Tag Archives: employment law

Harris v. Bingham McCutchen – Victory on Arbitration Issue

Robert Odell Arbitration Harris v. Bingham McCutchenEarlier this month, the California Court of Appeal denied mega law firm Bingham McCutchen’s attempt to have a wrongful termination lawsuit (filed against them by a former associate, Hartwell Harris) thrown out of court and into binding arbitration. (Click here read the court’s decision).

All all three justices in Division Five of California’s Second Appellate District unanimously agreed that Bingham’s arbitration agreement (which forces all of its employees to arbitrate their claims against the company rather than file lawsuits in court) was invalid under Massachusetts law, which was also Bingham’s own choice in drafting their agreements.

Law Firm Fails to Enforce its Own Arbitration Clause

Ms. Harris worked for Bingham in their Santa Monica, CA office as a litigation associate from May 2007 until February 2011 when she was fired after developing a rare sleep disorder called Delayed Sleep-Phase Syndrome. She later filed a lawsuit against Bingham in November 2011, claiming that, despite her positive reviews, Bingham terminated her once they learned of her disability and need for accommodation while she returned to a normal sleep cycle.

After the lawsuit was filed in Los Angeles Superior Court, Bingham moved to compel the case to binding arbitration, citing the arbitration clause in Harris’ employment contract.  Presiding Judge Mel Red Recana, however, agreed with Harris’s attorney, Tamara S. Freeze, and denied Bingham’s arbitration petition on the grounds that the provision was not enforceable under Massachusetts law, which Bingham had decided would control the contract.

Bingham then appealed the trial court’s decision, however, the California Court of Appeal affirmed the lower court’s denial in a strong 3-0 decision – both ordering their opinion to be published in the appellate records and ordering Bingham to pay Harris her costs on appeal.

Attorney Reaction

Regarding the appeal, the Law Offices of Tamara S. Freeze has stated on their blog:

“Ironically, Bingham McCutchen knew their arbitration agreement, as originally drafted, was invalid in light of a 2009 Massachusetts Supreme Court opinion: Warfield v. Beth Israel Deaconess Medical Center, Inc. but apparently forgot to update it. Indeed, Bingham’s own attorneys published a press release on their website warning their clients about this new law and how it would affect arbitration agreements . . . a warning that Bingham apparently failed to heed itself. For obvious reasons, the publication has since disappeared from Bingham’s website (but we still have a copy HERE).”

Hartwell Harris was represented by Tamara Freeze, Robert Odell, Allison Lin and law clerk Harrison Brown.

 

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Filed under Disability Discrimination, Disabling Injury and Illness, Discrimination

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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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

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

Want to Be a “Private Attorney General” and Fight Labor Injustice?

PAGA, wages, paystub, hours, time card, punch card, employment law, californiaIn 2004, our great State enacted the “Private Attorneys General Act” (commonly known as “PAGA” – Labor Code § 2699). This statute gives an incredible amount of power to everyday employees who want to fight for workplace rights.

Under the PAGA, an employee may bring a lawsuit for Labor Code violations committed against the employee by his or her employer on behalf of other current or former employees against whom one or more of the alleged violations was committed. What is interesting here is that PAGA is not referring to class actions, it creates a private civil action on behalf of other employees. That means the PAGA contains no specific class certification requirements.

Employers are liable for a penalty of $100 for each aggrieved employee per pay period for the first violation and $200 for each aggrieved employee per pay period for each subsequent violation. The aggrieved employee does not, however, recover the full penalty amount. Seventy-five percent of the penalty goes to the Labor and Workforce Development Agency for enforcement of labor laws and education, and only 25 percent is recovered by the aggrieved employees. In addition to the civil penalty, a prevailing employee (but not a prevailing employer) may be awarded “reasonable attorney’s fees and costs.”

What type of penalties are we talking about?

  • Failure to pay wages immediately upon discharge.
  • Failure to pay with a payroll check with sufficient funds.
  • Illegal deductions or withholdings from wages.
  • Failure to provide statutorily compliant paystubs.
  • Failure to provide proper meal and/or rest breaks.
  • Failure to pay all tips and gratuities left for workers.
  • Failure to pay overtime for all hours worked in excess of 8 hours in a day or 40 in a week.
  • Failure to pay minimum wage.
  • Failure to reimburse for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.

If you are currently suffering from one of the above Labor Code violations, you can become a private attorney general, and sue on behalf of your fellow employees to right the wrong. If you have any questions about PAGA or the labor code violations listed here, feel free to give me a call.

