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.

Defamation, Slander & Libel in Employment Law – The Basics

Defamation Employment Law Attorney Libel Slander BasicsDefamation. Slander. Libel. These terms are used so often nowadays that children are familiar with them. How does defamation of character factor into employment law? Employees often feel like they’ve been defamed. But if these phrases mean what we think they do why aren’t there more lawsuits flying around? Can your boss give you a review that totally misrepresents your performance? Can you sue them? More importantly, should you sue them?

Defamation Basics

First of all, “defamation” is an umbrella term within which both “slander” and “libel” exist. Generally, slander is a spoken or oral statement and libel is a written statement.

To prevail in a case for defamation you must prove that a publication was made that is false and causes special damages. More specifically, the following are the essential legal elements of a claim for defamation:

  • False publication of a statement of fact (rather than opinion) that:
    • —in the case of libel (written publication), exposes plaintiff to hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided, or has a tendency to injure him in his occupation;
    • —in the case of slander (oral publication), charges plaintiff with a crime, loathsome disease, impotence or want of chastity, or tends directly to injure him in his or her occupation;
  • Actual damage to plaintiff’s reputation (but damages are presumed if the publication is defamatory “per se,” see below); and
  • Causation (the false statement caused the harm).

Statements are defamatory per se (eliminating the need to prove actual damages) if the statements tend directly to injure plaintiff in respect to his office, profession, trade or business.

Proof that the allegedly defamatory statement is true is a complete defense in California.

The Exceptions Are Key in Employment Lawsuits

Slander Employment Law Attorney Libel Defamation BasicsAs with all legal rules, there are various exceptions to defamation. It is not uncommon for an employer to defame an employee, but get off the hook in a lawsuit because the false statement falls within an exception.

Only false statements of fact, not opinion, are actionable as defamation. This is one of the toughest challenges for an employee in defamation case. You essentially have to convince the Judge that the false statements were fact, not opinions. This is not always easy to do.

For example, is a negative performance evaluation fact or opinion? Generally, negative evaluations are usually held to be statements of opinion, rather than fact. That is unless the performance evaluation falsely accuses the employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics or behavior. But these issues are highly subjective.

Another common exception that causes problems for employees is privilege. An employer has a privilege to communicate, without malice, with persons who have a “common interest” in the subject matter of the communication. This obviously includes co-workers and managers at the company.

Because an employer and its employees have a common interest in preserving morale and job efficiency, an employer’s statements to employees regarding the reasons for termination of another employee generally are privileged.

But a common mistake made by employers is repeating the false statement to non-employees. If your employer makes false statements to prospective employers, the police, your family members, this exception may not apply and you can proceed with your case for defamation.

Should You Sue Your Boss for Defamation?

Libel Employment Law Attorney Slander Defamation BasicsThis is a tough question. Whether or not someone should file a lawsuit depends on a multitude of factors: legal, emotional, economic, and moral. If you really want to know if it is in your best interest to file suit against your former employer, you should consult with an employment lawyer.

Generally, there has been a trend away from defamation lawsuits in the employment context. Judges are swamped with employment cases and, in the writer’s opinion, look for reasons to toss them out of court. Therefore, only very strong defamation cases should be filed. Such cases necessitate that the employee has been harmed in a significant economic way.


Filed under Defamation

Evening the Playing Field: CA’s New Fair Pay Act

California New Fair Pay ActThe lack of wage equality amongst genders has been well-documented for some time and, as you may have noticed, has become a staple of candidates’ speeches in election years. And rightly so, for even in 2013 women earned 84 cents for every dollar a man earned. This gap is even worse for African American women (64 cents) and Latina women (44 cents). Pay discrimination of this sort is usually easy to hide by prohibiting or discouraging employees from talking about their pay. The employee’s fear of retaliation may also help to keep this illegal activity secret. California, however, had new legislation go into effect on January 1, 2016, to further curb this kind of activity.

