Author Archives: Administrator

About Administrator

Branigan Robertson exclusively represents employees in workplace disputes against their employers. He focuses his practice on sexual harassment, wrongful termination, wage & hour, and retaliation. His office is located in Orange County, California.

Sheldon Cooper on How Not to Behave in Court

While this video isn’t about employment law, it does demonstrate improper courtroom demeanor. Sheldon Cooper (Jim Parsons of the Big Bang Theory) decides to insult a traffic court judge and finds himself in contempt. Hilarious.

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Arbitration is Bad for Employees. Trust me, I’m an Employee Rights Attorney.

Before I went to law school, I thought arbitration sounded neat. I had heard that lawsuits took years to resolve in court and were ridiculously expensive. Arbitration, on the other hand, sounded like an effective alternative to court. What is arbitration? As opposed to going to court, the feuding parties choose a “neutral” third party to review the facts, hear-out both sides, and make a ruling. Many proponents of arbitration say that it is faster, cheaper, and more fair. It’s not. Arbitration is bad for employees. Why? No jury. No media. No appeal. Period. Just an old white guy (usually) who rules with an iron fist. For those of you who like bullet points, here is a quick list of reasons why arbitration hurts employees:

Arbitration is Bad for These Seven Reasons

  • Unlike courts, arbitration is not a public system. Why is this bad? Because a company may repeatedly break the law, get sued in arbitration, but the public never finds out and there is no pressure on the company to ever make a change.
  • Unlike a judge in court, the arbitrator is not neutral. First, major corporations are constantly in arbitration against employees, and the corporation generally handpick arbitrators from firms with proven records of favoring the corporation. If word gets around that arbitrator ruled for an employee, the arbitrator gets blackballed by defense lawyers and goes out of business. It has happened. Second, and worse, many of these “neutral” arbitrators are under contract with corporations that engage in multiple cases. This is an enormous conflict of interest. Third, the company pays the majority of the arbitrators fee, essentially guilting the arbitrator to rule for the company.
  • Arbitrators do not have to reveal the reasons for his or her decision. They can say, “Company wins” and go home and take a nap. They are not legally accountable for errors, and their decisions do not set legal precedent for future cases.
  • Even if an arbitrator’s decision is legally incorrect, it still is enforceable, and there is nothing you can do about it. There is virtually no right to appeal an arbitrator’s ruling.
  • Generally, the company chooses the city or town where the case is heard, allowing it to make the case inconvenient, expensive, and unfair for employee bringing the complaint.
  • Arbitrators are not required to know the law relevant to the cases they adjudicate, follow legal precedents, or even be lawyers. Although most arbitrators are lawyers, it isn’t even a requirement!
  • Normal procedural rules for gathering and sharing evidence and safeguarding fairness to both parties do not apply in arbitration cases.

How to Avoiding Arbitration in Employment Disputes

  1. Don’t sign the arbitration agreement! This is the easiest way to avoid this mess. Arbitration is a contract, and contracts are not enforceable unless two parties agree. You don’t have to agree to it. If your employer asks you to sign an employment agreement, cross out the arbitration provision, initial and date it, and then give it to the employer. There is a risk that they won’t hire you, but if you’re a valuable hire I bet that many employers would simply ignore your failure to agree and hire you anyway. Make sure you get a copy of the revised agreement when you first get hired.
  2. Regardless of an existing signed arbitration agreement, have your lawyer file your case in court anyway. In many cases, the arbitration agreement is unenforceable due to various legal doctrines.

There is much more I could write on this subject. But I wanted to keep this article brief and to the point. Arbitration is bad and you should avoid it at all costs!

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Retaliation & Wrongful Termination in the Aerospace Industry

Many employees are retaliated against in the workplace. But not all retaliation or terminations are illegal.  This article discussed the case of Green v. Ralee Engineering Company. This case analyzes whether a company may fire an employee who complains about the failure to follow quality inspection protocols. In this case, the company manufactured airplane parts that were critical in keeping the plane safe.

Facts of the Wrongful Termination Case

In the mid 1990’s Ralee Engineering Company was sued by a former employee, Richard Green.  While employed, Mr. Green was a Quality Assurance Inspector. His duties were to inspect Ralee’s manufactured fuselage and wing components for military and civilian aircraft. Ralee supplied those parts to major airline assembly companies such as Boeing and to major war plane assembly companies such as Northrop.

Beginning in 1990, Mr. Green allegedly noticed that Ralee was shipping some airplane parts even though, according to him, they failed the inspections his team performed. On several occasions over the next two years, Mr. Green objected to Ralee’s practice to supervisory and management personnel and to the company president. He made all of his complaints internally, and at no time did he complain to outside government sources.