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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 Accurate Paystubs, Meal Breaks, Overtime, PAGA, Rest Breaks, Wages and Hours

California Tip Pooling Laws – “Direct Table Service” Defined

Tip Pooling, Lawyer, Employment Law, Waitress lawyerCalifornia law protects hundreds of thousands of people who work as waiters, waitresses, servers, bartenders, etc. The law protects these employees from having to share their tips with the owners or managers of the company they work for. However, employers are allowed to implement certain types of mandatory tip sharing arrangements (most call this “tip pooling”), but these arrangements must conform to the law.

So what is the law? The California Labor Code states:

Section 351.  No employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron, or deduct any amount from wages due an employee on account of a gratuity, or require an employee to credit the amount, or any part thereof, of a gratuity against and as a part of the wages due the employee from the employer. Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for….

Section 353.  Every employer shall keep accurate records of all gratuities received by him, whether received directly from the employee or indirectly by means of deductions from the wages of the employee or otherwise. Such records shall be open to inspection at all reasonable hours by the [government].

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My Boss Doesn’t Let Me Take A Rest!

If your boss does not let you take a rest break, or forces you to work during your rest breaks, what can you do? What is owed to you? According to California Labor Code Section 226.7:

(a) No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.

(b) If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.

Moreover, the applicable wage order to your industry likely includes language similar or identical to this (section 12):

Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof.

If you’ve been denied rest breaks, or forced to be ‘on-call’ during your rest breaks, you might have a legal claim. If you want to know more, check out my earlier post on a recent rest break case. The case, commonly known as “Brinker,” was big news because the California Supreme Court weighed in and attempted to resolve lingering questions for wage and hour lawyers all across the state. I’ve also written an entire post exclusively on rest breaks. Check out both to learn more information.

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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 FLSA – Fair Labor & Standards Act, Rest Breaks, Wages and Hours

Independent Contractor or Employee?

Are you an independent contractor or an employee? What is the difference?Many companies try to sidestep California’s law by hiring “independent contractors” instead of employees. If legitimate, independent contractors are not “employees” covered by the wage and hour laws, and therefore companies don’t have to pay them overtime. Legally, companies are not allowed to hire an “independent contractor” if the worker qualifies as an “employee” under California’s economic realities test.

This test looks to see whether the worker is dependent on the company to which they render their services to. In determining whether workers qualify as employees under the Fair Labor Standards Act, courts look at a number of factors, including:

  • the degree to which the employer has the right to control how the work is performed,
  • the degree to which the worker’s opportunity for profit or loss depends upon the worker’s managerial skill,
  • the worker’s personal investment in equipment, labor, or materials required for the job,
  • whether the service at issue requires a special skill,
  • the degree of permanence of the working relationship; and
  • whether the service rendered is an integral part of the employer’s business.

The importance that the court gives each factor depends on the totality of the circumstances; however, the right to control the means and manner of job performance is generally the most important consideration.

On the other hand, if the worker is classified appropriately as an independent contractor, he or she is not a “employee” under California law, and are therefore not entitled to overtime.

Sadly, abuse of this system is rampant. According to one study, tax audits done by the Economic Development Department from 2006 to 2008 show that 29% of audited employers misclassify workers as independent contractors when they should be employees. This comes from the National Employment Law Project (October 2011) Independent Contractor Misclassification Imposes Huge Costs on Workers and Federal and State Treasuries,  p. 4, 5, fn. 5.

If you have been misclassified as an independent contractor, and therefore denied overtime, give an employment attorney a call. You might be owed a lot of money.

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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 FLSA – Fair Labor & Standards Act, Independent Contractor, Overtime, Wages and Hours

Lisa Kudrow & Scott Howard to the California Supreme Court? Phoebe Wants to Fight.

In 2008, Lisa Kudrow (Phoebe from ‘Friends’) was dragged into court by her former manager, Scott Howard, who filed a lawsuit because she refused to pay him more than $50,000.

In the early 1990’s, Howard and Kudrow entered into an oral agreement for Howard to act as Kudrow’s personal manager. Kudrow agreed to pay Howard 10% of whatever she earned. In 1994, Kudrow landed the role of “Phoebe” on the television show “Friends.” Amazingly, for the last 18 episodes in 2004, Kudrow made $1 million an episode, plus 1 1/4 % of the show’s “backend” earnings.

So, what is the dispute about? Well, after Kudrow terminated Howard as her personal manager, she stopped paying him. Which seems completely fine except that the custom and practice in the entertainment industry at the time was for a personal manager to be paid post-termination commissions on the services that their clients rendered when the personal manager was representing them.

Currently, the two parties are bickering over when an expert should have been admitted. A Los Angeles County Superior Court barred Howard from admitting an experts testimony, and granted Kudrow summary judgment. The appeals court reversed Wednesday, saying Bauer should be allowed to testify on remand. Now, Kudrow may appeal it to the California Supreme Court.

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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, Lawsuits & Lawyers, Leaving a Job