawsuit is access to your private medical documents. The employer who’s being sued (or more accurately, their attorneys) routinely insist that, by filing a lawsuit and alleging emotional distress, you’ve voluntarily put your health and all related records “at issue” such that it’s up for grabs during discovery.  This, however, is not always true, and you should be aware of your constitutional right to privacy while engaged in a lawsuit.

“Give Us Everything” 

Discovery, of course, refers to the window of time between filing your lawsuit and trial (usually 8-10 months) where both sides get to demand relevant documents from each other and also demand that certain questions be answered truthfully. As a general matter, a party is “entitled” to discover any documents as long as the request is “reasonably calculated to lead to the discovery of admissible evidence.”

Historically, this is a very low bar to satisfy and attorneys can get their hands on a wide range of documents with very little justification. California laws and public policy also support this notion, as courts feel that the more information attorneys have, the more likely they can make informed decisions and settle the case. With that being said, an attorney’s favorite term of art during discovery tends to be “any and all.” For example, your attorney will probably ask the employer/defendant for “any and all written complaints of discrimination by other employees.” This type of demand is permitted during an employment lawsuit because evidence of other employees’ complaints would support a discriminatory pattern or motive, thus supporting your claim of discrimination.

The problem, however, arises when the employer serves a subpoena on your doctors and therapists demanding “any and all” of your medical records. This type of demand is intentionally broad and is designed to encompass every known type of medical document, even if they have nothing to do with your lawsuit. In a recent case, for example, the defendant/employer tried to demand all medical documents from every physician our client had seen over the past five years. The demand included private medical documents from our client’s therapist, general doctors, and even her dentist and gynecologist.

Requests like that are highly intrusive to say the least, but it’s important to know that private medical records are highly protected under California law, even when you’re involved in a lawsuit. More specifically, attorneys have to meet a much higher legal burden to get their hands on that kind of sensitive material, even when you put your health “at issue” in your complaint.

Unfortunately, some attorneys take a stance that, if the documents won’t affect your case, then who cares, just let them have it, right? Of course not. What still matters is your constitutional right to privacy and your attorney should take the appropriate steps to protect it.

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Harassment and the “Continuing Violation Doctrine”

Sexual harassment lawyer california

Ongoing Sexual Harassment Tolls the Statute of Limitations

To sue for sexual harassment in California, you must bring your claim to the Department of Fair Employment & Housing or get your “right to sue” letter within one year of the alleged harassment. Your lawyer will obtain this for you. But what if the harassment regularly took place over the last couple years? What if some of the sexual harassment took place over the last 10 or 15 years? Are the instances of harassment that took place over a year ago barred from being brought in court ? Will your attorney have bad news for you? The answer is “no”…well…most of the time it’s “no.”

In 2001, the Supreme Court of California ruled on the scope of the “continuing violation doctrine” in Richards v. CH2M Hill, Inc.The doctrine “allows liability for unlawful employer conduct occurring outside the statute of limitation if it is sufficiently connected to unlawful conduct within the limitations period.” To determine this connection, the Supreme Court set up a three part test: if (1) the actions are sufficiently similar in kind; (2) they occur with sufficient frequency; and (3) they have not acquired a degree of permanence so that employees are on notice that further efforts at informal conciliation with the employer to obtain accommodation or end harassment would be futile.

If this test is met, the statute of limitations begins to run either when the course of sexual harassment has ended (such as when the employer fires the harasser) or when the employee is on notice that further efforts to end the unlawful conduct will be in vain.

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Filed under FEHA – Fair Employment & Housing Act, Harassment, Sexual Harassment