Despite his complaints, Ralee continued to ship allegedly defective parts to Boeing. In an effort to provide proof of the ongoing practice, plaintiff began photocopying the inspection reports, including some reports concerning parts destined for Boeing. In March 1991, Ralee shut down its night shift, citing a downturn in orders for the parts it produced. Ralee then fired Mr. Green along with other night shift employees.

Mr. Green filed a timely wrongful termination lawsuit against defendant. His attorney alleged Ralee terminated him in retaliation for his complaints about its inspection practices. His lawyer also argued that his complaints served a broad public policy favoring aviation safety, entitling him to tort damages even though he was an at-will employee.

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New CA Employment Law – Protecting Victims of Violent Crimes

Governor Brown signed into law SB 288 this year. The bill adds Section 230.5 to the California Labor Code. The new law makes it illegal for employers to fire employees who are victims of violent crimes who take time off to attend court proceedings.

The offenses include all of the following:
  • (A) Vehicular manslaughter while intoxicated
  • (B) Felony child abuse likely to produce great bodily harm or a death
  • (C) Assault resulting in the death of a child under eight years of age
  • (D) Felony domestic violence
  • (E) Felony physical abuse of an elder or dependent adult
  • (F) Felony stalking
  • (G) Solicitation for murder
  • (H) A serious felony
  • (I) Hit-and-run causing death or injury
  • (J) Felony driving under the influence causing injury
  • (K) Sexual assault (there are many different types contemplated by this statute)

 

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California Employment Lawyer’s Association Annual Conference was a Raging Success

CELA Annual Conference Employment Workplace Lawyer AttorneyFor the past few days I’ve been absorbing information at the California Employment Lawyers Association (CELA) annual conference. It has been an astounding event, full of highly intelligent and successful lawyers who deeply care about California worker’s rights.

I’ve seen presentations on wage and hour class actions, individual wage and hour cases, representing undocumented workers, updates on the evolving law concerning class waiver provisions in unconscionable arbitration agreements, and detailed analysis on the Harris v. City of Santa Monica mixed motive case. In all, if you practice employment law and you don’t go to this conference, you’re missing out on incredible tips, tricks, and strategies.

I’ve also had the pleasure to meet some highly regarded lawyers: Lawrence Bohm, Bryan Schwartz, and Glenn Kantor. I’ve seen presentations by David deRubertis, Michael Singer, and Cliff Palefsky. I can only hope that one day I’ve accomplished half of what these amazing individuals have accomplished. Keep up the good work!

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Governor Brown Raises California Minimum Wage

Governor Brown Raises Minimum Wage in CaliforniaGovernor Edmund Brown will join business owners, legislators and dozens of working Californians tomorrow in Los Angeles and Oakland to sign AB 10 by Assemblymember Luis Alejo (D-Salinas), which will raise the minimum wage in California from $8.00 per hour to $10.00 per hour.

AB 10 will raise California’s minimum wage in two one-dollar increments, from $8 per hour today to $9 per hour, effective July 1, 2014 and from $9 per hour to $10 per hour, effective January 1, 2016.

Specifically, AB 10 will amend Section 1182.12 of the Labor Code is amended to read:

1182.12.

Notwithstanding any other provision of this part, on and after July 1, 2014, the minimum wage for all industries shall be not less than nine dollars ($9) per hour, and on and after January 1, 2016, the minimum wage for all industries shall be not less than ten dollars ($10) per hour.

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News: Top 10 Reasons Employers Get Sued & Clarification Regarding Male Sexual Harassment

Employment Attorney, Labor Lawyer, Employee Rights, Sexual HarassmentHR California posted a interesting depiction of the top 10 things employers do to get sued in California. I agree with a few of them. HR California is a information source for employers to protect themselves against employee lawsuits. I think they do some decent work in helping employers comply with California’s stringent laws.

In other employment news, Governor Brown just amended California’s main sexual harassment law. SB 292 was recently passed by the California Legislature to overrule Kelley v. Conco Companies (2011) 196 Cal.App.4th 191. This amendment, authored by California Senate Majority Leader Ellen M. Corbett (D-East Bay) is a direct response to the case. Kelley is  a terrible decision that harms male employees suffering sexual harassment in California. In Kelley, the Court ruled that although the male worker was subjected to a “barrage of sexually demeaning comments and gestures by his male supervisor” that were “graphic, vulgar, and sexually explicit,” his claim of sexual harassment failed because the male employee could not prove that “the harasser was homosexual” or was “motivated by sexual desire.”  The Court further stated: “The mere fact that words may have sexual content or connotations, or discuss sex, is not sufficient to establish sexual harassment.” SB 292 rectifies this illogical result, and shifts the focus back to whether the harasser targeted the victim because of his or her gender, not whether the harasser had sexual intent or desire for the victim.

