by | February 12, 2013 · 7:34 pm

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.

Continue reading →

Leave a Comment

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

Tagged as , , ,

by | February 8, 2013 · 8:16 pm

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.

.

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.

________________________

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.

1 Comment

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

Tagged as , , , , ,

by | February 4, 2013 · 8:50 pm

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.

________________________

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.

4 Comments

Filed under Discharge & Layoffs, Retaliation, Whistleblower Protection, Wrongful Termination

by | January 26, 2013 · 11:08 am

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.

________________________

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.

1 Comment

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

Tagged as , , , , , ,

by | January 11, 2013 · 11:44 am

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

Jeff Greenman CAALA Rising Star Award

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

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

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

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

________________________

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.

3 Comments

Filed under Lawsuits & Lawyers, Uncategorized

Tagged as , , ,

by | January 9, 2013 · 8:04 pm

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

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

“Give Us Everything” 

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

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

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

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

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

Continue reading →

1 Comment

Filed under Lawsuits & Lawyers

Tagged as

by | January 3, 2013 · 10:40 pm

Harassment and the “Continuing Violation Doctrine”

Sexual harassment lawyer california

Ongoing Sexual Harassment Tolls the Statute of Limitations

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

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

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

Continue reading →

2 Comments

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

Tagged as , , , ,

by | December 24, 2012 · 10:46 am

Tight Clothing & the Implications of “Leading the Boss on” in Sexual Harassment Lawsuits

Sexual Harassment Lawyer

Statistics show that most women fail to confront their bosses about sexual harassment. This is a mistake.

When a woman wears tight or provocative clothing at work, and is thereafter sexually harassed by a male manager or coworker, will that fact hurt her sex harassment case? This is an especially important question in Orange County, where California culture encourages working women to wear shirts that show a little cleavage and skirts that show off some leg.

Some men believe that when a woman wears tight clothing, revealing blouses, or a short skirts, she is seeking sexual attention. Many believe that she “asked for it” and that they should not be punished because she “led him on.”

California’s hostile work environment laws state that the harassment must be “severe” or “pervasive” and is evaluated on a “totality of the circumstances” scale. These legal constructs allows judges, juries, mediators, and arbitrators to evaluate just about anything they want in deciding whether sexual harassment has occurred.

As a result, society, judges, juries, and arbitrators, often blame the victim for encouraging the harassment. These decision makers have, on numerous occasions, decided against employees on the basis of conduct they see as encouraging the harasser such as, using sexual language & mannerisms around the person who allegedly harassed them, wearing tight & revealing clothing, failing to make complaints after harassment allegedly occurred, and initiating social contact with the harasser after the harassment has occurred.

Continue reading →

Leave a Comment

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

Tagged as , , ,

by | December 17, 2012 · 7:46 pm

Employees of Franchises May Be Able To Sue The Deep Pockets

dominospizzalogoA great case came down earlier this year that I’ve been meaning to blog about. Employee rights attorneys’ like myself are hesitant to take cases against small employers. This is true even when the employer is a franchisee (e.g. your local McDonald’s). Generally, franchisor’s (e.g. McDonalds corporate) isn’t liable for franchisee’s labor practices. Attorney’s like myself fear that we might litigate a case for two years, win a trial, but be unable to recover the full judgment because the local franchise doesn’t have very much money.

A recent case changes this in certain situations.  Patterson v. Domino’s Pizza, LLC held a franchisor can be held liable for alleged sexual harassment of an employee of the franchisee by a supervisor employed by the franchisee and for related claims.

The facts of the case are fairly common. Patterson was a teenage employee of Sui Juris, a Domino’s pizza franchisee. Renee Miranda was the assistant manager of that restaurant. Patterson claimed Miranda sexually harassed and assaulted her at work.

Patterson filed an action against Miranda, Sui Juris, and the franchisor Domino’s, alleging causes of action for sexual harassment in violation of Fair Employment and Housing Act (FEHA), failure to prevent discrimination, retaliation for exercise of rights, infliction of emotional distress, assault, battery and constructive wrongful termination. She claimed Sui Juris and Domino’s were Miranda’s employers and were vicariously liable for his actions under the legal doctrine of respondeat superior.

Continue reading →

Leave a Comment

Filed under FEHA – Fair Employment & Housing Act, Franchise, Harassment, Independent Contractor, Retaliation, Sexual Harassment

by | December 13, 2012 · 4:57 pm

What About Wages? Termination & Quitting

Wages on firing, termination, layoff, quitting, etc. Donald TrumpEveryone has either quit a job or been fired. Sometimes, employers take advantage of this transition period and fail to pay the employee for all the work that he or she has done. The California Labor Code addresses this vulnerable time and has come up with a series of statutes to protect workers.

Labor Code Section 201 – When an employee is fired, terminated, or laid off, their earned wages are due and payable immediately. This also applies to any vested vacation time.

Labor Code Section 202 – When an employee quits without notice their wages are due and payable within 72 hours. If the employee has given at least 72 hours notice, the employee is entitled to their wages at the time of quitting.

Labor Code Section 203 – If an employer willfully fails to pay any wages due to an employee who is discharged or who quits (pursuant to sections 201 and 202), the wages of the employee continue as a penalty from the due date until paid – up to 30 days. This means that your wages continue at the hourly rate you were earning when you quit or were fired for 30 days at 8 hours per day.

Labor Code Section 208 – Every employee who is discharged shall be paid at the place of discharge, and every employee who quits shall be paid at the office or agency of the employer in the county where the employee has been performing labor. All payments shall be made in the manner provided by law.

________________________

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.

Leave a Comment

Filed under Wages and Hours

by | December 11, 2012 · 11:07 pm

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.

________________________

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.

Leave a Comment

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

Tagged as , , , , , ,

by | December 9, 2012 · 2:50 pm

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].

Continue reading →

1 Comment

Filed under Tip Pooling, Wages and Hours

Tagged as , , ,