The Original Fair Pay Act

The California Equal Pay Act (“EPA”) was passed in 1949 and had its last update in 1985. Though it helped in addressing the issue of pay inequality, it was not perfect and presented some loopholes that companies were able to use to their advantage. One such instance was the “same establishment” provision which prevented a female working at a facility from comparing her wage to that of a male at a facility at another location. If that was not enough, employers could raise the “any bona fide factor other than sex” defense and its overly broad interpretation to provide excuses for pay discrimination. Meaning they could simply say, “we paid her less because she’s not as fast, qualified, effective, etc., and get around the requirement.

Finally, though the Labor Code has provisions protecting employees that disclose their own wages, there were no specific protections for employees inquiring about the wages of others even if it was solely for the right to be paid equally.

A Leaner, Meaner Fair Pay Act

The California Fair Pay Act, which went into effect this year, will help reinforce the California EPA.  First, it does away with the “same establishment” requirement, so that employees performing the similar work at different locations are paid equally. Secondly, it has narrowed the “bona fide factor other than sex” defense to more specific defenses that the employer will have to use closing the ambiguous loophole from before. Finally, it explicitly prohibits retaliation or discrimination against employees who disclose, discuss, or inquire about their own or other coworkers wages for the purpose of enforcing equal pay under the California EPA.

Pay discrimination is not a fake issue brought up the sake of political debates, but a real thing occurring more than it should.  If you feel as though you are not making an equal amount compared to other employees doing similar work because of your gender, call an employment lawyer.

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Filed under Discrimination, Uncategorized

What Motivates Employees to Sue their Employer?

I’ve written extensively about this subject. I’ve repeated it over and over that employees don’t sue their boss because “the law was broken,” they sue because they feel like they were treated like garbage. They only learn that the law was broken when they speak with an employment lawyer like me. I was recently interviewed by HR Morning about this subject, and I think the word is getting out to the decision makers.


Filed under Uncategorized

Top 3 Excuses Employers Use to Fire Employees

Our firm receives dozens of calls per week from people who were terminated from their job. Whenever people call we always ask, “Why did your company fire you?” While we receive a variety of answers, we do hear some of the same reasons over and over. So I figure it would be best to give a brief description of the top 3 excuses employers give to employees when they fire them. Here they are in no particular order.

1. At-Will Employment

Pretty much every single one of our clients is told that they are being terminated because they are an at-will employee and they can be fired for any reason whatsoever. This is not entirely true. Here is the truth: unless there is an agreement stating otherwise, an employer may terminate an employee at any time, with or without notice, and for any lawful reason. In other words, while an at-will employee can be treated badly and unfairly and can essentially be fired any reason, an at-will employee cannot be fired for a reason that violates California or Federal law.

Most employees do not know the intricacies of employment law. Thus, employers tend to use this excuse in an effort to scare the employee from seeking legal recourse. But, if an employee is fired for a reason that is a violation of law, then that employee may have a lawsuit. At the end of the day an employer cannot fire an employee for any reason whatsoever.

2. “It just isn’t a fit anymore.”

We have heard from countless potential clients that they were let go because “it just wasn’t a fit anymore.” And a lot of the times, these employees who are “no longer a fit” were working there for several years if not most of their lives. While an employee can be fired because they are no longer a fit at the company, often times such a reason is used as a pretext for an unlawful reason.

For example, we had a potential client call us a while ago who was over 60 years old and was working for the employer for pretty much his entire life. One day, he was randomly called into the office and fired because “it just wasn’t a fit anymore.” He was shocked. After almost three decades of service, they let him go because it wasn’t a fit!? Soon after he was terminated, he was replaced by a much younger employee. From those facts alone, we could infer that he was fired, not because it was not a fit anymore, but because the employer wanted to get rid of the old guy for the younger guy. If you were fired, after years of dedicated service, because “it just isn’t a fit anymore,” and you feel there is another unlawful reason behind it, call an employment lawyer to see if you have a case.

3. Poor Performance

There is no question that it is completely lawful fire an employee for poor performance. That is a completely valid reason if it is true. A lot of times, employers will claim the employee performed poorly, when in fact it is a fake excuse. We see time and time again an employee who all of a sudden is written up multiple times arbitrarily and then finally fired for poor job performance. Sometimes this is nothing but a cover up for an unlawful reason.

