Although the video was more of a parody based on observations about iPhones and those who buy them, Best Buy understandably did not take kindly to an employee publicly criticizing one of its major customers (and also those who shop at Best Buy).

The employee was suspended during the investigation and it seemed to be just a matter of time before he was terminated, but Best Buy quickly withered under the harsh public backlash from the “geek” community and the company back-pedaled, citing their desire to promote a “supportive environment” for its employees as motivating their decision.

Best Buy publicly offered the employee his job back via a press-release, but he actually released a statement of his own essentially telling them he did not want his job back after being treated the way he was by Best Buy.

I am going to take the rare step of siding with the employer on this one.  The video the employee created (which I admit as an Android user I found uproariously funny) was watched by millions and at least briefly affected some of the public’s views on Apple, the iPhone and Best Buy.  I have to assume that Best Buy is one of the largest distributors of iPhones besides Apple directly and AT&T, so this employee’s actions caused the company at the very least a great deal of embarrassment.

After reading some of the informal commentary on the internet about this story (e.g. “He should sue them!”), I will offer up the following advice on the implications of California Employment law:  contrary to popular belief, the First Amendment has nothing to do with this case and only protects citizens from government action.  Except in limited circumstances that do not seem to apply to this situation, employers are free to terminate an employee for anything they post on the internet that is critical of them or their affiliates.

In sum, if you would not say it to your boss’s face, don’t post it on the internet where he can see it because he is free to respond as if you had.

Tags

California Employment Law | Policy : Opinion | Privacy | Retaliation | Wrongful Termination

We often attend unemployment appeal hearings on behalf of clients because they are also pursuing wrongful termination claims against their former employers.  This is both as a precautionary measure and a chance to obtain vital information at the outset of a case.

These hearings are conducted in front of an administrative law judge and under oath, so anything either side says can be used against them in later litigation.  If you think that your termination was illegal and that you might pursue claims against the company, I urge you to contact an attorney as soon as possible before the hearing.

If you testify at an unemployment appeal hearing without being prepared you could cause severe damage to your claims without even knowing it.  On the other hand, giving your attorney a chance to question the people who terminated your employment under oath without an attorney there to advise them is a tremendous opportunity.

I only started noticing companies like those mentioned in the NYT story in the last five years or so, but it is true that I have run into them more and more since the start of the country’s economic downturn.  The most disturbing aspect of these companies is that they seem to contest every single claim filed against an employer, knowing that some employees simply will not appeal a denial of their claim or will not show up at the hearing to fight the employer’s appeal.

Whenever I see a case where an employer contests an unemployment claim without any reasonable basis for doing so, there is almost always one of these companies on the other side pulling the strings.

However, one interesting thing I have noticed is that these companies almost never attend the appeals hearing if they find out the claimant has a lawyer.  To me this suggests that they do not even look at the merits of an unemployment claim unless they absolutely have to, which is a  terrible thing to do to a former employee.

In some counties, these appeals do not go to a hearing until months after the paperwork is filed.   Forcing an employee to go through a meritless appeal of their unemployment is a serious disruption in their life.  Instead of focusing on finding a new job, they have to worry about whether they will not only lose their benefits, but also have to pay back the unemployment they have already received.

Many states have passed laws that curtail some of the abuses these companies engage in, but California has yet to pass such a law.  Until then, employees should be vigilant in fighting for their unemployment and should not be intimidated if their employer tries to contest their claim.

Tags

California Employment Law | Unemployment | Wrongful Termination

George Washington once said:

Discipline is the soul of an army. It makes small numbers formidable; procures success to the weak, and esteem to all.

Letter of Instructions to the Captains of the Virginia Regiments [July 29, 1759]. The advocates of consumer rights, viewing the resources of defense firms and corporate defendants, can relate to the trepidation felt by the out-numbered and out-gunned Continental Army. Because of that disparity in resources, Consumer Attorneys of California ("CAOC") consolidates the voices of consumer attorneys throughout the state to (1) preserve and protect the constitutional right to trial by jury for all consumers, (2) champion the cause of those who deserve redress for injury to person or property, (3) encourage and promote changes to California law by legislative, initiative or court action, (4) oppose injustice in existing or contemplated legislation, (5) correct harsh, unjust and oppressive legislation or judicial decisions, (6) advance the common law and promote the public good through the civil justice system and concerted efforts to secure safe products, a safe workplace, a clean environment, and quality health care, (7) uphold the honor, integrity and dignity of the legal profession by encouraging mutual support and cooperation among members, (8) promote the highest standards of professional conduct, and (9) inspire excellence in advocacy. This post is a multi-blog effort to inform consumer attorneys about CAOC's value and encourage participation in CAOC through membership.