In a press release, Senator Corbett stated: “SB 292 ensures that all Californians who are sexually harassed will receive the wide range of protections under existing law. I thank Governor Brown for signing this important legislation that protects all individuals whenever they are sexually harassed in the workplace, regardless of motivation. As elected officials, we must always strive to protect all Californians, regardless of gender, sexual orientation, race or any other personal characteristic.”

In todays workplace, employment lawyers like myself are seeing more male-on-male sexual harassment. Most male supervisors know they cannot sexually harass females, but they often don’t think that they can be punished for bullying a male subordinate. This amendment helps give lawyers the tools they need to punish those who behave this way.

 

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Dealing with the Effects of Sexual Harassment

Dealing with Sexual Harassment at Work Employment AttorneyEmployment Law Attorney – What are the effects of sexual harassment? How can a victim of sex harassment deal with such effects? Many people (some lawyers included) don’t think that sexual harassment is a big deal. However, most of the people who call my firm’s Orange County office disagree. They have a host of emotional and physical issues that will have a long lasting effect on their lives.

The Emotional Effects of Sexual Harassment

Victims of sexual harassment may be affected by the harassment in a number of debilitating ways.  Different people will react differently to sexual harassment.  Some common effects on victims include feelings of confusion, humiliation, embarrassment, denial, fear, shame, and numbness.  The victim may suffer from depression, sleeplessness or nightmares, decreased ability to concentrate, headaches, anxiety, traumatic stress, fatigue, stomach problems, anger, withdrawal and isolation, or problems with intimacy. Such effects may be exacerbated right before going to work and while at work.

At work, the victim may experience decreased work performance, increased absenteeism, defamation of character and reputation, and loss of recommendations as a result of the harassment.

Dealing with the Effects of Sexual Harassment

While I’m just a lawyer and no psychologist, I do know that there is no easy answer to how a victim can best cope with the stressful effects of sexual harassment.  Some victims will be hysterical, while others will go through denial and remain outwardly calm.  Some struggle with asking themselves why they have been harassed and wonder if they did something to give the harasser the wrong impression. Often this thought process leads the victim to feel shame, guilt, or embarrassment.  The victim may feel like the harassment is his or her fault, and this guilt and shame can make it even more difficult for a victim of sexual harassment to seek help or to report the harassment.

More often than not, the victim of sexual harassment will have done one or two small things that may have encouraged the harasser. This often takes place via email or text message. I’ll give you an example. One time a potential client called my office and said that she was harassed via email and text message. Her boss had in fact sent her many disgusting and sexually oriented messages. However, the victim would often respond to such messages by saying, “Lol” or “You’re gross” or “You’re a perve, lol.” She never asked the harasser to stop or ignored his messages. She always responded in a lighthearted way, despite the fact that she felt extremely uncomfortable. When she called me she was worried that such messages ruined her case. While they didn’t ruin it, they definitely don’t help.

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Do California’s Court Closures Affect Employee Lawsuits?

Employment Attorney – During the last five years, California’s courts have lost 65% of their general funding. Many courts in Los Angeles, San Diego, and San Bernardino have closed. Hours have been cut, and court fees have skyrocketed. Only 1% of California’s general fund goes to it’s judicial branch (which happens to be the largest court system in the nation…btw). In Los Angeles, 67 courtrooms have been closed and 500 court jobs have been lost.

What does this mean for the average employee seeking justice? The answer is simple – it will take longer. If you are an employee and you want to sue your employer it will take much longer to get to trial.

The California Chief Justice Tani Cantil-Sakauye decried the dramatic decrease in funding for state courts. The situation is so dire that California, “normally a leader in social justice, may now be facing a civil rights crisis,” she said.

But Governor Brown has not listened. Gov. Brown’s 2013 proposed budget does not restore any of the lost funding, and the court system has had to postpone rebuilding dilapidated and unsafe courthouses. Rising fines and fees for filings threaten to make California’s court system “a user-fee institution” that particularly hurts those with lower incomes.

If you are an employee seeking an employment lawyer, should this bother you? Yes, but it should not dissuade you from seeking an attorney. You might have other options available, such as arbitration or mediation. Contact an employment lawyer as soon as possible.

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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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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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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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