For example, a nurse is employed with a hospital for some time. At some point during her employment she begins reporting violations of patient safety. After making such complaints regarding violations of law, her employer begins to write her up and reprimand her for her “attitude” and “being two minutes late.” Then all of a sudden she is fired for “poor job performance.” Arguably, the hospital fired the nurse because she complained about patient safety complaints, yet made up arbitrary and random reasons to fire her.

Obviously, we have heard many more reasons other than these three. But the above three reasons are some of the most common reasons we hear employers give employees for termination. If you were fired and you feel there was something unlawful or wrong in the way it happened, contact an employment lawyer to get a free consultation.


Filed under Discharge & Layoffs, Retaliation, Whistleblower Protection

Sexual Harassment in the Workplace – Men Harassing Men or Women Harassing Women is still Harassment

The Office - Men Harassing Men At WorkIs same-sex sexual harassment even a legal claim? Although sexual harassment in the workplace claims are often brought by female employees, they can also be brought by male employees against female supervisors or coworkers, and even male employees against a male supervisor or coworker. So yes, same sex sexual harassment is a legitimate legal claim! How do you deal with this? A good place to start is to discuss the matter with an employment lawyer. This law firm will be happy to give you a free consultation to hear about your situation.

What constitutes sexual harassment?

Sexual harassment can consist of lewd comments and physical actions, as well as sexual advances, whether verbal or physical. Further, the sexual harassment need not be motivated by sexual desire. What this basically means is that the perpetrator of sexual harassment does not need to have the goal of sexual intimacy with the victim.

Rather, sexual harassment can take the form of a coworker merely saying sexual or inappropriate jokes or constantly doing sexual acts (even if it is intended to be a joke) in the victim’s presence. Finally, the victim’s sexual orientation is irrelevant. For example, sexual harassment can occur even if the perpetrator and the victim are both heterosexual.

Example Case: Beasley v. East Coast Foods Inc. D/B/A Roscoe’s House of Chicken N’ Waffles

Beasely is a great case example of same-sex sexual harassment in the workplace. Plaintiff, a male, sued his employer for sexual harassment among other things. Plaintiff worked for the employer as a manager in one of defendant’s many restaurants. Unfortunately, during his employment, plaintiff was victim to many forms of sexual harassment. The perpetrators made sexual comments and sexually charged physical actions towards Plaintiff. Plaintiff complained about the sexual harassment multiple times. Not surprisingly, Plaintiff was thereafter terminated.

Plaintiff alleged he was retaliated against by being terminated due to his complaints of sexual harassment. Defendant argued that he was actually terminated for not showing up to work. The jury did not buy Defendant’s argument and sided with the Plaintiff. Plaintiff was awarded over $1,600,000.

Contact an Employment Lawyer if You Are Being Sexually Harassed

At the end of the day, Beasely shows that it does not matter what sex you are, if you are being sexually harassed at work, then your rights are being violated. Further, if you complain about sexual harassment in the workplace, and you are being retaliated against, then your rights are being violated. If you feel you are the victim of sexual harassment in the workplace and your employer has not done anything to fix the situation, call an employment lawyer immediately.


Filed under Uncategorized

An Employee Cannot Be Fired For Refusing to Perform an Illegal Activity in the Workplace

Unfortunately, our firm frequently receives calls from potential clients telling us that they have been fired for refusing to take part in an illegal and unethical activity. Under California and Federal law, it is unlawful for an employer to take adverse action against an employee, whether it be demotion, deduction in pay, or termination, for refusing to participate in a violation of law. If your employer has retaliated against you for refusing to take part in violating the law, contact a whistleblower lawyer immediately.

Zulfer v. Playboy Enterprises Inc.

Here is a classic whistleblower case to come out of the 2014 federal court docket. Plaintiff had been working as an executive in Playboy’s accounting department for roughly thirty years. During her employment, the CFO asked plaintiff to accrue over $1 million dollars in executive bonuses on the company ledger. However, she refused to do so without Board approval as it would violate federal law, specifically a law under the Sarbanes-Oxley Act. Again, the CFO asked the plaintiff to do this, but she refused again. Several months later, Playboy eliminated plaintiff’s position. She continued to work for Playboy though in another position, but was eventually terminated soon after her position was eliminated.