CAOC works tirelessly to protect or advance those causes of import to consumers and their attorneys in California. Often those efforts, though valuable, receive little fanfare. For example, CAOC recently sponsored SB 510, which affects the re-sale of what are known as "structured settlements," in which victims receive financial compensation over a period of time for medical expenses and basic living needs, as determined by a jury. Before SB 510 was signed by the Governor, Courts expressed frustration at their inability to prevent the sale of structured settlements on terms that might ultimately lead to long-term financial hardship for the victim. Now, SB 510 gives judges the information they need to make a reasoned decision about the propriety of a structured settlement sale.

Measures like CAOC-sponsored SB 510 help protect the most vulnerable members of our society and ask for nothing in return. They exemplify the spirit of CAOC. However, CAOC is only as effective in its mission as its membership allows it to be. When consumer attorneys join the ranks of CAOC, its voice gains in power and clarity. But if consumer advocates sit on the sidelines, hoping to benefit from the work of others, CAOC is stretched thin, and we are all at risk as a result.

Now, consumer advocate bloggers from across the state are combining their voices to call upon each and every lawyer and firm that regularly represents plaintiffs to join CAOC, thereby strengthening the consumer's first line of defense. The blogs participating in this unified call to action are:

• The Complex Litigator (H. Scott Leviant)
• The UCL Practitioner (Kimberly Kralowec)
• Bailey Class Action Daily (Matt Bailey)
• California Employee Rights Blog (James J. Peters)
• An Appeal to Reason (Donna Bader)
• California Personal Injury and Insurance Blog (Jonathan G. Stein)
• California Debt Blog (Jonathan G. Stein)
• TrialLawyerTips.com (Mitch Jackson and Lisa Wilson)
• California Injury Blog (John Bisnar)
• San Diego Injury Lawyer Blog (Ross A. Jurewitz)
• San Diego Car Accident Lawyer Blog (Ross Jurewitz
• San Diego Injury Accident Lawyer Blog (Ross A. Jurewitz)
• California Nursing Home Abuse Lawyer Blog (Walton Law Firm LLP)
• San Diego Injury Law Blog (Walton Law Firm LLP)
• California Personal Injury Law Blog (Norman Gregory Fernandez)
• Biker Lawyer Blog (Norman Gregory Fernandez)
• California Credit Law (Mark F. Anderson, Carol Brewer & Andy Ogilvie)
• Lemon Law Blog (Mark F. Anderson, Carol Brewer & Andy Ogilvie)

Show your support of consumers' rights by joining and supporting CAOC. Together we can make an impact that we cannot make alone.

Tags

California Employment Law | News

The new California employment law would allow employers to do checks on employees who handle large amounts of money or other sensitive positions.  While I recognize that in these situations there may be some correlation between a history of poor financial choices and the ability to do certain jobs, in today’s economy the usefulness of this information is, in my opinion, declining at the same time employers’ use of it as a hiring tool seems to be increasing.

I talk to potential clients every day with tragic stories of loss about being unemployed for months while desperately searching for new employment.  Many of these people are about to lose their homes, have had their automobiles repossessed and even have experienced the demoralizing reality of sending their children off to college this fall without being able to give them any assistance with their tuition or living expenses.

When I hear from these people that their recent poor credit history, which itself is usually a direct result of either unemployment or serious illness, is now the reason they cannot find a job, it makes me angry.  The problem is that many of these employers now receive dozens, if not hundreds of applications for a handful of positions, so the applicant never gets a chance to explain their situation before they are eliminated early in the process based solely on their credit report.

Studies have shown in the past that the average employee’s credit scores has no correlation with their job performance, but as a matter of public policy I think that when unemployment is in the double-digits throughout much of California this is an issue that needs to be dealt with sooner rather than later.

Tags

California Employment Law | Discrimination | Policy : Legislation | Policy : Opinion | Privacy | References

Vacation Pay

Under California employment laws, once employees have accrued vacation time, they must either be allowed to use it to take time off or have it paid out at termination.  This is commonly referred to as California's "no use-it-or-lose-it" rule.

Employees should also be aware that even if an employer calls it "Paid Time Off (PTO)" or a "personal day" instead of "vacation" it most likely must still be paid out.  Under California law, vacation pay is defined as any hours an employer provides an employee to take off for any reason.

