Monthly Archives: February 2013

Woman Gets Fired for Having Premarital Sex – Is this Pregnancy Discrimination?

Employment Attorney – Generally, employers across California cannot fire an employee because of their sex. Nor can they fire an employee because she is pregnant. However, there are some exceptions for religions institutions. In the below CNN video, San Diego Christian College fired Terri James for having premarital sex.

Link to Terri James Pregnancy Discrimination Video

The school may argue that the lawsuit is barred because FEHA’s definition of “employer” does not include a non-profit religious corporation.  The school may also argue that James could not allege a common law wrongful termination action either in this situation, whether it is based on FEHA or the California Constitution.  If the court behaves like it did in Henry v. Red Hill Evangelical Lutheran, James may be out of luck. In that case The court held that the ministerial exception to FEHA set forth in section 12926(d) of the Government Code barred the claim and that the California Constitution did not support the lawsuit either.

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Filed under Christian, FEHA – Fair Employment & Housing Act, Pregnancy, Sex Discrimination

See’s Candy & California Law – Rounding is OK…Sometimes

See's Candy Rounding Wage and Hour Lawyer

Wage Attorney on Rounding – California just came down with another big court decision. This one involves lots and lots of chocolate. In  See’s Candy Shops, Inc. v. Superior Court the California Court of Appeal addressed whether it is legal for an employer to round it’s employee’s time clock entries to the nearest tenth of an hour.

In See’s Candy, Plaintiff was employed in a non-exempt hourly positon by See’s Candies Shops. She filed a wage and hour class action lawsuit. The trial court granted her summary adjudication motion and dismissed four of See’s affirmative defenses. See’s challenged the dismissal of two of the defenses related to it’s policy of rounding employee punch in and out times to the nearest tenth of an hour.

How did this rounding policy work? For example, if an employee clocked in at 7:58 a.m., the system rounds the time to 8:00 a.m., and if the employee clocked in at 8:02 a.m., the system rounds down the entry to 8:00 a.m. The plaintiff argued that this rounding policy violated CA Labor Code sections 204 and 510 because the employees were shorted small amounts of wages.

See's Candy Wage Hour LawyerThe Court determined that See’s argument had merit because there was no CA statute or case law related to rounding, so the Court looked to the federal regulatory standard in the FLSA. Under that standard, employers are permitted to use a rounding policy as long as it does not consistently result in a failure to pay employees for time worked. An employer may use a nearest-tenth rounding policy if it is fair and neutral on its face and it is used in a manner than will not result, over time, in failure to compensate employees for the time they actually worked. See’s presented evidence that its rounding policy did not result in a loss of wages to employees over time.

By the way, this lawyer prefers…no loves the dark chocolate marzipan. It will blow your mind. Just saying….

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Filed under FLSA – Fair Labor & Standards Act, Wages and Hours

Lady Gaga Gets Sued for Overtime – This Deposition Transcript is Simply Amazing

Lady Gaga Sued for Overtime - Wage & Hour AttorneyEven the rich and famous get sued for not paying overtime. Stefani Germanotta, aka “Lady Gaga,” was sued in 2011 by Jennifer O’Neill, her personal assistant. O’Neill claims she’s owed overtime for serving at Gaga’s “beck and call” around the clock between early 2009 and March 2011. She claims she worked $393,000of worth of unpaid overtime.

Gaga was deposed last year. As I’m an employment lawyer, I’m just going to say this…I certainly hope that I can sue someone as awesome as Lady Gaga. I want to have a deposition like this. Now, I could spend a bunch of time detailing the questions, but I think it would be far more entertaining to just quote the ridiculousness that came out of Gaga’s mouth.

“Are you going to stare at me like a witch this whole time — honestly?” Gaga asked one of the lawyers. “Because this is going to be a long f–k ng day that you brought me here.” Later she states: “No, no, no. Listen, listen, sir, if you’re going to ask me questions for the next five hours, I am going to tell you exactly what f–king happened, so that the judge can read on this transcript exactly what’s going on.”

Gaga said none of her employees get paid overtime, adding that O’Neill “knew exactly what she was getting into, and she knew there was no overtime….” “This whole case is bulls–t, and you know it,” Gaga added.

According to the New York Post, Gaga conceded her decision not to pay overtime wasn’t based on labor laws, but is “actually based on a bubbly, good heart.” Gaga said she paid O’Neill’s $75,000 a year. She gave the job to O’Neill as “a favor, and Jennifer was majorly unqualified for it.”

Gaga said O’Neill failed at even the most basic of tasks, noting that “one of the biggest problems I had with Jen is that I felt like she didn’t lay out all my stuff for me” while traveling, because “there is 20 bags and there is only one me, and I can’t sift through everything.

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Filed under Hourly or Salary?, Overtime, Wages and Hours

Mixed-Motive Employment Discrimination

Harris v. City of Santa Monica Employment Lawyer Pregnancy DiscriminationThe California Supreme Court just came down with a big decision regarding employment discrimination. Employment lawyers across the state are describing Harris v. City of Santa Monica as a compromise between employee rights and business’ freedom to terminate employees. I find the decision fair, despite the fact that I was rooting for Ms. Harris.