Playboy argued that plaintiff’s termination was not based on her refusing to take part in what she alleged as a violation of law. Rather, Playboy contended that the decision to terminate plaintiff was based on valid business reasons. The jury was not convinced by defendant’s arguments, and unanimously found in favor of the plaintiff. Jury awarded a gross verdict of $6 million to plaintiff finding that Playboy retaliated against the plaintiff for refusing to take part in the violation of Sarbanes Oxley.

Contact a Whistleblower Attorney if You Have Been Retaliated Against

Zulfer v. Playboy is a classic example of what an employer should not if an employee refuses to take part in an illegal activity. What Playboy did here was unlawful. It is illegal for an employer to terminate an employee for refusing to take part in a violation of law. If you feel that your employer has taken adverse action against you, whether it be a deduction in pay, demotion, or termination, for refusing to violate the law, then contact an whistleblower lawyer immediately.

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Filed under Retaliation, Wrongful Termination

Employment Lawyer For Wrongful Termination

It always amazes us the things employers tell their employees. For example, we always get calls from employees who say their boss told them that they can fire them for any reason at any time because they are an at-will employee. This is not entirely true. In California, an employer can terminate an employee for any reason unless that reason violates public policy. Under California law, the public policy position supersedes over the at-will employment doctrine. You are probably wondering, “What is this public policy thing?” Basically, a wrongful termination in violation of a public policy occurs if an employer terminates an employee due to gender, race, national origin, family or medical leave, political activity, or for reporting unsafe working conditions. This is not an exhaustive list, but just some examples of wrongful termination in violation of public policy.

An Employer Cannot Fire An Employee For Reporting Unsafe Working Conditions

In Webb v. Ramos Oil Company, plaintiff was a truck driver who transported fuel for defendant employer. Plaintiff had been an employee for defendant for thirteen years. One day, while plaintiff was transporting fuel, the area in which he was driving was experiencing severe storm and heavy wind, as well as flooding from heavy rain. During his route, plaintiff’s truck would rock back and forth and almost tip over. In addition, plaintiff witnessed other cars strugging on the road, downed power lines, and flying debris. While on route, he called his employer and asked if he could postpone his delivery due to the dangerous driving conditions but his employer refused. When he was finally done with his route, he decided to join some friends for a drink. A few hours a later, he was called back to work, but said no because he had drank a few alcoholic beverages and because it was still way to dangerous to drive a truck transporting fuel. Plaintiff was fired a couple days later. Luckily, Plaintiff retained an employment lawyer.

The Defendant argued that Plaintiff basically made all of this up so he would not have to perform his job duties that day. Clearly, the jury did not buy this defense and awarded Plaintiff over $6 million dollars in economic damages, non-economic damages, and punitive damages.

Call A Lawyer If You Have Been Wrongfully Terminated

At the end of the day, this case shows that employers are still being held accountable for breaking the law and violating an employee’s rights. People in California are fired everyday, and most of the time, the person has no idea whether what just happened was lawful. If you feel like your termination was wrongful or there was something not quite right about it, thus it cannot hurt to call an employment lawyer. Most employment lawyers do a free consultation, and some will even tell you whether or not they think you have a case. Call an employment lawyer immediately if you feel you have been wrongfully terminated!


Filed under Discharge & Layoffs, Wrongful Termination

Employment Lawyers: Ensuring Employees Are Compensated Fairly

In California, as well as across the nation, there are many jobs which require employees to be on “standby” or “on-call”. For example, some employees who are on standby may be required to carry their cell phone or smart phone and check their email regularly while they go about their personal affairs. Other employers may require the employee to carry a cell phone at all times as they may contact the employee to immediately come into work. For the standby or on-call employee, it can become confusing as to whether he or she is being compensated fairly for being on standby or on-call. If something seems unfair, an employment lawyer should be contacted so the employee’s situation can be evaluated.

Under California law, on-call waiting time is compensable if it is spent primarily for the benefit of the employer and its business. In Augustus v. American Commercial Security Services, the employer had a widespread policy which required its employees, security guards, to remain on standby or on-call at all times, even during rest breaks. When on-call, the security guards carried radios and cell phones and were required to be available at all times. The plaintiff class made up of the security guards filed suit alleging they were not being provided off-duty breaks as required under California law as they were essentially forced to remain on-call and were never at any point relieved of all duties. The security guards contacted an employment lawyer to represent them against the employer.