One example of something which might not qualify as vacation pay is sick pay, which most employers only allow use of when an employee is sick.  Otherwise, most forms of PTO is the same thing as vacation pay.

Payment Must Be Made on Exact Termination Date

Whether you are owed accrued vacation pay, hourly wages, salary, commissions, or some other form of wages, an employer who terminates an employee MUST pay ALL money out on the last day of employment-no exceptions.

If this is not done, then an employee is entitled to "waiting time" penalties equal to one day of wages for each day the wages remain unpaid, including weekends and holidays, up to a maximum of thirty days.  These issues come into play even where the employer does not dispute that the employee is owed money.  For example, if the employer puts the check in the mail or does not pay all of the wages until the next payday, the employee is automatically entitled to penalties from their last day until they actually receive the check.

For example, if your employer does not pay out all of your vacation pay and you make $60,000 per year, after thirty days you would be entitled to approximately $7,000 in penalties even if the vacation is eventually paid out to you.

These are tough times for many laid-off employees.  They should make sure they receive all of the wages they are owed, since every dollar counts in making it through their unemployment.

Tags

California Employment Law | Vacation Pay | Wages and Hours

I think part of this might be attributable to a common employment law misconception among employees, which is that they somehow have less rights if they are "laid off" than if they had been "terminated".  The only real difference, though, is that when someone is being laid off it usually means several employees are being terminated at the same time.

In wrongful termination cases this does give the employer a bit of an advantage in mounting a defense by pointing out that the employee in question was not singled out but instead terminated as part of a "restructuring" or "downsizing" along with several others.

However, someone still has to decide who to layoff and if that person has biases against older workers, working mothers, employees with disabilities, etc. that can often show through in trends after examining the characteristics of who was let go versus who was kept.

Personal vendettas can also come into play by supervisors who, for example, may not like how one of their employees complains about working long hours without overtime pay and on that basis alone selects them for layoff.

The most important thing a laid-off employee can do to protect their employment law rights is to objectively look at the situation and consider whether it makes sense that they were laid off, but their peers were kept.  For example, who has the most seniority?  Where do they rank in sales performance?  Are their performance reviews better or worse than the others?

The next step is to consider whether there is any illegal reason the decision maker (or someone with their ear) would want them to be terminated instead of another, less-qualified employee.  If there is such a reason and it makes more sense than simply selecting them as the most logical person to be laid off, the employee might want to contact an employee rights attorney to run the situation by them.

The best barometer I have found in employment law cases is that if the employee can look at the situation objectively and feels in their "gut" that something is "fishy," that usually ends up being the case when we start digging deeper.

Tags

California Employment Law | Discrimination | Retaliation | Wrongful Termination

At the end of the consultation he said he was surprised at my response because he had spoken to another employee-rights firm in Southern California where they told him that he had a "great" case and wanted to pursue it for him.  While I know I may not always be right about the merits of a case, in this situation I was very confident in telling him that based on what he was telling me his case was definitely not "great" and likely non-existent.

I was suspicious about the situation, so I asked him about the other attorney he had seen and what sort of fee arrangement he was offered.  The firm had actually offered to represent him in exchange for (1) a large retainer fee (likely around $1-2,000) AND (2) an hourly fee agreement.  Of all the employee-rights attorneys I know in the California, this is the first firm I have seen that charges hourly fees.  Most other firms work on a contingency fee where the client pays nothing unless they recover damages on the client's behalf.

This area of the law is unique in that almost all of our clients are people who recently became unemployed and wonder if they will be able to pay their mortgage and keep their house, much less substantial attorney's fees.  We work almost entirely on contingency, although we do represent a few hourly clients, but usually just to review employment, severance and non-compete agreements.

Because attorneys in California generally charge $350-500 per hour, contingency fees are usually the only way a client can pursue these types of claims.  Fees add up very quickly and in an hourly billing arrangement clients can end up owing their attorney tens-of-thousands of dollars even if they lose.  This also creates a conflict of interest where it is actually in the attorney's best interest financially to drag a case out, perform unnecessary work and bill more hours.  Debates over these issues are raging in the legal community, such as in the article The Billable Hour Must Die published last year in the American Bar Association Journal.

The bottom line is that if you speak to an employee-rights attorney and they offer to take your case either (1) on an hourly basis or (2) on a contingency fee but also with a large up-front retainer fee, you should be wary.  At the very least you should get a second opinion from another firm and ask how they would charge to represent you.  Our firm, as well as others in California offer free consultations that can be done over the phone.