Fair Employment and Housing Act – Pregnancy Discrimination

The facts of the case are relatively straight forward: a bus driver alleged that she was fired by the City of Santa Monica because of her pregnancy in violation of the FEHA. The City claimed that she was fired for poor job performance. At trial, the City argued that if the jury found a mix of discriminatory and legitimate motives in Harris’ termination, the City could avoid liability by proving that a legitimate motive alone would have led it to make the same decision to fire her. The trial court denied the City’s argument, and the jury awarded her $177,905 in damages and more than $400,000 in attorney fees. The Court of Appeal reversed, and the Supreme Court granted cert.

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Supreme Court Decision – Employment Lawyers Say “Compromise”

“We hold that under the FEHA, when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, backpay, or an order of reinstatement. But the employer does not escape liability. In light of the FEHA‘s express purpose of not only redressing but also preventing and deterring unlawful discrimination in the workplace, the plaintiff in this circumstance could still be awarded, where appropriate, declaratory relief or injunctive relief to stop discriminatory practices. In addition, the plaintiff may be eligible for reasonable attorney‘s fees and costs. Therefore, we affirm the Court of Appeal‘s judgment overturning the damages verdict in this case and remand for further proceedings in accordance with the instructions set forth below.”

As most readers can tell, the court was trying to make employers and employees happy. This decision permits employees to still bring lawsuits when the employer has a mixed motive, however limits the damages attainable.

Some plaintiff attorneys question whether the court adequately defined when discrimination becomes a “substantial factor” in workplace discipline. The high court’s opinion concluded that “mere discriminatory thoughts or stray opinions are not sufficient to establish liability” under state law. The justices refused to offer a more specific definition “given the wide range of scenarios in which mixed-motive cases might arise.”

All in all, this is just another day in the life of an employment attorney.

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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 Age Discrimination, Disability Discrimination, Discrimination, FEHA – Fair Employment & Housing Act, National Origin Discrimination, Pregnancy, Race Discrimination, Religious Discrimination, Sex Discrimination, Sexual Orientation Discrimination

Wrongful Termination in Violation of Public Policy – California Law

Wrongful Termination Attorney Public Policy Lawyer CaliforniaGetting fired sucks. Despite the agony most people feel after being terminated, chances are the dismissal was completely legal. After all, California is an at-will state. But what if your gut tells you that your firing was illegal? Should you contact an attorney? Keep reading and I’ll let you know what constitutes wrongful termination in California.

Most employees in California are classified as “at-will” employees. At-will employment is a legal doctrine where either party can immediately terminate the employment relationship at any time with or without any advance warning, and with no subsequent liability, provided there was no express contract for a definite term. Employers often believe that they can fire an at-will employee at any time for any reason. This is false in California. A company can fire an employee for any reason except for a reason that violates public policy.

What Violates Public Policy?

This public policy position in California overrides the at-will employment principle. Although employment contracts are generally terminable at will (See California Labor Code § 2922), California courts recognize a narrow exception to this rule. An employer’s blanket authority to discharge an at-will employee may be limited by statute or by considerations of public policy. Tameny v. Atlantic Richfield Co. (1980) 27 C3d 167. While an at-will employee may be terminated for no reason, or for an arbitrary or irrational reason, there can be no right to terminate for an unlawful reason or a purpose that contravenes fundamental public policy.

But this begs the question, what does “public policy” mean? California courts have been interpreting this ever since the Tameny decision came down. If you believe your boss has fired, discharged, or laid you off for any of the below reasons, contact an employment lawyer as soon as possible:

  • Gender discrimination – Pregnancy discrimination, sexual harassment, and other forms of gender discrimination are clear violations of public policy
  • Unsafe workplace – Firing an employee for protesting unsafe working conditions violates public policy
  • Political activity – Discharging an employee because of his political activity, particularly political speech, is a violation of fundamental public policy
  • Race, color, national origin, or ethnic origin discrimination – Terminating an employee because he is black, brown, asian, or some other qualifying characteristic is against public policy
  • Family or medical leave discrimination – Terminating an employee because he or she took family or medical leave violates public policy
  • Prompt payment of earned wages – Failing to pay wages promptly is a violation of fundamental public policy
  • Whistle-blowing – Terminating employees for disclosing an employer’s violation of state or federal regulations to a governmental agency violates public policy
  • Testifying at a hearing – Discharge based on an employee’s taking time off (after reasonable notice to the employer) to appear in court as a witness violates public policy

There are many more reasons that qualify as wrongful discharge. Note that there is no “mean” public policy. Nor is there a public policy for jerk bosses, arrogant bosses, or critical bosses. That means than a boss can be mean, rude, and unbearable, but not violate public policy.

So how do you know if your boss’ conduct violates one of these public policy principles? Call an experienced lawyer today. If you would like to know whether your boss has wrongfully terminated you, contact an attorney for a free consultation.

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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, Retaliation, Whistleblower Protection, Wrongful Termination