Plaintiffs argued that the employer had to ensure that its employees were completely relieved of all duty during their breaks, and the employee failed to do just that. Defendants argued that it did not matter whether the security guards were on call so long as the rest breaks were never interrupted then there was no violation. The judge was not convinced and sided with the plaintiff class. The judge entered a verdict in favor of the plaintiff class for $90 million.

This case is a huge win for California employees. Unfortunately, employers still violate the law in an attempt to cut costs or maximize their employee’s work time. However, cases such as Augustus v. American Commercial Security Services confirms that there is consequences for employers violating the law and employers can be held accountable in the court of law. If you believes your employer has committed a wage and hour violation, contact an employment lawyer immediately.


Filed under Wages and Hours

Holding Employers Accountable for Sexual Harassment: Chopourian v. Catholic Healthcare West

My good friend, Lawrance Bohm, got the largest sexual harassment verdict in history for his client, Ms. Chopourian. The case demonstrates that sexual harassment still occurs quite often across California, especially with highly successful individuals like doctors. Sexual harassment is one of the more disturbing forms of gender discrimination. Not only can it financially hurt someone in their profession, but can also severely hurt an individual emotionally.

Sexual harassment most commonly takes the form of hostile work environment. Hostile work environment can take the form of verbal and physical conduct, whether sexual or nonsexual in nature. In hostile work environment cases, an employee must show that he or she was subjected to unwelcome sexual advances conduct or comments, and harassment was so severe as to alter the conditions of the victim’s employment and create an abusive working environment. Further, the employee must also show the employer knew or should have known of the sexual harassment. Usually, the harassed employee is terminated for poor performance or for a reason out of nowhere or arbitrary.

In Chopourian v. Catholic Healthcare West, plaintiff, a surgery physician assistant, was terminated for not showing up to an on call shift, but plaintiff filed suit. She claimed she was terminated after filing over a dozen written complaints over the course of two years regarding sexual harassment in the workplace. During her employment, plaintiff was subjected to consistent unwanted sexual advances and physical contact, as well as inappropriate and demeaning sexual comments such as surgeons telling her they are horny. The jury was not convinced by the employer’s reasons for termination and awarded plaintiff a verdict of $167,730,488.00.

At the end of the day, this case is good news for employees in California. A verdict this large is a testament that employers will be still be held accountable for the wrongs they commit in the workplace. If you believe you have been a victim of a hostile work environment, contact an employment lawyer immediately.


Filed under Uncategorized

Minimum Wage and Overtime: Holding Employers Accountable for Depriving Employees of Basic Pay

Minimum Wage KittenAs surprising as it may seem, some employers still fail to pay their employees proper minimum wage and overtime under California law. Recently, the California Department of Industrial Relations issued wage theft citations of roughly $16 million against several California restaurants. The California restaurants were cited for wages, premiums, and penalties owed to hundreds of employees for various wage theft violations. Investigations exposed a heinous amount of wage theft as it was discovered that employees, mostly waiters and waitresses, were paid an average of $1.15 per hour. Some waiters and waitresses were even either not compensated at all or were just paid a fixed rate of $200 per month. Also, kitchen employees were also never compensated for overtime. Considering some employers have trouble following wage and hour laws, let’s go over some of the basics.

As of July 14, 2014, California’s minimum wage is $9.00 per hour. Although the Federal minimum wage is $7.25 per hour, California law supersedes for employees working in California. Thus, the California restaurants were breaking both California and Federal law by paying their employees only $1.15 per hour. It is also important to note two important things. Employees cannot waive minimum wage so even if some of the waiters and waitress here agreed to be paid under minimum wage, that agreement would not hold water in court. Second, since we are talking about employees who make tips, California law prohibits an employer from crediting tips toward minimum wage and also prohibits an employer from taking any amount of tip given to an employee by a patron.