Tags

Attorney's Fees | Attorney-Client Issues | California Employment Law

A good example of this is Harman v. San Francisco (2007) 158 Cal.App.4th 407.  In that case, the jury ruled that the defendant had a policy of "reverse" discrimination against white males, but only awarded the employee $30,300 in compensatory damages, including lost wages, etc.  However, the court also awarded Mr. Harman over $1 million in attorney's fees.

The case lasted almost eight years between the trial and appeals, but in the end the employee prevailed.  When a client wins and is entitled to attorney's fees, the court evaluates how much time the attorney spent on the case and sets an hourly rate comparable to similar attorneys in the community.  Unless the attorney performed substantial, time-consuming tasks for the case which were clearly unnecessary, all of the time will be reimbursed by the defendant.

Although several management-side employment attorneys were outraged by this decision, the employee (and his attorney) should not be penalized for spending the necessary time on the case to win.  While our firm does a great deal of litigation and we do not mind "fighting", we start almost every case with a good-faith attempt at exploring informal settlement options with the defendant employer.  Both sides should want to do this for the simple fact that once attorney's fees start accumulating, both sides become more adversarial and "invested," so they feel they have to "win".

Most savvy employment defense counsel are aware that where a claim appears to be valid, it is very much in their client's best interest to at least try and resolve the case quickly.  This case is a prime example of a situation where the defendant likely could have settled for a fraction of what they ended up paying, yet they instead chose to "fight" and paid the price.

I am not suggesting that employees (or attorneys) should pursue (or refuse to settle) cases solely to rack up substantial attorney's fees, but if a case has merit the employee should not have to wonder if their lawyer's bill will be more than what they actually recover in the case, which is the case is many other parts of the country.

Tags

Attorney's Fees | California Employment Law | Discrimination | Policy : Opinion

After all, many of our clients recently lost their job and are either still unemployed or are trying to get back on their feet after unemployment.

We take many of our case on a "contingency-fee" basis, which generally means that a client does not have to pay us any fees unless we recover something of value (usually money) for them. At that point, we take a percentage of whatever we recover as our fee.

Whether or not we are willing to represent a client on a contingency-fee basis depends on numerous factors. When we take a case for a contingency fee, we take a very big risk. If the case is not successful, we may have expended tens-of-thousands of dollars of our time for nothing.

Even if we are not willing to take your case on a contingency-fee basis, we have a number of other options to fit your financial situation, such as payment plans and "hybrid" agreements.

Tags

Attorney's Fees | Attorney-Client Issues | California Employment Law

Most employers are defended by very large, powerful firms, so employees must choose wisely when selecting a lawyer to go up against them. Many other employee rights firms take on too many cases, are inefficient and have high attorney turnover rates. These problems often mean that your attorney is difficult to get in touch with and your case does not move along as quickly as it should. Through the use of technology and efficient processes, we have eliminated these problems.

Also, some firms that claim to do employment law also practice many other different kinds of law. This means that they are unable to truly "specialize" and stay current on this constantly-changing and challenging area of the law. In our opinion it is impossible for an attorney to practice both employment law and another type of law at the same time.

Whether you have been wrongfully terminated, are owed unpaid wages or have otherwise had your rights violated by a current or former employer, please contact us for a free consultation. If you have claims you wish to proceed on, we offer competitive, affordable fees and usually our clients do not have to pay us any money at all unless we recover money for them.

We look forward to the chance to serve you.

Tags

California Employment Law

In California, this doctrine has been widely expanded by courts and provided employees extra protections that are far too numerous to detail here. In a very narrow "nutshell," some general things which suggest a termination might be wrongful include:

1. You were terminated for refusing to do something illegal;
2. You were terminated for doing something California or federal law gives you the right to do;
3. You were terminated for complaining about something at work;
4. You were terminated for complaining to a third party about your employer;
5. You were terminated for reasons that just do not "feel" right; or
6. The reasons you were given for your termination just do not make any sense and seems to be a "cover up" for another reason.

If you believe you have been wrongfully terminated, we invite you to contact us today for a free consultation to discuss this and any other employment law questions you might have.

Our employee rights attorneys practice employment law and only represent employees not employers and we are committed to enforcing your rights as an employee. We also offer competitive fees, including contingency fee arrangements in most cases.

Tags

California Employment Law | Discrimination | Retaliation | Wrongful Termination