Under California law, an employer must pay 1 ½ times the employees regular wage after 8 hours worked in a day and after 40 hours worked in a week for all non-exempt employees. Sometimes employers tell an employee that it is necessary for him or her to work long hours due to the nature of the assignment and therefore overtime is not required. Or employers might tell employees that the company he or she works for does not fall under the kind of company that must pay overtime under California law. These are all fabrications and excuses not to pay an employee. All that matters is if the employee worked overtime hours and whether the employee worked with the knowledge of his employer.

Although it sad and unfortunate that employers continue to violate basic wage and hour laws, citations issued by the California Department of Industrial Relations, such as the citation discussed above, shows that employee rights are still being fervently upheld across the state. If you believe your employer is paying you under minimum wage or you are being deprived of overtime, contact an attorney immediately.


Filed under Class Actions, Minimum Wage, Overtime, Wages and Hours

Same-Sex Sexual Harassment Claims: Just as Powerful as Opposite-sex Harassment Claims

The right to work in an environment free from sexual or gender based harassment is a federal and California civil right. Sexual harassment includes the the unwanted and unwelcomed visual, verbal or physical conduct that is sex-based or of a sexual nature or requests for sexual favors. If an employee is sexually harassed by his or her supervisor, an employer is liable for those damages incurred by the employee as a result of the sexual harassment. But is an employer potentially still liable for sexual harassment that occurs between an employee and supervisor of the same sex?

Sexual Harassment Attorney – Same Sex Harassment?

In recent a case from this year, Lewis v. City of Bencia, Brian Lewis, a paid intern and heterosexual man, sued his former employer, the City of Bencia, and his former supervisors for sexual harassment and retaliation. Lewis’ supervisor showed him pornography on the office computer and consistently told him inappropriate sexual jokes. The supervisor also bought Lewis lunch on numerous occasions and gave him numerous gifts while Lewis was employed with the City. One such gift was tuxedo underwear. Lewis claimed that the supervisor had asked whether he can visit Lewis’ home and once asked Lewis why he has not kissed him yet. On another occasion, a different supervisor also showed Lewis pornography on the office computer.

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Filed under Harassment, Sex Discrimination, Sexual Harassment, Sexual Orientation Discrimination

California Labor Law Update: Sexual Harassment Protection

Every year, the California legislature passes new employment laws or amendments to already existing laws. These new laws and amendments directly impact the employer-employee relationship as well as impacts the way an employer conducts business in California. There were dozens of new labor laws and changes to existing laws passed in California in 2014.

Sexual Harassment Attorney – Free Consultation

One such amendment to an already existing law, Government Code 12940, clarifies the definition of sexual harassment in the workplace. Prior to 2014, due to a 2013 appellate decision, there was some confusion within the California courts as to whether there needs to be sexual desire of the perpetrator to establish a legitimate sexual harassment claim. Senate Bill 292 directly addressed this issue.

Senate Bill 292 was passed by the California legislature in 2013 and went into effect January 1st, 2014. Senate Bill 292 holds that sexual harassment is prohibited under California law without regard to the sexual desire of the perpetrator. The legislature reasoned that like other forms of harassment, sexual harassment does not always need to be motivated by desire, but more often can be motivated by hostility. In addition, by passing this bill, the California legislature effectively suppressed the confusion within the California courts as to whether sexual desire is needed to establish a legitimate sexual harassment claim.

Sexual Motive Not Necessary for Sexual Harassment Cases in California

However, before Senate Bill 292, California courts have long recognized that a sexual motive or desire is not required for legitimate sexual harassment claim. For example, in Pantoja v. Anton, a former employee brought an action against the employer for sex discrimination under the Fair Employment and Housing Act. The Court held that a plaintiff “need not show that the [sexual harassment] conduct was motivated by sexual desire.” Again, more than two decades before Senate Bill 292 was passed, in Mogilegsky v. Superior Court, in which an employee brought action against the employer for same gender sexual harassment by a supervisor, the Court held that “the focus of a cause of action [for sexual harassment] is whether the victim has been subjected to sexual harassment, not what motivated the harasser.”

Ultimately, Senate Bill 292 clarifies what has already been recognized by California courts, that sexual harassment under the Fair Employment and Housing Act does not require proof of sexual desire towards the plaintiff. At the end of the day, this is a great result for plaintiffs seeking damages due to sexual harassment in the workplace, especially if that harassment is caused simply by hostility and not sexual desire.


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